Blame it on the WTO: a human rights critique

Joseph, Sarah

2013

Oxford University Press

he World Trade Organization (WTO) is often accused of, at best, not paying enough attention to human rights or, at worst, facilitating and perpetuating human rights abuses. This book weighs these criticisms and examines their validity, incorporating legal arguments as well as some economic and political science perspectives. After introducing the respective WTO and human rights regimes, and discussing their legal and normative relationship to each other, the book presents a detailed analysis of the main human rights concerns relating to the WTO. These include the alleged democratic deficit within the Organization and the impact of WTO rules on the right to health, labour rights, the right to food, and on questions of poverty and development. Given that some of the most important issues within the WTO concern its impact on poor people within developing States, the book asks whether rich States have an obligation to the people of poorer States to construct a fairer trading system that better facilitates the alleviation of poverty and development. Against this background, the book examines the current Doha round proposals as well as suggestions for reform of the WTO to make it more ‘human rights-friendly’.

Law

Economics

Political Science

English

978–0–19–956589–4 (online)

978–0–19–968976–7 (prints)

BL A M E I T ON T H E W TO?

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Blame it on the WTO?
A Human Rights Critique

S A R A H JOSE PH

1
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Foreword
When the World Trade Organisation (WTO) was established in 1995, few
human rights lawyers at the time realized the significance of this event for their
discipline. In part, this may have been because the creation of the WTO followed more than a decade of neoliberal policies characterized by deregulation
and the removal of barriers to trade and investment in many regions. Although it
strengthened the system originally established under the General Agreement on
Tariffs and Trade in 1947, the WTO was not seen to represent a seismic shift: it
was the final stage of a gradual evolution, rather than the beginning of something
radically new.
The relative indifference of human rights lawyers also stemmed from a lack
of understanding of the consequences of this ambitious overhaul of the global
trade system. The WTO was deliberately placed outside the remit of the United
Nations. With its establishment, the international trade system included for the
first time a dispute settlement mechanism of a quasi-judicial nature, binding upon
the WTO Members, and which could allow economic sanctions to be imposed
on States that failed to comply with the disciplines imposed on them. Indeed, in
retrospect, it is this aspect of the WTO Agreement that appears both the most
novel and that has the most far-reaching consequences. Most notably, it created
an imbalance between the commitments of States under the WTO framework
and their other international obligations, including those under human rights
treaties: should conflicts emerge between the two sets of obligations, States may
be tempted systematically to prioritize their duties under the WTO, because of
the sanctions attached to non-compliance, leaving aside the comparatively ‘softer’
commitments made under human rights treaties.
As this important book by Sarah Joseph shows, things are now changing. The
problems arising from the fragmentation of international law are increasingly
being acknowledged, and solutions are being explored to overcome them. Due to
the ‘special nature’ of human rights treaties, which are irreducible to exchanges of
undertakings between States,¹ merely to state that these treaties are paramount,
will not suffice. We need to work towards practical ways of avoiding conflicts
whenever possible, and of solving conflicts when they emerge, in ways that do not
lead to the sacrifice of human rights on the altar of increased trade, even for the
sake of economic growth.
And progress is being made. Increasingly, human rights treaty bodies—in
particular, the Committee on Economic, Social, and Cultural Rights—insist
that States comply with their ‘extraterritorial obligations’. That is, States must
ensure that the measures they adopt unilaterally or the international agreements
¹ Inter-American Court of Human Rights, Case of the Sawhoyamaxa Indigenous Community v
Paraguay, Judgment of 29 March 2006, Series C No 146, para 140.

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vi

Foreword

they negotiate, have no adverse impact on the human rights of persons outside
their national territory; and that they protect human rights outside their borders
by appropriately regulating non-State actors over which they are able to exercise
influence.² As this book goes to print, a group of international experts are seeking
to restate the existing international law in this area, focusing on economic, social,
and cultural rights. The obligations of international assistance and cooperation
have further strengthened the need for imposing a broad range of extraterritorial
obligations, extending beyond cases in which a State directly influences a situation
abroad through the activities of its agents. The emergence of extraterritorial obligations in human rights discourse will, of course, help to redefine the relationship
between trade and human rights. First, it will restrain States from concluding trade
agreements that may have a negative impact on the enjoyment of human rights by
populations under the jurisdiction of the other party. Second, it will prohibit States
from implementing trade policies liable to have such a negative impact, including, among others, practices of dumping and the use of trade dispute settlement
mechanisms in order to force the other party to renounce the adoption of certain
policies by which it seeks to protect the human rights of its own population.
At the same time, following the recommendations made by a number of human
rights treaty bodies and the special procedures developed by the Human Rights
Council,³ the practice of human rights impact assessments of trade agreements is
underway. The European Commission is preparing sustainability impact assessments of the agreements concluded between the European Union and third countries on a systematic basis since 2002. It has now acknowledged that, in order to
take into account the binding status of the EU Charter of Fundamental Rights
² Committee on Economic, Social, and Cultural Rights, General Comment No 12 (1999), The
right to adequate food (art 11), E/C.12/1999/5, paras 19 and 36 (‘States parties should, in international agreements whenever relevant, ensure that the right to adequate food is given due attention’);
Committee on Economic, Social, and Cultural Rights, General Comment No 14 (2000), The right
to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social
and Cultural Rights), E/C.12/2000/4 (2000), para 39 (‘In relation to the conclusion of other international agreements, States parties should take steps to ensure that these instruments do not adversely
impact upon the right to health’); Committee on Economic, Social, and Cultural Rights, General
Comment No 15 (2002), The right to water (arts 11 and 12 of the International Covenant on Economic,
Social and Cultural Rights), UN Doc E/C.12/2002/11 (26 November 2002), paras 31 and 35–6
(‘States parties should ensure that the right to water is given due attention in international agreements and, to that end, should consider the development of further legal instruments. With regard
to the conclusion and implementation of other international and regional agreements, States parties should take steps to ensure that these instruments do not adversely impact upon the right to
water. Agreements concerning trade liberalization should not curtail or inhibit a country’s capacity
to ensure the full realization of the right to water’).
³ See, eg, Committee on Economic, Social, and Cultural Rights, Concluding Observations
regarding Ecuador, 7 July 2004, E/C.12/1/Add.100, para 56; Committee on the Rights of the Child,
Concluding Observations regarding El Salvador, 30 June 2004, CRC/C/15/Add.232, para 48;
Committee on the Elimination of Discrimination against Women, Concluding Observations regarding Colombia, 2 February 2007, CEDAW/C/COL/CO/6, para 29; Committee on the Elimination
of Discrimination Against Women, Concluding Observations regarding Philipines, 25 October
2006, CEDAW/C/PHI/CO/6, para 26; Committee on the Elimination of Discrimination Against
Women, Concluding Observations regarding Guatemala, 2 June 2006, CEDAW/C/GUA/CO/6,
para 32; Report of the Special Rapporteur on the right to food, Addendum: Mission to the World
Trade Organization, 4 February 2009, A/HRC/10/5/Add.2, paras 37–8.

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Foreword

vii

within the EU legal order, the impact of trade agreements on fundamental rights
should be systematically assessed in the future.4 In order to provide guidance to
States in preparing such human rights impact assessments, I have presented a draft
set of guiding principles on human rights impact assessments of trade and investment agreements, in my official capacity as the UN Special Rapporteur on the right
to food. The draft guiding principles—still under discussion at the time of writing
this Foreword—define the preparation of human rights impact assessments as an
obligation of States, which are bound by pre-existing human rights treaty obligations and are therefore prohibited from concluding any agreements that would
impose inconsistent obligations on them. This measure, the guiding principles
argue, imposes on States a duty to identify and resolve any potential inconsistency
between pre-existing human rights treaties and subsequent trade or investment
agreements. The draft guiding principles also refer to the right of every citizen
to take part in the conduct of public affairs, recognized under the International
Covenant on Civil and Political Rights;5 the implication is that no trade or investment agreement should be concluded in the absence of a public debate, which
should be informed precisely by human rights impact assessments.
Yet, as attempts are being made to reconcile trade agreements—particularly
commitments made by States within the WTO framework—with human rights,
three major difficulties emerge.
The first difficulty stems from the fact that economic, social, and cultural rights,
while they do impose certain immediate obligations, are also subject to progressive
realization, depending on the resources available to each State. Therefore, in order
for the conclusion of trade agreements to be compatible with a State’s human rights
obligations, it is not sufficient simply to ensure that such agreements do not impose
directly conflicting obligations on that State. The State must preserve a certain
‘policy space’ that will allow it to take measures whereby it discharges its obligation
to ‘fulfil’ human rights: for instance, by enlarging access to certain public services,
such as health or education, or by supporting access to basic necessities, such as
food and housing. In order to ensure that a State is never prohibited from moving in this direction because of commitments—such as restrictions on subsidies
liable to be trade distorting—made under previously agreed trade agreements, a
general safeguard clause would be desirable. Such a clause would assert that the
trade agreement is never to be interpreted as imposing a prohibition or creating an
obstacle to the ability of a State to comply with its human rights obligations.
However, even that may not be enough. When a State moves towards the realization of human rights by choosing to implement certain policies that seek to
improve the accessibility of goods or services conducive to the enjoyment of such
rights, it is generally encouraged—but not, strictly speaking, obliged—to do so. In
the area of human rights, States should be seen as having to score as high as they
4 Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions, ‘Smart Regulation in the
European Union’, COM(2010) 543 final of 8 October 2010, 7.
5 International Covenant on Civil and Political Rights, GA res 2200A (XXI), 21 UN GAOR
Supp (No 16) at 52, U.N Doc A/6316 (1966), 999 UNTS 171, art 25 (a).

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viii

Foreword

can on a scale, and a ‘violations’ approach is not particularly apposite to effecting
this situation: therefore, identifying ‘conflicting’ commitments made under trade
agreements may not be sufficient. What is needed is an assessment of the ability of
the State, in the mid- to long-term—and not only at the time when it enters into a
trade agreement—to implement certain policies in a wide range of areas that can
support the full realization of economic, social, and cultural rights. The further we
move in this direction, the less a purely legal approach—comparing different obligations with one another to assess whether or not they are ‘compatible’—will lead
to satisfactory results, and the more economic modelling will be required. In my
view, one way out of this difficulty may be to insist on States adopting a multi-year
strategy for the realization of the various human rights they are bound to implement (or, perhaps, one single human rights action plan covering the full range
of these obligations): only the trade agreements that would facilitate the implementation of the said strategies should be considered compatible with the human
rights obligations of the State. The adoption of human rights national strategies,
and making trade agreements conditional upon their contribution to such strategies, would be one way to ensure that the benefits expected from trade—such as
economic growth and an increase in export revenues—would be treated as means
that should serve the fulfilment of human rights, rather than—as is too often the
case—as ends in themselves, to which human rights may even be subordinated.
But we encounter a second difficulty in the tension between the short- and
long-term considerations that guide States in the commitments they make to
remove barriers to trade. That is, that the deepening of the international division
of labour, which may bring about certain immediate benefits, may however not
work in favour of the long-term development of poor countries, and thus of their
ability to promote the full realization of human rights. As already noted by the
United Nations Economic Commission for Latin America under the leadership of
Raúl Prebisch in the 1950s, countries that export raw commodities need to export
increasing volumes in order to import the manufactured products, with a higher
added technological value, that they are unable to produce themselves. Thus, in the
long term, the removal of barriers to trade, which accelerates the specialization of
each country in the kind of production in which it has a comparative advantage,
will not benefit the least industrialized countries: while trade liberalization may
bring them short-term advantages—they will increase their exports of agricultural
products and pay less for their imports of manufactured goods than if they had to
produce such goods themselves—the long-term consequences will be a widening
of the gap between rich and poor countries, and an inability on the part of the latter to climb up the ladder of development.
That, in essence, is what has come be known as the Prebisch-Singer thesis of
deteriorating terms of trade. It leads to the idea that international trade, replicating the patterns of colonialism, may in fact accentuate the dependency of developing countries on the former colonial powers, and make it impossible for these
countries to overcome the obstacles to development. These views are currently
being revived, with some variations, by economists such as Ha-Joon Chang or Erik
Reinert, who note that rich countries have become rich thanks to the protection of

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Foreword

ix

their nascent industries, and that they now preach free trade to developing nations
simply because, having climbed up the ladder of development, free trade is now in
their interest.6 Globalization, they remark, has benefited the countries—such as,
for example, Brazil, China, South Korea, or India—which carefully sequenced
trade liberalization, and which built an industry and a services sector behind trade
barriers before opening up to trade. But for the developing countries that had not
diversified their economies and whose industrial sector was still too weak at the
time when the economies opened, it has meant the relegation to a permanent status of underclass nations.7
These views pose a clear challenge to the assessment of the impacts of trade liberalization on human rights: how to rank the immediate benefits against the longterm development impacts? How can the dimension of sustainability enter into the
human rights equation? Should we say, to take the idea of sustainability at its word,
that policies that seek to promote human rights today (as trade is sometimes alleged
to do), should not be at the expense of the ability of States to promote human
rights in the future? It is of course ironic that, in general, the tables are turned
in exactly the opposite direction: in discussions about the relationships between
human rights and trade, the free traders typically argue that the benefits of trade
will be visible in the long term—that is, once the economic actors have adjusted to
the new conditions it creates—even though there may be negative impacts in the
short term—the so-called ‘transition (or adjustment) costs’. That the positions are
thus so easily exchanged shows the considerable degree of confusion that is now
clouding the debate.
Finally, and linked to the previous point, there is the problem of trade-offs.
Trade agreements will typically benefit certain groups, making them better off,
and hurt others, whose situation will be made more fragile as a result. In particular, trade agreements may contribute to economic growth and thus may facilitate
the ability of the State to mobilize budgetary resources allowing it to finance certain public goods in the areas of health, education, or housing. At the same time,
they may negatively affect the situation of certain groups, such as workers in the
least efficient sectors of the economy or local producers affected by dumping of
imported products on the local markets. In such cases, difficult choices will have to
be made about the priorities that the State seeks to pursue. Human rights impact
assessments seek to clarify the nature of such choices, and to ensure that they are
made on the basis of the best information available.
The question of which trade-offs are acceptable is to be decided at the level of
each country, through open and democratic processes, informed by human rights
6 See Ha-Joon Chang, Kicking Away the Ladder. Development Strategy in Historical Perspective
(Anthem Press, London, 2002) ; Ha-Joon Chang, Bad Samaritan. The Guilty Secrets of Rich Nations &
the Threat to Global Prosperity (Random House, London, 2007); Erik S Reinert, How Rich Countries
Got Rich and Why Poor Countries Stay Poor (Constable, London, 2007).
7 See also Joseph E Stiglitz and Andrew Charlton, Fair Trade for All. How Trade Can Promote
Development (Oxford University Press, Oxford, 2005, rev edn 2007) 17 (‘To date, not one successful
developing country has pursued a purely free market approach to development. In this context it is
inappropriate for the world trading system to be implementing rules which circumscribe the ability
of developing countries to use both trade and industry policies to promote industrialization’).

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x

Foreword

impact assessments. Yet, the process of setting priorities and managing tradeoffs, as well as the substance of the outcome, must comply with certain conditions. First, the process of setting priorities must involve effective participation
of all stakeholders, including the poorest and most vulnerable segments of the
population. The institutional mechanisms through which impact assessments are
prepared and which feed into political decision-making must therefore allow for
the views of these stakeholders to be fully taken into account, either directly or
through their legitimate representatives. Second, the principles of equality and
non-discrimination rule out any trade-offs which would result in or exacerbate
unequal and discriminatory outcomes such as, for example, giving priority to providing health and education services to the more affluent parts of society, rather
than to the most disadvantaged and marginalized groups. Third, any trade-off
that results in a retrogression in the level of protection of a human right should be
treated as highly suspect: trade-offs whereby one right suffers a marked decline in
its level of realization would need to be subject to the most careful consideration
and to be fully justified by reference to the totality of human rights.
The issues above are only some of the difficult and highly contentious questions
that are raised in the emerging dialogue between trade and human rights. Building
on her unparalleled knowledge of human rights, Sarah Joseph makes an important contribution to this dialogue, at a particularly propitious time—a time when
global capitalism is being reshaped in fundamental ways, and when human rights
lawyers are developing tools to ensure that the choices that are made will move us
in the right direction. I am grateful to her for not evading any difficult question,
and for her continued commitment to this dialogue.
Olivier De Schutter
United Nations Special Rapporteur on the right to food
Professor at the University of Louvain
Visiting Professor, Columbia University

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Preface
This book is the culmination of my work on an Australian Research Council
grant on ‘The WTO and Human Rights’. Most of it was written at the end of
2009 during a period of sabbatical at the Lauterpacht Centre for International
Law, Cambridge University, and a lot of its ideas gleaned in two prior stints at the
Lauterpacht in 2006 and 2007. I can thoroughly recommend the Lauterpacht as a
lively and friendly place to write and share research. In that regard I must thanks
its directors and staff at the time, James Crawford and Roger O’Keefe, Anne
Skinner, Katie Hargreaves, Anita Rutherford, and Karen Fachechi, for their help
and hospitality. And also all the other researchers and visiting scholars. . . . I won’t
name you all because I’ll undoubtedly, inadvertently, leave someone out.
Some writing was also done, because ‘I had to get this finished lest I go mad’,
during a retreat at The Last Villa in Sandy Bay in Hobart in early 2010. Again,
that place is recommended for anyone who has to ‘get away’ to punch out a chapter (or just to relax in fine surrounds). Thanks also to Elise Histed in Hobart (and
of course Libscombe Larder).
As a human rights lawyer, it was very difficult to wrap my head around the
intricacies of WTO law and free trade theory. So of course I had a lot of help, and,
in that respect, I must thank Jürgen Kurtz, Andrew Lang, Gig Moon, Amrita
Narlikar, Jeff Waincymer, and also my brother Rob, especially for providing the
missing link in my understanding of ‘comparative advantage’ (‘opportunity cost’,
for the record). And also, for their invaluable feedback on my chapters: Olivier
De Schutter (thanks too for his thought-provoking foreword), Chip Pitts, Frank
Garcia, Scott Coleman, Adam McBeth, Melissa Castan, and Jenny Schultz (the
latter being the person who first introduced me to the WTO over a decade ago).
And there were many others who helped me with ideas and conversations, including Lorand Bartels, Iain Byrne, Rowena Cantley Smith, Thomas Cottier, Patrick
Emerton, Joanna Gomula, Robert McCorquodale, James Harrison, David
Kinley, Aileen Kwa, Justin Malbon, Gabrielle Marceau, Justine Nolan, Thomas
Pogge, Margot Salomon, Sigrun Skogly, and Margaret Young. Of course, any
errors in the text are my own.
Special thanks also to Susie Talbot, who was a meticulous and proactive
researcher on this book. It was great knowing that I could email my chapters
across the sea to have them returned on time exactly as I needed them. Thanks of
course goes to Oxford University Press, who were patient with my lateness and
then very diligent in getting this out for the Northern summer. So thanks to John
Louth, Merel Alstein, and Ela Kotkowska. And also I must thank the Monash
University Faculty of Law, especially its support with teaching-free periods of
research, and its library and computer staff.

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xii

Preface

And finally thanks to friends and family, apart from those already mentioned
above, for their support, especially during my crankier moments!
Sarah Joseph
Castan Centre for Human Rights Law
Monash University, Melbourne
February 2011

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Preface to the Paperback Edition
In advance of the paperback edition, I make the following brief comments on
developments since original publication in 2011. Little progress has been made
with the Doha round negotiations, which continue to sputter.
The most positive development concerns TRIPS and the least developed
countries. The deadline for their full compliance with TRIPS was extended
from 2013 to 2021. Furthermore, the prohibition on the rolling back of existing
intellectual property rules for LDCs was excluded in this new extension, which
seems to give them much-needed flexibility. Beyond that initiative, none of the
concerns raised in this book have been addressed.
Pascal Lamy will end his term as the WTO Director-General on 1 September
2013. His successor will be Brazil’s Roberto Carvalho de Azevêdo.
New members have joined the WTO, namely Vietnam, Laos, Samoa,
Montenegro, Tajikistan and, most importantly due to the size of its economy,
Russia. Interestingly, the Ukraine, which only joined the WTO in 2008, is seeking to renegotiate the terms of its accession protocol, as it argues that its commitments were made in the expectation of a swift end to the Doha Round.
Concerns over spiraling global food prices, discussed in Chapter 6, have
returned. There have also been interesting WTO cases. It has been confirmed that
the Agreement on Technical Barriers to Trade (the TBT, discussed in Chapter 4)
can apply to restrict mandatory labeling requirements. Challenges to Canadian
subsidies on renewable energy, as well as a US ban on clove cigarettes, have succeeded, again confirming the real impact of WTO rules on “non-trade” areas such
as health and the environment. Two ongoing cases will also shed light in this
area: a challenge to the European Union’s ban on seal products and a challenge
to Australia’s laws which mandate plain packages for tobacco products to reduce
their consumer appeal.
I thank the wonderful staff at Oxford University Press for their marketing
efforts with this book, and their demonstration of faith in it by proceeding to a
paperback edition. And thanks too to all who have read it and sent feedback.
Sarah Joseph
June 2013

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Contents
Table of Cases
Table of Conventions, Declarations, and other Instruments
Abbreviations
Introduction
1 Introducing the WTO and International Human
Rights Law Regimes
A. The World Trade Organization
Raison d’ être of the WTO

B. The International Human Rights Regime
UN standards
UN human rights institutions and enforcement machinery
Regional systems
The ICCPR and the ICESCR
Differences between the ICCPR and the ICESCR
Positive and negative rights
The tripartite nature of all human rights

C. A Closer Look at Economic, Social, and Cultural Rights
Progressive obligations
Maximum available resources
Immediate obligations under the ICESCR
Justiciability of ICESCR rights

D. Human Rights and Customary International Law
E. Conclusion
2 Relationship between the WTO and International
Human Rights Law
A. Underlying Values
Freedoms and rights under trade law and human rights law
Non-discrimination
Rule of law
Economic efficiency and enhanced welfare
Cultural and economic relativism

B. Normative Relationship between the WTO and
International Human Rights Law
WTO jurisprudence and human rights
Human rights jurisprudence and the WTO

C. Conclusion

xxi
xxvii
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7
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27
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46
50
54
55

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Contents

xvi

3 Democratic Deficit and the WTO
A. The Two Components to the WTO/Democratic Deficit Argument
‘Non-trade’ interests
Developing States
Dispute settlement
WTO secretariat
Conclusion on WTO processes

B. The Relevance of International Human Rights Law
C. Democratic Deficit, the WTO, and the International
Human Rights Law Regime: A Comparison
Democratic deficit and the international human rights regimes
Comparison with the WTO
Conclusion

D. Does the WTO Promote Democracy?
E. The Paradox of Power Politics and Participation
Rights in the WTO
F. Conclusion
4 ‘Human Rights’ Restrictions on Trade
A. Human Rights Trade Measures
General human rights sanctions
Product-based trade measures based on human rights

B. Do Human Rights Trade Measures Prima Facie
Breach GATT/GATS?
‘Like’ goods and services
Discrimination against ‘like’ goods
Quantitative restrictions

C. Articles XX GATT and XIV GATS
Extraterritorial application of Article XX exceptions
Process of interpreting Article XX and Article XIV exceptions
Protection of public morals and public order
Protection of health
The test of ‘necessity’
Protection of environment
The chapeau
Conclusion on GATT/GATS jurisprudence

D. The SPS and TBT Agreements
The SPS
The TBT

E.
F.
G.
H.

Waivers
A ‘Labour Rights’ Clause for the WTO?
The Potential Emancipatory Effect of ‘Good’ Trade
Conclusion

56
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67
68
71
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96
97
98
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102
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107
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110
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129
130
137
140

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Contents
5 The WTO, Poverty, and Development
A. Poverty and Human Rights Violations
B. Current WTO Rules and Developing States
Bias against developing States within the WTO
Special and differential treatment

C. The Uruguay Round Bargain
GATS
TRIPS
TRIMS
Non-tariff barriers
Accession
The Northern side of the bargain
Conclusion on current WTO rules

D. Free Trade, Economic Growth, and Poverty
Comparative advantage: theory and practice
Freer trade and economic growth
Freer trade, poverty, and inequality

E. Liberalization and Development: The Way Forward for
Developing States
Loss of tariff revenue
Institutional reforms and social safety nets
Static and dynamic comparative advantage
Infant industry protection
Conclusion

F. Developing States, the WTO, and Human Rights
G. Conclusion
6 The WTO and the Right to Food
A. The Right to Food
World hunger statistics

B. Trade and Food
WTO agricultural rules

C. Food and Trade: An Uneasy Combination
Subsidized imports and food aid
Trade efficiency and food
Volatile markets
Cartelization
Export orientation
Specialization
Environmental damage
Conclusion

D. Empowering Smallholder Farmers
E. Food and Intellectual Property
F. Conclusion

xvii
142
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149
150
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155
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207
210

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Contents

xviii

7 TRIPS and the Right to Health
A. Intellectual Property Protection: A Human Right?
B. The Right to Health
C. Arguments in Favour of Patents
D. TRIPS Requirements for Pharmaceutical Patents
Does TRIPS permit States to comply with human rights duties
regarding access to drugs?

E. A Reconsideration of the Justification for Intellectual Property
Problems regarding patents in the pharmaceutical industry
A radical proposal?
Other alternatives to IP

F. The IP Maximalist Trend
G. Conclusion
8 Extraterritorial Human Rights Duties
A. Extraterritorial Obligations under International
Human Rights Law
The Declaration on the Right to Development and
Millennium Development Goals

B. Treaties
ICCPR
ICESCR

C. Responsibility and Causation in a World of
Inequality and Neediness
D. Practical Operation of Extraterritorial Duties
E. Balancing Human Rights in North and South
F. Conclusion
9 WTO Reform, the Doha Round, and Other Free Trade Initiatives
Chapter 3 and democratic deficit
Chapter 4 and human rights trade measures
Chapters 5 and 6: developing States and the WTO
Chapters 6 and 7: TRIPS and human rights

A. Potential Reforms in Light of the Issues Raised in Chapters 3 to 7
Deferential doctrines
Obligations of non-discrimination rather than minimum standards
Respecting consumer choice
A caveat regarding the first three reform proposals
A human rights exception and a social clause
Human rights impact assessments
A Human Rights Declaration
Deferring to expert opinion
Conclusion

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248
249
255
259
261
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267
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270
271
272
274
274
275

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Contents
B. The Doha Development Round: The Story So Far
Agricultural negotiations
Non-Agricultural Market Access (NAMA)
Other
Other free trade agreements

C. Conclusion

xix
276
277
278
279
281
283

10 Conclusion
A. Free Trade Fundamentalism
B. The Purported ‘Neatness’ of Free Trade Rules
C. Global Free Trade: Efficiency and Distribution
D. Equalizing the Regimes
E. Final Thoughts

285
288
290
291
293
296

Bibliography
Index

299
319

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Table of Cases
EU ROPE A N COU RT OF HU M A N R IGHTS
Al-Adsani v UK (2001) 34 EHRR 273. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Bankovic et al v Belgium et al (2007) 44 EHRR SE5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 249
Behrami and Behrami v France; Saramati v France, Germany and Norway (2007)
45 EHRR SE10 (joined cases) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi (Bosphorus Airways) v
Ireland (2006) 42 EHRR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 55
Handyside v UK (1976) (Application no. 5493/72) Series A/24 . . . . . . . . . . . . . . . . . . . . . . . . . 46
Issa v Turkey (2005) 41 EHRR 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
McElhinney v Ireland (2001) 34 EHRR 322 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Soering v UK (1989) 11 EHRR 439 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
Waite and Kennedy v Germany (1999) 30 EHRR 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
U NIT ED NAT IONS
Human Rights Committee
A v Australia, UN doc. CCPR/C/59/D/560/1993 (30 April 1997) . . . . . . . . . . . . . . . . . . . . . . 79
Adam v Czech Republic, UN doc. CCPR/C/57/D/586/1994 (25 July 1996) . . . . . . . . . . . . . . . 34
Alzery v Sweden, UN doc. CCPR/C/88/D/1416/2005 (10 November 2006) . . . . . . . . . . . . . 251
Belyatsky et al v Belarus, UN doc. CCPR/C/90/D/1296/2004 (24 July 2007) . . . . . . . . . . . . 107
Beydon v France, UN doc. CCPR/C/85/D/1400/2005 (28 November 2005) . . . . . . . . . . . . . . 74
Broeks v Netherlands, UN doc. CCPR/C/29/D/172/1984 (9 April 1987) . . . . . . . . . . . . . . . . . 27
Brun v France, UN doc. CCPR/C/88/D/1453/2006 (23 November 2006) . . . . . . . . . . . . . . . 75
Celiberti de Casariego v Uruguay, UN doc. CCPR/C/13/D/56/1979 (29 July 1981) . . . . . . . . 248
Domukovsky et al v Georgia, UN doc. CCPR/C/62/D/623, 624, 626 and 627/1995
(29 May 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
H v d p V Netherlands, UN doc. CCPR/C/29/D/217/1986 (8 April 1987) . . . . . . . . . . . . . . . . 55
Judge v Canada, UN doc. CCPR/C/78/D/829/1998 (5 August 2002) . . . . . . . . . . . . . . . . . . 251
Kuok Koi v Portugal, UN doc. CCPR/C/73/D/925/2000 (8 February 2002) . . . . . . . . . . . . . . 18
Ilmari Länsman et al v Finland, UN doc. CCPR/C/52/D/511/1992 (8 November 1994) . . . . . 80
Jouni Länsman, Eino Länsman and the Muotkatunturi Herdsmen’s Committee v
Finland, UN doc. CCPR/C/83/D/1023/2001 (15 April 2005)
(Human Rights Committee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Jouni Länsman et al v Finland, UN doc. CCPR/C/58/D/671/1995 (22 November 1996) . . . . 80
Lee v Republic of Korea, UN doc. CCPR/C/84/D/1119/2002 (23 August 2005) . . . . . . . . . . 107
Lopez Burgos v Uruguay, UN doc. CCPR/C/13/D/52/1979 (29 July 1981) . . . . . . . . . . . . . . . 248
Mikmaq Tribal Society v Canada, UN doc. CCPR/C/43/D/205/1986
(3 December 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Montero v Uruguay, UN doc. CCPR/C/18/D/106/1981 (31 March 1983) . . . . . . . . . . . . . 248–9
Munaf v Romania, UN doc. CCPR/C/96/D/1539/2006 (21 August 2009) . . . . . . . . . . . . . . 249
Ominayak v Canada, UN doc. CCPR/C/38/D/167/1984 (10 May 1990) . . . . . . . . . . . . . . . . . 46
Poma Poma v Peru, UN doc. CCPR/C/95/D/1457/2006 (24 April 2009) . . . . . . . . . . . . . . . . 76
Sayadi and Vinck v Belgium, UN doc. CCPR/C/94/D/1472/2006 (2008) . . . . . . . . . . . . . . . . 54
Simunek v Czech Republic, UN doc. CCPR/C/54/D/516/1992 (19 July 1995) . . . . . . . . . . . . . 34
Stalla Costa v Uruguay, UN doc. CCPR/C/30/D/198/1985 (9 July 1987) . . . . . . . . . . . . . . . . 39
Toonen v Australia, UN doc. CCPR/C/50/D/488/1992 (4 April 1994) . . . . . . . . . . . . . . . . . . 46
Waldman v Canada, UN doc. CCPR/C/67/D/694/1996 (5 November 1999) . . . . . . . . . . . . . 27

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xxii

Table of Cases

Committee Against Torture
Agiza v Sweden, UN doc. CAT/C/34/D/233/2003 (24 May 2005) . . . . . . . . . . . . . . . . . . . . . . 251
Committee on the Elimination of Discrimination against Women
AT v Hungary, UN doc. CEDAW/A/61/38/2006 (26 January 2005) . . . . . . . . . . . . . . . . . . . . .260
Goekce v Austria, UN doc. CEDAW/C/39/D/5/2005 (6 August 2007) . . . . . . . . . . . . . . . . . . .260
Yildirim v Austria, UN doc. CEDAW/C/39/D/6/2005 (6 August 2007) . . . . . . . . . . . . . . . . . .260
I NT E R NAT IONA L COU RT OF JUST ICE
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)
(Judgment/Merits) (2005) ICJ Rep 2005, 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .250
Armed Activities on the Territory of the Congo (New Application 2002) (Democratic
Republic of the Congo v Rwanda) (Jurisdiction and Admissibility/Judgment) (2006)
ICJ Rep 2006, 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
Corfu Channel Case (UK v Albania) (Judgment) (1949) ICJ Rep 1949, 4 . . . . . . . . . . . . . . . . . .246
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276
(Advisory Opinion) (1970) ICJ Rep 1971, 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) (2004) ICJ Rep 2004, 136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248–50
Legality of the Use by a State of Nuclear Weapons in Armed Conflict
(Advisory Opinion) (1996) ICJ Rep 1996, 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 250
WOR LD T R A DE ORG A NIZ AT ION/G AT T
Australia—Measures aff ecting importation of salmon, WTO doc. WT/DS18/AB/R,
AB-1998–5 (20 October 1998) (Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . .123
Brazil—Measures aff ecting imports of retreaded tyres, WTO doc. WT/DS332/R
(12 June 2007) (Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 112
Brazil—Measures aff ecting imports of retreaded tyres, WTO doc. WT/DS332/AB/R,
AB-2007–4 (3 December 2007) (Report of the Appellate Body) . . . . . . . . . . .59, 70, 111–13,
116–19, 140, 266
Brazil—Measures aff ecting imports of retreaded tyres, ARB-2008–2/23—
Arbitration under Article 21.3(c), WTO doc. WT/DS332/16 (29 August 2008)
(Award of the Arbitrator) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 118
Canada—Administration of the Foreign Investment Review Act, BISD 30S/140
(1984) (GATT) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Canada—Certain measures concerning periodicals, WTO doc. WT/DS31/R
(14 March 1997) (Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Canada—Certain measures concerning periodicals, WTO doc. WT/DS31/AB/R,
AB-1997–2 (30 June 1997) (Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . 105
Canada—Certain measures aff ecting the automotive industry, WTO docs.
WT/DS139/AB/R and WT/DS142/AB/R, AB-2000–2 (31 May 2000)
(Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Canada—Patent protection of pharmaceutical products, WTO doc. WT/DS114/R
(17 March 2000) (Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222
China—Measures aff ecting trading rights and distribution services for certain publication
and audiovisual entertainment products, WTO doc. WT/DS363/R
(12 August 2009) (Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 110,
113, 117–18, 139

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Table of Cases

xxiii

China—Measures aff ecting trading rights and distribution services for certain publication
and audiovisual entertainment products, WTO doc. WT/DS363/AB/R,
AB-2009–3 (21 December 2009) (Report of the Appellate Body) . . . . . . . 105, 109, 138, 150
Dominican Republic—Measures aff ecting the importation and internal sale of
cigarettes, WTO doc. WT/DS302/AB/R (25 April 2005)
(Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101–2, 111–12, 117
European Communities—Export subsidies on sugar, WTO docs.
WT/DS265/AB/R, WT/DS266/AB/R and WT/DS283/AB/R,
AB-2005–2 (28 April 2005) (Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . 189
European Communities—Measures aff ecting asbestos and products containing asbestos,
WTO doc. WT/DS135/AB/R, AB-2000–11 (12 March 2001) (Report of
the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98–9, 110–12, 117, 120,
127, 140, 266, 269
European Communities—Measures aff ecting the approval and marketing of
biotech products, WTO docs. WT/DS291/R, WT/DS292/R and
WT/DS293/R (29 September 2006) (Report of the Panel) . . . . . . . . . . . . . . . . . . . 52, 53, 57,
99, 122–3, 270
European Communities—Measures concerning meat and meat products
(‘Hormones’), WTO doc. WT/DS48/R/CAN (18 August 1997)
(Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 123–5
European Communities—Measures concerning meat and meat products (‘Hormones’),
WTO docs. WT/DS26/AB/R, WT/DS48/AB/R, AB-1997–4
(16 January 1998) (Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . .51, 57, 59,
74, 107, 121–3,
140, 266, 296
European Communities—Measures prohibiting the importation and marketing of
seal products, WTO doc. WT/DS400/1 (2 November 2009) (Requests for
Consultations by Canada) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .120
European Communities—Measures prohibiting the importation and marketing of
seal products, WTO doc. WT/DS401/1 (5 November 2009) (Request for
Consultations by Norway) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .120
European Communities—Regime for the importation, sale and distribution of bananas,
WTO docs. WT/DS27/R/ECU, WT/DS27/R/GTM, WT/DS27/R/HND,
WT/DS27/R/MEX (all 22 May 1997) (Reports of the Panel) . . . . . . . . . . . . . . . . . . . . . . 149
European Communities—Regime for the importation, sale and distribution of bananas,
WTO doc. WT/DS27/AB/R, AB-1997–3 (9 September 1997) (Report of
the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
European Communities— Tariff preferences, WTO doc. WT/DS246/AB/R
(7 April 2004) (Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 148
European Communities—Trade description of sardines, WTO doc. WT/DS231/AB/R,
AB-2002–3 (26 September 2002) (Report of the Appellate Body) . . . . . . . . . . . . . . . . . . .127
India—Quantitative restrictions on imports of agricultural, textile and industrial products,
WTO docs. WT/DS90/R (6 April 1999) (Report of the Panel) . . . . . . . . . . . . . . . . . . . . . 171
India—Quantitative restrictions on imports of agricultural, textile and industrial products,
WTO doc. WT/DS90/AB/R, AB-1999–3 (23 August 1999)
(Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 171
Indonesia—Certain measures aff ecting the automobile industry, WTO docs. WT/DS54/R,
WT/DS55/R, WT/DS59/R, WT/DS64/R (2 July 1998) (Report of the Panel) . . . . . . . . . 154
Japan—Alcoholic beverages II, WTO doc. WT/DS8/R (11 July 1996)
(Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100
Japan—Alcoholic beverages II, WTO docs. WT/DS8/AB/R, WT/DS10/AB/R,
WT/DS11/AB/R (4 October 1996) (Report of the Appellate Body) . . . . . . . . . . . . . . . . . .100

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xxiv

Table of Cases

Japan—Measures aff ecting consumer photographic film and paper, WTO doc.
WT/DS44/R (31 March 1998) (Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Korea—Measures aff ecting government procurement, WTO doc. WT/DS163/R
(19 June 2000) (Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Korea—Measures aff ecting imports of fresh, chilled and frozen beef, WTO docs.
WT/DS161/AB/R and WT/DS169/AB/R, AB-2000–8 (11 December 2000)
(Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 111
Korea—Measures aff ecting the importation of bovine meat and meat products from Canada,
WTO doc. WT/DS391/1 (15 April 2009) (Request for Consultations by Canada). . . . . . .126
Mexico—Tax measures on soft drinks and other beverages, WTO doc. WT/DS308/AB/R,
AB-2005–10 (6 March 2006) (Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . 52
Thailand—Restrictions on importation of and internal taxes on cigarettes,
GATT doc. DS10/R (7 November 1990) (Report of the Panel) . . . . . . 101, 111, 113, 117, 140
United States—Certain measures relating to shrimp from Thailand, WTO doc.
WT/DS343/AB/R (16 July 2008) (Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . 112
United States—Customs Bond Directive for merchandise subject to anti-dumping/
countervailing duties, WTO doc. WT/DS345/AB/R (16 July 2008)
(Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
United States—Import prohibition of certain shrimp and shrimp products, WTO doc.
WT/DS58/R (15 May 1998) (Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . 98, 102, 103
United States—Import prohibition of certain shrimp and shrimp products,
WTO doc. WT/DS58/AB/R, AB-1998–4 (12 October 1998)
(Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 53, 66, 106,
114, 117–18, 139, 275
United States—Import prohibition of certain shrimp and shrimp products—
recourse to Article 21.5 by Malaysia, WTO doc. WT/DS58/RW (15 June 2001)
(Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
United States—Import prohibition of certain shrimp and shrimp products—recourse to
Article 21.5 by Malaysia, WTO doc. WT/DS58/AB/RW, AB-2001–4
(22 October 2001) (Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . . . 115, 118
United States—Laws, regulations and methodology for calculating dumping margins
(zeroing), WTO doc. WT/DS294/R (31 October 2005) (Report of the Panel) . . . . . . . . . 188
United States—Laws, regulations and methodology for calculating dumping margins
(zeroing), WTO doc. WT/DS294/AB/R, Ab-2006–2 (18 April 2006)
(Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
United States—Measures aff ecting alcoholic and malt beverages, GATT doc. DS23/R
(Report of the Panel, adopted 19 June 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99
United States—Measures aff ecting the cross-border supply of gambling and betting services,
WTO doc. WT/DS285/R (10 November 2004) (Report of the Panel). . . . . . . . . . . . 108, 116
United States—Measures aff ecting the cross-border supply of gambling and
betting services, WTO doc. WT/DS285/AB/R, AB-2005–1 (7 April 2005)
(Report of the Appellate Body) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103, 108, 111–13,
115–16, 139, 140, 150
United States—Restrictions on imports of tuna, GATT doc. DS21/R
(Report of the Panel produced 3 September 1991, never adopted) . . . . . .98, 102–3, 106, 140
United States—Restrictions on imports of tuna, GATT doc. DS29/R
(Report of the Panel, adopted 16 June 1994) . . . . . . . . . . . . . . . . . . . . . . .98, 102–3, 106, 140
United States—Sections 301–310 of the Trade Act of 1974, WTO doc.
WT/DS152/R (22 December 1999) (Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . . .36
United States—Section 337 of the Tariff Act of 1930, GATT doc. L/6439
(7 November 1989) (Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
United States—Standards for reformulated and conventional gasoline, WTO doc.
WT/DS2/R (29 January 1996) (Report of the Panel) . . . . . . . . . . . . . . . . . . 99, 107, 110, 111

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Table of Cases

xxv

United States—Standards for reformulated and conventional gasoline,
WTO doc. WT/DS2/AB/R, AB-1996–1 (29 April 1996)
(Report of the Appellate Body). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107, 110,
114, 115, 117, 118
United States—Subsidies and other domestic support for corn and other
agricultural products, WTO doc. WT/DS357/1 (8 January 2007)
(Request for Consultations by Canada) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
United States—Subsidies on upland cotton, WTO doc. WT/DS297/R
(8 September 2004) (Report of the Panel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159, 189
United States—Subsidies on upland cotton, WTO doc. WT/DS267/AB/R,
Ab-2004–5 (3 March 2005) (Report of the Appellate Body) . . . . . . . . . . . . . . . 159, 189, 277
United States—Subsidies on upland cotton—recourse to arbitration by the
United States under Article 22.6 of the DSU and Article 4.11 of
the SCM Agreement, WTO docs. WT/DS267/ARB/1 and
WT/DS267/ARB/2 (31 August 2009) (Decision by the Arbitrator) . . . . . . . . . . . 67, 160, 189
United States—Taxes on automobiles, GATT doc. DS31/R (Report of the Panel)
(11 October 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98
OT H ER
Armando Alejandre Jr., Carlos Costa, Mario de la Pena y Pablo Morales v
Republica de Cuba (1999) Inter-Am Comm HR, Case 11.589, Report No 86/99 . . . . . . . .249
Bowsher v Merck, 460 US 824 (1983) (Supreme Court of the United States) . . . . . . . . . . . . . . .236
Coard et al v United States (1999) Inter-Am Comm HR, Case 10.951, Rep No 109/99 . . . . . . .249
Government of Republic of South Africa v Grootboom (2000) 11 BCLR 1169
(South Africa Constitutional Court) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28, 29
Inspector General v Banner Plumbing Supply, 34 F. Supp. 2d 682 (N.D. Ill. 1998) . . . . . . . . . . .236
Kadi and al Barakaat International Foundation v Council of the European Union
(ECJ Grand Chamber 3 September 2008) Cases C-402/05 and C-415/05 P . . . . . 17, 48, 54, 55
Lochner v New York, 198 U.S. 45 (1905) (Supreme Court of the United States) . . . . . . . . . . . . . . 35
Minister for Health v Treatment Action Campaign (2002) 10 BCLR 1033
(South Africa Constitutional Court) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28, 29
Mme Hadijatou Mani Koraou v The Republic of Niger (2008) ECW/CCJ/JUD/06/08
(ECOWAS Community Court of Justice) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Novartis v India W.P. Nos 24759 of 2006 and 24760 of 2006, High Court of Madras
(India), 6 August 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227
Pharmaceutical Manufacturers’ Association of South Africa and Others v The President of
the Republic of South Africa and Others (2000) (3) BCLR 241 (South Africa
Constitutional Court) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .235
Trail Smelter Case (US v Canada) (1941) UN Reports of International
Arbitral Awards, vol III (International Arbitration) . . . . . . . . . . . . . . . . . . . . . . . . . . 246, 251
Victor Saldano v Argentina (1998) Inter-Am Comm HR, Petition, Report No 38/99 . . . . . . . . .249
West Coast Hotel Co v Parrish, 300 U.S. 379 (1937) (Supreme Court of the United States) . . . . .36

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Table of Conventions, Declarations,
and other Instruments
I NT E R NAT IONA L I NST RU M E NTS
African Charter on Human and
Peoples’ Rights 1981 . . . . . . . . . . . . . . 16
Agreement on Agriculture
(AoA) . . . . . . . . . . . . . . . . . 9, 98, 158–9,
185–9, 194, 195,
267, 276, 290
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . 188
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . 276
Annex 2 . . . . . . . . . . . . . . . . . . . . . . . . . 186
Agreement on Implementation of
Art VI of the General
Agreement on Tariffs and
Trade 1994. . . . . . . . . . . 9, 130, 156, 188
Agreement on Import Licensing
Procedures . . . . . . . . . . . . . . . . . . . . . . .9
Agreement on Preshipment Inspection . . . . . 9
Agreement on Rules of Origin . . . . . . . . . . . . 9
Agreement on Safeguards . . . . . .9, 156, 190–1
Agreement on Subsidies and
Countervailing Measures
(SCM) . . . . . . . . . . . . . . . . . . . . . . 9, 155
Art 27(2) . . . . . . . . . . . . . . . . 155, 174, 188–9
Agreement on Technical Barriers
to Trade (TBT) . . . . . . . 4, 9, 63, 92, 98,
102, 120, 127–8,
139, 140, 155,
191, 268, 270, 290
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . 127
Art 1(5) . . . . . . . . . . . . . . . . . . . . . . . . . 127
Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . .126
Art 2(2) . . . . . . . . . . . . . . . . . . . . . . .126–7
Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . . . 127
Art 2(5) . . . . . . . . . . . . . . . . . . . . . . . . . 128
Agreement on Textiles and
Clothing (ATC) . . . . . . . . . 9, 158–9, 191
Agreement on the Application of
Sanitary and Phytosanitary
Measures (SPS) . . . . . . . 9, 57, 59, 61, 63,
92, 98–9, 102, 111,
120–7, 140, 155, 191,
199, 268, 270, 296
Art 2(2) . . . . . . . . . . . . . . . . . . . . .120, 126
Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . 121

Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . . . 121
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Art 5(1) . . . . . . . . . . . . . . . . . . . . . 121, 124
Art 5(2) . . . . . . . . . . . . . . . . . . . . . 121, 124
Art 5(3) . . . . . . . . . . . . . . . . . . . . . . . . . 121
Art 5(5) . . . . . . . . . . . . . . . . . . . . . . . . . 121
Art 5(6) . . . . . . . . . . . . . . . . . . . . . . . . . 121
Art 5(7) . . . . . . . . . . . . . . . . . . . . . 121, 124
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . .126
Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . . .126
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . .126
Agreement on Trade-Related Aspects
of Investment Measures
(TRIMS) . . . . . . . . . . . . . . . . . . . . 9, 154
Art 2 . . . . . . . . . . . . . . . . . . . . . . . 154, 174
Agreement on Trade-Related
Intellectual Property Rights
(TRIPS) . . . . . . . . . . .4, 5, 10, 37, 49, 55,
70, 77, 98, 131, 137,
148, 152–4, 157, 162,
174–5, 191, 208–10,
214, 215–17, 219, 221,
223–8, 230, 232–4,
237, 240–1, 243–4,
267–8, 271, 275,
280, 287, 290, 293
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . .222
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Art 27 . . . . . . . . . . . . . . . . . . . . . . 227, 242
Art 27(2) . . . . . . . . . . . . . . . . . . . . . . . . 221
Art 27(3)(b) . . . . . . . . . . . . . . . . . . 207, 209
Art 30 . . . . . . . . . . . . . . . . 221–2, 225, 227
Art 31 . . . . . . . . . . . . . . 222, 225, 228, 242
Art 31(a). . . . . . . . . . . . . . . . . . . . . . . . .223
Art 31(b) . . . . . . . . . . . . . . . . . . . . . . . .223
Art 31(c). . . . . . . . . . . . . . . . . . . . . . . . .223
Art 31(f). . . . . . . . . . . . . . . . . . . . . . . . . 225
Art 31(h) . . . . . . . . . . . . . . . . . . . . . . . .223
Art 31(i) . . . . . . . . . . . . . . . . . . . . . . . . .223
Art 31(j) . . . . . . . . . . . . . . . . . . . . . . . . .223
Art 31bis . . . . . . . . . . . . . . . . . . . . . . . .226
Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . .229
Art 62(2) . . . . . . . . . . . . . . . . . . . . . . . . 241
Art 67 . . . . . . . . . . . . . . . . . . . . . . . . . .229
Part II . . . . . . . . . . . . . . . . . . . . . . . . . . 214

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xxviii

Table of Conventions, Declarations, and other Instruments

American Convention on Human
Rights 1969 . . . . . . . . . . . . . . . . . . . . . .16
Arab Charter on Human Rights 2004 . . . . .16
Arts on Responsibility of States for
Internationally Wrongful Acts 2001
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . 246
Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . 246
Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . 246
Central American Free Trade
Agreement (CAFTA) . . . . . . . . .135, 294
Charter of Fundamental Rights of the
European Union 2000 . . . . . . . . . 55, 84
Art 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . 35
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Constitution of the International Labour
Organization 1919
Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Convention against Torture and Other
Cruel, Inhuman or Degrading
Treatment or Punishment 1984
(CAT) . . . . . . . . . . . . . . . . . . . . . .14, 251
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Convention for the Protection of Human
Rights and Fundamental Freedoms
1950 see European Convention on
Human Rights (ECHR)
Convention on Biological
Diversity 1992 (CBD) . . . . . . . . .210, 280
Art 8(j). . . . . . . . . . . . . . . . . . . . . . . . . . .210
Art 10(c) . . . . . . . . . . . . . . . . . . . . . . . . .210
Convention on the Elimination of All
Forms of Discrimination against
Women 1981 (CEDAW) . . . . . . 14, 17, 31
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Art 12(2) . . . . . . . . . . . . . . . . . . . . . . . . . 39
Art 14(2) . . . . . . . . . . . . . . . . . . . . . . . . . 76
Convention on the Rights of Persons
with Disabilities 2006 (CRPD) . . . .14, 17
Convention on the Rights of the
Child 1989 (CRC) . . . . . . . . . . . 14, 17, 31
Art 28(1) . . . . . . . . . . . . . . . . . . . . . . . . 234
Declaration of Alma-Ata on Primary
Health Care 1978 . . . . . . . . . . . . . . . 254
Declaration on the Right to Development
1986 (DRD) . . . . . . . 14, 17, 30, 143, 247
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Declaration on the Rights of
Indigenous Peoples 2007
(DRIP) . . . . . . . . . . . . . . 14, 30, 72, 206

Dominican Republic-Central
America-United States Free
Trade Agreement 2004 . . . . . . . . . . . 273
European Convention on Human
Rights 1951 (ECHR) . . . . . 16, 46, 55, 81,
83–4, 249, 294
First Protocol to the European
Convention on Human Rights
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 34
European Convention for the Prevention of
Torture and Inhuman or Degrading
Treatment or Punishment 1987 . . . . . . .16
European Social Charter 1961
(as revised in 1996) . . . . . . . . . . . . . . . .16
General Agreement on Trade in
Services (GATS) . . . . . . 4, 10, 36, 91, 96,
98, 100, 109, 112,
117–18, 138–40,
150, 157, 191,
239, 243, 279, 290
Art I(3) . . . . . . . . . . . . . . . . . . . . . . . . . .151
Art II . . . . . . . . . . . . . . . . . . . . . . . . . . . .150
Art V . . . . . . . . . . . . . . . . . . . . . . . 243, 281
Art XIII(1) . . . . . . . . . . . . . . . . . . . . . . . .151
Art XI . . . . . . . . . . . . . . . . . . 91, 93, 106–9,
115, 117–18, 131,
139–40, 152, 267, 290
Art XIV(a) . . . . . . . . . . . .106, 108, 136, 152
Art XIV(b) . . . . . . . . . . . . . . . . 106, 110, 117
Art XIV(c) . . . . . . . . . . . . . . . . . . . . . . . 106
Art XIV(c)(ii) . . . . . . . . . . . . . . . . . . . . . 106
Art XIV(c)(iii) . . . . . . . . . . . . . . . . . . . . 106
Art XIVbis. . . . . . . . . . . . . . . . 92, 140, 266
Art XVI . . . . . . . . . . 102, 104, 139, 150, 267
Art XVII . . . . . . . . . . . . . . . . . . . . .103, 150
Art XXI . . . . . . . . . . . . . . . . . . . . . . . . . .150
General Agreement on Tariffs and
Trade 1947 and 1994 (GATT) . . . . . 8, 9,
10, 42, 91, 97–100,
103, 116–17, 120,
121, 127–8, 138–40,
159, 162, 174, 185, 243
Art I . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 100
Art III . . . . . . . . . . . . . .8, 98, 100, 103, 154
Art III(4) . . . . . . . . . . . . . . . . . . . . . . . . 127
Art IV . . . . . . . . . . . . . . . . . . . . . . . . . . .105
Art VI . . . . . . . . . . . . . . . . . . .130, 156, 188
Art X . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Art XI . . . . . . . . . . . . . . . . . . . 8, 66, 102–5,
111, 154, 267
Art XI(2)(b) . . . . . . . . . . . . . . . . . . . . . . .197
Art XII. . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Art XV . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Art XVI . . . . . . . . . . . . . . . . . . . . . . . . . .188

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Table of Conventions, Declarations, and other Instruments
Art XVIII(7) . . . . . . . . . . . . . . . . . . . . . .175
Art XVIIIB . . . . . . . . . . . . . . . . . . . 66, 171
Art XIX . . . . . . . . . . . . . . . . . . . . . .156, 190
Art XX . . . . . . . . . . . . . . . . . . . 8, 38, 82, 91,
93, 100, 102, 104,
106–7, 109, 112–13,
115–18, 131, 140,
267–8, 271, 286, 290
Art XX(a) . . . . . . . . .104, 106, 108, 114, 136
Art XX(b) . . . . . . . . . . . . . . . . . . . . 61, 104,
106, 110, 114–17
Art XX(d) . . . . . . . . . . . . . . . . . . . . . . . 104
Art XX(e) . . . . . . . . . . . . . . . . . . . . .104, 131
Art XX(f) . . . . . . . . . . . . . . . . . . . . .104, 105
Art XX(g) . . . . . . . . . . 52, 106–7, 109, 114,
115, 117–18, 139, 275
Art XX(h) . . . . . . . . . . . . . . . . . . . . . . . .197
Art XXI . . . . . . . . . . . . . . . . . . 92, 140, 266
Art XXI(a) . . . . . . . . . . . . . . . . . . . . . . . . 92
Art XXI(b)(i) . . . . . . . . . . . . . . . . . . . . . . 92
Art XXI(b)(ii) . . . . . . . . . . . . . . . . . . . . . 92
Art XXI(b)(iii) . . . . . . . . . . . . . . . . . . . . . 93
Art XXI(c) . . . . . . . . . . . . . . . . . . . . . 92, 93
Art XXIV . . . . . . . . . . . . . . .8, 87, 243, 281
Art XXXVI(4) . . . . . . . . . . . . . . . . . . . . .197
ILO Declaration on Fundamental
Principles and Rights at
Work 1998 . . . . . . . . . . . . . . . . . . . . . 130
International Coffee Agreement 2001 . . . . .131
International Covenant on Civil and
Political Rights 1966 (ICCPR) . . . 14, 17,
18, 20, 21, 30, 35, 38,
53–4, 73, 249, 250, 251
Art 1 . . . . . . . . . . . . . . . . . . . . . . 36, 71, 72
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Art 2(1) . . . . . . . . . . . . .20, 21, 75, 168, 248
Art 6 . . . . . . . . . . . . . 19, 110, 125, 220, 221
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . .21, 43
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Art 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Art 8(3)(b) . . . . . . . . . . . . . . . . . . . . . . . 104
Art 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Art 9(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Art 9(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Art 12 . . . . . . . . . . . . . . . . . . . . . . . .43, 110
Art 12(2) . . . . . . . . . . . . . . . . . . . . 248, 249
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Art 14(3)(d) . . . . . . . . . . . . . . . . . . . . . . . 22
Art 15(1) . . . . . . . . . . . . . . . . . . . . . . . . . 40
Art 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . 40
Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

xxix

Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Art 19 . . . . . . . . . . . . . . . . . . . . . .19, 43, 80
Art 19(2) . . . . . . . . . . . . . . . . . . . . . 18, 128
Art 19(3) . . . . . . . . . . . . . . . . . . . . . .18, 138
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Art 22 . . . . . . . . . . . . . . . . . . . . .19, 43, 130
Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Art 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . .21
Art 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . .21
Art 25 . . . . . . . . . . . . . . . . . . . 21, 72, 74–5,
77, 124–5, 286
Art 25(b) . . . . . . . . . . . . . . . . . . . . . . . . . .74
Art 25(c) . . . . . . . . . . . . . . . . . . . . . . . . . .74
Art 26 . . . . . . . . . . . . . . . . . .27, 38, 76, 168
Art 27 . . . . . . . . . . . . 46, 72, 76–7, 80, 206
Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
International Covenant on Economic,
Social and Cultural Rights 1966
(ICESCR) . . . . . . . . . . . . . 14, 17–18, 20,
21, 23–5, 27, 29,
38, 41, 53–4, 80, 98,
136–7, 143, 202, 219,
234, 238, 249–53,
255, 262, 275, 290
Art 1 . . . . . . . . . . . . . . . . . . . . . . 36, 71, 72
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Art 2(1) . . . . . . . . . .20, 23, 26, 97, 249, 254
Art 2(2) . . . . . . . . . . . . . . . . . . . . . . 26, 168
Art 6 . . . . . . . . . . . . . . . . . 19, 119, 130, 179
Art 7 . . . . . . . . . . . . . . . . . . . . . . . .130, 133
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . .19, 26
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Art 11 . . . . . . . . . . . . . . . . . . 19, 22, 37, 46,
119, 181–2, 216, 250
Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . .181
Art 12 . . . . . . . . . . . . . . . . . . . . . 19, 49, 73,
78, 216–19, 221,
246, 250, 254
Art 12(2)(c) . . . . . . . . . . . . . . . . . . . . . . .217
Art 12(2)(d) . . . . . . . . . . . . . . . . . . . . . . .217
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . 19, 216
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . 19, 216
Art 15. . . . . . . . . . . . . . . . . . . . . . . . . .19, 46
Art 15(1)(a) . . . . . . . . . . . . . . . . . . . . . . .105
Art 15(1)(b) . . . . . . . . . . . . . . . . . . . 153, 216
Art 15(1)(c) . . . . . . . . . . . . . . . . . . . 37, 153,
215–16, 221, 285
Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . 254
International Convention for the
Protection of All Persons from
Enforced Disappearance 2006. . . . .14, 17

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xxx

Table of Conventions, Declarations, and other Instruments

International Convention for the
Protection of New Varieties of
Plants of 2 December 1961
(as revised at Geneva in 1972 and
1978) see UPOV Convention
International Convention on the
Elimination of All Forms of Racial
Discrimination 1966 (CERD) . . . . .14, 31
Art 1(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
International Convention on the
Protection of the Rights of All
Migrant Workers and Members
of their Families 1990 (MWC) . . . . . . .14
International Treaty on Plant Genetic
Resources for Food and
Agriculture 2001 . . . . . . . . . . . . . . . . .210
Johannesburg Declaration on Sustainable
Development 2002 . . . . . . . . . . . . . . 247
Marrakesh Agreement Establishing
the WTO 1994 . . . . . . . . . 8, 10, 145, 157
Preamble . . . . . . . . . . . . . . . . . . . 42, 49, 51,
131, 146, 179, 288
Art V . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Art IX . . . . . . . . . . . . . . . . . . . . . . . . . . 129
MERCOSUR Agreement . . . . . . . . . .116, 294
Monterrey Consensus 2002 . . . . . . . . . . . . 247
Multi Fibre Agreement . . . . . . . . . . . . . . . .158
North American Agreement on Labor
Cooperation Between the Government
of the United States of America,
the Government of Canada and the
Government of the United Mexican
States 1993. . . . . . . . . . . . . . . . . . . . . .135
North American Free Trade Agreement
between the United States, Canada,
and Mexico (entered into
force 1994) (NAFTA) . . . . . . . . .135, 294
Optional Protocol to the Convention
on the Elimination of All Forms
of Discrimination against
Women 1999 . . . . . . . . . . . . . . . . . . . . .14
Optional Protocol to the Convention on
the Rights of the Child on the Sale
of Children, Child Prostitution and
Child Pornography 2000 . . . . . . . . . . . .14
Optional Protocol to the International
Covenant on Civil and Political
Rights 1966 . . . . . . . . . . . . . 14–15, 27, 80
Optional Protocol to the International
Covenant on Economic, Social and
Cultural Rights 2008 . . . . . . . . . . . . . 29
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Art 8(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Paris Convention for the Protection
of Industrial Property 1883
(as revised) . . . . . . . . . . . . . . . . . . . . . .214
Rome Declaration on World Food
Security and the World Food
Summit Plan of Action 1996 . . . . . . . .182
Rome Statute of the International
Criminal Court 1998 . . . . . . . . . . .74, 75
Art 124 . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Statute of the International Court of
Justice 1945 . . . . . . . . . . . . . . . . . . . . . .16
Treaty of Lisbon 2010 . . . . . . . . . . 35, 84, 294
Understanding on Rules and
Procedures Governing the
Settlement of Disputes—Annex 2
of the Marrakesh Agreement . . . . . . . . .10
Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . .51
Art 3(7) . . . . . . . . . . . . . . . . . . . . . . . . . .119
United Nations Charter 1945 . . . . . .16, 49, 53
Art 1(3) . . . . . . . . . . . . . . . . . . . 13, 48, 245
Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Art 2(7) . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Art 25 . . . . . . . . . . . . . . . . . . . . . .15, 54, 92
Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Art 55 . . . . . . . . . . . . . . . . . . . . 13, 48, 245
Art 56 . . . . . . . . . . . . . . . . .13, 48, 245, 254
Art 103 . . . . . . . . . . . . . . . . . . . . . . . 48, 54
Chapter VII . . . . . . . . . . . . . . . . . . 15, 92–4
United Nations Millennium
Declaration 2000. . . . . . . . . . . . . . . . 247
United States-Australia Free Trade
Agreement (entered into force 2005) . . .242
United States-Jordan Free Trade Area
Agreement (entered into
force 2001) . . . . . . . . . . . . . . . . . .135, 242
United States-Morocco Free Trade
Agreement (entered into
force 2006) . . . . . . . . . . . . . . . . .135, 242
Universal Declaration of Human
Rights 1948 (UDHR) . . . . . . . 13, 17, 30,
33–4, 48, 53, 143
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 33
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . 246
Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . 246
UPOV Convention . . . . . . . . . . . . . . .210, 243
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . .210
Vienna Convention on the Law of
Treaties 1969
Art 18(a) . . . . . . . . . . . . . . . . . . . . . . . . . 52
Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Art 31(1) . . . . . . . . . . . . . . . . . . . . . . . . . .51
Art 31(3)(c) . . . . . . . . . . . . . . . . . . 47, 51, 53

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Table of Conventions, Declarations, and other Instruments
Art 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Vienna Declaration and Programme of
Action 1993 . . . . . . . . . . . . . . . . . . .13, 17
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . 247
DOM E ST IC I NST RU M ENTS
American Recovery and Reinvestment
Act 2009 (US) . . . . . . . . . . . . . . . . . . 256

xxxi

Bayh-Dole Act 1980 (US) . . . . . . . . . . . . . 235
Burmese Freedom and Democracy
Act 2003 (US) . . . . . . . . . . . . . . . . . . . 92
Emergency Stabilisation
Act 2008 (US) . . . . . . . . . . . . . . . . . . .255
Special Economic Measures (Burma)
Regulations (SOR/2007–85)
(Canada), 13 December 2007 . . . . . . . 92
United States Bill of Rights . . . . . . . . . . . . . .19
Fourteenth Amendment . . . . . . . . . . . . . . . 35

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Abbreviations
AMS
AoA
ASEAN
ATC

Aggregate Measures of Support
Agreement on Agriculture
Association of South East Asian Nations
Agreement on Textiles and Clothing

BITs

bilateral investment treaties

CAFOD
CAFTA
CAP
CAT

CPC
CPRD
CRC

Catholic Agency for Overseas Development
Central American Free Trade Agreement
Common Agricultural Policy
Convention against Torture and other Cruel, Inhuman and Degrading
Treatment or Punishment 1984
Convention on Biological Diversity 1992
Convention on the Elimination of All Forms of Discrimination against
Women 1979
International Convention on the Elimination of all Forms of Racial
Discrimination 1965
central product classification
Convention on the Rights of Persons with Disabilities 2006
Convention on the Rights of the Child 1989

DFQF
DRD
DRIP
DSB

duty-free and quota-free
Declaration on the Right to Development 1986
Declarations of the Rights of Indigenous Peoples 2007
Dispute Settlement Body

EBA
EC
ECHR
EPAs
EPZs
EU

Everything but Arms
European Communities
European Convention on Human Rights 1951
European Partnership Agreements
export processing zones
European Union

FAO
FTA

Food and Agricultural Organization
free trade agreement

GA
GATS
GATT
GDP
GMOs
GNI
GSP

General Assembly
General Agreement on Trade in Services
General Agreement on Tariffs and Trade 1947
gross domestic product
genetically modified organisms
gross national income
General System of Preferences

CBD
CEDAW
CERD

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xxxiv

Abbreviations

HRC
HRIAs

Human Rights Committee
human rights impact assessments

IAAKSTD
IBRD
ICC
ICCPR
ICESCR
ICJ
IFIs
ILO
IMF
IP
ISO
ITO

International Assessment of Agricultural Knowledge, Science and
Technology for Development
International Bank for Reconstruction and Development
International Criminal Court
International Covenant on Civil and Political Rights 1966
International Covenant on Economic, Social and Cultural Rights
International Court of Justice
international financial institutions
International Labour Organization
International Monetary Fund
intellectual property
International Standards Organization
International Trade Organisation

KEI

Knowledge Ecology International

LDCs

least developed countries

MDGs
MFN
MNCs
MWC

Millennium Development Goals
Most Favoured Nation
multinational corporations
International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families 1990

NAFTA
NAMA
NGOs

North American Free Trade Agreement
non-agricultural market access
non-governmental organizations

PPMs
PSE
PVA
PwC

production or process methods
production support estimate
polyvinyl alcohol fibres
PricewaterCoopers

SCM
SDT
SIAs
SPS
SSM
SVEs

Agreement on Subsidies and Countervailing Measures
special and differential treatment
Sustainability Impact Assessments
Agreement on the Application of Sanitary and Phytosanitary Measures
special safeguard mechanism
small and vulnerable economies

TBT
TED
TPRM
TRIMs
TRIPS

Agreement on Technical Barriers to Trade
turtle excluder device
Trade Policy Review Mechanism
Agreement on Trade Related Aspects of Investment Measures
Agreement on Trade Related Aspects of Intellectual Property

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Abbreviations
UDHR
UN
UNCTAD
UNDP
UPOV

Universal Declaration of Human Rights
United Nations
United Nations Conference on Trade and Development
UN Development Program
International Union for the Protection of New Varieties of Plants

WHO
WIPO
WTO

World Health Organization
World Intellectual Property Organization
World Trade Organization

xxxv

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Introduction
It is well known that many human rights advocates are critical of the WTO. Is
it possible that this enmity arises from ‘regime envy’, a mere bemoaning of the
effectiveness of the WTO compared to the relative ineffectiveness, for example,
of global human rights bodies? Or are the criticisms valid? This book is designed
to explain and explore the validity of the main human rights concerns with
the WTO.
Free trade advocates claim that free trade (and therefore the WTO given that
it promotes free trade) promotes peace, cuts the cost of living, raises incomes,
and promotes good government.¹ The WTO Director General, Pascal Lamy, has
gone so far as to say: ‘one could almost say that trade is human rights in practice’.²
Lamy’s statement echoes the conclusions of an expert panel which was set up to
examine the future of the WTO. That report, colloquially known as the Sullivan
Report after its chairperson, concluded:
[T]he notion that trade, investment, and the growth of business detracts from noneconomic facets of human rights is the contrary of the truth. . . . In the end—and we accept
that it may take time—the exposure of governments and citizens to an international
institutional framework dedicated to openness will have its effects on much more than
commerce.³

James Harrison has summarized the panel’s conclusions thus:
there is no need directly to address the human rights impact of international trade on the
protection and promotion of human rights, because it is in the very nature of the existing
trade regime to enhance human rights protection.4

In stark contrast to the above rosy picture of the WTO, one of the first assessments
of the human rights impact of the WTO by a United Nations human rights body
was ‘almost entirely negative’.5 Global Exchange, a human rights non-governmental
¹ WTO, ‘10 benefits of the trading system’ (2008) <http://www.wto.org/english/res_e/doload_
e/10b_e.pdf> accessed 18 September 2010.
² Pascal Lamy, ‘Towards shared responsibility and greater coherence: human rights, trade and
macroeconomic policy’ (Speech at the Colloquium on Human Rights in the Global Economy,
Co-organized by the International Council on Human Rights and Realizing Rights, Geneva, 13 January
2010) <http://www.wto.org/english/news_e/sppl_e/sppl146_e.htm> accessed 18 September 2010.
³ WTO, The Future of the WTO: Addressing Institutional Challenges in the New Millennium
(Report by the Consultative Board to the former Director-General Supachai Panitchpakdi) (WTO,
Geneva, 2004) 10.
4 James Harrison, The Human Rights Impact of the World Trade Organisation (Hart, Oxford,
2007) 37.
5 Ibid, 128, commenting on a report for the Sub- Commission on the Promotion and Protection
of Human Rights by J Oloka-Onyango and U Deepika, ‘The Realization of Economic, Social and

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2

Introduction

organization (NGO) focused on global economic justice, has asserted the following amongst its ‘top reasons to oppose the WTO’: it is fundamentally undemocratic, it tramples labour and human rights, it is increasing inequality and hunger,
it is destroying the environment, and it is killing people.6 Lamy recently described
the opposition to his organization in the following terms:
For many, trade is a villain. It is a symbol of mercantilism, capitalism, the tool through
which powerful multinational corporations impose their law over human beings, impairing their economic, social and cultural rights.7

It is true that many human rights criticisms of the WTO are ill-conceived, and
based on misunderstandings including a failure to recognize the benefits of free
trade. At the same time, many trade experts are overly dismissive of human rights
critiques, blindly adhering to a belief in free trade as an undeniable good. As noted
by Joseph Stiglitz:
Those who vilify globalization too often overlook its benefits. But the proponents of
globalization have been, if anything, even more unbalanced.8

This book aims to explain the reasoning behind the main perceived human rights
‘problems’ with the WTO. These alleged shortcomings are explained and assessed
as to their validity. This book also aims to help break down the mutual ignorance
that exists in the relationship between trade and human rights. This reciprocal and
perhaps wilful ignorance9 has fostered a relationship that is historically laced with
suspicion.¹0 Hopefully this book will make some contribution to diminishing that
level of mutual misunderstanding.

The WTO in the global economy
The WTO is one component in the matrix of organizations and rules which regulate the global economy. It is not to be confused with the many other component
parts, which have also been accused of generating deleterious effects on human
rights. It is not, for example, responsible for the harm that has allegedly been caused
to client States by onerous loan conditions from the International Monetary Fund
(IMF), or the alleged funding for ill-conceived projects by the World Bank.¹¹ It is
not responsible for the behaviour of multinational corporations (MNCs) when they
Cultural Rights: Globalization and its Impact on the Full Enjoyment of Human Rights’, UN doc.
E/CN.4/Sub.2/2000/13 (15 June 2000).
6 Global Exchange, ‘Top Reasons to Oppose the WTO’ (2008) <http://www.globalexchange
.org/campaigns/wto/OpposeWTO.html> accessed 18 September 2010.
7 Lamy, above n 2.
8 Joseph Stiglitz, Globalization and its Discontents (Penguin, London, 2002) 5.
9 Lamy has suggested that this ongoing ignorance is deliberate at Lamy, above n 2.
¹0 Ibid.
¹¹ See, generally, on human rights and these international financial institutions: Adam McBeth,
International Economic Actors and Human Rights (Routledge, London, 2009); Mac Darrow, Between
Light and Shadow (Hart, Portland, 2003); and Sigrun Skogly, Human Rights Obligations of the World
Bank and the International Monetary Fund (Cavendish, London, 2001).

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Introduction

3

are accused of perpetrating grave human rights abuses with impunity.¹² It is not
responsible for the rights conferred directly on foreign investors, largely MNCs,
under the many hundreds of bilateral investment treaties (BITs) that criss-cross the
world; it is feared that these rights constrain the ability of States to regulate foreign
investors so as to protect human rights.¹³ It is not responsible for the proliferation
of bilateral and regional free trade agreements (FTAs), which impose more onerous obligations than the WTO agreements, allegedly to the detriment of human
rights.¹4 It is not responsible for the crippling debt loads, which in some cases force
more money to flow from poor to rich countries than vice versa.¹5 Finally, it is not
responsible for the continual failure by rich States to honour their commitments in
aid to poorer countries.¹6
However, just as the WTO cannot be directly blamed for the impact of other
major actors or legal systems within the global economy, it cannot be viewed as
an island with no connections to those other actors and systems.¹7 For example,
the WTO, in promoting foreign trade and in protecting intellectual property,
undoubtedly enhances the power of MNCs, the major engines of free trade,¹8 thus
contributing to an environment that promotes ‘permissive conditions for businessrelated human rights abuse’,¹9 especially if they are endowed with enforceable
rights under BITs and FTAs. The constraints placed by WTO rules on the policy
¹² See, generally, on the relationship between human rights and the conduct of multinational
corporations: the Business & Human Rights Resource Centre website at <http://www.business
-humanrights.org> (which also maintains the portal for materials relating to the work of the United
Nations Secretary General’s Special Representative on Business and Human Rights); International
Commission of Jurists (ICJ), Report of the ICJ Expert Legal Panel on Corporate Complicity in
International Crimes: Corporate Complicity & Legal Accountability (2008) Vols 1–3. See also Michael
Kerr, Richard Janda, and Chip Pitts in Chip Pitts (ed), Corporate Social Responsibility: A Legal Analysis
(Butterworths/Lexis-Nexis, Canada, 2009).
¹³ See, eg, Howard Mann, ‘International Investment Agreements, Business and Human Rights:
Key Issues and Opportunities’ (Report prepared for Prof John Ruggie, UN Special Representative
to the Secretary General for Business and Human Rights (International Institute for Sustainable
Development, February 2008)) <http://www.iisd.org/pdf/2008/iia_business_human_rights.pdf>
accessed 18 September 2010.
¹4 See below Chapters 5 and 9.
¹5 David Kinley, Civilising Globalisation (Cambridge University Press, Cambridge, 2009) 114–15.
See, generally, on the key issues relating to the international debt crisis: the documents produced by
the Debt and Finance Analysis Unit of the United Nations Conference on Trade and Development
(available at <http://www.unctad.org>); the documents produced by the United Nations SecretaryGeneral’s Independent Expert on the effects of foreign debt and other related international financial
obligations of States on the full enjoyment of all human rights, particularly economic, social, and
cultural rights (available at <http://www2.ohchr.org/english/issues/development/debt/index.htm>).
¹6 Less than six years away from the 2015 deadline to achieve the Millennium Development
Goals, the United Nations warned that, despite many successes, overall progress has been too slow
for most of the targets to be met by 2015; see United Nations, Millennium Development Goals Report
2009 (DESA, New York, 2009) 4.
¹7 See also UNGA, ‘Report of the Special Rapporteur on the Right to Food, Olivier De Schutter’,
UN doc. A/63/278, 21 October 2008, para 23.
¹8 Kinley, above n 15, 37–8. See also Mehdi Shafaeddin, ‘Is Industrial Policy Relevant in the
21st Century?’, Third World Network Trade & Development Series No. 36 (TWN, Malaysia, 2008) 7.
¹9 Human Rights Council, ‘Report of the Special Representative of the Secretary-General on
the issue of human rights and transnational corporations and other business entities: Business and
human rights: mapping international standards of responsibility and accountability for corporate
acts’, UN doc. A/HRC/4/035, 19 February 2007, para 82.

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4

Introduction

space of developing States, that is the space in which they may flexibly choose
among various strategic and tactical options to achieve the economic development,
human rights, and other objectives affecting their people, are exacerbated if those
same States are also subjected to arduous loan conditions by the IMF or onerous
debt burdens. In short, the WTO is a key part of the governance of the global
economy. Therefore, its human rights impact cannot be fairly assessed in isolation
from that system of governance.²0

Types of human rights arguments against the WTO
There are various types of human rights arguments raised against the WTO. The
first is the risk that WTO law imposes obligations upon a State which conflict with
its human rights obligations. In such a circumstance, compliance with WTO law
would result in a breach of human rights law. On the basis of existing case law, it is
difficult to identify such direct conflicts between the two areas of law. Indeed, the
WTO dispute resolution bodies have addressed few cases of relevance to human
rights. The relevant cases are addressed in this book, largely in Chapter 4. One area
where human rights breaches might be mandated concerns the implementation of
the Agreement on Trade Related Aspects of Intellectual Property (TRIPS), which
is discussed in Chapter 7.
WTO case law has elaborated only the tip of the iceberg in terms of WTO
obligations. For example, there are very few cases on a number of the WTO agreements, such as TRIPS, the Agreement on Technical Barriers to Trade (TBT), and
the General Agreement on Trade in Services (GATS). Given the uncertainties that
remain over the scope of WTO obligations, there is a danger of ‘regulatory chill’,
in that a State might fear that the adoption of certain human rights measures will
breach WTO law, and it may therefore fail to adopt them even if such a failure
breaches its human rights obligations.²¹ This second type of concern is addressed
in Chapters 4 to 7.
Thirdly, WTO laws might constrain the ability of States to punish other States
for violating human rights obligations through the use of trade sanctions. This
concern is addressed in Chapter 4.
Fourthly, WTO laws might prompt abuses of human rights, even if they do
not mandate them. As WTO law promotes the abolition of trade barriers, States
might be tempted to adopt unconscionable methods to boost the competitiveness of their industries. Such a temptation could arise, for example, in the field
of labour rights, where States might be tempted to attract foreign investment and
boost competition by driving down labour costs.²² This concern is addressed in
Chapter 4.
²0 See also Joseph E Stiglitz and Andrew Charlton, Fair Trade for All (Oxford University Press,
New York, 2005) 81.
²¹ Olivier De Schutter, International Trade and Agriculture and the Right to Food (Dialogue on
Globalization Occasional Paper No 46) (Friedrich Ebert Stiftung, Geneva, November 2009) 21;
Harrison, above n 4, 180.
²² De Schutter, above n 21, 21.

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Introduction

5

Finally, the global implementation of WTO rules may diminish the capacities
of certain States to implement human rights.²³ Chapters 5 and 6 examine arguments that WTO rules are eroding the relevant capacities of developing States,
for example in relation to the right to food (discussed specifically in Chapter 6).
Chapter 3 examines the argument that WTO negotiation and other internal processes further undermine the interests of developing States and other potentially
disadvantaged constituencies.

Outline of the book
Chapter 1 explains the WTO regime and the international human rights regime.
Greater attention is paid to the latter, while WTO law is fleshed out more in
the following chapters. In particular, economic, social, and cultural rights are
explained. In this author’s experience, those rights are less well understood in the
broader community, including trade lawyers and scholars, than civil and political
rights.
In Chapter 2, the philosophical and normative relationship between the two
regimes is examined. The philosophical issues essentially concern the extent to
which the two regimes are driving towards the same, or different, ends. The normative relationship concerns the issue of how conflicts between the two systems
are addressed in international law.
Chapters 3 to 7 then move to an analysis of the main alleged human rights
problems with the WTO, and their validity. Chapter 3 focuses on the argument
that WTO processes are unfair, and serve to marginalize certain constituencies,
namely developing States and social justice interests, thus generating a democratic
deficit which undermines human rights and generates unfair rules. Chapter 3 also
examines the argument that WTO rules indirectly promote democratic rights and
civil and political freedoms.
Relevant WTO provisions and case law are examined in Chapter 4, with a focus
on the extent to which WTO law constrains the abilities of States to implement
human rights measures. Such measures might consist of: (i) trade sanctions aimed
at punishing States which breach human rights; (ii) trade sanctions aimed at products produced in a way that breaches human rights; and (iii) measures that regulate
or prevent the entry of goods and services that might otherwise harm the human
rights of the State’s own population. The chapter focuses on the WTO treaties concerning trade in goods, trade in services, sanitary and phytosanitary standards, and
technical standards. The pros and cons of a social clause within the WTO, which
could provide extra protection for labour rights, are also discussed in Chapter 4.
So too is the potential emancipatory effect of WTO rules, that is their potential
to force States to permit trade in goods or services that improve the enjoyment of
human rights by their populations. The WTO compatibility of China’s internet
restrictions is examined in that regard.
²³ Ibid, 22.

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6

Introduction

Chapter 5 examines the impact of WTO rules on poverty and development,
particularly in developing States. The argument will be put that current WTO
rules are biased against the interests of developing States. Furthermore, the orthodox argument that free trade alleviates poverty will be challenged. Unfair treatment of, and the prescription of inappropriate rules for, developing States within
the WTO is not itself a human rights issue as States per se do not have human
rights. However, such issues clearly bear an instrumental relationship with human
rights protection as they impact on the capacity of developing States to discharge
their human rights obligations.
In Chapter 6, the impact of WTO rules on the right to food is examined, including an analysis of the rules regarding trade in agriculture, as well as the impact of
the Agreement on TRIPS. The difficult ‘marriage’ between trade and agriculture,
and reasons for those difficulties, are outlined, along with proposals for reform.
Chapter 7 examines the impact of TRIPS on the right to health, particularly the
debate regarding the impact of global patent rules on the prices of essential medicines. The arguments for and against patent regimes in the drug field will also be
addressed in this chapter.
In Chapter 8, the issue of extraterritorial human rights obligations is discussed.
Much of the material in Chapters 3 to 7 concerns conflicts between the interests
of developed and developing States. Chapter 8 examines the extent to which States
have duties to the people in other States. Such duties, if they exist, might signal
that States have a duty under international human rights law not to enforce WTO
rules which might harm the human rights of people in other States, or a duty to
amend WTO rules to assist those in other countries, particularly the poor in developing countries.
In Chapter 9, recommendations for reform are summarized in light of
Chapters 3 to 8. Current proposals for a new WTO deal are then examined in
comparison to those recommendations, as is the advent of the proliferation of
bilateral and free trade agreements outside the WTO.
Chapter 10 concludes the book.

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1
Introducing the WTO and International
Human Rights Law Regimes
In this opening chapter, the WTO and the international human rights regimes
will be introduced and explained. Given that the following chapters will pay more
detailed attention to WTO rules and processes, more space will be devoted in this
introductory chapter to the basics of international human rights law. Particular
attention is paid to economic, social, and cultural rights, as they are less well understood than other rights by those who lack human rights expertise.

A. The World Trade Organization
The origins of the WTO lie in the arrangements for the global economy that came
into being after the Second World War. Representatives of the Allied Powers gathered at Bretton Woods in New Hampshire in 1944 to devise the blueprint for the
post-War global economy. It was well recognized that economic instability during
the global Great Depression of the 1930s had caused great human misery and had
been a contributing factor to the advent of the War.¹ The Bretton Woods conference envisaged three pillars to stabilize and strengthen the new global economy comprised of the International Bank for Reconstruction and Development
(IBRD), the International Monetary Fund (IMF), and the International Trade
Organisation (ITO).
The IBRD was tasked with providing finance for reconstruction to the many
war-devastated States. It has since evolved to become one of the five arms of the
World Bank Group, with its current mission being to provide finance to fund
development and combat poverty in developing States. The World Bank Group
now generally promotes microeconomic reforms, largely in developing States, by
funding initiatives such as infrastructure projects (for example, dams, pipelines)
and anti-corruption and governance reforms.
The IMF’s role was and is to promote macroeconomic stability in global
exchange rates and balance of payments. It provides short term loans to States
in economic crisis in order to stabilize those countries’ economies and to prevent
disruption to the global economy.
¹ James Harrison, The Human Rights Impact of the World Trade Organisation (Hart, Oxford,
2007) 9.

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8

WTO and International Human Rights Law Regimes

The ITO was intended to supervise international trading rules and promote
free trade among nations, in order to guard against a return to the protectionist
policies that had contributed to the Great Depression. Furthermore, the fostering of international trade linkages along with predictable, enforceable international trading rules would help to promote peaceful international relations. The
Havana Charter establishing the ITO was concluded in 1948. The ITO however
never came into being, largely due to the refusal by the United States to ratify the
Havana Charter.²
One trade treaty, the General Agreement on Tariffs and Trade 1947 (GATT),
did emerge as a comparatively modest agreement amongst member States. The
GATT established a system whereby Contracting Parties committed to ‘bound’
tariffs with regard to named goods. Tariff bindings operated as ceilings above
which a State’s tariffs could not go. Each State had a different set of agreed tariff
bindings in its Schedule of Concessions, and applied them to all imports from
other Contracting Parties in accordance with the Most Favoured Nation (MFN)
principle in Article I. MFN required a Contracting Party to treat the goods of
all other Contracting Parties equally.³ The complementary principle of ‘National
Treatment’ in Article III obliged a Contracting Party to treat the goods of another
Contracting Party the same as its own ‘like’ goods once the latter Party’s goods
had legitimately entered the former Member’s market (for example, after they
had complied with tariff or other border requirements). A third key principle was
that of transparency, requiring Contracting Parties to publish their trade regulations.4 Article XI prohibited quantitative restrictions, such as quotas, on imports
and exports. Exceptions to the GATT applied, notably those in Article XX,
which permitted trade restrictions in order to protect a limited set of social values. GATT also had a dispute settlement system whereby disputes were resolved
by GATT Panels. Decisions of these panels had to be adopted unanimously,
meaning that a losing Party could (and did on occasion) block adoption of Panel
recommendations.5
With the demise of the ITO, the membership of the GATT became the forum
for continued negotiation of free trade rules. These rules were developed over
various ‘rounds’ of negotiations, culminating in the Uruguay round (1986–1994)
which led to the creation of the WTO. The Marrakesh Agreement establishing the
WTO of 1994 transformed the GATT from a negotiating forum held together
by a multilateral treaty into the WTO, an international organization. At the time
² Amrita Narlikar, The World Trade Organization: A Very Short Introduction (Oxford University
Press, New York, 2005) 11; David Kinley, Civilising Globalisation (Cambridge University Press,
Cambridge, 2009) 39–40.
³ MFN is subject to exceptions such as customs unions (eg the European Union) and free trade
areas (see Article XXIV of GATT).
4 Caroline Dommen, ‘Raising Human Rights Concerns in the World Trade Organization:
Actors, Processes and Possible Strategies’ (2002) 24 Human Rights Quarterly 1, 11.
5 Vázquez notes that there was a strong record of compliance with the GATT system despite its
apparent weakness prior to the advent of the WTO, in Carlos Manuel Vázquez, ‘Trade Sanctions
and Human Rights—Past, Present and Future’ (2003) 6 Journal of International Economic Law 797,
807–8.

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A. The World Trade Organization

9

of writing, there are 153 Member States of the WTO. The institution is based in
Geneva, Switzerland.6
The Uruguay Round generated a series of Agreements to be monitored and
supervised by the WTO. The Contracting Parties to the GATT became Members
of the WTO, who were required to adhere to all WTO Agreements as a single
undertaking without reservations.7 Acceding Members are also required to sign up
to the whole package deal, often with extra obligations.8
The WTO Agreements significantly expanded the mandate and strength of the
WTO beyond that of its GATT predecessor. The GATT had focused solely on
goods and largely on the dismantling of a single type of trade barrier, tariffs.9 Tariff
schedules under the WTO Agreements are more comprehensive than those under
the GATT in terms of the number and types of goods covered. For example, trade
in agricultural goods is now covered under the Agreement on Agriculture (AoA),
while trade in textiles and clothing was regulated under the Agreement on Textiles
and Clothing (ATC).¹0 Furthermore, the WTO addressed non-tariff barriers. For
example, the Agreement on the Application of Sanitary and Phytosanitary Measures
(SPS) concerns domestic measures designed to protect human, animal or plant life or
health. The Agreement on Technical Barriers to Trade (TBT) concerns mandatory
domestic provisions regarding a range of matters, including labelling, packaging,
production processes, and other product characteristics. The SPS and TBT regulate
the extent to which such standards can restrict international trade.¹¹ Regulation of
foreign investment is itself regulated to an extent under the Agreement on Trade
Related Aspects of Investment Measures (TRIMs). The GATT itself was retained,
including its key principles of MFN and National Treatment, and its principles and
rules expanded and clarified in GATT 1994, and Agreements on Pre-Shipment
Inspection, Rules of Origin, and Import Licensing Procedures. Agreements on
Implementation of Article VI (concerning anti-dumping)¹² and Subsidies and
Countervailing Measures specify the means by which States may counter certain
unfair trade practices, while the Agreement on Safeguards recognizes some capacities for States to respond to unexpected import surges to protect home industries.
6 The following commentary on the WTO is adapted from Sarah Joseph, ‘Trade to Live or
Live to Trade: The World Trade Organization, Development, and Poverty’ in Mashood Baderin
and Robert McCorquodale (eds), Economic, Social and Cultural Rights in Action (Oxford University
Press, Oxford, 2007) 389–416.
7 There are two plurilateral deals, which only bind States that voluntarily ratify them, concerning civil aircraft and government procurement; two further plurilateral deals on bovine meat and
dairy produce have now expired. There are also some flexibilities in the main WTO deals, such as the
ability of States to choose which services they will liberalize under the General Agreement on Trade
in Services.
Some WTO treaties explicitly allow for reservations so long as all other parties consent to those
reservations. This author is unaware of any reservations to WTO treaties.
8 See Chapter 5, text at notes 89–100.
9 Some regulation of non-tariff barriers applied on a plurilateral basis.
¹0 This agreement expired on 1 January 2005. Textiles and clothing are now dealt with under the
GATT 1994.
¹¹ See Chapter 4, Part D.
¹² ‘Dumping’ arises where goods are exported at a lower price than its normal value: States may
take remedial measures if dumping harms competing local industries.

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WTO and International Human Rights Law Regimes

10

Furthermore, the WTO’s jurisdiction has moved beyond issues regarding the
trade in goods. The General Agreement on Trade in Services (GATS) adopts similar principles and exceptions to those in the GATT in respect of the international
trade in services. However, its obligations are less strict than those in the GATT
as Members are permitted to nominate the services to which GATS applies for
the purposes of its National Treatment and market access obligations. Finally,
WTO Members are also required to protect intellectual property rights under the
Agreement on Trade-Related Intellectual Property Rights (TRIPS).
The WTO has a strong dispute settlement mechanism, established under the
Understanding on Rules and Procedures Governing the Settlement of Disputes.
The Dispute Settlement Body (DSB) is comprised of the totality of WTO
Members. The first step in the dispute settlement process is the convening of consultations between disputing parties. If consultations do not lead to a settlement,
the DSB will normally refer the matter to a WTO panel, which makes a decision
on the merits of the dispute under WTO law. Appeals against panel decisions may
be brought before the WTO Appellate Body on issues of law and legal interpretation.¹³ As noted above, the decisions of GATT panels could only be enforced if
endorsed by all GATT parties. In contrast, the DSB will adopt the decisions of a
panel or the Appellate Body unless the decision is rejected by consensus; such rejection is not likely to happen as a victorious Member is unlikely to vote against its
own victory. If a Member fails to satisfactorily implement the final decision within
a reasonable period of time, the DSB will normally authorize retaliatory trade
measures by the vindicated Member against the defaulting Member. A significant
commercial price is therefore paid by a Member that fails to abide by DSB rulings.
The dispute resolution system renders the commitments of WTO Members credible, as consequences attach to non-compliance.¹4
Like the GATT, the WTO is also a forum for its Members to negotiate further
agreements on free trade. New agreements are to be reached by consensus, though
facility is also made for majority vote.¹5 All institutions within the WTO are open
to representatives from all Members. The Ministerial Conference, the highest body
within the WTO, formally meets to conduct negotiations every two years. The
General Council oversees the everyday management of the organization, and also
acts as the DSB. The General Council also meets as the Trade Policy Review Body
which operates the Trade Policy Review Mechanism (TPRM), under which the
trade policies of each Member are periodically reviewed in regard to their transparency and their effect on the international trading system. The TPRM process is
not legalistic so it does not result in enforceable findings of ‘violation’,¹6 though it
can generate criticism of policies and recommendations for reform. There are also
a number of specialist bodies within the WTO, which address different trade topics, such as the Councils on Trade Related Aspects of Intellectual Property Rights,
¹³
¹4
¹5
¹6

No appeal provision existed under the old GATT arrangements.
Martin Wolf, Why Globalisation Works (Yale Nota Bene, London, 2005) 91.
Marrakesh Agreement Establishing the WTO (1994), 1867 UNTS, Article IX.
Dommen, above n 4, 9.

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A. The World Trade Organization

11

Trade in Services, and Trade in Goods, and Committees which operate under those
Councils, as well as Committees addressing broader issues such as the Committee
on Trade and Environment and the Committee on Trade and Development. There
is no Committee on Trade and Human Rights. Working Parties address various
other issues such as the accession of new members.¹7
The WTO is serviced by a secretariat, headed by a Director-General, which
provides administrative and technical support to the WTO institutions and the
Members. The current Director-General is Pascal Lamy, the former European
Commissioner for Trade.¹8 It does not have an autonomous power of initiative, as
all policies and decisions are made by the WTO Members.¹9
The current round of WTO negotiations has thus far failed to bear much fruit.
A new round was intended to be launched at the Ministerial meeting in Seattle in
1999, but that meeting collapsed amidst recriminations inside the negotiating halls
and outside on streets teeming with anti-globalization protestors. Members agreed
two years later to establish a new negotiating round after the Doha Ministerial in
2001, known as the Doha Development Round. However, that round has foundered, with agreement proving elusive in Cancun in 2003, Hong Kong in late
2005 and in subsequent lower level meetings through to the present day. While
Ministerial meetings are meant to be held every two years, there was a gap of four
years between the Hong Kong Ministerial and the Geneva Ministerial in 2009. The
Geneva Ministerial ultimately yielded only predictable calls for Members to endeavour to conclude the Doha round, and was essentially a ‘housekeeping’ exercise.²0

Raison d’être of the WTO
The result of the globalization of trade, at least in the developed world and urban
areas in many developing States, has been described by Martin Wolf:
We can buy food produced all over the world, which is then bought, processed, distributed
and sold through a long chain of wholesalers and retailers to satisfy our varying tastes. The
food will be extraordinarily safe [by historical standards]. One can buy clothing made
by workers in China, India, Italy or Mexico, in a staggering number of different fabrics
and styles. For personal transport, one can choose from many varieties of motor car; for
entertainment, one can select a DVD player and flat-screen television; for work, leisure or
personal bureaucracy, one can buy a personal computer. An army of competing investors,
designers, producers, and distributors try to meet all these and many other demands. A

¹7 See generally WTO, ‘Understanding the WTO’ (2007) Chapter 7: The Organization <http://
www.wto.org/english/thewto_e/whatis_e/tif_e/utw_chap7_e.pdf> accessed 18 September 2010.
¹8 Lamy became Director-General in 2005, and was re-elected by consensus in the General
Council to a second four-year term, which commenced in 2009.
¹9 Dommen, above n 4, 9. That is not to say that it has no influence: see Chapter 3, text at notes
80–86.
²0 See International Centre for Trade and Sustainable Development, ‘WTO Ministerial Lifts
Hopes for Doha, but Scepticism Lingers’ (2009) 13 Bridges Weekly Trade News Digest, <http://ictsd
.org/i/news/bridgesweekly/65367/> accessed 18 September 2010.

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12

WTO and International Human Rights Law Regimes

host of intermediaries takes money from households and supplies it to those who persuade
them they can use it productively.²¹

Wolf could have added that these goods can be ordered via telephone or internet
network services provided by foreign investors or offshore suppliers, and that the
creators of the most innovative goods, or their assignees, benefit from global intellectual property protection.
The underlying rationale of the WTO is to preside over the reduction of trade
barriers between nations, thereby promoting global free trade. As noted above,
one reason behind the promotion of free trade is that the creation of trading relations between States alongside a peaceful and authoritative procedure for settling
disputes will promote more harmonious international relations. After all, history is
littered with trade disputes which escalated into wars.
Furthermore, the theory of comparative advantage, ‘arguably the single most
powerful insight into economics’ according to the WTO website,²² provides an
important intellectual basis for arguments in favour of the benefits of free trade.
Briefly, that theory holds that States should concentrate on producing what they
are best at producing. To do otherwise generates inefficiency and opportunity
costs. States should produce and export those goods, and import other goods. This
practice, coupled with the removal of barriers to imports and exports, generates
greater economic efficiency at both the domestic and global levels with all States
producing what they are best at producing. Consumers are able to access goods at
the best prices while industries are forced to innovate and become more efficient in
order to survive in the globally competitive marketplace.
The theory of comparative advantage will be discussed further in Chapter 5. For
now, it may be noted that the creation of greater global wealth is a laudable goal
from a human rights point of view. In particular, greater wealth should facilitate
the alleviation of poverty. Some characterize living in a state of poverty as a human
rights abuse in itself.²³ At the least, human rights abuses often accompany a state
of poverty.²4 The preamble to the Marrakesh Agreement establishing the WTO
echoes the idea that free trade should constitute a means to desirable ends rather
than an end in itself: ‘trade should be conducted with a view to raising standards
of living’ and ‘ensuring full employment’, while ‘allowing for the optimal use of
the world’s resources in accordance with the objective of sustainable development’.
At first glance, the WTO’s mission seems utterly compatible with the promotion,
protection and enjoyment of human rights.²5 This issue, of course, is the subject
matter of this book.
²¹ Wolf, above n 14, 45.
²² WTO, ‘Understanding the WTO: The Case for Open Trade’ (undated) <http://www.wto.org/
english/thewto_e/whatis_e/tif_e/fact3_e.htm> accessed 18 September 2010.
²³ See, eg, Thomas Pogge, ‘Recognized and Violated: the Human Rights of the Global Poor’
(2005) 18 Leiden Journal of International Law 717.
²4 See Chapter 5, Part A.
²5 Frank Garcia, ‘The Global Market and Human Rights: Trading away the Human Rights
Principle’ (1999) 7 Brooklyn Journal of International Law 51, 59. See also Adam McBeth, International
Economic Actors and Human Rights (Routledge, Oxford, 2010) 87–8.

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B. The International Human Rights Regime

13

B. The International Human Rights Regime
UN standards
Prior to the Second World War, human rights were largely unrecognized in international law. Discrete exceptions existed, such as the early principles of international humanitarian law (the law of armed conflict) and certain protections for
aliens.²6 However, a State’s treatment of its own citizens was generally recognized
as a sovereign matter of no international concern. The legal landscape changed in
the aftermath of the Second World War, a conflict characterized by severe human
rights atrocities which truly shocked the conscience of the international community. Just as the Bretton Woods conference was convened to address the economic
catastrophes that pre-dated the war and the reconstruction which would be needed
after the war, it was also decided that the post-war international legal system could
no longer ignore the acts of inhumanity perpetrated by States against their own
populations.
The promotion and encouragement of respect for human rights and fundamental freedoms was explicitly recognized as a purpose of the international organization set up to maintain international peace and security after the war, the United
Nations (UN), in Article 1(3) of the UN Charter of 1945. Under Articles 55 and
56, UN Member States are committed to ‘joint and separate action’ to create ‘conditions of stability and well-being’ across the world, including the promotion of
‘universal respect for, and observance of, human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion’. Thus, from 1945,
it was clear that human rights could no longer be characterized as a domestic issue
hidden by the veil of State sovereignty.
‘Human rights’ and ‘fundamental freedoms’ were not defi ned in the Charter.
The UN endorsed a list of recognized human rights in the Universal Declaration
of Human Rights (UDHR). No State, either in 1948 or upon joining the
UN, has ever denounced the UDHR.²7 The UDHR itself was reaffi rmed in
the Vienna Declaration and Programme of Action,²8 adopted after the World
Conference on Human Rights in 1993, and remains the key expression of global
human rights values. The UDHR was not adopted as a legally binding instrument. It is arguable however that its norms have now crystallized as customary
international law.²9 Furthermore, it is arguable that the UHDR defi nes ‘human
rights’ for the purposes of the human rights provisions of the UN Charter, such
as Articles 1(3), 55 and 56, which are recognized as peremptory international
norms.³0
²6 See also Louis B Sohn, ‘The new international law: protection of the rights of individuals rather
than States’ (1982) 32 American University Law Review 1, 2–9.
²7 Eight States abstained when the UN General Assembly adopted the UDHR: Byelorussia,
Czechoslovakia, Poland, the Ukraine, the USSR, Yugoslavia, Saudi Arabia, and South Africa.
²8 Vienna Declaration and Programme of Action (1993), UN doc. A/CONF.157/23, para 2.
²9 See, eg, Sohn, above n 26, 15–17.
³0 Ibid, 16.

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14

WTO and International Human Rights Law Regimes

In 1966, most of the norms in the UDHR³¹ were enshrined in two treaties, the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and
the International Covenant on Civil and Political Rights (ICCPR). The three documents are often collectively called ‘The International Bill of Rights’. An Optional
Protocol to the ICCPR was also adopted in 1966, providing for a right of individual petition in respect of violations of the ICCPR against States that ratify that
Protocol.
The first UN human rights treaty was in fact adopted a few months before
the Covenants: the International Convention on the Elimination of all Forms
of Racial Discrimination 1965 (CERD). The following UN treaties have been
adopted since: the Convention on the Elimination of All Forms of Discrimination
against Women 1979 (CEDAW), the Convention against Torture and other Cruel,
Inhuman and Degrading Treatment or Punishment 1984 (CAT), the Convention
on the Rights of the Child 1989 (CRC), the International Convention on the
Protection of the Rights of All Migrant Workers and Members of their Families
1990 (MWC), the Convention on the Rights of Persons with Disabilities 2006
(CPRD) and the International Convention for the Protection of All Persons from
Enforced Disappearance 2006 (Disappearances Convention).
There are also some important human rights declarations, concerning rights
that have not yet attained treaty status, such as the Declaration on the Right to
Development 1986 and the Declarations of the Rights of Indigenous Peoples 2007
(DRIP). Furthermore, many of the above treaties are supplemented by Optional
Protocols which either add further substantive rights to their respective parent
treaties,³² or provide for new procedural mechanisms to hold States accountable
for their treaty obligations.³³

UN human rights institutions and enforcement machinery
A number of UN bodies have responsibilities for the enforcement of human rights.
The main intergovernmental body is the Human Rights Council. The Council has
a broad human rights mandate, including standard-setting and promotion. It may
also authorize the investigation of particular human rights situations (for example,
a particular human rights theme or the human rights situation in a particular State)
by appointed expert bodies.³4 It also reviews the human rights performance of all
States on a rolling basis under the process of Universal Periodic Review. Finally,
³¹ Certain discrete rights are excluded, such as the right to seek and enjoy asylum (Article 14) and
the right to property (Article 17).
³² See, eg, Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography (adopted 25 May 2000, entered into force
18 January 2002), 2171 UNTS 227.
³³ See, eg, Optional Protocol to the CEDAW (adopted 6 October 1999, entered into force
22 December 2000), 2131 UNTS 83, providing for a right of individual petition for alleged breaches
of rights under CEDAW.
³4 These bodies are known by a variety of names, such as Special Rapporteurs, Special
Representatives, Independent Experts, or (in the case of a group as opposed to an individual) a
Working Group.

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B. The International Human Rights Regime

15

it may pass resolutions on any human rights matter. For example, its resolutions
may endorse existing or proposed new human rights principles, or condemn the
human rights record of a particular State. The Council is a political body made up
of 47 State members, elected by the UN membership to serve three-year terms.
UN ‘treaty bodies’ are created to monitor and supervise implementation of
each of the treaties. For example, the Human Rights Committee (HRC) is established under Article 28 of the ICCPR to perform various roles under that treaty.
The treaty bodies are made up of independent human rights experts. They are not
‘courts’, so their decisions are not legally binding. However, their interpretations of
their respective treaties have strong persuasive force, as they represent authoritative
interpretations of legally binding documents.³5 The treaty bodies act as the quasijudicial arm of the UN human rights machinery (in contrast to the political arm,
represented by the Human Rights Council).
The treaty bodies have a range of functions. For the purposes of this book,
the important functions are those that generate jurisprudence and authoritative
human rights interpretations. Such interpretations can arise in making decisions with respect to individual complaints (for example, by the HRC under the
Optional Protocol to the ICCPR). They can also arise under the ‘reporting procedures’, whereby each treaty body assesses the overall record of each State party to
the relevant treaty and issues ‘concluding observations’ on the State. The concluding observations act as a human rights ‘report card’ for the relevant State and can
also provide significant indicators as to the meaning of relevant human rights provisions. Finally, all treaty bodies may issue ‘general comments’, which address matters of relevance to all States parties to a particular treaty. Most general comments
contain expanded interpretations of particular rights in a relevant treaty, though
a general comment can address any issue of relevance to the implementation of a
particular treaty.³6
Both the charter bodies and treaty bodies are serviced by the Office of the High
Commissioner for Human Rights, the bureaucratic arm of UN human rights
machinery.³7
The Achilles heel of the international human rights system lies in its enforcement, or lack thereof. No global body, apart from the UN Security Council³8 and

³5 See, eg, Human Rights Committee, ‘General Comment No 33: The Obligations of States
Parties under the Optional Protocol to the International Covenant on Civil and Political Rights’,
UN doc. CCPR/C/GC/33 (5 November 2008) paras 11–15.
³6 Eg, treaty bodies have issued General Comments on reporting guidelines, reservations to treaties, and denunciations of treaties.
³7 Sarah Joseph and Joanna Kyriakakis, ‘United Nations and Human Rights’ in Sarah Joseph
and Adam McBeth (eds), Research Handbook on International Human Rights Law (Edward Elgar,
Cheltenham, 2010) 18–20.
³8 The UN Security Council is one of the principal bodies of the UN. It has primary responsibility under the Charter for the maintenance of international peace and security. Its powers include
the establishment of peacekeeping operations, and the authorization of international sanctions and
even military action. Its resolutions under Chapter VII of the Charter are binding on UN Members
under Article 25 of the Charter. There are 15 member States of the Security Council; 10 are elected
to serve two-year terms and five (China, France, Russia, United Kingdom, and the United States) are

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16

WTO and International Human Rights Law Regimes

the International Court of Justice (ICJ),³9 is empowered to make legally binding decisions on human rights. The Security Council and ICJ rarely deal with
human rights matters, though the number of human rights cases before the ICJ
has increased in recent years.40 Enforcement against recalcitrant States is largely
promoted by the process of naming and shaming. While shame can prompt behavioural change by a State,4¹ it is clearly a weak enforcement measure compared to
the economic consequences that ensue from non-compliance with the rulings of
dispute resolution bodies in the WTO.4² The record of compliance with the rulings of UN human rights bodies such as the treaty bodies pales in comparison to
the record of compliance by WTO members with the WTO dispute settlement
bodies.

Regional systems
There are also regional human rights systems. The most successful human rights
system, in terms of compliance and reputation, operates under the auspices of the
Council of Europe. The European Convention on Human Rights 1951 (ECHR)
and its Protocols largely protect civil and political rights, and is enforced by the
European Court of Human Rights. The European Social Charter 1961 addresses
economic, social and cultural rights and is enforced by a quasi-judicial European
Committee on Social Rights. There are also single issue human rights treaties such
as the European Convention against Torture 1987, again supervised by a quasijudicial body.
Similar systems operate in the Americas and Africa, with the former system
based on the American Convention on Human Rights 1969 and the latter based
on the African Charter of Human and Peoples’ Rights 1981. There are also separate treaties addressing economic, social, and cultural rights and other human
rights issues. A new regional system is also emerging under the auspices of the Arab
League, with the coming into force in 2008 of the Arab Charter on Human Rights
2004.
The regional systems are better equipped in terms of enforcement, as the decisions of regional courts are legally binding. Difficulties in enforcement nevertheless
permanent members who retain a right to veto any Security Council resolution apart from a procedural resolution.
³9 The ICJ is the principal judicial organ of the UN. It was established in June 1945; its constitution and powers are set out in the Statute of the ICJ, which is annexed to the UN Charter. The
Court’s role is to settle legal disputes submitted to it by States in accordance with international law
and to issue advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies. The Court is composed of 15 judges, who are elected for terms of office of nine years by
the UN General Assembly and the Security Council.
40 See, generally, Sandesh Sivakumaran, ‘The International Court of Justice and Human Rights’
in Joseph and McBeth (eds), above n 37, 299–325.
4¹ See Joseph and Kyriakakis, above n 37, 26–8.
4² See Philip Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A
Reply to Petersmann’ (2002) 13 European Journal of International Law 815, 833; Vázquez, above n 5,
803–4.

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B. The International Human Rights Regime

17

remain, with States often opting to pay damages to an aggrieved individual, rather
than undertaking the systemic change necessary to avoid future human rights
abuses. Furthermore, not all regions are covered by regional human rights treaties,
with no regional human rights system in Asia or Oceania.4³
Another development regarding the regional protection of human rights is the
extent to which other regional courts, such as the European Court of Justice under
the auspices of the European Union,44 or the ECOWAS Community Court of
Justice established by the European Community of West African States,45 have
begun to enforce human rights norms. This circumstance is particular interesting
for the purposes of this book given the genesis of the EU and ECOWAS as free
trade regimes.

The ICCPR and the ICESCR
The key instruments for the purposes of this book are the two Covenants: the
ICCPR and the ICESCR, though some reference will be made to other instruments, especially the UDHR and the Declaration on the Right to Development.
The Covenants are of most relevance to this book due to their global (as opposed
to regional) coverage, and the breadth of rights covered (as opposed to narrower
instruments which are limited in terms of right-holders, such as the CEDAW,
the CRC and the CPRD, or in terms of rights covered, such as the CAT and the
Disappearances Convention).
The UDHR did not set up a hierarchy of rights, and it was initially intended
that the follow-up treaty would not split the various UDHR rights. However,
Cold War politics, as well as perceptions over fundamental differences between
civil and political rights on the one hand, and economic, social, and cultural
rights on the other, led to a decision to split the rights into two Covenants.46
Nevertheless, the preamble to each Covenant proclaims both sets of rights as
interdependent and indivisible. Formal equality is evidenced in that both
Covenants came into force in 1977, and both have roughly the same number of
States parties at September 2010. The equal importance and interdependence
of both sets of rights was affirmed in the Vienna Declaration and Programme
of Action of 1993.
4³ The Association of South East Asian Nations (ASEAN) established an ASEAN Human Rights
Commission to promote human rights within ASEAN in late 2009. Th is Commission does not compare to the more mature regional systems discussed in this section. It is premature to assess its likely
impact on human rights protection within the ASEAN region. See Yuval Ginbar, ‘Human Rights in
ASEAN—Setting Sail or Treading Water?’ (2010) 10 Human Rights Law Review 504.
44 See, eg, Kadi and Al Barakaat International Foundation v Council of the European Union (ECJ
Grand Chamber, 3 September 2008) Cases C- 402/05 and C- 415/05 P.
45 See, eg, Mme Hadijatou Mani Koraou v The Republic of Niger (2008) ECW/CCJ/JUD/06/08
(ECOWAS Community Court of Justice). See also Helen Duff y, ‘Hadijatou Mani Koroua v Niger:
Slavery Unveiled by the ECOWAS Court’ (2009) 9 Human Rights Law Review 151.
46 See, eg, Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the
International Covenant on Civil and Political Rights, 2nd edn (Oxford University Press, New York,
1994) para 1.16.

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18

WTO and International Human Rights Law Regimes

The ICCPR protects civil and political rights.47 It has 166 States parties at
September 2010. A notable absentee is China, which has signed but not ratified the
ICCPR.48 Civil and political rights can be categorized as encompassing (1) rights
of physical and spiritual integrity and autonomy; (2) rights of fair treatment;
and (3) rights to participate meaningfully in the political process.49 Category 1
includes the rights to life and freedom from torture and other ill treatment, freedom of movement and the right to privacy. Spiritual autonomy is ensured by rights
such as freedom of religion, belief and thought. Category 2 encompasses fairness
in a narrow procedural sense, such as the right to a fair trial, and in a broader
sense, such as a general right of equal protection of the law and freedom from
non-discrimination. Category 3 obviously encompasses the right to vote and to
stand for election, and also includes rights which are essential for a healthy political
process, such as the freedoms of assembly and association. These categories overlap
considerably. For example, freedom of expression falls into all three categories. It is
necessary for the preservation of one’s spiritual autonomy to ensure that one is able
to express one’s own ideas, and to receive the ideas of others. It is also relevant to
fair treatment: one cannot be treated fairly and equitably if one’s needs and desires
cannot be heard, or if one cannot access relevant information and ideas. Finally,
freedom of expression is essential to a functional political system, so that there can
be a free flow of communication between the elected and those whom they represent, and within society to ensure governmental accountability.
Most civil and political rights are qualified by permissible limitations. Very
few ICCPR rights are absolute.50 For example, the right to free expression in
Article 19(2) does not entail the right to express any view at any time in any forum,
though a State bears the burden of proof in establishing that limitations on that
right are justified.5¹ Most ICCPR rights can be limited by proportionate measures
reasonably designed to achieve a legitimate end.
The ICESCR protects economic, social, and cultural rights, and has 160 parties. A notable absentee is the US, which has signed but not ratified the ICESCR.
Economic rights are rights related to labour and employment, contained in

47 The following commentary is adapted from Sarah Joseph, ‘Civil and political rights’ in
Mashood Baderin and Manisuli Ssenyonjo, International Human Rights Law: Six Decades after the
UDHR (Ashgate, Surrey, 2010) 89–106.
48 Upon its succession to sovereignty over Hong Kong and Macau, China has agreed that the
ICCPR continues to apply to those territories, as it had under their previous colonial rulers, the UK
and Portugal. See, eg, Kuok Koi v Portugal, UN doc. CCPR/C/73/D/925/2000 (8 February 2002)
(Human Rights Committee).
49 See also Scott Davidson, ‘Introduction’ in Alex Conte, Scott Davidson, and Richard Burchill,
Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee
(Aldershot, Ashgate, 2004) 2.
50 Examples of absolute rights are the right to be free from torture and other ill treatment
(Article 7) and the right to be free from slavery and servitude (Article 8).
5¹ Article 19(2) rights are limited by Article 19(3) which reads: ‘The exercise of the rights provided
for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others; (b) For the protection of national security or of
public order (ordre public), or of public health or morals.’

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B. The International Human Rights Regime

19

Articles 6 to 8 of the ICESCR,5² as well as the accrued benefits of labourers and
social safety nets for those who cannot work, in Article 9 (the right to social security). Social rights are those needed to function adequately in society such as
the right to family life (Article 10), the right to an adequate standard of living
(Article 11), the right to health (Article 12) and the right to education (Articles 13
and 14). Article 15 covers cultural rights, including the right to participate in the
cultural life of society and to benefit from scientific progress. Again, the distinction between the three categories is not watertight, and indeed is often ignored.5³
The UN is committed to the formal equality of the two sets of rights.
Furthermore, the two Covenants have similar numbers of States parties. And
indeed, the rights are interdependent and mutually reinforcing. The right to life
(Article 6 ICCPR) is closely linked to the right to health (Article 12 ICESCR).
The right to education (Articles 13 and 14 ICESCR) helps to promote literacy,
a key facilitator of freedom of expression (Article 19 ICCPR). The right to form
trade unions (Article 8 ICESCR) is a sub-component of freedom of association
(Article 22 ICCPR). The right to family life is reflected in Articles 17 and 23 of the
ICCPR, and Article 10 of the ICESCR.

Differences between the ICCPR and the ICESCR
Nevertheless, the norms in the ICCPR are far more developed than those in the
ICESCR. Civil and political rights have a longer legal pedigree, having generated
much jurisprudence under domestic constitutional documents, such as the US Bill
of Rights, for over 200 years. Therefore, there was significant source material from
domestic law to aid the development of civil and political rights at the international
level. In contrast, many economic, social, and cultural rights were first established
in international law rather than domestic law.54 As those rights lack a comparable
history of domestic legal protection and justiciability, those norms are less legally
developed.
Another ‘advantage’ for civil and political rights arises at the advocacy level.
Those human rights non-governmental organizations (NGOs) that have most
engaged in domestic and international political processes, such as Amnesty
International and Human Rights Watch, have historically focused on civil and
political rights. NGOs in the economic, social, and cultural rights arena have
tended to be organizations that facilitated service delivery to disadvantaged
groups, such as charitable organizations.55 Thus, there has historically been
greater agitation for States by human rights advocates to ‘do something’ about
5² Articles 6–8 cover, respectively, the rights to work, to just and favourable conditions of work,
and to join trade unions.
5³ Henry Steiner, Philip Alston, and Ryan Goodman, International Human Rights Law in Context,
3rd edn (Oxford University Press, New York, 2007) 276.
54 Robert E Robertson, ‘Measuring State Compliance with the Obligation to Devote the
“Maximum Available Resources” to Realizing Economic, Social, and Cultural Rights’ (1994)
16 Human Rights Quarterly 693, 694.
55 J Oloka-Onyango, ‘Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social
Rights in Africa’ (1995) 26 California Western International Law Journal 1, 38–9.

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20

WTO and International Human Rights Law Regimes

civil and political rights abuses, both at home and abroad, and less pressure to
address deficiencies regarding economic, social, and cultural rights.56 This distinction has been eroded in the last 20 years. For example, Amnesty International no
longer ignores economic, social, and cultural rights.57 And classical service NGOs
like Oxfam and Médecins sans Frontières are far more politically active, and are
responsible for some of the most sophisticated activism around human rights and
trade.58 Nevertheless, civil and political rights had a significant ‘head start’ over
economic, social, and cultural rights in capturing the attention and shaping the
agendas of human rights activists.
The infrastructure for civil and political rights established by the ICCPR was,
and remains, superior to that in the ICESCR. The ICCPR established an independent expert body, the HRC, to oversee its implementation. No such body was
established by the ICESCR, with oversight left initially to the United Nations
Economic and Social Council (ECOSOC), a political body with political agendas. Only after eight years of inadequate performance did ECOSOC finally establish an independent expert body in 1985, the Committee on Economic Social and
Cultural Rights, to supervise the implementation of the ICESCR.59 Again, the
theme of civil and political rights being ‘ahead’ of economic, social, and cultural
rights is evident. The HRC had an eight-year head start over its ICESCR counterpart in developing its practices, procedures, institutional culture, and substantive
jurisprudence.
Of even greater consequence are key differences between the respective obligations of States under the two Covenants. The key obligation provision in the
ICCPR, Article 2(1), reads:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present
Covenant, without distinction of any kind such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth, or other status.

Therefore, the ICCPR requires States to immediately respect and ensure to all the
enjoyment of the rights therein.
The parallel provision in the ICESCR, Article 2(1), reads:
Each State Party to the present Covenant undertakes to take steps, individually and
through international assistance and co-operation, especially economic and technical, to
the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

56 There has historically been much political agitation around economic and social issues, but not
in terms of economic and social ‘rights’ beyond labour rights.
57 See, generally, Amnesty International, ‘Amnesty International action for economic, social
and cultural rights: What is Amnesty International doing? (undated) <http://www.amnesty.org/en/
economic-and-social-cultural-rights/ai-action-escr> accessed 18 September 2010.
58 See, eg, Oxfam, Rigged Rules and Double Standards (Oxfam, London, 2002).
59 ECOSOC Resolution 1985/17 (28 May 1985).

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B. The International Human Rights Regime

21

The obligation provision in the ICESCR is muddier than that in the ICCPR. The
obligation is progressive rather than immediate, and is qualified by a State’s ‘available resources’. States are arguably required to ‘try hard’ in protecting ICESCR
rights. The soft obligation makes it easier for States to evade findings of violation of the ICESCR. It is much easier to determine whether a State has or has not
implemented a right, as is required for determinations under the ICCPR, than it
is to determine whether a State has exercised sufficient endeavour in attempting
to implement a right, as is the standard of obligation apparently dictated by the
ICESCR.

Positive and negative rights
A key to the rationale behind the different obligations is the perception that
civil and political rights are ‘negative rights’, requiring only that States refrain
from rights violating behaviour, while economic, social, and cultural rights are
‘positive’, requiring States to take actions to fulfi l the rights therein. Negative
rights seem to require a State to do nothing. Th is inexpensive and simple obligation justifies the comparatively onerous ICCPR obligation. Positive rights are
expensive and difficult to perform, justifying the leeway given to States under
the ICESCR.
However, the reality is somewhat different. Civil and political rights are not
wholly negative in nature. For example, the right to a fair trial in Article 14 of
the ICCPR clearly requires the establishment of adequate judicial infrastructure.
Article 25, covering the right to vote, entails the establishment of the necessary
apparatus to run a fair election. Articles 23(1) and 24(1) explicitly require the
adoption of measures by the State to protect families and children. Indeed, all
human rights entail both positive and negative characteristics. Freedom from
torture (Article 7 ICCPR) essentially requires States to refrain from torture, so
it seems to be a quintessential negative right. However, a State cannot prevent
torture by simply doing nothing. States must take positive steps to ensure that
the opportunities for torture are minimized, that systems are in place to prevent torture, and that it is punished in the instances where it occurs. In General
Comment 31, the HRC confirmed that Article 2(1), which specifies the duties
upon States parties with regard to all ICCPR rights, ‘is both negative and positive
in nature’.60
The same is true of the ICESCR: its norms also entail both negative and positive
aspects. For example, the right to housing, an aspect of the right to an adequate
standard of living in Article 11, has a positive aspect in that States should make
adequate provision for shelter for homeless people. It has a negative aspect in that
a State should not arbitrarily evict people from their homes. One may note, for
example, that arbitrary evictions and the destruction of homes are a human rights
60 Human Rights Committee, ‘General Comment No 31: Nature of the General Legal Obligation
Imposed on States Parties to the Covenant’ UN doc. CCPR/C/21/Rev.1/Add.13 (26 May 2008)
para 6.

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WTO and International Human Rights Law Regimes

abuse that has reportedly been used in Zimbabwe against Robert Mugabe’s political opponents.6¹

The tripartite nature of all human rights
States have duties to respect, protect, and fulfil all human rights, whether they be
civil and political rights or economic, social, and cultural rights. The duty to respect
is a duty to refrain from activities that harm human rights: it is the basic negative duty. The duties to protect and fulfil are positive duties. The duty to protect is
the duty to take reasonable measures to protect people from harm to their human
rights by other entities, such as individuals or corporations. Therefore, human
rights certainly impact within the private sphere: States are required to regulate
private entities in order to ensure, as far as is reasonably possible, that they do not
harm the human rights of others. For example, the regulation of health and safety
standards helps to ensure that workers’ rights are not infringed by their employers.
The duty to fulfil includes the duty to take the measures necessary to ensure that
individuals enjoy their human rights. Examples of implementation of this obligation would be the provision of subsidies to ensure access by the poor to essential
goods and services such as water, health care and education, and the implementation of an accessible vaccination programme to guard against threats to the rights
to life and health.
The duties to respect and protect generally require fewer resources than the
obligation to fulfil.6² The duties to fulfil may be further categorized into duties
to facilitate, promote, and provide for the implementation of a right. Facilitation
obliges States to put appropriate structures in place to enable people to enjoy their
rights. For example, facilitation of the right to education would include the adoption of a strategy to ensure a minimum level of quality in educational institutions. Promotion involves the raising of awareness about a particular right: an
example would be dissemination of people’s rights regarding their access to legal
aid. Finally, the duty to provide involves the direct provision of rights to groups
that are unable, for reasons outside their control, to enjoy a right under their own
means. For example, legal aid has to be provided for those accused of serious
crimes under Article 14(3)(d) of the ICCPR, if the accused cannot afford to pay
for legal counsel. As a second example, a State should provide for the housing
needs of those who are too poor to provide for their own shelter under Article 11
of the ICESCR.6³
A final point to make about the tripartite nature of human rights duties is that
the fulfilment of a human rights obligation does not automatically require that
6¹ See Commission on Human Rights, ‘Report of the Special Rapporteur on adequate housing as
a component of the right to an adequate standard of living, Miloon Kothari: Summary of communications sent and replies received from Governments and other actors’, UN doc. E/CN.4/2006/41/
Add.1 (23 December 2005) paras 33–8.
6² UN Economic and Social Council, ‘Report of the United Nations High Commissioner for
Human Rights’, UN doc. E/2007/82 (25 June 2007) para 11.
6³ Ibid, para 12.

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C. A Closer Look at Economic, Social, and Cultural Rights

23

the government itself secure a right.64 The duty to respect implies that the private
sector be given the necessary space to play a role in, for example, growing food
or providing housing. The duty to facilitate (part of the duty to fulfil) requires a
State to provide an enabling environment for the fulfilment of a right, and thus
can require the strengthening of the private sector in appropriate ways. For example, a State can facilitate and encourage the activities of private sector charitable
organizations, which in turn help to provide for the enjoyment of ICESCR rights
in the form for instance of low cost housing, by conferring tax advantages on such
organizations.65 Of course, national governments retain the primary obligation for
guaranteeing all human rights: that obligation cannot be delegated or transferred
to the private sector.

C. A Closer Look at Economic, Social, and Cultural Rights
The disadvantages of economic, social, and cultural rights compared to civil
and political rights have begun to be redressed. For example, the Committee on
Economic, Social and Cultural Rights has now issued 21 General Comments,
which add considerable flesh to the bare bones of the text of the ICESCR. Thus,
the lack of pre-existing definitions of the rights is being overcome.

Progressive obligations
The principle of progressive implementation of the obligations in Article 2(1) of
the ICESCR requires that States must move forward in terms of their ability to
guarantee a particular ICESCR right. Thus, its performance with regard to an
ICESCR right should be better rather than worse in five years’ time:66 the expectations of a State increase over time. Progressive realization can be monitored, for
example via the ICESCR’s reporting procedures, through the use of indicators and
benchmarks. Indicators comprise data, disaggregated on grounds such as race, sex,
urban/rural divide, and socio-economic status, which helps to identify the actual
performance of a State with regard to an ICESCR right. A benchmark is a goal
set by the State to be achieved within a certain period of time: achievement of
that benchmark is measured by indicators.67 For example, an indicator can reveal
64 Ibid, para 34.
65 Commission on Human Rights, ‘Realization of economic, social and cultural rights: Second
progress report prepared by Mr Danilo Türk, Special Rapporteur’, UN doc. E/CN.4/Sub.2/1991/17
(18 July 1991) para 188; Commission on Human Rights, ‘The Realization of Economic, Social and
Cultural Rights: Final report submitted by Mr Danilo Türk, Special Rapporteur’, UN doc. E/CN.4/
Sub.2/1992/16 (3 July 1992) para 192. See also Robertson, above n 54, 698–9.
66 UNGA, ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of
the highest attainable standard of physical and mental health, Paul Hunt’, UN doc. A/61/338
(13 September 2006) para 55.
67 Commission on Human Rights, ‘Report of the Special Rapporteur on the right of everyone
to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt’, UN
doc. E/CN.4/2006/48 (3 March 2006) para 34.

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24

WTO and International Human Rights Law Regimes

disaggregated information about the number of births across a country attended
by a doctor. A benchmark would relate to a specified increase (for example, 50 per
cent) in the percentage of such births across a certain time period (for example,
three years). In setting benchmarks for progressive obligations, UN treaty bodies
tend to defer to States parties, within reason, in determining reasonable and realistic targets.68 Indicators and benchmarks help a State to monitor its own progress,
and also help to ensure accountability for a State under the ICESCR.69 States may
be assisted in gathering the relevant data by international and civil society organizations. Furthermore, significant progress is being made within the UN Office
of the High Commissioner for Human Rights in identifying appropriate human
rights indicators, and how such indicators should be used and monitored by governments and the various UN treaty bodies.70
Given that progressive obligation implies that a State is continually moving forward in its implementation of ICESCR rights, there is a presumption that a State’s
performance will not go backwards. Hence:
deliberately retrogressive measures . . . would require the most careful consideration and
would need to be fully justified by reference to the totality of the rights provided for in the
Covenant and in the context of the full use of the maximum available resources.7¹

It is therefore possible for a State to take steps which are retrogressive in terms of
the enjoyment of an ICESCR right, so long as such steps are justifiable in light of
available resources (for example, a sudden economic crisis or catastrophic natural
disaster) and the need to have regard to the overall implementation and enjoyment
of the totality of ICESCR rights. A State however bears a heavy burden of proof in
this regard, as indicated in General Comment 19, regarding retrogressive measures
and the right to social security:
There is a strong presumption that retrogressive measures taken in relation to the right to
social security are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced
after the most careful consideration of all alternatives and that they are duly justified by
reference to the totality of the rights provided for in the Covenant, in the context of the full
68 UN doc. E/2007/82, above n 62, para 54. There are procedural requirements in setting such
benchmarks. Eg, they should be established according to a participatory and inclusive process at the
national level. Therefore, a government cannot autocratically establish its own benchmarks.
69 ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health, Paul Hunt’, UN doc. E/CN.4/2006/48 (3 March
2006), above n 67, para 35.
70 See, eg, Office of the High Commissioner for Human Rights, ‘Report on Indicators for
Promoting and Monitoring the Implementation of Human Rights’, UN doc. HRI/MC/2008/3
(6 June 2008). Eg, indicators may measure structures (they indicate whether or not key structures
and mechanisms are in place within a state—eg has the State ratified a particular treaty?, has it
adopted particular legislation?), procedures (monitoring the efforts being made by governments—eg
does the State have a process in place to provide doctors for deliveries of babies in all parts of the
country?), and outcomes (measuring the results of programmes and policies—eg what is the rate of
maternal mortality?): see E/2007/82, above n 62, para 51.
7¹ Committee on Economic, Social and Cultural Rights, ‘General Comment No. 3: The Nature
of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)’, UN doc. E/1991/23 (14 December
1990) para 9.

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C. A Closer Look at Economic, Social, and Cultural Rights

25

use of the maximum available resources of the State party. The Committee will look carefully at whether: (a) there was reasonable justification for the action; (b) alternatives were
comprehensively examined; (c) there was genuine participation of affected groups in examining the proposed measures and alternatives; (d) the measures were directly or indirectly
discriminatory; (e) the measures will have a sustained impact on the realization of the right
to social security, an unreasonable impact on acquired social security rights or whether an
individual or group is deprived of access to the minimum essential level of social security;
and (f) whether there was an independent review of the measures at the national level.7²

Maximum available resources
The ICESCR explicitly recognizes that a State’s ability to fulfil ICESCR obligations, including the rate at which it progressively implements ICESCR rights, is
subject to its available resources. Therefore, more is expected in terms of performance from richer States than from poorer States.7³ Financial resources are not the
only resources of relevance to the ICESCR: there are also, for example, natural
resources, human resources, information resources, and technological resources.74
One tool for assessing compliance with the obligation to use maximum available resources is to analyse State budgets. As noted by the High Commissioner on
Human Rights in a 2009 report:
The budget is a useful source of information to evaluate which normative commitments
are taken seriously by the State, because it provides a demonstration of the State’s preferences, priorities and trade-offs in spending. For example, low apportionments in health
care, education or social programmes when there are visible implementation gaps could
show inadequate prioritization or insufficient estimation of the required funds to realize
economic, social and cultural rights.75

For example:
If a significant percentage of the education budget is allocated to subsidizing private
schools that cater for children from middle and high-income families compared with public schools serving low-income sectors of the population, the analysis would suggest that
the Government’s priorities may not be in line with its international obligations.76

Budget analysis could also reveal ICESCR violations in the form of clear instances
of underfunding when there is a blatant disconnect between allocations and policy
objectives, discrimination if there are manifest disparities in funding for particular groups or regions, and retrogression when there is a significant lessening of
7² Committee on Economic, Social and Cultural Rights, ‘General Comment No. 19: The right to
social security (art. 9)’, UN doc. E/C.12/GC/19 (4 February 2008) para 42.
7³ ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health, Paul Hunt’, UN doc. A/61/338 (13 September
2006), above n 66, para 55.
74 See, generally, Robertson, above n 54.
75 UN Economic and Social Council, ‘Report of the High Commissioner for Human Rights on
implementation of economic, social and cultural rights’, UN doc. E/2009/90 (8 June 2009) para 46,
and, generally, paras 44–54.
76 Ibid, para 50.

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26

WTO and International Human Rights Law Regimes

funding for a particular programme in the face of ongoing need.77 Furthermore,
budget analysis must also be compared with actual spending. Underspending in
areas of need would be another indication that resources are not being utilized in
accordance with ICESCR requirements.78

Immediate obligations under the ICESCR
The Committee on Economic, Social and Cultural Rights has found that States
have certain immediate obligations under the ICESCR. First, steps must actually be taken towards full realization of ICESCR rights immediately: a State is
not entitled to do nothing or to regress. Rather, it must take ‘deliberate, concrete
and targeted measures’.79 Secondly, Article 2(2) constitutes an immediate prohibition on discrimination in regard to the implementation of ICESCR rights on the
grounds of ‘race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status’.80 Thirdly, certain ICESCR rights
are, of their nature, capable of immediate implementation because they are not
dependent on a State’s resources, such as the right to form and join trade unions in
Article 8.8¹
Finally, an implicit presumptive immediate obligation has been uncovered:
States must guarantee a certain minimum core content of economic, social, and
cultural rights unless they can prove that adequate resources are simply not available for that purpose. In General Comment 3 on ‘The Nature of States Parties
Obligations’, the Committee stated at paragraph 10:
[T]he Committee is of the view that a minimum core obligation to ensure the satisfaction
of, at the very least, minimum essential levels of each of the rights is incumbent upon every
State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and
housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’ être. By the
same token, it must be noted that any assessment as to whether a State has discharged its
minimum core obligation must also take account of resource constraints applying within
the country concerned. Article 2 (1) obligates each State party to take the necessary steps
‘to the maximum of its available resources’. In order for a State party to be able to attribute
its failure to meet at least its minimum core obligations to a lack of available resources it
must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.

Therefore, all States parties have a presumptive obligation to immediately guarantee the minimum core content of each of the ICESCR rights. States bear a heavy
77 UN doc. E/2007/82, above n 62, para 65.
78 UN doc. E/2009/90, above n 75, para 54.
79 Ibid, para 14.
80 Committee on Economic Social and Cultural Rights, ‘General Comment 20: NonDiscrimination in Economic, Social and Cultural Rights (art. 2, para. 2)’, UN doc. E/C.12/GC/20
(2 July 2009) para 7.
8¹ UN doc. E/2007/82, above n 62, para 16.

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C. A Closer Look at Economic, Social, and Cultural Rights

27

burden of proof in demonstrating that their lack of resources genuinely precludes
such immediate implementation. The Committee’s views on the minimum core
content of the various ICESCR rights is elucidated in various General Comments,
some of which are referenced in later chapters.

Justiciability of ICESCR rights
One of the biggest perceived differences between the two sets of rights is that civil
and political rights are justiciable, while economic, social, and cultural rights are
not. Their non-justiciable nature followed from the vague obligation provision,
which hampered findings of violation, and the flawed positive/negative dichotomy.
Civil and political rights have long been recognized as justiciable in a number of
national courts, and may be the subject of individual complaints before the HRC
under the Optional Protocol to the ICCPR. The existence of an individual complaints system under the ICCPR, and the absence of one under the ICESCR, has
exacerbated the gap in normative material on the two sets of rights. While the
HRC has decided over 1,500 cases,8² which have helped concretize the meaning
of ICCPR rights, the Committee on Economic Social and Cultural Rights has
decided none.
The notion of indivisibility has nevertheless been underscored in the case law on
civil and political rights. The HRC has identified numerous economic, social, and
cultural rights issues that arise in the context of the ICCPR. For example, it has
explicitly linked the right to life to the need for States to ‘take all possible measures
to reduce infant mortality and to increase life expectancy, especially in adopting
measures to eliminate malnutrition and epidemics’.8³ Article 26 of the ICCPR, a
broad guarantee against non-discrimination on various grounds such as race and
sex, including the open-ended ground of ‘other status’,84 has been interpreted as
guaranteeing non-discrimination in regard to all rights, including economic social
and cultural rights.85 Thus, for example, discrimination in regard to the right to
education on religious grounds in Canada (with Roman Catholics receiving funding privileges which were not available to Jews and other minority religions) was
found to breach Article 26 in Waldman v Canada.86 Hence, instances of discrimination in relation to economic, social, and cultural rights have long been justiciable
under the ICCPR.87
8² Th is number includes inadmissible cases, which can be instructive with regard to the normative content of a right.
8³ Human Rights Committee, ‘General Comment 6: The right to life (art. 6)’ (Sixteenth session,
1982) (30 April 1982) para 5.
84 Sarah Joseph, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and
Political Rights: Cases, Materials, and Commentary, 2nd edn (Oxford University Press, Oxford, 2004)
paras 23.20–23.30.
85 See, eg, Broeks v Netherlands, UN doc. CCPR/C/29/D/172/1984 (9 April 1987) (Human
Rights Committee).
86 UN doc. CCPR/C/67/D/694/1996 (5 November 1999) (Human Rights Committee).
87 Distinctions are permissible if made on reasonable and objective grounds. See generally, Joseph,
Schultz, and Castan, above n 84, paras 23.41–23.67.

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28

WTO and International Human Rights Law Regimes

Furthermore, economic, social, and cultural rights per se have now been made
justiciable in a number of national jurisdictions, such as South Africa, India, and
various Latin American countries.88 They are also justiciable under the regional
human rights systems.89
For example, Government of Republic of South Africa v Grootboom90 concerned
the right to housing of a group that had been forced to squat on private land due to
the appalling conditions in which they were living. The Constitutional Court of
South Africa found that the government’s housing programme breached the right
to housing as it contained no apparent relief for those, such as the Grootboom
group, who had no roof over their heads and were living in intolerable crisis conditions. The government was not however required to immediately provide the
Grootboom group with shelter. Rather, it was required to adopt reasonable measures to make sure that persons in dire straits would have access to some form of
shelter. Furthermore, the court left a wide latitude to the government in crafting
the final remedy: it did not dictate budgetary outlays for housing programmes.
Minister for Health v Treatment Action Campaign9¹ concerned a challenge, based
on the right to health, to the restricted availability of nevirapine, a drug which
restricted transmission of HIV-AIDS from mothers to babies (‘MTCT transmission’) in South Africa. Again, the decision was based on the concept of reasonableness: the restrictions were not reasonable in the circumstances so the government
was required to devise a plan to expedite the availability of nevirapine at public
health care facilities throughout the country. This decision may seem alarming to
those who are concerned that justiciable economic, social, and cultural rights will
lead to court decisions which impact severely on national budgets. However, such
decisions are hardly unknown: court interpretations of many laws, such as taxation laws, can impact severely on government coffers.9² Furthermore, several factors underlined the unreasonable nature of the impugned restrictions in Treatment
Action Campaign. Nevirapine was made available for free to South Africa by the
patent-holder. The drug was effective, and did not entail a complex consumption regime, so counselling and education of patients would not be onerous. The
comparative health burden and associated costs entailed in not utilizing a proven
method of combating MTCT transmission in South Africa would be enormous.
Finally, the government had already committed substantial funds to fighting HIV
in South Africa.
The South African cases prove that the justiciability of economic, social, and
cultural rights is workable. In fact, they utilize techniques that are far from alien to
the judicial process by using reasonableness as the touchstone for assessing violations
of such rights. Assessments of the reasonableness of administrative action are a key
component, for example, in administrative law in common law countries. Indeed,
88 See generally, Malcolm Langford (ed), Social Rights Jurisprudence: Emerging Trends in
International and Comparative Law (Cambridge University Press, New York, 2008) Part 2.
89 Ibid, Part 3.
90 (2000) 11 BCLR 1169 (South Africa Constitutional Court).
9¹ (2002) 10 BCLR 1033 (South Africa Constitutional Court).
9² Paul Hunt, ‘Reclaiming Economic, Social and Cultural Rights’ (1993) 1 Waikato Law
Review 141.

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D. Human Rights and Customary International Law

29

reasonableness is often the test used for identifying violations of measures which
interfere with civil and political rights. Furthermore, it has long been accepted that
violations of negative rights are identifiable and justiciable. Both Grootboom and
Treatment Action Campaign confirmed that positive obligations are also justiciable.
It is notable and perhaps ironic that many of the most sophisticated and influential decisions on economic, social, and cultural rights come from developing
States, particularly from Africa and Latin America. This fact belies the presumed
lesser abilities of poorer States to adequately address such rights.
In December 2008, the UN General Assembly adopted an Optional Protocol
to ICESCR, which will provide for an individual complaints mechanism. That
treaty will come into force when 10 States have ratified it. Its entry into force will
usher in a new era of justiciable global economic social and cultural rights. It too
adopts a standard of ‘reasonableness’ (in Article 8(4)) as the touchstone for assessing whether a State has taken sufficient steps in implementing a particular right, or
whether it has violated a right. Article 8(4) also recognizes a margin of discretion
for States by acknowledging that a ‘State Party may adopt a range of possible policy
measures for the implementation of’ ICESCR rights.
It has been argued in a number of philosophical and political circles that economic, social, and cultural rights are not ‘real’ human rights,9³ and that they lack
sufficient content to be useful in a trade context.94 Such an argument ignores the
fact that three quarters of the world’s nations have committed to legal obligations
under the ICESCR as a matter of international law, and that the non-justiciability
argument has been proven wrong by numerous domestic courts95 and was finally
defeated with the adoption by consensus of the Optional Protocol in 2008. Such
arguments are essentially ideological, or reflect a lack of understanding of international human rights law.96

D. Human Rights and Customary International Law
Customary international law is that core of international law that binds all
States regardless of the treaties they have ratified.97 States generate customary
9³ Harrison, above n 1, 26 (noting but not agreeing with the argument). See, eg, ‘Human Rights
Survey’ The Economist, 5 December 1998, at 9, suggesting that economic, social, and cultural rights
are issues that ‘should be left to politics and the market’.
94 See, eg, Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’ (2002) 13
European Journal of International Law 753, 786–9; Jose E Alvarez, ‘How not to Link: Institutional
Conundrums on an Expanded Trade Regime’ (2001) 7 Widener Law Symposium Journal 1, 10;
Harrison, above n 1, 234.
95 See Malcolm Langford, ‘The Justiciability of Social Rights: From Practice to Theory’ in
Malcolm Langford (ed), above n 88, 3, 4.
96 Robert Howse and Ruti Teitel, ‘Beyond the Divide: The Covenant on Economic, Social
and Cultural Rights and the World Trade Organization’ in Sarah Joseph, David Kinley, and Jeff
Waincymer, The World Trade Organization and Human Rights: Interdisciplinary Perspectives (Edward
Elgar, Cheltenham, 2009) 40.
97 There is an exception for ‘persistent objectors’. According to the persistent objector doctrine,
if a State persistently objects to an evolving rule of customary international law, it can avoid being

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30

WTO and International Human Rights Law Regimes

international law through State practice and opinio juris.98 There is great controversy and speculation over the identity of the human rights that are protected under
customary international law. This controversy is exacerbated by the general lack of
binding decisions on the matter, so the topic is dominated by academic debate.99
The outer edge of likely customary international law seems to be the totality of
rights in the UDHR,¹00 though some commentators have claimed that rights in
the Declaration on the Right to Development¹0¹ and the DRIP¹0² are customary too. A recent development in the UN Human Rights Council provides significant support to the notion that the UDHR in its entirety is part of customary
international law. Under the new process of Universal Periodic Review, the human
rights record of every State will be examined in accordance with the treaties it has
ratified, voluntary pledges, the UN Charter as well as the UDHR.¹0³ Therefore,
China, for example, has reported on its record regarding at least some civil and
political rights, despite its failure to ratify the ICCPR.¹04 The reporting by States of
their record regarding rights based only on the UDHR, as well as the scrutinizing
of that record by other States, constitutes significant State practice tending towards
the customary status of the UDHR.¹05
The following seems to constitute the minimal position, in that there is little
doubt the following rights are protected by custom: prohibitions on genocide, slavery, systemic racial discrimination, grave violations of international humanitarian law, murder, disappearance, torture and other cruel inhuman and degrading
treatment or punishment, prolonged arbitrary detention, and consistent patterns
of gross violations of internationally recognized rights, and the right of colonial
peoples to self determination.¹06
That shorter list excludes economic, social, and cultural rights. However,
Professor Philip Alston has convincingly argued that the inner core of economic,
social and cultural rights captured within the Millennium Development Goals
bound by that rule. A State loses persistent objector status if it fails to object consistently over time
once the rule is in place. See, generally, Jonathan I Charney, ‘The Persistent Objector Rule and the
Development of Customary International Law’ (1985) 56 British Yearbook of International Law 1.
98 Opinio Juris constitutes a belief by States that a norm is legally binding.
99 See also, generally, Anthony E Cassimatis, Human Rights Related Trade Measures under
International Law (Martinus Nijhoff, Leiden, 2007) 72–91.
¹00 See, eg, Sohn, above n 26, 17. See also above, text notes 29 and 30.
¹0¹ See, eg, Mohammed Bedjaoui, ‘The Right to Development’ in Mohammed Bedjaoui (ed),
International Law: Achievements and Prospects (Martinus Nijhoff Publishers, Boston, 1991); Philip
Alston, ‘Making Space for New Human Rights: The Case of the Right to Development’ (1988)
1 Harvard Human Rights Year Book 3.
¹0² See, eg, Megan Davis, ‘Indigenous Struggles in Standard-setting: The United Nations
Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law
439, 465–6, commenting on the arguments of others.
¹0³ See Human Rights Council, ‘Report to the General Assembly on the Fifth Session of the
Council’, UN doc. A/HRC/5/21 (7 August 2007) 4.
¹04 See Human Rights Council, ‘National Report Submitted in Accordance with Paragraph
15(A) of the Annex to Human Rights Council Resolution 5/1: China’, UN doc. A/HRC/WG.6/4/
CHN/1 (10 November 2008) paras 42–62.
¹05 I am grateful to Professor Robert McCorquodale for sharing this idea.
¹06 See Restatement of the Law Third, Foreign Relations Law of the United States (American Law
Institute, St Paul, 1987) para 702.

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E. Conclusion

31

(MDGs) is now protected under customary international law. The MDGs are the
eradication of extreme poverty and hunger, the attainment of universal primary
education, the promotion of gender equality, the reduction of child mortality,
improvements in maternal health, the combating of HIV/AIDS and certain other
diseases, the achievement of environmental sustainability, and the development
of a global partnership for development. These goals, the achievement of which
are essential for the attainment of global human dignity, have been consistently
‘affirmed, reiterated and restated’ by governments,¹07 which may constitute sufficient State practice and opinio juris to elevate them to customary status.
Customary international law is of course particularly important in the context
of a State that has not ratified a relevant treaty which protects a particular human
right: it provides an alternative source of obligation for that State with regard to
that right. Where a State has ratified a treaty, it is bound under international law
by the treaty anyway, regardless of the customary status of the norms therein. Most
Member States of the WTO are parties to both Covenants. The huge majority are
also parties to the CERD, CEDAW, and the CRC.

E. Conclusion
The above commentary has introduced relevant rules and concepts in WTO law
and international human rights law. WTO law will be further elaborated, particularly in Chapter 4, so this chapter has focused more on international human
rights law. Given that they are commonly misunderstood, and dismissed as idealistic goals rather than enforceable rights, this chapter has paid special attention to
explaining economic, social and cultural rights. As highlighted in following chapters, particularly Chapters 5 to 7, economic, social, and cultural rights are particularly relevant to the debate regarding the human rights impact of the WTO.

¹07 Philip Alston, ‘Ships passing in the night: the current state of the human rights and development debate seen through the lens of the Millennium Development Goals’ (2005) 27 Human Rights
Quarterly 755, 774.

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2
Relationship between the WTO and
International Human Rights Law
Having introduced the two relevant international law regimes in Chapter 1, it is
necessary to discuss the relationship between the two. First, the underlying philosophies of the two regimes will be compared, followed by an analysis of the normative legal relationship between these two areas of international law.

A. Underlying Values
Although they arguably have deeper and more universal, cross-cultural roots dating back to the earliest conceptions of law, modern notions of human rights are
often traced back to Western liberal philosophies of the seventeenth and eighteenth centuries.¹ Specifically, John Locke’s ‘Second Treatise of Government’
speculated that men in a ‘state of nature’ had ‘natural rights’ to life, liberty and
property.² Similar ideas emerged in the Age of Enlightenment in France with
the ideas of Rousseau, de Montesquieu and Voltaire, though the continental
European theorists qualified rights more with limitations, duties, and ideas of fraternity and equality along with liberty.³ Natural rights theorists argued that such
rights were rooted in the inherent dignity and rationality of human beings (or
rather, ‘men’), a departure from the predominant but irrational religious dogma
of the time.4 In classical Lockean theory, societies were formed under a ‘social
contract’, under which ‘men’ retained their natural rights subject to the qualification that they did not threaten or harm each other’s rights. The role of government
was minimal, and was essentially confined to enforcement of that social contract.
Therefore, early conceptions of human rights construed them as a narrow range of
civil and political freedoms from government action and protections from others,
rather than entitlements to government-provided goods or services. These early
¹ The following commentary is adapted from Sarah Joseph, ‘Civil and political rights’ in Mashood
Baderin and Manisuli Ssenyonjo, International Human Rights Law: Six Decades after the UDHR
(Ashgate, Surrey, 2010) 89–106.
² John Locke, ‘The Second Treatise of Government’, reprinted in Peter Laslett (ed), Locke, Two
Treatises of Government, 2nd edn (Cambridge University Press, Cambridge, 1988) 265ff.
³ Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of
Human Rights (Random House, New York, 2001) xvii.
4 See Burns Weston, ‘Human Rights’ (1984) 3 Human Rights Quarterly 257, 259.

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A. Underlying Values

33

conceptions of human rights law, which influenced the earliest Bills of Rights
in the US and France, focused on libertarian negative rights rather than positive
claim rights.
Despite numerous criticisms of natural rights theories from thinkers such as
Karl Marx5 and Jeremy Bentham,6 natural rights theories endured and dominated the drafting and language of the UDHR in 1948.7 However, by 1948,
conceptions of natural rights had evolved far beyond their early libertarian
roots to encompass rights for women and minorities, workers’ rights, and rights
to some minimum levels of material security in the form of welfare rights,8 and
the need for persons to function as members of society, rather than as mere
individuals.9
The following values are articulated in the UDHR and encapsulate the values
which underpin the modern international human rights system: universality,
dignity, freedom (or liberty), justice, equality (or fairness, including distributive fairness), accountability (of governments), participation, empowerment, and
brotherhood (or solidarity) amongst people.¹0
The Director- General of the WTO, Pascal Lamy, has proclaimed that trade
rules, including WTO rules, are based on the same values as human rights:
‘individual freedom and responsibility, non- discrimination, rule of law, and
welfare through peaceful cooperation among individuals’.¹¹ The influential
WTO scholar Ernst-Ulrich Petersmann has also stated that the WTO regime
promotes freedom (in removing restrictions on trade), non- discrimination (in
the form of MFN and national treatment), the rule of law (in committing
WTO Members to transparent obligations and an enforceable rules-based
international trading system), and economic efficiency leading to enhanced
welfare.¹² All of those values, as proclaimed by Lamy and Petersmann, seem
congruent with the promotion of human rights principles until subjected to
greater scrutiny.
5 Marx dismissed natural rights as egoistic and based on anti-social premises pitting man against
man: see, eg, Karl Marx, ‘On the Jewish question’, reprinted in David McClellan (ed), Marx: Selected
Writings (Oxford University Press, Oxford, 1977) 51–7.
6 Bentham famously dismissed natural rights theories as ‘anarchical fallacies’ and ‘nonsense
upon stilts’: see Jeremy Bentham, ‘Anarchical Fallacies’, reprinted in Jeremy Waldron (ed), Nonsense
upon Stilts: Bentham, Burke and Marx on the Rights of Man (Methuen, London, 1987) 46ff.
7 Johannes Morsink, ‘The Philosophy of the Universal Declaration’ (1982) 4 Human Rights
Quarterly 391.
8 See Henry Shue, Basic Rights (Princeton University Press, Princeton, 1980) 24–5; Matthew
Craven, The International Covenant on Economic Social and Cultural Rights (Oxford University Press,
Oxford, 1995) 13. Indeed, Morsink traces support for economic, social, and cultural rights to an
early proponent of natural rights, Thomas Paine, at Morsink, above n 7, 326.
9 Morsink, above n 7, 334.
¹0 See UDHR, especially Preamble and Article 1.
¹¹ Pascal Lamy, ‘Towards shared responsibility and greater coherence: human rights, trade and
macroeconomic policy’ (Speech at the Colloquium on Human Rights in the Global Economy,
Co-organized by the International Council on Human Rights and Realizing Rights, Geneva, 13 January
2010) <http://www.wto.org/english/news_e/sppl_e/sppl146_e.htm> accessed 18 September 2010.
¹² Ersnt-Ulrich Petersmann, ‘Time for a United Nations “Global Compact” for integrating
human rights into the law of worldwide institutions: lessons from European integration’ (2002) 13
European Journal of International Law 621, 636.

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34

WTO and International Human Rights Law

Freedoms and rights under trade law and human rights law
The freedoms promoted under the WTO lie exclusively in the international economic sphere, such as the rights of exporters to peaceful enjoyment of property
and freedom of contract, non-discrimination in relation to other like industries
(discussed below), and freedom of movement of goods and services across borders.
This list of freedoms is very narrow compared to the freedoms promoted under
human rights law. Furthermore, WTO law supports rights with respect to a few,
namely foreign traders, while human rights law recognizes rights for all. The narrowness of the range of beneficiaries under the WTO gives rise to the danger that
those beneficiaries are unduly privileged when their interests clash with those of
others, such as, for example, local competitors or consumers, in a way that undermines the human rights of the latter.
As noted above, John Locke’s theory of natural rights has profoundly influenced
the development of human rights law. Locke was also one of the first modern philosophers to provide a justification for the right to private property. Nevertheless,
in modern international human rights law, the right to property is heavily qualified. For example, Article 1(1) of the First Protocol to the ECHR outlines the right
as follows:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No
one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to
enforce such laws as it deems necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or other contributions or penalties.

The right is heavily qualified by the second paragraph, and by the fact that one can
be deprived of one’s property ‘in the public interest’ subject to domestic and international law.¹³
The right to property was not in fact transposed at the global level from the
UDHR to either Covenant, largely due to the socialist bloc’s opposition during
the drafting thereof.¹4 That is not to say that property rights are totally unprotected under the Covenants. The right to property must, for example, be enjoyed
on a non-discriminatory basis. In a number of cases against the Czech Republic
under the ICCPR, the HRC has found that the conferral of rights of restitution
on citizens only, with regard to property confiscated by the previous communist
regime, was a breach of the right of non-discrimination on the basis of nationality.¹5 However, the right to property per se is not protected: no violation of the
¹³ On relevant ECHR case law, see Pieter van Dijk, Fried van Hoof, Arjen van Rijn, and Leo
Zwaak (eds), Theory and Practice of the European Convention on Human Rights, 4th edn (Intersentia,
Antwerp, 2006) Chapter 17.
¹4 See Audrey Chapman, ‘Approaching intellectual property as a human right (obligations related
to Article 15(1)(c))’ (2001) XXXV Copyright Bulletin 4, 12.
¹5 See, eg, Simunek v Czech Republic, UN doc. CCPR/C/54/D/516/1992 (19 July 1995) and
Adam v Czech Republic, UN doc. CCPR/C/57/D/586/1994 (25 July 1996) (both Human Rights
Committee).

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A. Underlying Values

35

ICCPR would have arisen in the Czech cases if no restitution rights had been
granted to anybody.¹6
The promotion of property rights within the context of economic globalization
(moving beyond the realm of the WTO) tends to focus on security of transactions and protection for foreign investors, rather than property rights as human
rights enjoyed by all regardless of one’s economic utility.¹7 Ultimately, that lopsided promotion and protection of property rights can prompt the corrupt and
forced transfer of lands to those who can pay more for that land, and/or those who
can make the land more profitable, at the expense of indigenous peoples and the
poor. While such transfers may be economically beneficial, at least in the short
term,¹8 they do not conform to international human rights norms. For example,
land registration systems are generally designed to ensure secure property rights,
and their introduction has been funded in some developing States by the World
Bank. Unfortunately, such systems have on occasion fostered corruption and
human rights abuses, whereby traditional land-owners such as indigenous peoples have been arbitrarily evicted, with their lands transferred to rich speculators
and developers. For instance, a land titling project in Cambodia has entrenched
inequality by exacerbating the vulnerability of poor householders in comparison
with rich developers.¹9
There is no free-standing right to freedom of contract in international human
rights law, apart from Articles 15(2) and 16 of the Charter of Fundamental Rights
of the European Union. The commercial origins of the EU were undoubtedly
influential in generating those provisions, which came into force in most EU countries on 1 December 2009.²0 At the domestic level, freedom of contract has had
a chequered history under the Fourteenth Amendment to the US Bill of Rights.
Notoriously, in Lochner v New York,²¹ the Supreme Court of the United States
struck down a New York law which limited the number of hours a baker could
work in one day (10 hours) and in one week (60 hours). That law was designed to
promote labour rights, but was found to undermine individual freedoms of contract. Lochner clearly demonstrated the tension that can exist between labour regulation, and indeed economic regulation, and the laissez-faire principle of freedom
¹6 The ICCPR did not apply to the original confiscations, which discriminated against persons on
the basis of their political opinion, as they predated the entry into force of the ICCPR for the Czech
Republic.
¹7 See also James Harrison, The Human Rights Impact of the World Trade Organisation (Hart,
Oxford, 2007) 47.
¹8 See, eg, Ha-Joon Chang, Kicking Away the Ladder: Development Strategy in Historical Perspective
(Anthem Press, London, 2003) 82–3.
¹9 See Natalie Bugalski and David Pred, ‘Land Titling in Cambodia: Formalizing Inequality’
(2010) 7 Housing and ESC Rights Law Quarterly 1. See also Nicola Colbran, ‘Indigenous Peoples in
Indonesia: at risk of disappearing as distinct peoples in the rush for biofuel?’ (2010) International
Journal for Minority and Group Rights, forthcoming, paper on fi le with the author, for a discussion
of the eviction of indigenous peoples in Indonesia to make way for palm oil and jatropha plantations
(partially for biofuel production), especially at 11–15.
²0 The Charter came into force with the Lisbon Treaty, which reformed the European Union. The
Charter will not apply in full in the UK, Poland, or the Czech Republic.
²¹ 198 US 45 (1905) (Supreme Court of the United States).

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36

WTO and International Human Rights Law

of contract.²² Freedom of contract and other economic liberties can be abused
where the relevant parties have unequal bargaining power.
The right to freedom of movement of goods and services is not per se relevant
to human rights, as opposed to a right of freedom of movement of persons, which
barely exists under the WTO.²³ Human rights attach to individuals and occasionally groups;²4 they do not attach to economic commodities. There has been robust
debate over the merits of a ‘right to trade’, epitomized by the exchange of views
between Petersmann and Philip Alston in 2002.²5 Such a right is of course heavily
facilitated at the international level by the WTO. Indeed, a WTO panel has stated
that ‘one of the primary objectives of the GATT/WTO as a whole is to produce
certain market conditions which would allow this individual [trading and business] activity to flourish’.²6 In contrast, no right to trade as such is recognized in
human rights law.
Despite the comment in the WTO panel decision cited immediately above,
the WTO does not confer property, contractual or trading rights as individual
rights. Individuals do not have direct rights under the WTO; only Member States
have rights (and duties). However, such rights are indirectly if not directly granted:
States bring claims essentially on behalf of their traders. These claims are usually brought on behalf of large corporations; it seems doubtful that a State would
engage in the time and expense of WTO litigation on behalf of small traders in an
economically insignificant sector.²7 Corporations are not generally recognized as
having human rights under international human rights law.²8
The divergence of WTO values from human rights values is more profoundly
illustrated by the differing purposes underlying the rights recognized. Alston has
cogently argued that WTO rights are simply not analogous to human rights due to
their fundamentally different rationale:
Human rights are recognized for all on the basis of the inherent human dignity of all persons. Trade-related rights are granted to individuals for instrumental reasons. Individuals
²² Lochner has not been explicitly overruled, but has been wound back in cases such as West Coast
Hotel Co v Parrish 300 US 379 (1937) (Supreme Court of the United States).
²³ Philip Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply
to Petersmann’ (2002) 13 European Journal of International Law 815, 825. The GATS presages some
liberalization in the movement of mobile labour forces under Mode IV of GATS, but few commitments in this regard have been made. It may be noted that international human rights law rarely
recognizes a right of human beings to enter a foreign State, except under international refugee law
and systems of complementary protection.
²4 Most internationally recognized human rights attach to individuals, though some collective
rights are also recognized, such as the right of self determination in Article 1 of both Covenants.
²5 See Petersmann, above n 12, and Alston, above n 23; see also Robert Howse, ‘Human Rights in
the WTO: Whose Rights, What Humanity? Comment on Petersmann’ (2002) 13 European Journal
of International Law 651.
²6 United States—Sections 301–310 of the Trade Act of 1974, WTO doc. WT/DS152/R
(22 December 1999) (Report of the Panel) para 7.73.
²7 See also Caroline Dommen, ‘Raising Human Rights Concerns in the World Trade
Organization: Actors, Processes and Possible Strategies’ (2002) 24 Human Rights Quarterly 1, 47.
²8 Exceptionally, artificial entities such as corporations may bring claims for human rights abuses
before the European Court of Human Rights. See generally, Marius Emberland, The Human Rights
of Companies: Exploring the Structure of ECHR Protection (Oxford University Press, New York, 2006).
Corporations are recognized as having rights under some domestic Bills of Rights, such as those in
Canada or the US.
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A. Underlying Values

37

are seen as objects rather than as holders of rights. They are empowered as economic agents
for particular purposes and in order to promote a specific approach to economic policy, not
as political actors in the full sense and nor as holders of a comprehensive and balanced set
of individual rights. There is nothing per se wrong with such instrumentalism but it should
not be confused with a human rights approach.²9

Alston concedes that an exception to his proposition lies in the (indirect) intellectual property rights conferred under TRIPS, which arguably correlate with rights
recognized under Article 15(1)(c) of the ICESCR. Ironically however, TRIPS has
probably attracted the most sustained criticisms for its effects on human rights, as
is discussed in Chapter 7.
The emphasis on freedom in WTO law is generally aimed at freeing trade from
the constraints of government. Of course, much of human rights law is also aimed
at freeing people from unreasonable government restrictions. However, as noted
in Chapter 1, human rights obligations also entail positive duties to protect and
fulfil which require action, regulation and intervention by States. Constraints (or
perceived constraints) on State capacities to implement their positive human rights
duties give rise to one of the biggest perceived challenges posed by WTO rules to
human rights. As stated by Dr Andrew Lang:
The international trade regime, it is said, has imposed new constraints on states’ policy
choices, so that they are now less able to intervene in the economy to fulfil their human
rights obligations. The primary mechanism by which the human rights system achieves
its objectives, the story goes, is losing its efficacy in the face of a newly powerful and newly
dominant neoliberal international economic order.³0

For example, States may wish to introduce price caps with regard to essential
utilities, such as the provision of water or electricity, which limits the economic
freedoms of water and electricity companies, in order to guarantee the right to an
adequate standard of living for the poor under Article 11 of the ICESCR. There is
a suspicion, the merits of which will be discussed in ensuing chapters, that WTO
rules unduly undermine the ability of States to adopt such measures.³¹
Indeed, Petersmann has criticized the ICESCR for its ‘neglect for economic liberty rights and property rights’ as reflective of an anti-market bias.³² However,
Petersmann is possibly falling into the common trap of assuming that the ICESCR
is solely premised on government control of the means to provide for economic
and social rights. As noted in Chapter 1, governments have duties to respect
ICESCR rights, and thus to refrain from measures which harm enjoyment of
those rights, including unreasonable interferences with persons’ livelihoods and
abilities to improve their own economic situation.³³ As an example relevant to free
trade, Oxfam has cited a high tariff by some African countries on mosquito nets
²9 Alston, above n 23, 826.
³0 Andrew Lang, ‘Inter-regime Encounters’ in Sarah Joseph, David Kinley, and Jeff Waincymer,
The World Trade Organization and Human Rights: Interdisciplinary Perspectives (Edward Elgar,
Cheltenham, 2009) 184. Ironically, intellectual property protection requires considerable state
intervention: see also p. 293.
³¹ See also Andrew Lang, ‘The GATS and regulatory autonomy: a case study of social regulation
of the water industry’ (2004) 7 Journal of International Economic Law 801–38.
³² Petersmann, above n 12, 628–9.
³³ See also Chapter 1, text at notes 64–5.
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38

WTO and International Human Rights Law

as a measure that costs lives by increasing the exposure of the poor to malaria,
in breach of the right to health in the ICESCR (and probably the right to life in
the ICCPR).³4 From a human rights point of view, the key is in part to ensure an
appropriate balance between regulation and non-interference. Also from a human
rights point of view, it is possible that the WTO dictates a sub-optimal balance
which unduly impels the latter strategy.
‘Freedom’ in the WTO context is unbalanced and sometimes counterproductive from a human rights point of view. First, as noted above, it prioritizes
freedoms that are not strictly recognized under human rights law. Secondly,
under human rights law, it is well recognized that most of one’s freedoms can be
limited by the rights of others because freedoms and rights often clash. ‘Freedom’
in human rights law is rarely absolute and is normally necessarily constrained in
order to protect the rights of others. For example, one’s freedom of expression is
limited by defamation of laws, which simultaneously protects the privacy and
reputation rights of another. In WTO law, the freedoms of foreign traders are
prioritized at the expense of the rights of local traders. As explained by James
Gathii:
[E]very rule of international trade that opens trade up rests upon a corresponding act of
limiting or controlling entitlements to other stakeholders. . . . After all, there is no liberty
or freedom to trade that does not come with a simultaneous restriction or limitation of
another freedom.³5

Yet those countervailing freedoms are largely unrecognized by the WTO.
Countervailing rights are not, for example, a recognized exception in the exception provisions such as Article XX of the GATT.³6 Furthermore, no compensation
for the losers from free trade is mandated, and arguably (as explored in subsequent
chapters), the capacity for States to provide for such compensation is constrained.

Non-discrimination
The non-discrimination rights in the WTO are very narrow, focused solely on the
international economic realm, effectively protecting foreign businesses from discrimination in relation to other foreign businesses (under MFN) or local businesses (under National Treatment). In contrast, international human rights law
recognizes rights of non-discrimination on a large (and open-ended) number of
grounds with regard to all rights.³7
The importance of the protection of foreigners should not be underestimated, given the very real temptations of governments to discriminate against
³4 Oxfam, Rigged Rules and Double Standards (Oxfam, London, 2002) 62.
³5 James Thuo Gathii, ‘Re- Characterizing the Social in the Constitutionalization of the WTO:
A Preliminary Analysis’ (2001) 7 Widener Law Symposium Journal 137, 148.
³6 This exception provision is analysed in Chapter 4.
³7 Eg, Article 26 of the ICCPR guarantees equality before the law and equal treatment of the
law with regard to the enjoyment of all rights without discrimination on a number of enumerated
grounds, as well as ‘any other status’.

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A. Underlying Values

39

non-nationals, perhaps in order to reap political capital amongst voting nationals.
However, WTO non-discrimination provisions focus on ‘equality in regulatory
treatment of goods and services between different countries’, rather than on discrimination against non-nationals per se.³8
Furthermore, the goals of the non-discrimination provisions in WTO
law and human rights law are very different. Discrimination in human rights
law is linked to notions of substantive equality of people. For example, positive measures are required of States to ‘redress the structural biases that lead to
discrimination’.³9 Therefore, affirmative action to assist disadvantaged persons
is permitted and occasionally required under international human rights law.40
In contrast, WTO prohibitions on discrimination are meant to eliminate protectionism with respect to goods and services traded. For example, the WTO
does not prohibit discrimination against local industry, nor does it seem to permit exceptions where certain local businesses might be disadvantaged compared
to foreign competitors.4¹ Indeed, part of the point of the WTO is to drive the
less advantaged out of business on the basis that they are less efficient than the
more advantaged. That ethos does not seem to support, for example, measures
which favour subsistence farmers over agribusiness conglomerates, or not-forprofit educational charities ahead of commercial education providers.4² Thus,
the implementation of the non-discrimination framework of the WTO has great
potential to entrench underlying inequalities in a way that undermines human
rights non-discrimination principles. Harrison has described the differences
between the two regimes regarding the principle of non-discrimination as ‘probably the most problematic methodological difference between the two systems’
given that a principle that at least uses the same wording is ‘fundamental to both
systems of law’.4³

Rule of law
The WTO promotes the rule of law within its narrow field of international trading relations: this role is particularly important in constraining the use of trade
³8 See Adam McBeth, International Economic Actors and Human Rights (Routledge, Oxford,
2010) 96. See also Chapter 3, text at note 69, on how one WTO case against the US was effectively
brought on behalf of a US investor.
³9 Commission on Human Rights, ‘Analytical study of the High Commissioner for Human
Rights on the Fundamental Principle of Non-Discrimination in the Context of Globalization’, UN
doc. E/CN.4/2004/40 (15 January 2004) para 26.
40 HRC, ‘General Comment No 18: Non-discrimination’, UN doc. HRI/GEN/1/Rev.1
(10 November 1989) para 10; HRC, ‘General Comment No 28: Equality of rights between men
and women (article 3)’, UN doc. CCPR/C/21/Rev.1/Add.10 (29 March 2000) para 3; Stalla Costa
v Uruguay, UN doc. CCPR/C/30/D/198/1985 (9 July 1987) (Human Rights Committee). See also
CERD, Articles 1(4) and 2(2); CEDAW, Articles 4 and 12(2).
4¹ UNHCHR, above n 39, para 26. An example of such disadvantage might be that experienced
by local small farmers in the case of agricultural trade, see para 35 and see also Chapter 6. See also
McBeth, above n 38, 96–8. See also Joseph E Stiglitz and Andrew Charlton, Fair Trade for All
(Oxford University Press, New York, 2005) 79.
4² See Harrison, above n 17, 141.
4³ Ibid, 141.

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40

WTO and International Human Rights Law

measures as weapons by economically powerful States who would otherwise have
few constraints on such power. Furthermore, the WTO’s peaceful dispute settlement processes help to defuse the dangerous tensions that might be generated by
trade disputes.
The rule of law within the WTO is focused on facilitating a more transparent and predictable environment for trade.44 However, its concerns are again onesided. It is not explicitly concerned where the rule of law might be bent to favour
foreign traders over local people, as for example has been evidenced in the aforementioned land titling project in Cambodia.45
The rule of law is promoted in a different and much broader way under human
rights law through numerous prohibitions on arbitrary and unpredictable exercises
of power by governments, and requirements that limitations on rights be prescribed
and circumscribed by clearly defined laws.46 As noted by David Kinley, different
global actors, such as commercial/economic actors and human rights actors, stress
different aspects of the rule of law.47

Economic efficiency and enhanced welfare
The creation of greater net wealth by WTO rules is an outcome that plausibly
promotes the capacity of States to protect and fulfil human rights obligations,
and the capacities of beneficiaries of that wealth to enjoy human rights. However,
an increase in net global wealth does not necessarily lead to the enhancement of
individual welfare. WTO rules have nothing to say about the distribution of that
wealth, whether between or within countries.48
The theory of comparative advantage holds that the removal of trade barriers is
beneficial for all States by improving aggregate wealth, but it has little to say about
distributional outcomes. From a human rights point of view, it is the effect of free
trade on human beings that is important. The process of trade liberalization clearly
creates ‘winners’ and ‘losers’ inside a State, that is those respectively employed
in efficient and inefficient industries. The Committee on Economic, Social and
Cultural Rights has made clear that the effects of policies on the most vulnerable
44 See, eg, Article X of GATT relating to the publication and administration of trade regulations. See also Anne Orford, ‘Beyond Harmonization: Trade, Human Rights and the Economy of
Sacrifice’ (2005) 18 Leiden Journal of International Law 179, 208.
45 See above, text at note 19. See also, generally, Human Rights Council, ‘Report of the Special
Rapporteur on the Right to Food, Olivier De Schutter: Large-scale land acquisitions and leases:
A set of minimum principles and measures to address the human rights challenge’, UN doc. A/
HRC/13/33/Add.2, 28 December 2009.
46 Eg, Article 9(1) of the ICCPR demands that no instance of detention may be ‘arbitrary’ or
‘unlawful’, and one must have one’s detention confirmed by a judicial body under Article 9(3), as
well as the opportunity to challenge the lawfulness of detention under Article 9(4). Article 15(1) of
the ICCPR protects the principle of legality; that is that the law must be clear, and no person may be
charged with an offence for conduct that was not illegal at the time that it was perpetrated. Article
15(2) contains an exception to Article 15(1) in respect of international crimes, such as genocide and
war crimes.
47 David Kinley, Civilising Globalisation (Cambridge University Press, Cambridge, 2009) 131.
48 See also Chapter 10, Part C.

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A. Underlying Values

41

are ‘a particular preoccupation’49 under the ICESCR.50 Therefore, human rights
law will be particularly concerned with the plight of the losers from free trade.5¹
Certainly, one might expect many of the losers from trade liberalization to
change careers and move into more efficient production sectors. However, such
options are not always available. As Professor Joel R Paul has noted:
You cannot turn an automotive factory into a dairy farm; a 50 year old factory worker
probably will not make a good computer engineer; and a factory town in Maine cannot
grow oranges.5²

These adjustments generate significant social costs, such as taxpayer costs to provide welfare payments to the unemployed, the decline of entire communities
(for example, those built up around inefficient industries), and consequent social
instability within those communities.5³ Of course, these costs include significant
human rights costs, such as detriment to the right to work and the right to an adequate standard of living. However, those costs are arguably offset by the increased
human rights enjoyment of the winners from globalization, those who gain jobs
in the new industries which should eventually flourish more than the older less
efficient industries. Furthermore, greater economic output within the State should
generate greater revenues for the State, enhancing its ability to cater for these
adjustment costs. However, those benefits may take considerable time to emerge,
and human rights obligations do not countenance the automatic sacrifice of many
to short term pain for (perhaps speculative) utilitarian long term gain.54
In particular, people cannot be left to fend for themselves after adjustments
brought about free trade: the detrimental impact of liberalizing measures on the
‘losers’ should be cushioned by adequate compensatory measures.55 However, as
noted by Stiglitz and Charlton:
The standard economic argument is that the net gains from trade liberalization are positive so the gainers can compensate the losers and leave the country better off overall.
Unfortunately, such compensation seldom occurs.56

49 Commission on Human Rights, ‘The right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Report of the Special Rapporteur, Paul Hunt: Mission
to the World Trade Organization’, UN doc. E/CN.4/2004/49/Add.1 (1 March 2004) para 26.
50 See, eg, CESCR, ‘General Comment 12: Right to adequate food (Art. 11)’, UN doc.
E/C.12/1999/5 (12 May 1999) para 13. See also UNECOSOC, ‘Report of the United Nations High
Commissioner for Human Rights’, UN doc. E/2007/82 (25 June 2007) para 43(c).
5¹ See also Human Rights Council, ‘Report of the Special Rapporteur on the right to food,
Olivier De Schutter: Mission to the World Trade Organization’, UN doc. A/HRC/10/5/Add.2
(25 June 2008) para 8.
5² Joel R Paul, ‘Do International Trade Institutions Contribute to Economic Growth and
Development?’ (2003) 44 Virginia Journal of International Law 285, 300; see also Gathii, above
n 35, 146.
5³ Paul, above n 52, 300.
54 Margot Salomon, Global Responsibility for Human Rights (Oxford University Press, Oxford,
2007) 129–30.
55 Harrison, above n 17, 45.
56 Stiglitz and Charlton, above n 41, 28. See also Ha-Joon Chang, Bad Samaritans: the Myth of
Free Trade and the Secret History of Capitalism (Bloomsbury Press, New York, 2008) 72–3.

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42

WTO and International Human Rights Law

Pascal Lamy has conceded that ‘strong safety nets’ are needed to ‘correct . . . imbalances between winners and losers at the national level’, and that States which lack
that capacity need to be ‘assisted by the international community’ if trade is going
to generate ‘collective well-being’.57 Yet the focus of WTO law is on aggregate
rather than individual welfare, and it probably ‘overestimates the capacity of States,
[particularly] in the developing world, to operate such redistribution of gains’.58
Free trade is explicitly conceived of in the preamble to the Agreement establishing the WTO as being a means to desirable ends, notably sustainable development,
equitable outcomes for the developing world, full employment, and raising standards of living for all. Trade is a means to desirable ends, rather than an end in itself.
All of the above-mentioned ends boost the enjoyment of recognized human rights.
Yet WTO rules are not generally directed towards such outcomes: it is largely presumed that free trade rules of themselves will generate those desirable outcomes,59
or that they will in no way retard such outcomes.
Professor John Ruggie famously suggested in 1982 that the GATT regime was
based on a premise of ‘embedded liberalism’, whereby GATT members agreed to
reduce protectionist measures, whilst simultaneously promulgating domestic welfare policies to provide safety nets for the losers, such as those suddenly exposed
to competition from imports.60 Such a bargain was necessary: a State had to ‘take
care of its own through regulatory intervention in order to maintain its political
ability to liberalize’.6¹ However, while GATT rules explicitly dictated the dismantling of certain trade barriers, they did not explicitly require the provision of welfare benefits to individuals at the domestic level. Nor were such welfare obligations
mandated with the advent of the WTO.
In any case, the ethos of the GATT had evolved so as to embrace, by the time of
the WTO’s birth, a neo-liberal commitment to free trade and letting the market
sort things out, departing from the post-war focus on government intervention
to soften the impact on disadvantaged individuals of free markets. The dominant
‘neoliberal’ economic philosophy since the 1980s has promoted economic efficiency through the invisible hand of the market free of government intervention.6²
This agenda was aided by the policies of other international economic institutions,
such as the World Bank and the IMF, which aggressively championed the removal
57 Lamy, above n 11.
58 Report of the Special Rapporteur on the right to food, Mission to the World Trade Organization,
above n 51, para 8.
59 See also Kinley, above n 47, 43.
60 John Ruggie, ‘International Regimes, Transactions and Change: Embedded Liberalism in
the Postwar Economic Order’ (1982) 36 International Organization 379, 393–8. See also Jeff rey
L Dunoff, ‘The Death of the Trade Regime’ (1999) 10 European Journal of International Law 733,
738–9, and Gathii, above n 35, 148–50.
6¹ Joel Trachtman, ‘Legal Aspects of a Poverty Agenda at the WTO: Trade Law and “Global
Apartheid” ’ (2003) 6 Journal of International Economic Law 3, 8.
6² See Yong-Shik Lee, Reclaiming Development in the World Trading System (Cambridge
University Press, Cambridge, 2006) 52; Andrew TF Lang, ‘Reflecting on “Linkage”: Cognitive and
Institutional Change in the International Trading System’ (2007) 70 Modern Law Review 523, 529;
Robert Howse, ‘From Politics to Technocracy and back again: the Fate of the Multilateral Trading
Regime’ (2002) 96 American Journal of International Law 94, 98–103; Dunoff, above n 60, 736–7.
See also Gathii, above n 35, 151.

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A. Underlying Values

43

of trade barriers along with other free market reforms such as privatization and
reduced government spending in their lending programmes.6³ Fewer market regulations and lesser government spending means that there are fewer government
redistribution schemes: markets will not redistribute by themselves. While embedded liberalism may have underlay the GATT in theory, concerns with individual
welfare did not underpin the WTO.64
The WTO agenda based on economic efficiency ultimately has a utilitarian
or consequentialist focus, aimed at increasing aggregate net welfare.65 Such an
approach sanctions the subordination of the rights of the few to the enjoyment of
the many, and tolerates short-term pain for long-term gain. This focus does not gel
well with the deontological focus in human rights law and policy on the rights of
each and every individual, regardless of his or her utility.66 For example, economic
utilitarianism could theoretically justify torture or slavery on the basis that they
are economically justifiable.67 Human rights law dictates that the restoration or
preservation of human dignity is an end in itself, which cannot be inherently compromised by utilitarian or consequentialist considerations. Certainly, limitations
on rights for the purposes of promoting the rights of others are often tolerated
under international human rights law. For example, the limitation of economic,
social, and cultural rights according to resource availability means that one person cannot insist on his or her enjoyment of such rights being maximized and
thus compromising access by others to those resources needed to enjoy their own
ICESCR rights. Most civil and political rights may be limited by reasonable and
proportionate measures designed to achieve a pressing social need, such as the preservations of public order, national security, public health, public morals, or the
rights of others.68 However, the routine limitation of human rights on utilitarian
economic grounds is not envisaged under international human rights law.69
Finally, as argued in Chapters 5 to 7, the basic premise that WTO rules in fact
facilitate economic growth and ‘a bigger pie’ is challengeable in the case of many
developing States. In fact, WTO rules may restrict the capacities of some States to
develop their economies and cater for the adjustment costs of the losers from free
trade. WTO rules may be diminishing the economic capacities of some States,
which impacts on their abilities to discharge their human rights obligations.
6³ See generally, World Bank, Economic Growth in the 1990s: Learning from a Decade of Reform
(World Bank, Washington DC, 2005) <http://www1.worldbank.org/prem/lessons1990s/> accessed
19 September 2010.
64 See also Dunoff, above n 60, 746–7; Gathii, above n 35, 152.
65 Frank Garcia, ‘The Global Market and Human Rights: Trading away the Human Rights
Principle’ (1999) 7 Brooklyn Journal of International Law 51, 67–9.
66 Ibid, 62–73.
67 Ibid, 72.
68 See, eg, Articles 12 (freedom of movement), 18 (freedom of religion), 19 (freedom of expression), 21 (freedom of assembly) and 22 (freedom of association) of the ICCPR. Some civil and
political rights are absolute, and cannot be compromised in any circumstances, such as the right to
be free from torture (see Article 7 ICCPR, Article 2 CAT) and the right to be free from slavery and
servitude (see Articles 8(1) and 8(2) ICCPR). See also Chapter 1, text at notes 50–1.
69 Garcia, above n 65, 75. See also Daniel M Hausman and Michael S McPherson, ‘Taking Ethics
Seriously: Economics and Contemporary Moral Philosophy’ (1993) 31 Journal of Economic Literature
671, 693–6.

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44

WTO and International Human Rights Law

Cultural and economic relativism
At this point, it is appropriate to mention the related challenges of cultural and
economic relativism to international human rights law, and their relevance to
the WTO/human rights debate. Cultural relativist arguments postulate that the
application of human rights varies according to the different cultures of States.
Such arguments generally emanate from non-Western States, which is perhaps
unsurprising given the oft-accepted Western philosophical origin of human rights,
particularly civil and political rights. For example, Colonel Ignatius Acheampong,
former Head of State in Ghana, stated that ‘one man, one vote’ was ‘meaningless
unless accompanied by the principle of one man, one bread’.70
One prominent branch of cultural relativist argument relates more to economic
rather than cultural differences, hence this author has termed the argument ‘economic relativism’.7¹ This theory postulates that economic development must be
the first priority of developing States, so the implementation of human rights can
be delayed while a State develops its economy to a satisfactory level. For example,
this type of argument formed part of the rationale adopted by leaders of a number
of Asian states during the 1990s against the applicability of ‘Western’ civil and
political rights in the Asian context.7² Acceptance of this argument would indicate
that trade liberalization is justified, even if it leads to human rights abuses in the
short term, so long as it is likely to lead to longer term prosperity.
The economic relativist argument tends to be made by undemocratic governments against civil and political rights more than economic, social, and cultural
rights, suggesting that civil and political freedoms somehow undermine the promotion of economic development in vulnerable economies. For example, it might
be argued that opposition groups with a free rein distract or undermine governments in managing and achieving their economic goals, and might prompt unhelpful u-turns in economic policy. Whilst developed States can withstand and absorb
subsequent economic pressures, developing States do not have that luxury.
However, civil and political rights facilitate government accountability, which
helps to guard against corruption and bad governance, both of which can have
devastating economic effects.7³ Entrenched dictatorships, regardless of any initial
benevolence, will inevitably succumb to the temptation to benefit their own elite
interests.74
70 As quoted in Rhoda Howard, ‘The Full-Belly Thesis: Should Economic Rights take Priority
over Civil and Political Rights? Evidence from Sub-Saharan Africa’ (1983) 5 Human Rights Quarterly
467, 467.
7¹ Sarah Joseph, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and
Political Rights: Cases, Materials and Commentary, 2nd edn (Oxford University Press, Oxford, 2004)
para 1.92.
7² For a brief outline of the ‘Asian Values Debate’, see Leena Avonius and Damien Kingsbury,
‘Introduction’ in Leena Avonius and Damien Kingsbury (eds), Human Rights in Asia: A Reassessment
of the Asian Values Debate (Palgrave MacMillan, New York, 2008) 1–2.
7³ See Amartya Sen, ‘Human Rights and Asian Values: What Lee Kwan Yew and Le Peng
Don’t Understand about Asia’ (1997) 217 The New Republic 33–40. However, see the arguments of
Ha-Joon Chang at Chapter 8, text at note 84.
74 Howard, above n 70, 475–6.

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A. Underlying Values

45

The renowned economist Amartya Sen has persuasively argued that democratic and civil rights help protect against the continuance of disastrous economic
policies. For example, he argues that the economic and humanitarian disaster of
the Great Leap Forward in China, which caused the deaths of up to 30 million
people from 1958 to 1961, lasted so long because China’s authoritarian system of
government provided for no correction of Mao’s misguided policies: ‘[n]o democratic country with opposition parties and a free press would have allowed that to
happen’.75 A study by Daniel Kaufmann of the World Bank Institute has provided
emphatic empirical support for Sen’s thesis.76 Similarly, Rhoda Howard has used
examples of disastrous autocratic economic policies in Africa to argue that ‘continued input by those affected is necessary to ensure that economic policies are
effective’.77 Suppression of such alternative inputs can also prompt a brain drain, as
professionals who propose alternative economic policies are gaoled or exiled, rather
than utilized.78
Another problem with suppressing civil and political rights is that it closes off
peaceful options for opposition political forces, who are then tempted to turn to
military options, leading to a vicious cycle of coups and counter-coups, as seen in
some developing countries, particularly in Africa.79
Economic relativist proponents have tended not to target economic, social, and
cultural rights or the right to development, and indeed are ardent supporters of
such rights within UN human rights bodies such as the Human Rights Council.
Such rights are not inconsistent with economic development. Certainly, they place
a brake on the ability of a State to maximize certain financial outcomes by, for
example, prohibiting the arbitrary eviction of people to make way for development
projects. However, economic, social, and cultural rights help to ensure that development is equitable and sustainable. In any case, economic, social, and cultural
rights are themselves economically relative, as the extent of a State’s duties varies
according to its level of resources.80
‘Pure’ cultural relativism, that is relativist arguments based on differing cultures, persists as a serious challenge to universality. The arguments for and against
this type of argument will not be canvassed here.8¹ One point however will be
75 Amartya Sen, ‘Human rights and economic achievements’ in Joanne R Bauer and Daniel
A Bell (eds), The East Asian Challenge for Human Rights (Cambridge University Press, New York,
1999) 93.
76 Daniel Kaufmann, ‘Human Rights and Governance: The Empirical Challenge’ in Philip
Alston and Mary Robinson (eds), Human Rights and Development: Towards Mutual Reinforcement
(Oxford University Press, New York, 2005) 352–403.
77 Howard, above n 70, 473. See also 471–4.
78 Ibid, 474–5.
79 Ibid, 474.
80 In contrast, a State’s underdevelopment does not justify failures to observe civil and political
rights, as in the case of appalling prison conditions or undue court delays. See Joseph, Schultz, and
Castan, above n 71, para 1.101.
8¹ See, generally, Jack Donnelly, Universal Human Rights in Theory and Practice, 2nd edn (Cornell
University Press, Ithaca, 2002). The cultural relativist issue is an important one in international
human rights law. However, classical cultural relativist debates (eg regarding female genital mutilation, the rights of gays and lesbians, compulsory wearing of a veil for women in some countries) are
not especially relevant in the trade/human rights debate: one area where it is possibly relevant in this
book concerns the commentary on China’s internet restrictions at Chapter 4, Part G.

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46

WTO and International Human Rights Law

made. It seems doubtful that the cultural impact of the implementation of human
rights law is any greater than the cultural impact of trade liberalization, given that
trade liberalization facilitates the greater exposure of peoples to products associated with foreign cultures (for example, clothing, movies, literature, music, food),
and generates profound economic effects that will force many to fundamentally
change their traditional ways of life.8²
International human rights law generally embraces universality rather than
relativism,8³ though some right limitations based on culture are permissible.84
That does not mean that human rights law dictates cultural homogeneity. In fact,
cultural practices are protected under human rights law under provisions such as
Article 27 of the ICCPR, Article 15 of the ICESCR, and the requirement regarding
the right to food in Article 11 of the ICESCR that food must be culturally appropriate.85 Indeed, human rights law provides a buffer against the dangers of the
erosion of vulnerable minority cultures posed by certain economic development
projects.86 However, human rights law also imposes minimum standards under
which certain practices which are claimed to be based in a local culture, such as
female genital mutilation, prohibitions on apostasy, and persecution of gays and
lesbians, are simply unacceptable.

B. Normative Relationship between the WTO and
International Human Rights Law
What is the normative relationship between WTO law and international human
rights law? It is controversial to argue that the WTO itself, an international organization, has human rights duties, given that it is not a party to any human rights
treaties.87 Some human rights duties arguably arise under customary international
law and jus cogens, or under the WTO Agreements themselves. A discussion of the
8² See also Jack Donnelly, ‘Human rights and Asian values: a Defense of “Western” Imperialism’
in Joanne R Bauer and Daniel A Bell (eds), The East Asian Challenge for Human Rights (Cambridge
University Press, New York, 1999) 69, 81–2.
8³ See, eg, Committee on Economic Social and Cultural Rights, ‘General comment No 21:
Right of everyone to take part in cultural life (art. 15, para. 1(a), of the International Covenant on
Economic, Social and Cultural Rights)’, UN doc. E/C.12/GC/21 (21 December 2009) paras 18,
25, 64.
84 Eg, a number of civil and political rights, such as freedom of expression may be limited by
proportionate measures designed to protect public morals (see Article 19(3) ICCPR). Public morals
necessarily vary between States. See, eg, Handyside v UK (1976) (Application no 5493/72) Series
A/24. On the other hand, States do not have unlimited rights to restrict rights on the basis of public
morals: the measures must be found to be reasonable and proportionate: see, eg, Toonen v Australia,
UN doc. CCPR/C/50/D/488/1992 (4 April 1994) (Human Rights Committee).
85 Committee on Economic Social and Cultural Rights, ‘General Comment 12: The right to
adequate food (Art.11)’, UN doc. E/C.12/1999/5 (12 May 1999) paras 8, 11, 39.
86 See, eg, Ominayak v Canada, UN doc. CCPR/C/38/D/167/1984 (10 May 1990) and Poma Poma
v Peru, UN doc. CCPR/C/95/D/1457/2006 (24 April 2009) (both Human Rights Committee).
87 Exceptionally, it is anticipated at the time of writing that the European Union, a regional intergovernmental organization, will become a party to the ECHR.

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B. Normative Relationship between WTO and IHRL

47

human rights duties, or lack thereof, of the WTO is however beyond the scope of
this book.88
The Member States of the WTO clearly have human rights obligations.89 In
the following chapters, I will examine the extent to which, if at all, WTO rules
and processes undermine the ability of States to discharge their duties to respect,
protect and fulfil human rights obligations.
Is there an applicable hierarchy in international law between international
human rights law and WTO law? In the case of contradictory obligations, does one
of these areas of law prevail over the other? This question gives rise to the issue of
fragmentation, the subject of a 2006 report by a Study Group of the International
Law Commission.90 ‘Fragmentation’ refers to the phenomenon of States being
subjected to specialist systems of international law, such as trade law and human
rights law, which have developed largely in isolation from each other.
The result is conflicts between rules or rule-systems, deviating institutional practices and,
possibly, the loss of an overall perspective on the law.9¹

Treaties should be interpreted with an assumption that States parties do not mean
to contradict other international legal obligations.9² Therefore, WTO dispute settlement bodies should endeavour to interpret the WTO Agreements, if possible, so
as to conform to the parties’ human rights obligations, and human rights bodies
should do the same in the reciprocal situation. The relevant interpretative practices
of the WTO and human rights bodies are discussed below.
In the case of conflict between two international laws, Article 53 of the Vienna
Convention on the Law of Treaties dictates that peremptory or jus cogens norms
prevail over other norms. Jus cogens norms constitute the inner core of customary
international law norms from which no derogation is permitted.
Given its club-like purpose of granting reciprocal rights and duties to Members,
WTO norms cannot be part of jus cogens or even customary international law: nonMembers surely cannot be bound by any of its rules without receiving the benefits
of MFN and National Treatment. It is uncertain which human rights norms are
recognized as jus cogens. Certainly, one may safely cite prohibitions on genocide,9³
88 See, McBeth, above n 38, Chapters 3 and 4. See also Commission on Human Rights, ‘Report
of the Special Rapporteur on the right to food, Jean Ziegler’, UN doc. E/CN.4/2005/47 (24 January
2005) para 38. The CESCR Committee has certainly indicated that international organizations such
as the WTO have human rights obligations, see, eg, CESCR, ‘General Comment No. 19: The right
to social security (art. 9)’, UN doc. E/C.12/GC/19 (4 February 2008) para 53.
89 Beyond the 150 Member States, Chinese Taipei, Hong Kong, and the European Communities
are also parties to the WTO. Discussion of the existence of human rights obligations for those nonState entities is beyond the scope of this book.
90 International Law Commission, ‘Fragmentation of International Law: Difficulties Arising
from the Diversification and Expansion of International Law. Report of the Study Group of the
International Law Commission: finalised by Martti Koskenniemi’, UN doc. A/CN.4/L.682
(13 April 2006).
9¹ Ibid, para 8.
9² See Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force
27 January 1980), 1155 UNTS 331, Article 31(3)(c).
9³ Armed Activities on the Territory of the Congo (New Application 2002) (Democratic Republic of
Congo v Rwanda) (Jurisdiction and Admissibility/Judgment) [2006], ICJ Rep 5, para 64.

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48

WTO and International Human Rights Law

torture, apartheid, and slavery as such norms.94 However, beyond a small core list
of the prohibitions on the most egregious human rights abuses, there is little consensus on the identification of jus cogens human rights norms.95
The European Court of Justice in Kadi and Al Barakaat International Foundation v
Council of the European Union found that fundamental human rights in EC law
prevailed over an EC regulation which implemented a Security Council resolution combating terrorism. It asserted that while obligations to the Security
Council might allow divergence from the common market obligations of the
Treaty establishing the European Community, those obligations did not permit
derogation from ‘the principles that form part of the very foundations of the
Community legal order, one of which is the protection of fundamental rights’.96
That Court clearly placed human rights high in the hierarchy of European Union
law, even above the commercial obligations which originally gave birth to the
regional grouping. The primacy of human rights law has also been repeatedly
proclaimed by the various UN treaty bodies as well as the UN’s intergovernmental human rights bodies.97 In contrast, the European Court of Human Rights
has been more deferential to other areas of international law, construing the
ECHR in accordance with the rules of state immunity in McElhinney v Ireland98
and Al-Adsani v UK,99 and rules of jurisdiction and responsibility in Bankovic v
Belgium and others.¹00
Some treaties explicitly address potential conflicts with other treaties. The UN
Charter expressly prevails over other international law obligations under Article
103. As noted above, human rights promotion is an explicit purpose in Article
1(3) of the UN, and provides for some broad if vague human rights obligations for
Member States in Articles 55 and 56. The Charter does not, in contrast, explicitly refer to the promotion of trade between nations.¹0¹ Given the placement of
human rights at the core of the Charter, Adam McBeth has argued that human
rights should be recognized as having a pre-eminent status in international law.¹0²
Furthermore, it has been persuasively argued that the UDHR represents an

94 Indeed, the entire ‘short list’ of customary norms cited in Chapter 1, Part D, probably classify
as jus cogens norms.
95 See the various iterations discussed by Dinah Shelton, ‘Normative Hierarchy in International
Law’ (2006) 100 American Journal of International Law 291, 309–17. See also Gabrielle Marceau,
‘WTO Dispute Settlement and Human Rights’ (2002) 13 European Journal of International Law
753, 798, and Harrison, above n 17, 58.
96 Kadi and al Barakaat International Foundation v Council of the European Union (ECJ Grand
Chamber 3 September 2008) Cases C- 402/05 and C- 415/05 P, para 304.
97 See, eg, Committee on Economic Social and Cultural Rights, ‘Statement on Globalization
and its impacts of economic, social and cultural rights’, UN doc. E/1999/22 (11 May 1998) para 5.
98 (2001) 34 EHRR 322.
99 (2001) 34 EHRR 273.
¹00 (2001) 11 BHRC 435. See International Law Commission, above n 90, paras 161–4.
¹0¹ The references in Article 55 to the ‘promotion of . . . conditions of economic and social progress
and development’ arguably refer, insofar as it focuses on economic progress, to the ends of free trade,
but not free trade itself.
¹0² Adam McBeth, ‘Human rights in economic globalisation’ in Sarah Joseph and Adam McBeth
(eds), Research Handbook on International Human Rights Law (Edward Elgar, Cheltenham, 2010)
144–6.

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B. Normative Relationship between WTO and IHRL

49

authoritative interpretation of human rights for the purposes of the Charter, thus
endowing its norms with the primacy of the Charter.¹0³
When two conflicting international norms are equal in value, as may be the
case with some and even most human rights norms compared to WTO norms,
the available tools for resolving these conflicts in international law are unhelpful.
One rule is that the more specific law will prevail over the more general law.¹04 For
example, international humanitarian law will prevail over international human
rights law in times of armed conflict if the two should conflict.¹05 However, that
principle does not work when the two areas of law are not concerned with the same
subject matter.¹06 Human rights and WTO law are not the same subject matter, though they may intersect to simultaneously impact in a particular scenario.
For example, in addressing the issue of patents on medicine, it is unconvincing to
claim that TRIPS is the lex specialis in preference to the right to health in Article 12
of ICESCR, or vice versa. A similar difficulty arises with regard to another rule for
resolving conflicts, that a later treaty will prevail over an earlier treaty: Article 30 of
the Vienna Convention specifies that this rule applies with regard to treaties with
‘the same subject matter’.
In conclusion on this point, it is submitted that it is far more likely that a human
rights norm prevails over a WTO norm as a matter of international law than the
reverse proposition. Furthermore, human rights are goals or ends in themselves,
whereas free trade rules are means by which certain ends, including ends that are
thoroughly compatible with and even equate with human rights (such as, according to the WTO preamble, sustainable development, raising standards of living
and ensuring full employment), are to be achieved.¹07 It would be odd for means
to prevail over ends. Certainly, this author is unaware of arguments to the effect
that trade law should trump human rights law. Pascal Lamy stated in a speech in
2006:
[T]he WTO is not more important than other international organisations and WTO
norms do not necessarily supersede or trump other international norms.¹08

States themselves declared the primacy of their human rights obligations in
the Vienna Declaration and Plan of Action of 1993.¹09 Article 1 proclaims that
human rights are ‘the first responsibility of governments’. However, the alleged

¹0³ See, eg, Louis Sohn, ‘The Human Rights Law of the Charter’ (1977) 12 Texas International
Law Journal 129. Some support for this proposition may be gleaned from Advisory Opinion on Legal
Consequences for States of the Continued Presence of South Africa in Namibia [1971] ICJ Rep 16,
para 131.
¹04 International Law Commission, above n 90, paras 56–87.
¹05 See, eg, Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion),
[1996] ICJ Rep 266, para 25.
¹06 International Law Commission, above n 90, paras 116–18.
¹07 Kinley, above n 47, 2.
¹08 Pascal Lamy, ‘The WTO in the Archipelago of Global Governance’ (Speech at the Institute of
International Studies, UC Berkeley, 14 March 2006) <http://www.wto.org/english/news_e/sppl_e/
sppl20_e.htm> accessed 19 September 2010.
¹09 This Declaration was concluded after a major world conference on human rights in Vienna in
1993.

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50

WTO and International Human Rights Law

primacy of international human rights law has not generally been reflected in State
practice.¹¹0
Certainly, some have asserted that in many instances, the norms are of equal
value.¹¹¹ The relevant dispute settlement bodies in such an instance are likely to
prioritize their own system, so WTO bodies will apply WTO law while human
rights bodies will apply human rights law.¹¹² In such a case, there is a danger of
a de facto hierarchy developing, with trade rules prevailing over human rights
rules, due to the stronger enforcement system under the WTO compared to the
global human rights system.¹¹³ Alternatively, States perceive greater self interest in the trade system and are therefore predisposed to compliance with that
regime compared to the human rights regime,¹¹4 which might be perceived by
States as an occasionally (or commonly) unwelcome constraint on power. Pascal
Lamy has acknowledged this imbalance in the international system.¹¹5 The
disproportionate strength of the trade regime compared to the human rights
regime can lead to prioritization of trade norms if they confl ict with human
rights norms, or regulatory chill as States may fail to adopt measures to protect human rights because they fear that such measures might breach trade
law.¹¹6
It is not necessary for the purposes of this book to prove that human rights
norms prevail over those in the WTO. If conflicts exist between the two regimes,
that circumstance is clearly undesirable and causes damage to the objectives and
legitimacy of both regimes. Human rights suffer as the WTO regime is stronger
in terms of institutional enforcement, which may lead States to prioritize WTO
compliance over human rights compliance if they perceive that a choice must be
made. The WTO suffers, as indeed might the entire architecture and legitimacy
of global trade and business itself, as resentment by disadvantaged constituencies
undermines the WTO’s authority, reputation and its ability to further develop
its rules.

WTO jurisprudence and human rights
So far, the WTO dispute settlement bodies have not had to directly deal with
international human rights law. They have however had to deal with cases of possible conflict between WTO law and other areas of international law, such as
¹¹0 Shelton, above n 95, 294.
¹¹¹ Robert Howse and Ruti Teitel, ‘Beyond the Divide: the International Covenant on Economic
Social and Cultural Rights and the World Trade Organization’ in Sarah Joseph, David Kinley, and
Jeff Waincymer (eds), above n 30, 39–40.
¹¹² Marceau, above n 95, 797.
¹¹³ Salomon, above n 54, 155.
¹¹4 Carlos Manuel Vázquez, ‘Trade Sanctions and Human Rights—Past, Present and Future’
(2003) 6 Journal of International Economic Law 797, 808.
¹¹5 Pascal Lamy, ‘The Place and Role of the WTO (WTO law) in the International Legal Order’
(Address before the European Society of International Law, Paris, 19 May 2006). <http://www.wto
.org/english/news_e/sppl_e/sppl26_e.htm> accessed 19 September 2010.
¹¹6 Eg, States might fail to implement pro-poor measures in respect of the provision of certain
services for fear of breaching GATS: See Chapter 5, text at notes 46–57.

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B. Normative Relationship between WTO and IHRL

51

environmental law, as well as WTO cases on issues of relevance to human rights,
such as public health and food safety.
Article 3.2 of the WTO’s Understanding on Rules and Procedures Governing
the Settlement of Disputes specifies that the WTO Agreements will be interpreted
‘in accordance with the customary rules of interpretation’, which are enshrined in
the Vienna Convention on the Law of Treaties 1969. Article 31(1) of the Vienna
Convention states that treaties should be interpreted in accordance with their
object and purpose. McBeth argues that the WTO Agreements should therefore
be interpreted in light of the preamble to the Marrakesh Agreement, including its
references to ‘raising standards of living’, ‘ensuring full employment’, and ‘sustainable development’.¹¹7 The Panels and Appellate Body have not generally taken such
an approach, and relatively few decisions refer to the preamble.¹¹8 It seems that the
promotion of free trade per se has more often been viewed as the object and purpose of the agreements.
Article 31(3)(c) of the Vienna Convention states that ‘any relevant rules of international law applicable in the relations between the parties’ should be taken into
account by a body in interpreting a treaty. A WTO panel has confirmed that customary international law is relevant to the application of WTO norms.¹¹9 The
Appellate Body and Panels have used customary international law to interpret
specific words in the WTO Agreements, as well as issues relating to State responsibility, standing, representation by private counsel, burden of proof, and the treatment of domestic law.¹²0 Therefore, where possible, the Appellate Body and Panels
should construe a WTO provision in conformity with customary international
law, including those human rights protected under customary law.¹²¹ Customary
law, aside from jus cogens norms, will not however displace inconsistent WTO
norms.¹²²
The Appellate Body in US—Import Prohibition of Certain Shrimp and Shrimp
Products stated that Panels may take non-WTO treaties into account in interpreting WTO agreements.¹²³ It took a number of principles from environmental treaties into account in adopting a dynamic (rather than originalist) interpretation of
¹¹7 McBeth, above n 38, 108–9; see also Joe W (Chip) Pitts III, ‘Corporate Social Responsibility:
Current Status and Future Evolution’ (2009) 6 Rutgers Journal of Law and Public Policy 334, 355–6,
and Joe W (Chip) Pitts III, ‘The First U.N. Social Forum: History and Analysis’ (2002) 31 Denver
Journal of International Law 297, 303.
¹¹8 See however United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO
doc. WT/DS58/AB/R, AB-1998–4 (12 October 1998) (Report of the Appellate Body) paras 12, 17,
and 129.
¹¹9 Korea—Measures Aff ecting Government Procurement, WTO doc. WT/DS163/R (19 June
2000) (Report of the Panel) para 7.96.
¹²0 Peter Van den Bossche, The Law and Policy of the World Trade Organization (Cambridge
University Press, Cambridge, 2005) 57.
¹²¹ McBeth, above n 38, 110–12.
¹²² Eg, in the EC—Measures concerning Meat and Meat Products (‘EC—Hormones’), WTO
doc. WT/DS48/AB/R (16 January 1998) (Report of the Appellate Body), the Appellate body ruled
that the environmental ‘precautionary principle’ would not override the SPS Agreement even if it
was a customary norm at paras 120–5. The Appellate Body did not determine that the precautionary
principle was in fact a customary norm, as it found that its status was unclear.
¹²³ Above n 118, paras 126–34.

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52

WTO and International Human Rights Law

Article XX(g) of GATT, even though not all parties in that case were parties to the
relevant agreements. However, according to the WTO panel in EC—Measures
Aff ecting the Approval and Marketing of Biotech Products, while the panels and the
Appellate Body may choose to take a treaty into account in interpreting WTO
law, they do not have to do so unless all WTO Members are party to the particular
treaty.¹²4 Therefore, the Biotech Panel indicates that non-trade rules may be relegated to a minor role, or may even have no role, in the determination of a dispute,
regardless of the dispute’s non-trade impact.¹²5
Joost Pauwelyn has suggested that multilateral treaty obligations, such as those
under human rights and environmental treaties, may be used as a defence in WTO
proceedings against claims of a breach of the WTO. His reasoning is that WTO
obligations are essentially reciprocal, so third parties to a dispute will be unaffected if the reciprocal obligations between a claimant and respondent State in a
dispute are modified by multilateral obligations to which both States are bound.
Therefore, a State may defend itself against a claim of breach by citing its human
rights obligations so long as the claimant State has similar human rights obligations.¹²6 Pauwelyn’s theory is well considered but controversial.¹²7 It has not yet
gained the support of WTO dispute settlement bodies.¹²8
Pauwelyn concedes that a WTO panel cannot enforce another treaty obligation: human rights obligations in his view can only be used as a shield rather than
a sword. The Appellate Body confirmed in Mexico—Tax Measures on Soft Drinks
and other Beverages that it is not able to determine rights and duties under other
international treaties.¹²9
It seems likely that the WTO dispute settlement bodies would adopt one of the
following approaches if confronted with a potential conflict between human rights
laws and WTO obligations. First, if the human rights treaty was one to which
every WTO Member was a party, the dispute settlement body would have to take
it into account in interpreting WTO obligations. However, such unanimous membership of another treaty is virtually impossible as the WTO permits the membership of certain non-States, such as Hong Kong, Chinese Taipei, and the EC:
non-States are unable to ratify most other treaties.¹³0 Less strict variations on this
first option are for the relevant human rights treaty to bind all State Members of
the WTO, or for all State Members to have either ratified or signed the treaty.¹³¹
¹²4 WTO doc. WT/DS291-293/R (29 September 2006) (Report of the Panel) para 7.68.
¹²5 See also, generally, Margaret A Young, ‘The WTO’s use of relevant rules of international law:
an analysis of the Biotech case’ (2007) 56 ICLQ 907. Biotech was criticized by the International Law
Commission, above n 90, at para 471.
¹²6 Joost Pauwelyn, Conflict of Norms in Public International Law: how WTO law relates to other
norms of International Law (Cambridge University Press, Cambridge, 2003) eg, 52ff and 491.
¹²7 Van den Bossche, above n 120, 63.
¹²8 Harrison, above n 17, 190–1.
¹²9 Mexico—Tax Measures on Soft Drinks and Other Beverages, WTO doc. WT/DS308/AB/R,
AB-2005-10 (6 March 2006) (Report of the Appellate Body) para 78. Mexico had argued that a
NAFTA tribunal was a more appropriate forum for determination of the dispute.
¹³0 Harrison, above n 17, 201.
¹³¹ Signature to a treaty of course does not give rise to the same obligations as ratification, but it
does give rise, under the Vienna Convention, to an obligation under Article 18(a) not to undermine
the object and purpose of the relevant treaty.

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B. Normative Relationship between WTO and IHRL

53

An alternative interpretation of Article 31(3)(c) of the Vienna Convention to that
in EC—Biotech might hold that human rights obligations have to be taken into
account if the parties to a dispute are party to that treaty. However, such an interpretation, whilst perhaps preferable to the narrow approach taken in EC—Biotech,
is not satisfactory from a human rights point of view if dispute settlement bodies
consequently ignore human rights norms when those norms do not bind all parties
to a dispute. For example, the US is not a party to the ICESCR so that treaty would
be irrelevant in (the many) disputes involving that trading giant. The fact of US
non-ratification of the ICESCR (or, as another example, Chinese non-ratification
of the ICCPR) is not relevant under human rights law in delineating the scope of
another State’s obligations under the ICESCR (or the ICCPR).¹³² This approach
would also lead to States having different WTO obligations to different WTO
States, in spite of the MFN obligation.¹³³
A third option is for the WTO dispute settlement bodies to attempt to interpret
WTO law in conformity with and in the light of relevant human rights norms,
regardless of whether the parties in a case are party to a treaty protecting those
norms. As noted above, the Appellate Body used environmental treaties as interpretive aids in Shrimp, even though the parties to the case were not all parties to
those treaties, though it did not explicitly base its decision on Article 31(3)(c) of
the Vienna Convention. Pauwelyn has suggested that such norms might be relevant under Article 31(3)(c) if they are norms that are at least ‘implicitly accepted
or tolerated by all WTO members’.¹³4 Given that all State members of the WTO
have endorsed the UDHR when joining the UN, its norms, which are essentially
reflected in the two Covenants, may satisfy Pauwelyn’s criteria. Furthermore, all
State Members are bound by the UN Charter and its human rights provisions,
which may incorporate the UDHR.¹³5 The interpretation of WTO norms in the
light of the UDHR and all key global human rights treaties, especially if adopted
on a mandatory rather than a discretionary basis by Panels and the Appellate Body,
is of course the most preferable of the three approaches from a human rights point
of view. This approach is arguably the most preferable from a trade point of view
as well, as it removes the possibility of splintered obligations and reinforces the
legitimacy of the trade regime by minimizing conflicts with other international
law regimes.
In all three scenarios, it seems likely that the dispute settlement bodies would
hold that WTO obligations prevailed over human rights obligations in the case of
conflicts that could not be resolved by interpretation, except in the rare instance
that the human right at issue was found to be a jus cogens obligation.¹³6
The interpretation of WTO rules by the Panels and the Appellate Body are
examined further in Chapter 4.
¹³² See Harrison, above n 17, 202–3.
¹³³ It seems likely that that fact influenced the strict approach adopted in EC—Biotech, above n
124, see also para 7.71.
¹³4 Joost Pauwelyn, ‘The Role of Public International Law in the WTO: How Far Can We Go?’
(2001) 95 American Journal of International Law 535, 575–6.
¹³5 See Chapter 1, text at note 30.
¹³6 See generally, Marceau, above n 95, 756, 791–5; Harrison, above n 17, 191.

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54

WTO and International Human Rights Law

Human rights jurisprudence and the WTO
The human rights bodies have been more bullish than the WTO Panels and
Appellate Body in asserting the primacy of their area of law over other areas of law.
Given the common assertion by human rights bodies of the primacy of human
rights law, it is not surprising that human rights bodies have felt less need to read
human rights law as being subject to other areas of international law.
The Committee on Economic Social and Cultural Rights has said that States
must take their ICESCR obligations into account when entering into treaties or
joining international organizations. For example, the Committee stated that a violation of the right to food would arise if a State failed to take the right into account
‘when entering into agreements with other States or with international organizations’.¹³7 In General Comment 14 on the right to health, the Committee stated:
In relation to the conclusion of other international agreements, States parties should take
steps to ensure that these instruments do not adversely impact upon the right to health.
Similarly, States parties have an obligation to ensure that their actions as members of international organizations take due account of the right to health.¹³8

Therefore, according to the Committee, a State should take its ICESCR obligations into account when joining the WTO, when negotiating rules in the WTO,
when seeking to enforce those rules, and when implementing them at home.¹³9
Furthermore, in Kadi, the European Court of Justice struck down an EC regulation on the basis that it breached fundamental human rights in EC law, even
though the regulation implemented a legal regime imposed by Security Council
resolutions.¹40 A similar, albeit less conclusive, decision was reached by the HRC
in Sayadi and Vinck v Belgium.¹4¹ The legal arguments in favour of deference to
the Security Council, in light of the apparently superior legal position of Security
Council resolutions under Articles 25 and 103 of the UN Charter, are far stronger
than any argument in favour of deference to the WTO. Yet the former arguments
seem to have been rejected by the ECJ and perhaps the HRC.
The European Court of Human Rights, in Bosphorus Airways v Ireland, has also
found that it is competent to review the actions of States taken to implement EC
regulations which in turn implement Security Council resolutions. It went on to
find that there was a presumption that actions taken to implement international
obligations as a member of an international organization were compatible with the
¹³7 CESCR, above n 50, para 19.
¹³8 CESCR ‘General Comment 14: The right to the highest attainable standard of health (article 12)’, UN doc. E/C.12/2000/4 (11 August 2000) para 39.
¹³9 See generally, Howse and Teitel, above n 111.
¹40 See Kadi, above n 96: the relevant regulation enforced the sanctions regime imposed against
persons suspected of links with terrorists under various Security Council resolutions.
¹4¹ Sayadi and Vinck v Belgium UN doc. CCPR/C/94/D/1472/2006 (2008) (Human Rights
Committee). The case again concerned actions taken to implement the Security Council sanctions
regime against persons suspected of links to terrorism. The HRC found that it was competent to
decide if Belgium had violated the ICCPR in implementing its obligations to the Security Council.
In the result, the HRC found that Belgium’s impugned actions had not in fact been required under
the relevant Security Council resolutions, so its ultimate findings of violation against Belgium did
not signal a conflict between the ICCPR and a Security Council resolution.
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C. Conclusion

55

ECHR if the relevant organization provided equivalent or comparable protection
of the rights recognized in the ECHR: no violation was ultimately found.¹4² While
such a presumption might apply in the context of EC regulations, it is doubtful
that it would apply in the context of WTO obligations.¹4³
Therefore, under international human rights law it is safe to assume that WTO
obligations do not absolve a State from its human rights obligations if the obligations should clash. For example, it is no defence in international human rights law
for a State to claim that a breach of the right to health entailed in the introduction
of patents on life-saving drugs which price them out of the reach of the poor is justified on the basis that the measure is required under TRIPS.¹44
It may be noted that both the HRC¹45 and the European Court¹46 have found
on the facts presented in particular cases that single States are not responsible for
the actions of international organizations themselves. However, a State still violates
its human rights obligations when it takes measures to comply with a WTO rule
if that implementation breaches human rights (a situation analogous to the case of
Kadi), and perhaps in regard to its own actions in voting within an international
institution for a rights violating rule or in enforcing an international rule that
harms human rights against another State. The latter example brings up the issue
of a State’s human rights responsibility for its extraterritorial actions and the extraterritorial impacts of its actions or omissions. That issue is discussed in Chapter 8.

C. Conclusion
In this chapter, it has been argued that the WTO and human rights have divergent
philosophical backgrounds and goals, contrary to the claims of, for example, Pascal
Lamy and Professor Ernst-Ulrich Petersmann. The normative relationship between
WTO law and human rights law is complex. At least some if not all human rights
norms are likely to be hierarchically superior within international law to WTO
law. This position is reflected in the case law and statements of numerous human
rights bodies as well as the European Court of Justice. On the other hand, while
WTO Panels and the Appellate Body have not asserted any normative superiority
of WTO law, they have certainly not conceded any inferiority of WTO law.

¹4² Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi (Bosphorus Airways) v Ireland (2006)
42 EHRR 1, para 156. See also Waite and Kennedy v Germany (1999) 30 EHRR 261, para 67.
¹4³ EC regulations operate within the context of the European Union, which played a far larger
role in the protection of human rights, even before the advent of the Charter of Fundamental Rights
of the European Union, than the WTO.
¹44 See Chapter 7 for discussion of the merits of the premise of the example.
¹45 H.v.d.P. v Netherlands CCPR/C/29/D/217/1986 (8 April 1987).
¹46 Behrami and Behrami v France and Saramati v France, Germany and Norway (2007) 45
EHRR SE10.
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3
Democratic Deficit and the WTO
This chapter will analyse arguments that the WTO suffers from a ‘democratic deficit’. Such a deficit would cast doubt on the legitimacy and perhaps the desirability of the WTO’s rules.¹ This chapter first outlines the claim that WTO internal
processes, such as negotiation and dispute settlement, undermine the capacities
of States to act in accordance with the wishes of their populations. A related argument, which is the focus of the opening part of this chapter, is that those same
processes act to the disadvantage of particular constituencies, namely developing
States and social justice interests. Secondly, the relevance to these issues of international human rights law, particularly the right of political participation in Article
25 of the International Covenant on Civil and Political Rights 1966 (ICCPR), will
be explained. Thirdly, many of the alleged democratic deficits of and within the
WTO afflict other international regimes. In this regard, a comparison between the
WTO regime and the international human rights regime is undertaken in order to
identify whether democratic deficiencies within the WTO are of greater concern
than the general democratic deficiencies that exist at the international level of governance. Fourthly, I briefly address arguments regarding the effect on democratic
practices of the WTO. That section addresses the substantive question of whether
the WTO in fact helps to foster democracy in nations, regardless of any lack of
internal democratic legitimacy. The fifth section addresses the proposition that the
WTO enhances the power of developing States, regardless of internal procedural
flaws, due to its multilateral nature. The sixth section concludes the chapter.

A. The Two Components to the WTO/
Democratic Deficit Argument
There are two strands to the ‘democratic deficit’ arguments. First, there are arguments regarding the substance of WTO rules, the WTO’s ‘output’.² A general contention of critics is that WTO rules unduly restrict the regulatory capacities of
¹ See also Sarah Joseph, ‘Democratic Deficit, Participation and the WTO’ in Sarah Joseph, David
Kinley, and Jeff Waincymer (eds), The World Trade Organization and Human Rights: Interdisciplinary
Perspectives (Edward Elgar, Cheltenham, 2009) 313–43.
² I have respectfully borrowed the terminology of ‘output’ and ‘input’ (below) from Robert O
Keohane and Joseph S Nye Jr, ‘The Club Model of Multilateral Cooperation and the World Trade
Organization: Problems of Democratic Legitimacy’ (Working Paper No 4, John F Kennedy School
of Government, undated) <http://www.hks.harvard.edu/visions/publication/keohane_nye.pdf>
accessed 24 October 2010.
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A. The WTO/Democratic Deficit Argument

57

States, which is problematic if WTO rules undermine the ability of States to enact
laws that reflect the democratic will of their people.³ For example, in European
Communities—Measures Concerning Meat and Meat Products (Hormones), the
Panel and the Appellate Body decided that the ban on the import of hormonetreated meat by the European Communities was a breach of the Agreement on the
Application of Sanitary and Phytosanitary Measures (SPS).4 The lifting of the ban
would be likely to be against the wishes of the majority of European peoples and
consumers, who fear that such hormones could be unsafe for their health. Hence,
the EC has chosen to maintain the ban and suffer consequent trade sanctions in
accordance with WTO rules.5 A similar issue could arise in the future regarding
the EC’s restrictions on imports of genetically modified organisms (GMOs).6
The second and intrinsically related component to the ‘democratic deficit’ arguments concerns WTO internal processes,7 that is its ‘input’. If the WTO’s input
legitimacy is lacking, that circumstance casts doubt on the legitimacy of the substantive rules, that is the output, generated by those processes.8
There is commonly little democratic input into a State’s decision to join the
WTO, even though that decision generates binding WTO obligations which can
have a profound impact on people’s lives and livelihoods. For example, ratification is often a function of the executive government, rather than the representative
legislative arm of a national government. Even if WTO proposals are put before a
State’s legislature, it is extremely difficult for certain States, especially those that
lack economic power, to retreat and back away from a deal in the final stages. This
is due to the consensus requirement in the WTO that all must adhere to all of the
concluded treaties. It would be extremely difficult for a small State to ‘hold out’
against all other WTO members.9
³ Jeff rey L Dunoff, ‘The Death of the Trade Regime’ (1999) 10 European Journal of International
Law 733, 758.
4 European Communities—Measures Affecting Meat and Meat Products, WTO doc. WT/
DS26/AB/R, WT/DS48/AB/R, AB-1997- 4 (16 January 1998) (Appellate Body Report) (‘EC—
Hormones’).
5 See Grace Skogstad, ‘International Institutions and Food Safety Regulation: Values in Conflict’
in Ian Holland and Jenny Flemings (eds), Government Reformed: Values and New Political Institutions
(Ashgate, Dartmouth, 2003) 121. The dispute now seems to be resolved, though the resolution has
not involved the lifting of the ban: see, eg, ‘For now, an end to the beef hormone dispute’, July
2009, at <http://www.thebeefsite.com/articles/2074/for-now-an-end-to-the-beef-hormone-dispute>
accessed 26 April 2010.
6 European Communities—Measures Aff ecting the Approval and Marketing of Biotech Products,
WTO docs. WT/DS291/R, WT/DS292/R, WT/DS293/R (29 September 2006) (Report of the
Panel) (‘EC—Biotech’) concerned a challenge to a de facto moratorium on the approval of GMOs by
the EC, as well as bans on GMOs issued by certain individual EC States. The relevant moratorium
and bans were found to breach the SPS on the basis that risk assessments on GMOs had not been carried out, or had been unduly delayed. Thus, the substantive issue of whether imports of GMO foods
can be restricted or banned was not addressed.
7 Thomas Cottier, ‘Preparing for Structural Reform of the WTO’ (2007) 10 Journal of
International Economic Law 497, 499.
8 Kal Raustiala, ‘Rethinking the sovereignty debate in international economic law’ (2003)
6 Journal of International Economic Law 841, 862; Daniel C Esty, ‘The World Trade Organization’s
legitimacy crisis’ (2002) 1 World Trade Review 7, 15–16.
9 Human Rights Council, ‘Report of the Special Rapporteur on the right to food, Olivier De
Schutter: Mission to the World Trade Organization’, UN doc. A/HRC/10/5/Add.2 (25 June 2008)
para 40.
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58

Democratic Deficit and WTO

In any case, people have historically not been well informed of the process of
negotiating agreements, standards, or accession deals which, historically, have
been negotiated by trade technocrats in secret. Negotiating teams have tended to
represent a narrow range of interests, and are not necessarily skilled at anticipating
or appreciating the ‘non-trade’ impacts of trade deals, for example in the fields
of human rights, environment, and health. Indeed, the branches of government
concerned with human rights generally have little input into trade negotiations.¹0
There is a need for governments to take a more holistic and ‘joined-up’ approach to
their international obligations, so that their trade experts and human rights experts
liaise.¹¹ Indeed, former World Bank economist Joseph Stiglitz has suggested
that trade negotiations are too important to be left to trade ministries.¹² This
commercial bias is exacerbated by the fact that the non-State actors directly involved
in negotiations normally represent business interests rather than other elements of
civil society.¹³ For example, the TRIPS agreement was a response to lobbying by
a small number of business executives,¹4 while the Agreement on Agriculture was
reportedly originally drafted by Dan Amstutz, a trade representative who was a
former Vice-President of Cargill, one of the major global agribusiness firms.¹5 It
is arguable that the WTO negotiation process is simply amplifying the lobbying
power of actors who already have huge national influence, namely multinational
corporations, the major engines of global trade.¹6

‘Non-trade’ interests
Given the dominant commercial ethos of WTO negotiators, the negotiated
rules are naturally dominated by free trade and commercial values. Furthermore,
such values are likely prioritized where they conflict with, or diverge from, other
values.¹7 For example, food safety laws, which have a significant impact on the
human rights to adequate standards of health care and food, are analysed in terms
¹0 See, eg, Commission on Human Rights, ‘Report of the Special Rapporteur on the right to
food, Jean Ziegler’, UN doc. E/CN.4/2005/47 (24 January 2005) para 40.
¹¹ Commission on Human Rights, ‘The Right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Report of the Special Rapporteur, Paul Hunt: Mission
to the World Trade Organization’, UN doc. E/CN.4/2004/49/Add.1 (1 March 2004) paras 9–10,
and 65.
¹² Joseph Stiglitz, ‘Social Justice and Global Trade’ (2006) 169 Far Eastern Economic Review 18,
22. See also World Bank, World Development Report 2006: Equity and Development (World Bank,
Washington DC, 2006) 178.
¹³ Ilan Kapoor, ‘Deliberative democracy and the WTO’ (2004) 11 Review of International
Political Economy 522, 530.
¹4 See, generally, Susan K Sell, Private Power, Public Law: the Globalization of Intellectual Property
Rights (Cambridge University Press, Cambridge, 2003).
¹5 Sophia Murphy, Concentrated Market Power and Agricultural Trade, August 2006 (Heinrich
Boell Stiftung, Berlin, 2006) 30.
¹6 See United Nations Conference on Trade and Development (UNCTAD), World Investment
Report 2002, Transnational Corporations and Export Competitiveness, UN doc. UNCTAD/
WIR/2002 (UN, Geneva, 2002) 153, stating that two thirds of world trade in the late 1990s was
conducted by MNCs, including trade within MNCs. See also Keohane and Nye, above n 2, 17.
¹7 Esty, above n 8, 13.

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A. The WTO/Democratic Deficit Argument

59

of their scientific justifiability under the SPS, with a focus on their impact on trade
flows rather than human health.¹8 Similarly, environmental measures are assessed
according to their trade impact, rather than their environmental impact.¹9 As
many regulations impact on trade (and conversely, trade impacts on many social
issues), the foregrounding of trade impacts leads to a backgrounding of so-called
non-trade concerns.²0 If ‘trade’ and ‘non-trade’ values should clash or diverge from
each other, the latter seem to be disadvantaged.
As non-trade interests, such as human rights and environmental lobbies, were
not effectively represented in the negotiating phase of the Uruguay Round, it is
arguably illegitimate for WTO institutions subsequently to make decisions based
on the results of those negotiations that impact on those same non-trade interests.²¹
Yet the WTO Panels and the Appellate Bodies have made such decisions in areas
regarding the environment and health.²² A related contention is that the priority
given to trade values within the WTO undermines the ability of States to respect
international obligations in the non-trade arena. For example, it has been argued
that the Beef Hormone decision undermined the duty of the States in the European
Union (EU) to respect the right to an adequate standard of health in the context
of food safety.²³ Indeed, a further advantage to trade interests is that the WTO
provides for no process whereby the adverse affects of a trade liberalizing measure
can be challenged. If, as a hypothetical example, illnesses and deaths had arisen
from hormone-injected beef introduced into the European market pursuant to free
trade rules, the WTO would have provided no platform for an affected person
to challenge the measures that allowed the beef into the marketplace. Therefore,
the WTO does not provide for a true balancing of trade and non-trade interests,
as the latter only become relevant when States choose to invoke them as justifications to restrict trade (and thus risk non-compliance with the WTO), rather than
when States might threaten non-trade interests by removing barriers to trade in,
for example, a harmful product.²4
¹8 See David M. Driesen, ‘What is Free Trade? The Real Issue Lurking behind the Trade and
Environment Debate’ (2001) 41 Virginia Journal of International Law 279, 295–300. See also Frank
Garcia, ‘The Global Market and Human Rights: Trading away the Human Rights Principle’ (1999)
7 Brooklyn Journal of International Law 51, 61.
¹9 Driesen, above n 18, 325–7.
²0 See, on this point generally, Andrew TF Lang, ‘Reflecting on “Linkage”: Cognitive and
Institutional Change in the International Trading System’ (2007) 70 Modern Law Review 523;
see also Sara Dillon, ‘A Farewell to “Linkage”: International Trade Law and Global Sustainability
Indicators’ (2002) 51 Rutgers Law Review 87, 103, 114; Dunoff, above n 3, 746. I will not always
precede the words ‘non-trade’ with the term ‘so-called’, but the term should be read in throughout
this book, because the division between trade and non-trade issues is highly contestible: see generally, Lang.
²¹ This is a point commonly made by Driesen, above n 18, eg at 324. See also Esty, above n 8, 13
and Joseph Stiglitz, Making Globalization Work (Penguin, London, 2007) 131.
²² See, eg, Brazil—Measures Aff ecting Imports of Retreaded Tyres, WTO doc. WT/DS332/AB/R
(3 December 2007) (Report of the Appellate Body).
²³ Caroline Dommen, ‘Raising Human Rights Concerns in the World Trade Organization:
Actors, Processes and Possible Strategies’ (2002) 24 Human Rights Quarterly 1, 17–19. See Chapter 4
below for further discussion of this point.
²4 Anne Orford, ‘Beyond Harmonization: Trade, Human Rights and the Economy of Sacrifice’
(2005) 18 Leiden Journal of International Law 179, 195.

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Democratic Deficit and WTO

Proposals for the inclusion of social justice and other non-governmental organizations (NGOs) within the negotiating process may be rebuffed on the basis that
such organizations themselves lack democratic credentials.²5 Nevertheless, as Steve
Charnovitz has argued, input into negotiations by non-trade interest groups, as
well as the non-trade areas of government, would ensure that alternative ideas and
values are injected into the WTO decision and policy making process, improving
its local ‘marketplace of ideas’. A broader spectrum of input will improve the legitimacy of the WTO’s output.²6
Relations between the WTO and other organizations, whether intergovernmental
or non-governmental, are governed by Article V of the Marrakesh Agreement.
Article V provides briefly in paragraph 2 that the ‘General Council may make
appropriate arrangements for consultation and cooperation with non-governmental
organizations concerned with matters related to those of the WTO.’ Pursuant to
this mandate, the WTO adopted the one-page ‘Guidelines for Arrangements with
Non-Governmental Organizations’ in 1996.²7 These guidelines recognize that
NGOs are a ‘valuable resource’ that have a role ‘to increase the awareness of the
public in respect of WTO activities’. However, the guidelines also clarified the
limits of NGO involvement by confirming that, pursuant to a ‘broadly held view’
within the WTO, ‘it would not be possible for NGOs to be directly involved in the
work of the WTO or its meetings’.
To be sure, WTO practices regarding participation and transparency are a great
improvement upon those of the GATT. NGOs have run side events at Ministerial
conferences since the WTO’s first Ministerial in Singapore in 1996, during which
there are plenty of opportunities for interaction between State delegations, WTO
personnel and NGOs. There are also regular briefings for NGOs by the Secretariat
on the work of the various WTO governing bodies.²8 NGO participation in
Ministerial meetings has grown exponentially; 159 NGOs were registered to participate in Singapore in 1996 while 1,081 were registered to participate in Hong
Kong in 2005.²9
The WTO has also increased its engagement with non-trade groups, including
NGOs and intergovernmental organizations such as the UN Food and Agriculture
Organization.³0 However, there remains much scope for enhanced cooperation
²5 This point was emphasized in WTO, The Future of the WTO: Addressing Institutional Challenges
in the New Millennium (Report by the Consultative Board of the Director-General of the WTO
to the former Director-General Supachai Panitchpakdi) (WTO, Geneva, 2004) 45–7 (Sutherland
Report).
²6 Steve Charnovitz, ‘The WTO and Cosmopolitics’ (2004) 7 Journal of International Economic
Law 675, 680.
²7 WTO, ‘Guidelines for arrangements on relations with Non-Governmental Organizations’,
WTO doc. WT/L/162 (Decision adopted by the General Council on 18 July 1996) (23 July 1996).
²8 See World Trade Organization, ‘Relations with Non-Governmental Organizations/Civil
Society’, at <http://www.wto.org/english/forums_e/ngo_e/intro_e.htm> accessed 25 October
2010.
²9 Ciel Grossman, Amy Herrick, and Ting Shao, From Gas Masks to Chocolate Fountains: The
Emerging Influence of NGOs in the WTO and the Implications for Global Trade Governance, February
2006 (prepared for Charles Leopold Foundation for the Progress of Humankind and the Institute
for a New Reflection on Governance) 8.
³0 Charnovitz, above n 26, 676–7; Sutherland Report, above n 25, 41–3.

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A. The WTO/Democratic Deficit Argument

61

with such groups.³¹ Of particular note is that no human rights organization has
observer status at the WTO. Indeed, despite the numerous intersections between
trade and health issues,³² the Special Rapporteur on the Right to Health commented in 2004 that his mission to the WTO at that time was ‘one of the first occasions’ on which WTO members and observers had discussed the right to health.³³
Four years later, the first (and so far only) mission by the Special Rapporteur on
the Right to Food was conducted in 2008, many years after the WTO should have
been aware of pervasive concerns regarding the effect of its rules on the right to
food.³4
Much WTO information, including policy documents and plain language
explanations of its mandate and purpose, is readily available, particularly via its
excellent website. Many nations now publish a substantial proportion, if not all, of
their negotiating proposals, allowing time for significant outside input.³5
Some States have included NGOs and other representatives with social interests
beyond trade on their delegations, thus lending them a presence ‘at the table’,³6
though such people ‘do not participate typically in all negotiating activities’.³7
There is no doubt that NGOs, through general lobbying and also through bilateral
engagements with separate country delegations,³8 have significantly influenced a
number of Doha round developments, such as the WTO’s initiatives on access to
medicine, and the decision in the Hong Kong Ministerial to address protectionism
in the cotton industry (which has devastating effects on the livelihoods of cotton farmers in some of the world’s poorest States in Western Africa) as an issue
separated out from the broader rubric of agricultural negotiations.³9 However, the
impact of these initiatives must not be overstated. After all, the rules concluded
after the Uruguay round, which was undoubtedly flawed in terms of participation
by social justice bodies, are the same rules which essentially prevail today. The initiatives regarding access to medicines, discussed in detail in Chapter 6, are a rare
instance of actual new rules concluded since 1995 (though most of those initiatives
probably only clarify existing rules). In contrast, while significant progress on cotton arose before and during the Hong Kong Ministerial of 2005, little progress
³¹ Dommen, above n 23, 44–5.
³² See, eg, Article XX(b) of GATT and the SPS.
³³ See Report of the Special Rapporteur on Right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, Mission to the World Trade
Organization, above n 11, para 5.
³4 See Report of the Special Rapporteur on the Right to Food, above n 9.
³5 Commission on Human Rights, ‘Mainstreaming the right to development into international
trade law and policy at the World Trade Organization (paper prepared by Prof. Robert Howse)’,
UN doc. E/CN.4/Sub.2/2004/17 (9 June 2004) para 42. Of course, a State’s original negotiating
position may transform considerably throughout a Ministerial meeting. Also compare Charnovitz,
above n 26, 679.
³6 Seem Sapra, ‘The WTO System of Trade Governance: The Stale NGO Debate and the
Appropriate Role for Non-State Actors’ (2009) 11 Oregon Review of International Law 71, 90.
³7 Howse, above n 35, para 42. See also Grossman, Herrick, and Shao, above n 29, at 12, and
Carin Smaller and Sophia Murphy, Bridging the Divide: a human rights vision for global food trade
(Institute of Agriculture and Trade Policy, Geneva, 2008) 11.
³8 Sapra, above n 36, 77.
³9 Ibid, 91. See generally, Grossman, Herrick, and Shao, above n 29.

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Democratic Deficit and WTO

on that issue has been made since, and the rules have not yet been amended to the
satisfaction of NGOs and cotton farmers in developing States.40

Developing States
Just as there is a bias within the WTO against ‘non-trade’ interests, there is a bias
in WTO processes against developing States (sometimes referred to in this book
as ‘the South’) in favour of industrialized States (sometimes referred to in this
book as ‘the North’). WTO Members are driven by domestic political agendas to
attempt to carve a bargain that is most favourable to their own industries, rather
than a fair bargain.4¹ A fair deal might still eventuate by default, as negotiators are
forced to compromise if everyone has the same cut-throat attitude, but only if negotiating teams possess equal power. However, the strongest Members within the
WTO, such as the US and the EC, have clearly exercised greater influence over the
negotiations leading up to the WTO and Doha round negotiations than weaker
countries, especially small developing countries. Even though the WTO treaties
were adopted by consensus, and future negotiating outcomes must be approved by
consensus, Professor Thomas Cottier has suggested that the WTO ‘in fact operates
under a system of de facto preponderance, reflecting political clout and market
size’.4² It is unrealistic to expect small states to hold up the entire WTO membership to seek a more appropriate deal, given the enormous political pressure that
would be brought to bear on them.4³
Furthermore, negotiators and other relevant personnel from developing States
may lack the technical expertise to effectively represent their nations’ interests.44
Indeed, huge discrepancies may arise in the size of negotiating delegations. In the
Hong Kong Ministerial meeting in 2005, the US had 356 delegates while Burundi
had three.45 Given the intense ongoing nature of WTO negotiations one can surmise that the US delegates were far better informed (and slept!) than those from
Burundi. The least developed WTO members are unable to maintain WTO

40 See also Chapter 9, text at notes 50–4.
4¹ See, generally, Gregory C Shaffer, Defending Interests: Public Private Partnerships in WTO
Litigation (Brookings Institution Press, Washington DC, 2003) 137. See also Paul Collier, The
Bottom Billion (Oxford University Press, New York, 2008) 171; Stiglitz, above n 21, 278.
4² Cottier, above n 7, 502. See also Bhagirath Lal Das (former Indian Ambassador and Permanent
Representative to the GATT), ‘Why the WTO decision-making system of “consensus” works against
the South’ (undated) < http://www.twnside.org.sg/title/bgl3-cn.htm> accessed 19 September 2010.
4³ See also Ha-Joon Chang, Bad Samaritans: the Myth of Free Trade and the Secret History of
Capitalism (Bloomsbury Press, New York, 2008) 36–7.
44 See generally, Commission on Human Rights, ‘Analytical Study of the High Commissioner
for Human Rights on the fundamental principle of participation and its application in the context of
globalization: Report of the High Commissioner’, UN doc. E/CN.4/2005/41 (23 December 2004)
13 [hereafter, UNHCHR].
45 See Oxfam, ‘What Happened in Hong Kong? Initial Analysis of the WTO Ministerial (Oxfam
Briefing Paper 85, December, 2005), 5 <http://www.oxfam.org/en/fi les/bp85_hongkong> accessed
19 September 2010.

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A. The WTO/Democratic Deficit Argument

63

missions in Geneva, so they cannot participate in the numerous interim meetings
at WTO headquarters.46
The negotiating culture of the GATT served to exclude numerous Members from
important aspects of deal-brokering. Policies and treaties were negotiated in notorious ‘Green Room’ meetings to which only certain Members were invited, and in
which discussions were secret. Green Room decisions were then presented to other
Members as faits accomplis. Of course, this process not only generated substantively
unfair outcomes (unsurprisingly, favouring the Green Room participants) but also
feelings of marginalization and resentment amongst those excluded.47
Under-participation by developing States at various stages in WTO negotiating
processes means that the negotiated outcomes of the Uruguay Round are less likely
to be in their interests.48 Indeed, the current Director-General of the WTO, Pascal
Lamy, has conceded that current WTO rules favour the rich and economically
powerful States over the poor and comparatively powerless States.49 This imbalance is explored in Chapters 5 and 6.
Other examples of participation difficulties by developing States arise from
the SPS and TBT Agreements. These two agreements regulate the use of certain
non-tariff barriers, namely sanitary and phytosanitary measures and technical
standards. Implementation of these agreements relies heavily on recognized international standards and standard setting bodies.50 Relevant organizations for the
SPS Agreement are the so-called ‘three sisters’:5¹ the International Plant Protection
Convention (regarding plant health), the World Organisation for Animal Health
(regarding animal health), and the Codex Alimentarius Commission (regarding
food safety). Relevant bodies for the TBT include the International Standards
Organization (ISO).
Jürgen Kurtz has pointed out the inadequate level of developing country participation in some of these organizations. Codex, for example, often bases its risk
assessments on ‘data from only 20 of its 170 members’.5² A Codex standard is often
adopted while many developing State members are not present. Kurtz reports that
Codex nearly adopted a couscous standard defining it as a wheat product even
though couscous is made from non-wheat crops in Sub-Saharan Africa. The definition was changed only at a late stage due to the timely intervention of a single
46 Kapoor, above n 13, 529. The World Bank reported in 2005 that half of the 38 Sub-Saharan
WTO membership had no resident delegate in Geneva: World Development Report 2006, above
n 12, 67.
47 Joseph E Stiglitz and Andrew Charlton, Fair Trade for All (Oxford University Press, New York,
2005) 82.
48 UNHCHR, above n 44, paras 33–4.
49 Pascal Lamy, ‘It’s Time for a new “Geneva Consensus” on making trade work for development’
(Emile Noel Lecture New York University Law School, New York, 30 October 2006) <http://www
.wto.org/english/news_e/sppl_e/sppl45_e.htm> accessed 19 September 2010.
50 Jürgen Kurtz, ‘A Look Behind the Mirror: Standardization, Institutions and the WTO SPS
and TBT Agreements’ (2007) 30 University of New South Wales 504, 517.
5¹ AusAID, ‘The WTO Sanitary and Phytosanitary (SPS) Agreement’ (Department of
Agriculture, Fisheries and Forestry, Canberra, undated) 9.
5² Kurtz, above n 50, 519.

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64

Democratic Deficit and WTO

representative from Sub-Saharan Africa.5³ Similar imbalances in participation
rates are evident in the ISO.54
There have been improvements in WTO processes designed to facilitate greater
participation by all Members. The Green Room has been significantly reformed,
with more invitees and a more transparent process. The focus in these smaller
group discussions is on consensus building rather than on decision making, so
Members not involved in the particular discussions are not presented with ‘take it
or leave it’ propositions.55 The WTO is also attempting to provide greater technical
support to improve the negotiating and technical capacities of developing countries through, for example, the Integrated Framework for Trade-Related Technical
Assistance to Least Developed Countries,56 which coordinates policy efforts in this
regard between the WTO and other international financial and development
agencies, and identifies technical assistance needs in relevant States. Since 2001,
the WTO has adopted annual Technical Assistance and Training Plans designed
to provide training and information to improve the capacities of the poorest States,
including their capacities to participate in negotiations.
Furthermore, in the current Doha round of WTO negotiations, developing
States have formed stronger coalitions to counterbalance the traditional power of
the US and the EC.57 The negotiating clout of big developing States with huge markets such as India, Brazil, and China cannot be doubted. However, this balancing
of power within WTO negotiations has helped to stall the current negotiations, so
the unfair 1995 rules largely prevail. Furthermore, while strong developing States
such as China, Brazil, and India have accrued greater negotiating muscle, the same
cannot be said for the many States with small, vulnerable economies. The Pacific
Island WTO members have pressed for the recognition of a new grouping within
the WTO of ‘Small Vulnerable States’. Such a grouping has not been created,
though there is a commitment to integrate such States more fully into the global
trading system.58 Compliance with this vague promise, contained in the Doha
Ministerial Declaration of 2001,59 is difficult to ascertain.
The disadvantages for acceding States in negotiating to join the WTO are worse
than those experienced by developing States during the Uruguay Round. Acceding
States have been required to accept more onerous undertakings than existing members without reciprocal guarantees.60 Existing WTO Members have a right of veto
to hold as a bargaining chip, while an acceding member, particularly one with a
weak economy, has few if any bargaining chips. An acceding State will also have
comparatively little negotiating experience in the WTO milieu, and will find itself
pitted against experienced trade negotiators from major economic powers, who
are largely concerned with extracting the best deal possible for their own country
5³ Ibid, 519.
54 Ibid, 519–23.
55 Amrita Narlikar, The World Trade Organization: A Very Short Introduction (Oxford University
Press, New York, 2005) 146.
56 WTO doc. WT/MIN (96)/14 (7 January 1997).
57 See Narlikar, above n 55, 112–13.
58 See Hong Kong Declaration, WT/MIN(05)/W/3/Rev.2, 18 December 2005, para 21.
59 Doha Ministerial Declaration, WT/MIN(01)/DEC/1, 20 November 2001, para 35.
60 See Chapter 5, text at notes 89–100.

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A. The WTO/Democratic Deficit Argument

65

or with establishing favourable negotiating precedents for the future, rather than
with the development needs of the acceding State.6¹

Dispute settlement
The WTO’s Dispute Settlement System is probably the most powerful international
dispute system in the world.6² There is a high level of compliance with the findings
of adopted Panel and Appellate Body reports,6³ as non-compliance can result in
the imposition of economic countermeasures on the recalcitrant Member by the
victorious Member. Indeed, the dispute settlement bodies are arguably disproportionately powerful within the WTO.64 Their decisions can only be overruled by
consensus, which is improbable given that a vindicated Member is unlikely to vote
against its own victory. The ‘law-making’ role of the WTO’s ‘judiciary’ is presently
more consequential than was possibly ever envisaged, as the legislative process has
stalled during the Doha round.65
There are criticisms regarding the expertise, accountability and transparency of
the WTO’s Panels and its Appellate Body. Decisions, especially at first instance,
are made by trade experts, who may not be particularly conversant with non-trade
issues such as human rights, which can again lead to an undue dominance of trade
values over potentially competing values. Hearings are closed to the public unless
all parties consent,66 though final decisions by Panels and Appellate Bodies are
publicly available.
Even though the dispute settlement process is only open to States, private commercial interests have been effectively represented in that dispute settlement process.67 For example, some cases are colloquially known by the names of the private
interests behind the litigation, rather than by the States who ‘fought’ the case:
the ‘Kodak/Fuji’ case is one such example.68 The dispute between Antigua and
6¹ See Oxfam, ‘Submission by Oxfam New Zealand to Ministry of Foreign Affairs on the WTO
accession negotiations of Samoa’ (September 2005) 5–6, noting the disparity of power between the
Samoan negotiators and those from New Zealand <http://www.oxfam.org.nz/imgs/whatwedo/mtf/
onz%20on%20samoa%20wto%20accession.pdf> accessed 20 September 2010.
6² This observation was made by Professor John Jackson, a WTO expert, in a public talk at the
Lauterpacht Centre for International Law, Cambridge University, on 2 March 2006. See also Carlos
Manuel Vázquez, ‘Trade Sanctions and Human Rights—Past, Present and Future’ (2003) 6 Journal
of International Economic Law 797, 803 and 807.
6³ Sharyn O’Halloran, ‘US Implementation of WTO Decisions’ (Address delivered at WTO at
Ten: Dispute Settlement and Developing Countries, Columbia University, 6 April 2006).
64 Jeffery Atik, ‘Democratizing the WTO’ (2000–2001) 33 George Washington International Law
Review 451, 455.
65 Joost Pauwelyn, ‘The Sutherland Report: A Missed Opportunity for Genuine Debate on Trade,
Globalization and Reforming the WTO’ (2005) 8 Journal of International Economic Law 329, 336.
66 See, eg, WTO, ‘WTO hearings on banana dispute opened to the public’ (News item,
29 October 2007) <http://www.wto.org/english/news_e/news07_e/dispu_banana_7nov07_e.htm>
accessed 20 September 2010.
67 See generally, Shaffer, above n 41.
68 See Jeff rey L Dunoff, ‘The misguided debate over NGO participation at the WTO’ (1998)
1 Journal of International Economic Law 433, 441–8. The official name of the case is Japan—Measures
Aff ecting Consumer Photographic Film and Paper, WTO doc. WT/DS44/R (31 March 1998) (Report
of the Panel).

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Democratic Deficit and WTO

Barbuda and the US concerning the latter’s regulation of internet gambling was
reported to be driven by a company, World Sports Exchange, incorporated by
US citizens in Antigua and Barbuda. Pauwelyn claims that the company director
shopped around for a forum to push his trade interests, hence the case concealed
the fact that a US investor was in fact suing the US government.69 In contrast, civil
society NGOs have participated on only an indirect basis by submitting amicus
briefs. The panels can accept unsolicited briefs, but they do not have to.70 It is not
clear whether such briefs have been significant in the making of any decisions.7¹
The unique level of participation by commercial bodies in WTO dispute settlement processes again prioritizes a trade focus to the possible detriment of nontrade interests.
A related bias was manifested in India- Quantitative Restrictions on Imports of
Agricultural, Textile and Industrial Products.7² The case concerned the WTO legality of a quota placed by India on the imports of certain products. India claimed
that its measures complied with Article XII of GATT, which allows quantitative
restrictions in order to safeguard balance of payments, and Article XVIIIB, which
allows developing States to adopt quotas to safeguard their external financial positions, and to maintain ‘reserves adequate for the implementation of its programme
of economic development’. The Appellate Body found that the measures did not
fulfil the requirements of Articles XII or XVIIIB, so they breached the prohibition
on quantitative restrictions in Article XI of GATT. In order to reach this decision,
the Appellate body disagreed with India on the amount necessary to constitute
‘adequate’ monetary reserves for the purposes of balance of payments, and also disagreed with India that a finding against it would force it to change its development
policy, contrary to its rights under Article XVIIIB. In making these decisions, the
Appellate Body relied entirely on the opinion of the IMF. While Article XV dictates that the WTO should consult the IMF on such matters, it was possible for it
to investigate the opinions of other development agencies in making decisions on
India’s development policy. Robert Howse has cogently argued that the Appellate
Body’s approach of relying on the IMF, which adopts a very narrow monetarist
approach to the meaning of a ‘development policy’, blinded the Appellate Body
to broader human rights based notions of development, which may have been
evident had it consulted other bodies such as the UN Conference on Trade and
69 Joost Pauwelyn, ‘WTO Condemnation of US ban on internet gambling pits free trade against
moral values’ (ASIL insight, November 2004) <http://www.asil.org/insights/2004/11/insight041117
.html> accessed 20 September 2010. See also Dunoff, above n 68, 441–8 and generally Shaffer,
above n 41.
70 United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO doc. WT/
DS58/AB/R (12 October 1998) (Report of the Appellate Body) (‘Shrimp Turtle Case’) para 110. See
also Adam McBeth, International Economic Actors and Human Rights (Routledge, Oxford, 2010)
105–6.
7¹ Nathalie Bernasconi-Osterwalder, ‘Democratizing international dispute settlement: the case
of trade and investment disputes’ (Paper presented at the 6th International Conference of New
or Restored Democracies, Doha, 29 October–1 November 2006) 3–4. See also Pauwelyn, above
n 65, 346.
7² India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products,
WTO doc. WT/DS90/AB/R, AB-1999-3 (23 August 1999) (Report of the Appellate Body).

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A. The WTO/Democratic Deficit Argument

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Development (UNCTAD) and the UN Development Program (UNDP).7³ For
example, the IMF starkly distinguished between macroeconomic policies and
development policies. Howse retorts:
Under a right-to-development approach, it would be obvious that macroeconomic policies,
which affect revenues available for government programmes to fulfil social and economic
rights, as well as the cost of imported goods and services needed to fulfil such rights and the
reserves of currency with which to pay for them, are ‘development policies’.74

The case may also manifest an inclination within the WTO dispute settlement
system to defer to the technocrats of international financial institutions when their
judgements are relevant, but to ignore the equally relevant expertise of international institutions concerned with social justice.75
Developed states again have the advantage regarding the initiation of challenges
and the enforcement of decisions. The initiation of a WTO challenge is an expensive business which requires considerable technical skills.76 More fundamentally,
retaliatory trade sanctions imposed by a rich industrialized nation on a poor nation
will be likely to have a much greater impact than countermeasures in the reciprocal situation.77 When a policy of great domestic political value to a Northern State
is successfully challenged, the outcome can be years of further disputes over the
correction of those measures. For example, Brazil’s successful litigation against
US cotton subsidies has dragged on (thus far) for eight years, concluding (perhaps)
with the authorization of substantial countermeasures by Brazil against the US in
2009.78 While Brazil might be able to inflict considerable economic harm on the
US, the same probably cannot be said for the ‘Cotton- 4’ (C4) countries of Western
Africa (Benin, Burkina Faso, Chad, and Mali), which are suffering grave economic
harm from US cotton subsidies.79

WTO secretariat
It is often suggested that the WTO secretariat is largely powerless, with the WTO
being an organization driven by its Member States.80 However, the WTO secretariat still has considerable influence in WTO processes. For example, the secretariat often drafts the ‘chairman’s text’ during negotiations, the text that is presented
to Members as a starting point for negotiations on a particular topic.8¹ While
such texts do not necessarily reflect outcomes, they can certainly shape debate.
7³ Howse, above n 35, paras 46–9.
74 Ibid, para 48.
75 See also Margot Salomon, Global Responsibility for Human Rights (Oxford University Press,
Oxford, 2007) 152–3.
76 Shaffer, above n 41, 161–2; Stiglitz and Charlton, above n 47, 83.
77 World Development Report 2006, above n 12, 213. See also Stiglitz and Charlton, above n 47, 77.
78 United States—Subsidies on Upland Cotton—Recourse to Arbitration by the US under Article
22.6 of the DSU and Article 4.11 of the SCM Agreement, WTO docs WT/DS267/ARB/1 and WT/
DS267/ARB/2 (31 August 2009) (Decisions by the Arbitrator).
79 Note that US cotton subsidies outweigh Burkina Faso’s entire GDP.
80 Xu Yi- Chong and Patrick Weller, The Governance of World Trade: International Civil Servants
and the GATT/WTO (Edward Elgar, Cheltenham, 2004) 252.
8¹ Ibid, 264.

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Democratic Deficit and WTO

The secretariat also provides technical assistance to developing States to build
their capacities for negotiation and implementation of trade policies. Furthermore,
the secretariat prepares reports on each member for the Trade Policy Review
Mechanism, where the trade policies of each member are assessed in light of their
impact on the multilateral system of trade. There is no clear avenue for civil society
participation in this review. In 2004, Robert Howse suggested that the reviews
have manifested a pro-liberalization bias without any attempt to assess the viability
of alternative policy avenues, or the social impact of free trade measures.8²
Despite their limited powers, WTO personnel should guard against an automatic bias towards neo-liberal policies as the unquestioned recipe for trade policies in the performance of their duties. Yet Yi-Chong and Weller concluded: ‘[i]f
there is a bias, it is . . . towards the objectives of the organization: a multilateral and
reciprocal approach leading to a greater liberalization of trade’.8³ On engagement
between the secretariat and NGOs, the authors stated:
Officials in the Secretariat are sceptical about what they regard as a Utopian view that
NGOs have of direct democracy. They see the WTO as an arena for the negotiation for
trade and do not know what the NGOs’ demands have to do with trade or what they can bring
to the negotiating table.84

This conclusion was reached by the authors on the basis of interviews with the
secretariat in 2002 and 2003.85 At that time, it seems the secretariat was operating
under the misapprehension that trade issues can be neatly segmented from other
issues. On the contrary, as pointed out by Frank Garcia, ‘there is no such thing as
a pure trade issue’.86 Writing from the perspective of 2010, it seems likely that the
secretariat has a greater understanding of NGO agendas and their relevance to global trade, given that there has been another seven years’ experience of engagement
with such bodies. However, it seems unlikely that there has been a radical shift
within the secretariat towards active support for those agendas if they are seen to
conflict with broader free trade objectives.

Conclusion on WTO processes
WTO procedures and processes are currently biased in favour of commercial trade
interests and developed States. This systemic bias is likely to generate outcomes
that favour such interests and act to the detriment of other interests, such as those
of developing States or non-trade (for example, human rights, environmental)
interests, if the respective sets of interests should conflict.
It must be noted that the two identified disadvantaged constituencies (nontrade interests and developing States) may be in conflict with each other. Indeed,
developing States have traditionally been against the greater involvement of NGOs
8² Howse, above n 35, paras 29 and 40. See also Report of the Special Rapporteur on Right of
everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul
Hunt, Mission to the World Trade Organization, above n 11, para 64.
8³ Yi- Chong and Weller, above n 80, 266.
84 Ibid, 274, emphasis added.
85 Ibid, 279, n 1.
86 Garcia, above n 18, 65.

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A. The WTO/Democratic Deficit Argument

69

in the WTO negotiation or interpretation process, and have generally been suspicious of ‘human rights talk’ in the WTO.87 For example, developing States were
initially vigorous critics, on both legal and political grounds, of the practice of
the Appellate Body and Panels accepting amicus briefs from NGOs.88 Developing
States feared that NGO involvement would exacerbate the dominance of industrialized States within the WTO, as ‘Northern’ NGOs are more vocal and experienced advocates than their ‘Southern’ counterparts.89
Such concerns assume dissonance between the goals of Northern and Southern
NGOs.90 However, strong NGOs do exist in the South and there are vibrant
North/South NGO partnerships.9¹ Furthermore, the existence of confl ict
between Northern and Southern NGOs over trade issues has been exaggerated.
For example, there is evidence from a 2002 study that trade unions from both
North and South favour explicit linkage of labour and trade in the WTO, contrary
to common assertions that Southern trade unions fear protectionist abuse of such a
clause to the detriment of their members.9²
Much of the opposition in the developing world to greater NGO involvement
comes from autocratic governments with no democratic credentials, such as those
in China and Burma. Such governments are hostile to the overt promotion of social
justice interests by non-governmental groups in any forum, whether at the national
or international levels. Their opposition is based on ideological opposition to the
promotion of human rights beyond those tolerated by the State and to vibrant
debate by civil society. Such concerns do not legitimate the continued exclusion of
such interests from the WTO.
The misgivings of developing States over the infiltration of human rights arguments and actors into the WTO was prompted by the fact that the dominant
human rights/trade discourse in the early years of the WTO concerned the impact
of WTO law on the ability of States to impose human rights-based trade sanctions
against other States.9³ This issue is discussed in Chapter 4. Trade sanctions are
a weapon used far more often and with greater impact by developed States than
developing States, so it is hardly surprising that developing States are hostile to any
suggestion that the rights of States to impose such sanctions be expanded.94
87 Andrew Lang, ‘Inter-regime Encounters’, in Joseph, Kinley, and Waincymer (eds), above
n 1, 177.
88 C L Lim, ‘The Amicus Brief Issue at the WTO’ (2005) 4 Chinese Journal of International Law
85, 87.
89 Yi- Chong and Weller, above n 80, 273.
90 See, eg, Jagdish Bhagwati, ‘Afterword: the Question of Linkage’ (2002) 96 American Journal of
International Law 126; Kathleen Newland, ‘Workers of the World, Now What?’ (1999) 114 Foreign
Policy 52, 56–7.
9¹ See also Keohane and Nye, above n 2, 19.
9² See Gerard Griffin, Chris Nyland, and Anne O’Rourke, ‘Trade Unions and the Social Clause:
A North South Union Divide?’ (Working Paper No 81, National Key Centre in Industrial Relations,
Monash University, 2002), <http://www.buseco.monash.edu.au/mgt/research/working-papers/
nkcir-working-papers/nkcir-workingpaper-81.pdf> accessed 4 November 2007. See also Chapter 4.
9³ See James Harrison, The Human Rights Impact of the World Trade Organisation (Hart, Oxford,
2007) 126 and 176.
94 See also ibid, 177.

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70

Democratic Deficit and WTO

However, as explored in Chapters 5 to 7, there are numerous human rights
issues of relevance to the WTO beyond the issue of trade sanctions, including
areas where the promotion of human rights and the interests of developing States
clearly coincide.95 Accordingly, there has been significant convergence in the
positions of some Northern NGOs and the positions of developing States during
the Doha round.96 For example, some NGOs, such as Oxfam and the Catholic
Agency for Overseas Development (CAFOD), have advised developing States on
their negotiating positions in the Doha round.97 Numerous NGOs supported
developing States in their attack on the effect of TRIPS on access to medicines,
which helped to produce the Doha Declaration on TRIPS and Public Health
in 2001 and subsequent related developments.98 NGOs were also instrumental
in assisting West African nations to put cotton on the Hong Kong agenda as a
separate item, as discussed above, and to establish cotton negotiations as a litmus
test for the success of the Doha round.99 Brazil defended a ban on the import of
retreaded tyres on environmental and health grounds,¹00 and its case was supported by numerous amicus briefs from NGOs.¹0¹ In mid-2008, Doha round
talks collapsed (again), partly over the extent of demands by India and China for
special safeguard measures to protect the livelihoods of poor farmers,¹0² a concern echoed by numerous NGOs.
A 2006 empirical study on the role of NGOs in cotton negotiations concluded
that there had been a major role reversal within the WTO regarding perceptions of
NGOs during the Doha negotiations:
[T]here is a difference between the ways in which Southern countries relate to NGOs (reliance on their expertise for text writing and strategy setting) and how Northern countries
relate to them (suspicion, and ‘management’).¹0³

Furthermore:
the extent of [NGO] participation in northern countries decision-making [sic] was definitely seen as less than in developing countries which has [sic] included multiple NGO
representatives in their delegations and gave them visible but influential roles.¹04

95 Sapra, above n 36, 92.
96 See, generally, Oxfam, Rigged Rules and Double Standards: Trade, Globalisation and the Fight
Against Poverty (Oxfam, London, 2002).
97 Sutherland Report, above n 25, 44.
98 Robert Wai, ‘Countering, Branding and Dealing: Using Economic and Social Rights in and
Around the International Trade Regime’ (2003) 14 European Journal of International Law 35, 72, 79.
99 Grossman, Herrick, and Shao, above n 29, 5.
¹00 Brazil—Measures Aff ecting Imports of Retreaded Tyres, WTO docs. WT/DS332/R (12 June
2007) (Report of the Panel) and WT/DS332/AB/R, AB-2007- 4 (3 December 2007) (Report of the
Appellate Body).
¹0¹ See, eg, CIEL and others, ‘Amicus Curiae Brief ’ (Amicus brief submitted by the Center for
International Environmental Law (CIEL) (based in the US and Switzerland) and others in Brazil—
Measures Aff ecting Imports of Retreaded Tyres (WT/DS332, 3 July 2006) <http://www.ciel.org/
Publications/Brazil_Tires_Amicus_3Jul06.pdf> accessed 20 September 2010.
¹0² See ICTSD, Bridges Daily Update, Issue 10, 30 July 2008 <http://ictsd.net/> accessed 30 July
2008; South Centre, South Bulletin: Reflections and Foresights, 16 October 2008, 2.
¹0³ Grossman, Herrick, and Shao, above, n 29, 10. See also 11–12.
¹04 Ibid, 12.

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B. The Relevance of International Human Rights Law

71

Continued favouring of commercial interests over social justice interests (whether
from North or South) will continue to skew WTO outputs in favour of trade and
commercial interests to the potential detriment of social justice and other nontrade interests. A continued trade bias within the WTO, while its output continues to impact on non-trade areas, is no more legitimate than a continued bias in
favour of developed States.¹05 Both biases must be redressed, or else the WTO’s
legitimacy will continue to be disputed with good cause. In any case, the ‘myth
that developing countries are opposed to non-state actor participation should be
debunked”.¹06

B. The Relevance of International Human Rights Law
What human rights are engaged by this issue of democratic deficit in an international organization such as the WTO? The removal of autonomous regulatory
power from the State over important issues, such as food safety and intellectual
property protection, could breach the right of peoples to self determination, protected under Article 1 of both the ICCPR and the ICESCR. Article 1(1) of each
Covenant guarantees the right of peoples to ‘freely pursue their economic, social
and cultural development’. Furthermore, all States parties to both Covenants
have duties under common article 1(3) to respect and promote the right of self
determination of others, so they should avoid actions, such as enforcement of
WTO rights, if such action might prejudice enjoyment of the right in another
State.
The supervision of national regulatory power under international law cannot
per se constitute a breach of Article 1 lest nearly all international regimes prejudice
that right. The question of breach must therefore depend on the degree and nature
of the removal of regulatory power. It is difficult to characterize the WTO regime
as constituting a greater interference with State power than other regimes in terms
of subject matter. It is not, for example, ‘broader’ in substantive terms than human
rights or environmental treaties. As noted below, however, the intensity of the interference by the WTO in those areas in which it impacts is probably stronger than
most other international regimes, and its enforcement mechanisms are stronger.
Regarding processes, it has already been noted that ‘the peoples’ of State members
have generally had very little input into the process by which their State becomes
bound, and the process by which the relevant obligations are formulated. As noted
below, the deficiencies of the WTO are probably worse and more consequential in
this regard than other international bodies. Therefore, it is possible that the adoption by States of WTO obligations can be characterized as breaching the right of
self determination.

¹05 See also Dillon, above n 20, 130–5; Robert Howse, ‘From Politics to Technocracy—and back
again: the Fate of the Multilateral Trading Regime’ (2002) 96 American Journal of International Law
94, 115.
¹06 Sapra, above n 36, 106.

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72

Democratic Deficit and WTO

A group must have a long-standing relationship with a territory before they are
classified as a ‘peoples’ entitled to self determination.¹07 Many ‘peoples’ entitled to
self determination are effectively represented by the State to which they belong. In
such a situation, it is difficult to argue that the right to self determination has been
breached, as the State has consented to the measures by joining the WTO in the
first place. Therefore, common Article 1 is more relevant in the context of those
groups who have a right of self determination but are not effectively represented by
their States. Such groups include the indigenous peoples of certain States as well as
peoples in occupied territories.¹08
A common misunderstanding is that a right of self determination equates with
a right of secession. In fact, there are degrees of the right, ranging from external
self determination (where ‘peoples have the right to determine freely their political status and their place in the international community’),¹09 including a right of
secession for those peoples who are wrongly denied statehood, to various forms of
internal self determination, which entails the right of a people to choose its political
status within an existing State’s boundaries or to exercise meaningful political participation.¹¹0 The internal aspect of the right thus overlaps considerably with the
right of political participation (Article 25 ICCPR) and minority rights (Article 27
ICCPR). Therefore, it seems likely that any breaches of Article 1 entailed in inadequate participatory mechanisms within the WTO would coincide with breaches
of those other rights, which are discussed below.
Article 25 of the ICCPR recognizes an individual right to participate in political
processes and public affairs. It states:
Every citizen shall have the right and the opportunity, without [discrimination] and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.

Democratic rights are not only about elections and the free choice of government
by the majority; they entail individual rights to have a meaningful opportunity
to take part in the political process. Of course, no individual has a right of veto,
such that his or her political choices must be satisfied, nor do majority preferences
always have to be satisfied. Article 25 does not dictate that there be plebiscites on
¹07 Sarah Joseph, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and
Political Rights: Cases, Materials and Commentary, 2nd edn (Oxford University Press, Oxford,
2004) 146.
¹08 See, eg, UN Declaration on the Rights of Indigenous Peoples (adopted on 2 October 2007,
not yet entered into force as at 21 September 2010), UN doc. A/RES/61/295) Article 3.
¹09 Committee on the Elimination of Racial Discrimination, ‘General Recommendation No. 21:
Right to self-determination’, UN doc A/51/18 (23 August 1996) para 4.
¹¹0 Joseph, Schultz, and Castan, above n 107, 148. See also Robert McCorquodale, ‘Self
Determination: a Human Rights Approach’ (1994) 43 International and Comparative Law Quarterly
857, 864.

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B. The Relevance of International Human Rights Law

73

all major issues. However, the routine flouting by a State of majority preferences
would generally signal inadequate protection of this right. The right has been interpreted broadly by the Human Rights Committee (HRC), the monitoring body
established under the ICCPR, to encompass rights to participate in ‘all aspects of
public administration, and the formulation of policy at the international, national,
regional and local levels’.¹¹¹
The Declaration on the Right to Development describes the right to development
in its Article 1 as:
[A]n inalienable human right by virtue of which every human person and all peoples are
entitled to participate in, contribute to, and enjoy economic, social, cultural and political
development, in which all human rights and fundamental freedoms can be fully realized
[emphasis added].

It is often argued that WTO rules and policies, which largely promote freer trade,
are compatible with the right to development, specifically the economic aspects
thereof.¹¹² It is arguable, however, that the participatory aspects of the right have
been neglected by States when acting within and through the WTO. The human
right to development entails a process which helps to ensure what the WTO notably does not ensure: equitable and fair distribution of the benefits of development via the opportunity for participation of all individuals concerned.¹¹³ Arjun
Sengupta, the (now former) UN Independent Expert on the Right to Development,
has emphasized that the right entails more than economic growth per se, and has
stated that:
It is not just achieving the objectives of development, but also the way they are achieved
that becomes essential to the process. The objective is fulfilling human rights and the process of achieving this is also a human right. That process must possess the features of all
human rights, namely respecting the notions of equity and participation . . .¹¹4

Participation and inclusivity have been recognized as cross-cutting human rights
norms in the sense that they are elements of many substantive human rights.¹¹5
Indeed, participatory rights are now routinely built into interpretations of economic,
social, and cultural rights. For example, the Committee on Economic, Social and
Cultural Rights has said, regarding the right to health in Article 12 of the ICESCR,
that a crucial aspect of that right ‘is the participation of the population in all healthrelated decision-making at the community, national and international levels’.¹¹6
¹¹¹ HRC, ‘General Comment 25: The right to participate in public aff airs, voting rights and the
right of equal access to public service (Article 25)’, UN doc. CCPR/C/21/Rev.1/Add.7 (12 July 1996)
para 5 (emphasis added). See also UNHCHR, above n 44, para 8.
¹¹² Howse, above n 35, para 50. See also Chapter 5.
¹¹³ Ibid, para 10.
¹¹4 Arjun Sengupta, ‘On the Theory and Practice of the Right to Development’ (2002) 24 Human
Rights Quarterly 837, 851, and see more generally 848–52.
¹¹5 See, eg, Office of the High Commissioner for Human Rights, ‘Report on Indicators for
Promoting and Monitoring the Implementation of Human Rights’, UN doc. HRI/MC/2008/3
(6 June 2008) para 10.
¹¹6 CESCR, ‘General Comment No 14: The right to the highest attainable standard of health
(article 12 of the International Covenant on Economic, Social and Cultural Rights’, UN doc.
E/C.12/2000/4 (11 August 2000) para 11.

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Democratic Deficit and WTO

Therefore, from a human rights point of view, the strong European public opinion
against the import of hormone-injected beef should have been taken into account in
the Beef-Hormone case.¹¹7
As conceded by the United Nations High Commissioner for Human Rights,
the exact parameters of participatory rights at the global level are unclear.¹¹8 What
is clear is that participatory rights are not confined within national borders, so the
inherently limited participation within WTO processes, whether they be negotiation, treaty-making, or dispute resolution, risks classification as a breach of human
rights by its Member States, especially given the significant outcomes of those
processes.¹¹9
That said, rights of participation are not absolute. Article 25 of the ICCPR
anticipates ‘reasonable’ restrictions. Most relevantly, the right of direct participation in public affairs is possibly limited to the rights outlined in Articles
25(b) (right to vote and stand for elections) and 25(c) (equal access to a State’s
public service).¹²0 Th is issue arose under the ICCPR in Mikmaq Tribal Society
v Canada,¹²¹ which concerned a complaint by an indigenous tribe regarding
Canada’s failure to invite it to a constitutional conference on indigenous rights
to which other indigenous tribes had been invited. In its decision, the HRC indicated that rights of direct participation in Article 25 are quite narrow. It stated at
paragraph 5.4:
Surely, it cannot be the meaning of article 25(a) . . . that every citizen may determine either
to take part directly in the conduct of public affairs or to leave it to freely chosen representatives. It is for the legal and constitutional system of the State party to provide for the
modalities of such participation.

At paragraph 5.5, it added:
[A]rticle 25(a) of the Covenant cannot be understood as meaning that any directly affected
group, large or small, has the unconditional right to choose the modalities of participation
in the conduct of public affairs.

In Beydon v France,¹²² the complainants were members of an NGO, the DIH,
which campaigned for France’s full participation in and cooperation with the
International Criminal Court (ICC). It did not approve of France’s decision, upon
its ratification of the Statute of the ICC, to make a declaration which limited ICC
jurisdiction over war crimes. The complainants alleged a violation of Article 25
entailed in the French government’s failure to take into account ‘the widespread
public opposition expressed both directly and through their elected representatives
¹¹7 See, generally, Caroline E Foster, ‘Public Opinion and the interpretation of the World
Trade Organisation’s Agreement on Sanitary and Phytosanitary Measures’ in Joseph, Kinley, and
Waincymer (eds), above note 1, at 285. See Chapter 4, text at notes 180–187. See also Chapter 9, text
at notes 12–15.
¹¹8 UNHCHR, above n 44, para 18.
¹¹9 Ibid, para 18.
¹²0 Joseph, Schultz, and Castan, above n 107, 657.
¹²¹ UN doc. CCPR/C/43/D/205/l986 (3 December 1991) (HRC).
¹²² UN doc. CCPR/C/85/D/1400/2005 (28 November 2005) (HRC).

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B. The Relevance of International Human Rights Law

75

to the French declaration under Article 124’.¹²³ The HRC found the complaint
inadmissible, and noted at paragraph 4.5:
The Committee has . . . noted the [complainants’] claim under article 25 (a), that they were
deprived, by the State party, of their right and opportunity to take part in the conduct
of public affairs relating to the negotiations, and subsequent adhesion of France to the ICC
Statute with a declaration . . . , the Committee recalls that citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their
representatives or through their capacity to organize themselves. In the present case, the
[complainants] have participated in the public debate in France on the issue of its adhesion
to the ICC and on the issue of [A]rticle 124 declaration; they acted through elected representatives and through their association’s actions. In the circumstances, the Committee
considers that the [complainants] have failed to substantiate . . . that their right to take part
in the conduct of public affairs has been violated [emphasis added].

Thus, the limited participation of the complainants in France’s decisions regarding
negotiation and ratification of the Rome Statute did not breach Article 25.
In Brun v France,¹²4 an environmental protester claimed that France had
breached Article 25 in allowing the planting of GMO crops on a trial basis without
adequate public consultation. The claim was found to be inadmissible, as Brun had
participated in that process through his elected representative, and through his
activities as an activist in an association opposed to GMOs.
Beydon and Brun indicate that citizens, at least those in democratic States, are
indirectly participating in the political process through the agency of government
representatives, and that such indirect participation satisfies the requirements of
Article 25. WTO power is arguably legitimized as the organization is merely exercising the authority delegated to it under treaties negotiated by and assented to by
those representatives.
However, the right to political participation in developing States regarding their
adherence to WTO treaties is undermined by the way in which the interests of
those States were marginalized in the Uruguay round. Moreover, the exclusion
of certain groups from WTO processes, either at the national or international
level, raises concerns regarding discrimination in conjunction with the right of
political participation. The HRC stated in General Comment 25 on Article 25 at
paragraph 6:
Where a mode of direct participation by citizens is established, no distinctions should be
made between citizens as regards their participation on the grounds mentioned in article 2,
paragraph 1,¹²5 and no unreasonable restrictions should be imposed.

The historic narrowness of interests represented by WTO negotiators, the greater
input into WTO processes by business compared to other civic groups, the general
¹²³ Ibid, para 3.1.
¹²4 UN doc. CCPR/C/88/D/1453/2006 (23 November 2006) (HRC).
¹²5 The prohibited grounds of discrimination enumerated in Article 2(1) ICCPR are: race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other
status.

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76

Democratic Deficit and WTO

lack of input by historically marginalized groups such as the poor, women¹²6 and
indigenous peoples,¹²7 all raise legitimate queries regarding the adequacy of the
level of participation in WTO negotiations and decision-making. For example,
women comprised only 9 per cent of the country representatives at the Doha
Ministerial meeting, and top positions within the WTO bureaucracy and in the
Appellate body are dominated by men.¹²8
Indeed, participatory rights in the context of non-discrimination are also recognized in Articles 7, 8 and 14(2) of CEDAW, as well as Article 5 of CERD. In
General Recommendation 23, the CEDAW Committee elaborated on the requirements of CEDAW with regard to participation of women in international bodies
and decision-making:
The globalization of the contemporary world makes the inclusion of women and their participation in international organizations, on equal terms with men, increasingly important.
The integration of a gender perspective and women’s human rights into the agenda of all
international bodies is a government imperative. Many crucial decisions on global issues,
such as . . . economic restructuring . . . are taken with limited participation of women.¹²9

Therefore, women must be given equal opportunities to ‘represent their governments at the international level and to participate in the work of international
organizations’, such as the WTO.¹³0 Such levels of representation have not arisen
in most international organizations, and certainly not the WTO.
Furthermore, democratic deficits within WTO procedures may threaten
minority rights in Article 27 of the ICCPR and the right of non-discrimination
in Article 26 of the ICCPR. Regarding Article 27, the HRC has clearly stated that
minority groups have rights of direct participation (for example, consultation with
governments) in decisions that impact their interests.¹³¹ Indeed, the HRC recently
gave its strongest statement to date on the relevant participatory rights of indigenous peoples in Poma Poma v Peru:¹³²
In the Committee’s view, the admissibility of measures which substantially compromise
or interfere with the culturally significant economic activities of a minority or indigenous
community depends on whether the members of the community in question have had the
opportunity to participate in the decision-making process in relation to these measures and
whether they will continue to benefit from their traditional economy. The Committee considers that participation in the decision-making process must be effective, which requires
not mere consultation but the free, prior and informed consent of the members of the
¹²6 See Dillon, above n 20, 146–8, commenting on the general absence of women in the international trade field. See also Shelley Wright, ‘Women and the Global Economic Order: a Feminist
Perspective’ (1995) 10 American University International Law Review 861.
¹²7 UNHCHR, above n 44, 9.
¹²8 Barnali Choudhury, ‘The Façade of Neutrality: Uncovering Gender Silences in International
Trade’ (2008) 15 William and Mary Journal of Women and the Law 113, 129–30.
¹²9 CEDAW, ‘General Recommendation No 23: Women in political and public life (Article 7)’,
UN doc. A/52/38/Rev.1 (31 January 1997) para 39.
¹³0 UNHCHR, above n 44, para 35.
¹³¹ See HRC, ‘General Comment 23: The rights of minorities (Article 27)’, UN doc. CCPR/C/21/
Rev.1/Add.5 (8 April 1994) para 7; see also Joseph, Schultz, and Castan, above n 107, 778, 781–2.
¹³² Poma Poma v Peru, UN doc. CCPR/C/95/D/1457/2006 (24 April 2009) (HRC) para 7.6.

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B. The Relevance of International Human Rights Law

77

community. In addition, the measures must respect the principle of proportionality so as
not to endanger the very survival of the community and its members.

The implementation of WTO commitments has clearly impacted on the traditional lifestyles of minorities, particularly in the agricultural arena.¹³³ Many of
these impacts have been generated by liberalization policies to which indigenous
peoples have had very little input.
Writing in 2002, Esty argued:
[T]o limit their participation in global politics to electing national representatives who
will designate trade ministry officials to represent the nation in a narrowly confined
intergovernmental dialogue produces a terribly thin reed of popular sovereignty on which
to build the legitimacy of the WTO.¹³4

However, during the Doha round, civil society groups beyond business lobbies
have become more aware of the importance and impacts of trade policies. They
have therefore made a greater effort to influence domestic policies, which should
influence a State’s negotiating stance within the WTO. The success of NGOs
in mobilizing domestic public opinion on certain issues has undoubtedly forced
some States to pay some attention to their views.¹³5 As noted above, this bilateral
engagement (between NGOs and individual States) has occasionally translated
into inclusion of NGOs in a State’s negotiating team, particularly in some developing States. Nevertheless, while social justice NGOs may be exercising greater
influence over the negotiating stances and domestic policies of WTO Member
States, the concrete impact of that influence at the international level is extremely
difficult to assess, especially as the Doha round has yet to produce many concrete
outcomes.¹³6 It also seems unlikely this greater influence reflects evenly across relevant sectors, for example taking appropriate account of disparate groups such as
women and indigenous peoples, or that it remotely matches the influence of traditional players such as business lobbies.
The exercise of greater rights of participation by constituencies not traditionally involved in WTO processes at the national and international levels serves
a normative function in helping to ensure against breaches arising from
participation deficit, such as breaches of Articles 25 and 27 of the ICCPR and
non-discrimination obligations, and perhaps rights of self determination for
some groups. They also serve an instrumental function in helping to ensure that
the substantive outcomes of negotiations conform to other human rights. For
example, attentive consideration by WTO dispute resolution bodies of amicus
curiae briefs from a variety of groups would help to ensure that they are aware
of the range of non-trade interests that may be impacted by their decision. As
another example, the lobbying by civil society at national and international
levels, along with developing States, led to the adoption by the WTO of the Doha
Declaration on TRIPS and Public Health in 2001 and a subsequent waiver of
¹³³ See also Megan Davis, ‘International Trade, the World Trade Organisation, and the Human
Rights of Indigenous Peoples’ (2006) 8 Balayi 5, 18. See also Chapter 6 below.
¹³4 Esty, above n 8, 15.
¹³5 Grossman, Herrick, and Shao, above n 29, 11–12.
¹³6 See also ibid, 29.

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78

Democratic Deficit and WTO

certain TRIPS requirements, which brought TRIPS into greater conformity
with the right to health in Article 12 of the ICESCR.¹³7

C. Democratic Deficit, the WTO, and the International
Human Rights Law Regime: A Comparison
WTO membership removes certain policy choices from Member States under
international law, as is the case with most international law regimes. Furthermore,
other international regimes also allocate power and decision-making ‘upwards’ to
international bodies, which are more remote from people than their own national
bodies. Therefore, it is arguable that most if not all international legal regimes
impact negatively on the participatory rights of national populations. The United
Nations has noted the paradox that the substance of politics has internationalized
(for example, in the areas of trade, human rights, and the environment), while
political processes and institutions have remained largely national.¹³8
Is the democratic deficit within the WTO a ‘worse’ threat to democratic rights
than democratic deficit in other international bodies? Is the allocation of power to
the WTO as an international institution more or less appropriate than comparable
allocations of power to other international bodies? I will make some observations
on this issue by comparing the WTO with international human rights regimes.

Democratic deficit and the international human rights regimes
Like the WTO, international human rights regimes have also been portrayed as
threats to the legitimate regulatory power of States and the democratic choices of
a State’s population. For example, there has been outrage in the UK regarding certain decisions of the European Court of Human Rights, which have found British
counterterrorism measures (in the context of Northern Ireland) to breach international human rights standards.¹³9 In Australia, the government has commonly
impugned findings of violation against Australia by the HRC and other human
rights bodies on the basis that those decisions lacked legitimacy and undermined
policies and laws adopted via Australian democratic processes.¹40 Furthermore,
the claims by certain States, such as China, Malaysia, and Singapore, that human
rights are sovereign domestic matters, are well known and persistent, even if legally
incorrect.
¹³7 See UNHCHR, above n 44, 15. See generally, Chapter 7.
¹³8 UNGA, ‘We the Peoples: Civil Society, the United Nations and Global Governance: Report
of the Panel of Eminent Persons on United-Nations Civil Society Relations’, UN doc. A/58/817
(11 June 2004) 8, paras 7–10. See also Stiglitz, above n 21, 291.
¹³9 See Kieran McEvoy, ‘Law, Struggle, and Political Transformation in Northern Ireland’ (2000)
27 Journal of Law and Society 542, 557; Sarah Joseph, ‘Denouement of the Deaths on the Rock: the
Right to Life of Terrorists’ (1996) 14 Netherlands Quarterly of Human Rights 5, 6, 22.
¹40 See, generally, David Kinley and Penny Martin, ‘International Human Rights Law at Home:
Addressing the Politics of Denial’ (2002) 26 Melbourne University Law Review 466.

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C. Democratic Deficit, WTO, and IHRL Regime

79

The purpose of international human rights law is in many ways countermajoritarian. Though all people have human rights, they are probably most
important for vulnerable minorities. In democracies, majorities are generally able
to take care of themselves.¹4¹ Minorities, however, are in greater need of the support of international human rights regimes to guard against the arbitrary exercise
of power by majorities. Majority rule per se is unlikely to cater for the human
rights of unpopular minorities such as new refugee arrivals, suspected (and actual)
criminals, or vulnerable minorities whose interests do not coincide with those of
the majority or whose interests do not attract majority attention.¹4² The notion of
individual human rights would be considerably undermined if their extent was
ultimately determined merely by the exercise of majority choices. Indeed, a key
limit to the right of political participation is that majorities cannot compel government policies that breach other human rights. Therefore, there is significant
justification for the removal of regulatory power from States under international
human rights law (that is, its output) despite claims that such removal undermines
majority rights.
In any case, the extent of the interference by international human rights law
with State regulatory power is quite weak. The findings of the human rights bodies at the global level are not legally binding, though they have persuasive value.
Numerous States have impugned the findings of these bodies on the basis of their
non-legal status.¹4³ Indeed, it is arguable that enforcement under the global human
rights treaties has been delegated ‘almost exclusively’¹44 to the municipal systems
of States given the lack of strong international enforcement.
The negotiation of global human rights treaties is an open process, with significant NGO participation in bodies such as the Human Rights Council and its
predecessor, the Commission on Human Rights. There is also ongoing civil society
involvement in global human rights bodies. NGOs are permitted to participate in
debates within the Human Rights Council. NGOs also commonly brief and submit information to the human rights treaty bodies.
Though commercial bodies have generally not been so involved, they have participated in the areas of greatest interest to them. Corporations, for example, have
been heavily involved in consultations with the UN’s Special Representative on
Business and Human Rights since that mandate was created in 2005, and have
been generally supportive of his reports. Similarly, the Special Rapporteur on the
¹4¹ Of course, human rights are precarious for majorities in non-democracies, governed by dictatorships, such as Burma, or minority rule, such as apartheid South Africa. International human rights
law of course also seeks to curb the arbitrary exercises of power of non-democratic governments.
¹4² Indigenous peoples in Australia are an example of this latter group. They are not ‘unpopular’,
but their interests (eg land rights, compensation for past wrongs) are sometimes perceived to run
counter to those of the majority, or are simply of insufficient importance to the majority to influence
the latter’s political choices.
¹4³ See, eg, Australia’s response to the adverse finding of the HRC in A v Australia, UN doc.
CCPR/C/59/D/560/1993 (30 April 1997) (HRC): Darryl Williams MP, Attorney General,
‘Australian Government responds to the United Nations Human Rights Committee’ (Press Release,
17 December 1997).
¹44 Douglas Lee Donoho, ‘Relativism versus Universalism in Human Rights: the Search for
Meaningful Standards’ (1991) 27 Stanford Journal of International Law 345, 372–3.

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Democratic Deficit and WTO

Right to Health consulted extensively with pharmaceutical companies before
devising guidelines for such companies with respect to access to medicines.¹45
Despite arguments that human rights are imbued with ‘Western’ concepts,
developing States have played a significant role in drafting human rights treaties.¹46 They have more seats on the Human Rights Council than developed States.
In any case, no State has to ratify a human rights treaty even if it agrees to the texts
thereof, and it can normally enter reservations thereto.
Most UN intergovernmental human rights activity takes place in Geneva during meetings of the Human Rights Council, so the problem regarding the absence
of certain permanent State missions, noted above regarding the WTO, is replicated. However, the General Assembly, which sits annually in New York, is able to
reopen Council debates. Furthermore, treaties might be drafted by the Council,
but are ultimately adopted by the General Assembly. All UN Members have permanent missions in New York.
States have considerable discretionary room for manoeuvre with respect to
the implementation and enforcement of most internationally recognized human
rights. Economic, social, and cultural rights are inherently flexible, as a State’s
obligations under the ICESCR are constrained by a State’s ‘maximum available
resources’ and by the progressive nature of most aspects of those rights. Most civil
and political rights are constrained by concepts such as proportionality and reasonableness.¹47 For example, the right to freedom of expression in Article 19 ICCPR
may be limited by measures that are ‘provided by law and are necessary’ to protect
national security, public order, public health, public morals, and/or the rights of
others. As another example, certain limited impacts on cultural practices entailed
in the implementation of economic development programmes are permitted under
Article 27 of the ICCPR.¹48
Individuals can access grievance procedures under some human rights treaties,
such as the Optional Protocol to the ICCPR. Hearings in regional courts are public, but deliberations over individual complaints at the global level are not. All
final decisions are publicly available. A human rights complaint will often already
have been litigated at the national level, where there may be an opportunity for
interested parties to submit amicus briefs to national courts. Material from those
national decisions is made available to the international body. There is considerable
deference to national authorities in international human rights decision-making,
¹45 See General Assembly, ‘Report of the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health’, UN doc. A/63/263,
11 August 2008.
¹46 See, eg, Susan Waltz, ‘Universalizing Human Rights: the Role of Small States in the
Construction of the Universal Declaration of Human Rights’ (2001) 23 Human Rights Quarterly 44.
See also Chapter 2, pp 44–6.
¹47 There are, exceptionally, some absolute rights, which may never be qualified in any circumstance, such as rights to freedom from torture and freedom from slavery.
¹48 See Joseph, Schultz, and Castan, above n 107, 772–9. See also, eg, the HRC decisions in
Jouni Länsman, Eino Länsman and the Muotkatunturi Herdsmen’s Committee v Finland, UN
doc. CCPR/C/83/D/1023/2001 (15 April 2005), Jouni Länsman et al v Finland, UN doc. CCPR/
C/58/D/671/1995 (22 November 1996), and Ilmari Länsman et al v Finland, UN doc. CCPR/C/52/
D/511/1992 (8 November 1994).

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C. Democratic Deficit, WTO, and IHRL Regime

81

with the utilization of doctrines such as the margin of appreciation,¹49 the need for
complainants to exhaust domestic remedies before seeking international remedies,
and the fact that the international bodies will normally defer to local findings of
fact and evidence.¹50
It is concluded that it is appropriate to delegate certain decision-making powers
‘upwards’ to international human rights bodies. A balance is maintained between
national decision-making powers and the competence of international bodies.
Furthermore, the outputs of human rights bodies are justified by the extent of the
inputs. In fact, a common criticism of human rights is that the enforcement powers
of international bodies are too weak rather than too strong.

Comparison with the WTO
Let us compare that short overview of human rights systems with the WTO. Trade
law does not have the same counter-majoritarian purpose as human rights law.¹5¹
One argument in favour of an international trade organization is to prevent capture
of the State by protectionist producer interests that seek to undermine the utilitarian benefits of a liberalized economy for all.¹5² Protectionist producer interests are
often concentrated and politically mobilized, and are therefore able to manipulate the domestic political process.¹5³ The WTO is said to help States to reinforce
rational majority interests by protecting consumers (a disparate group who often
lack a coherent political voice), who benefit from access to cheaper goods, and,
according to the theory of comparative advantage, the economic interests of the
importing State as a whole as its industries become more competitive and efficient.¹54 However, as seen in Chapter 5, the argument that free trade and WTO
rules benefit majorities by promoting economic growth is in fact contestable with
respect to some developing States.
The WTO also helps to protect the interests of overseas traders from State B
who might otherwise be at the mercy of populist decision-making by State A. The
WTO enhances the participatory rights of those traders, who are particularly
vulnerable to being abused as political pawns as they are excluded from State A’s
political community.¹55 Under international human rights law, only citizens have
rights of political participation in a particular State. However, modern global economic interdependence dictates that the right may be permissibly limited in order
to prevent undue harm to the interests, including human rights, of non-citizens,
¹49 The ‘margin of appreciation’ is a doctrine used by the European Court of Human Rights in
interpreting the ECHR. It is akin to a ‘benefit of the doubt’ given to the State party in implementing
certain human rights. If a certain measure is deemed to fall within a State’s margin of appreciation,
no violation is found.
¹50 Joseph, Schultz, and Castan, above n 107, 22–3.
¹5¹ Dunoff, above n 3, 758.
¹5² Raustiala, above n 8, 854–5, 864–7.
¹5³ Narlikar, above n 55, 5; Esty, above n 8, 11.
¹54 Narlikar, above n 55, 5; Raustiala, above n 8, 864.
¹55 Raustiala, above n 8, 873–4. See also Joel Trachtman, ‘Legal Aspects of a Poverty Agenda at
the WTO: Trade Law and “Global Apartheid” ’ (2003) 6 Journal of International Economic Law 3, 18.

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82

Democratic Deficit and WTO

such as foreign exporters whose livelihoods might depend on access to State A’s
markets.¹56
However, there are fears that the WTO itself has been captured by special interests. The domestic power of protectionist interests in the developed world shrunk
with each round of GATT talks, with a corresponding increase in the influence
and power of their exporter competitors.¹57 It is arguable that the WTO serves to
reinforce the power of multinational corporations, who are the major direct beneficiaries of world trade.¹58 It does not enhance participatory rights if the WTO is
effectively promoting the interests of the already powerful. For example, the Special
Rapporteur on the Right to Food has reported on a particular power imbalance,
which has had consequences for the structure of trade rules regarding agriculture,
with knock-on effects for the right to food:
It is well known that, in developing countries, small-scale farmers form a large but geographically dispersed group, with little or no access to resources for political lobbying, and
face prohibitive transaction costs in the organization of collective action. Urban groups, in
contrast, find it easier to mobilize through public protests; so do farmers in industrialised
economies.¹59

So too, of course, do large agribusiness firms.
The WTO Panels and its Appellate Body do not defer to national regimes in
the way that international human rights institutions do. For example, there is no
requirement to exhaust domestic remedies or explicit use of any doctrine of a margin of appreciation. Furthermore, WTO norms are less flexible than most human
rights norms. Most human rights norms can be limited in proportionate or reasonable circumstances to achieve a number of broad objectives, including protection
of ‘the rights of others’. In contrast, WTO exceptions, such as those listed in Article
XX of the GATT, seem to cover a narrower range of objectives. The Panels and the
Appellate Body have arguably been stricter in interpreting and applying limitations to WTO norms than have human rights bodies in interpreting and applying
limitations to human rights norms. As discussed in Chapter 4, an exception must
overcome two hurdles before it will be acceptable under WTO law: it must satisfy
a test of ‘necessity’ in achieving the desired objective and it must satisfy a second
strict test of non-discrimination imposed under the chapeau of Article XX. The
single hurdle human rights test of ‘proportionality’ is a less onerous barrier for the
¹56 See also Chapter 4, p. 119 and generally, Chapter 8.
¹57 Keohane and Nye, above n 2, 6.
¹58 Atik, above n 64, 459; Esty, above n 8, 11. See also E-U Petersmann, ‘The Human Rights
Approach Advocated by the United Nations High Commissioner for Human Rights and by the
International Labour Organisation: is it relevant for WTO law and Policy?’ (2004) 7 Journal of
International Economic Law 605, 611. Of course, the interests of multinational corporations and
those of consumers can coincide. Eg, the entry of corporations into a market can give consumers
access to cheaper goods. However, their interests can diverge, eg, over measures designed to ensure
product quality, and arguably over intellectual property laws (see Chapter 7 for discussion of intellectual property).
¹59 Human Rights Council, ‘Report of the Special Rapporteur on the right to food, Olivier De
Schutter: Building resilience: a human rights framework for world food and nutrition security’, UN
doc. A/HRC/9/23 (8 September 2008) para 17. See also Chapter 6 below.

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C. Democratic Deficit, WTO, and IHRL Regime

83

application of exceptions or qualifications than the double-barrelled test applied
by the Appellate Body and Panels.¹60
The process of negotiating WTO treaties and human rights treaties is not comparable. WTO negotiations are conducted in secret. A State’s negotiating stance
can change markedly in the closed environs of the negotiating rooms. Trade negotiations are characterized by trade-offs of interests: one WTO member might
for example trade off its domestic sugar interests in order to gain advantages for
its domestic cotton interests. WTO Members do not wish to visibly ‘sell out’
a domestic industry.¹6¹ In contrast, human rights treaties are negotiated in open
meetings, often with NGO participation.¹6² There is no comparable ‘give and
take’: a State does not for example trade children’s rights for the rights of political
prisoners. Furthermore, less is at stake when negotiating a human rights treaty. A
State can vote to adopt a treaty yet never ratify it, or, in most cases, ratify it with
reservations. In the WTO, negotiations yield ‘all or nothing’ propositions. States
negotiate treaties and then must sign up to the ‘single undertaking’, that is the
entire package deal, generally without reservation.¹6³
Finally, the WTO is a stronger regime than most international human rights
regimes in terms of enforcement. Breach of WTO obligations can expose a State to
economic countermeasures from an aggrieved State. In contrast, if a State is found
in violation of a UN human rights treaty and fails to take remedial action, it will
rarely suffer consequences beyond condemnation and shame, if that. Such consequences simply do not compare to the effects of punishment within the WTO
system.
It must be noted that the decisions of regional human rights courts are binding. Europe, through the mechanisms developed under the ECHR, has the
most developed regional system. Execution of judgments is supervised by the
Committee of Ministers within the Council of Europe, which can exert heavy
political pressure in the case of non-compliance. In general, the Committee has
been able to secure execution of judgments through ‘constructive and cooperative dialogue’ with States.¹64 In this regard, one may note that the European
human rights system stands alongside a very strong regional free trade system,
the EU, which also incorporates some coordination and harmonization on economic and social rights.¹65 Human rights agendas have not been marginalized
during the process of European economic integration. Indeed, EU members are
¹60 See United Nations Office of the High Commissioner for Human Rights, Human Rights
and World Trade Agreements: Using General Exception Clauses to Protect Human Rights (Office of the
High Commissioner for Human Rights, New York and Geneva, 2005) 15 <http://www.fao.org/
righttofood/kc/downloads/vl/docs/AH311.pdf> accessed 20 September 2010.
¹6¹ See Sutherland Report, above n 25, 45; Keohane and Nye, above n 2, 19.
¹6² See Robert McCorquodale, ‘An Inclusive International Legal System’ (2004) 17 Leiden
Journal of International Law 477, 493–4.
¹6³ Narlikar, above n 55, 31–2.
¹64 Council of Europe, ‘Human Rights and Legal Affairs: Frequently Asked Questions’, <http://
www.coe.int/t/e/human_rights/execution/01_Introduction/02_FAQ.asp> accessed 14 August 2008.
¹65 In respect of the latter, see Bob Hepple, Labour Laws and Global Trade (Hart, Oxford, 2005)
Chapters 8–9. See also Dillon, above n 20, 123 (fn 140).

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84

Democratic Deficit and WTO

now bound by a new Charter of Fundamental Rights of the European Union
and the EU is, at the time of writing, on the verge of becoming a party to the
ECHR.¹66 In comparison, the WTO is not counterbalanced by a comparably
strong global human rights body. The coordinated progress of free trade and
human rights commitments in Europe contrasts starkly with the uncoordinated
progress at the global level.¹67

Conclusion
Democratic deficit is a criticism that can probably be levelled at all international
bodies, as there is little popular grassroots input into their processes compared
to national political processes. However, democratic deficit in the context of the
WTO deservedly generates a greater level of concern than democratic deficit in
many other contexts, due to a number of characteristics of that system that are
highlighted in the above comparison between the WTO and international human
rights regimes.

D. Does the WTO Promote Democracy?
Thus far, this chapter has discussed democratic deficit in the processes of the WTO,
which casts doubt on the legitimacy of its exercise of substantive power. This section briefly addresses a related but different issue: do the WTO and the free trade
agenda promote democratic governance at national levels? That is, do WTO rules
help create the conditions for democracy?
WTO Director-General Pascal Lamy has stated that global trade rules, along
with international human rights law, are ‘a rampart against totalitarianism’.¹68
Indeed, it is commonly argued that economic openness promotes political openness¹69 in the following ways. Economic openness promotes economic growth,¹70
which helps to create new economic elites, who can challenge the authority of dictatorial government power, creating further space for civil society. It leads to the
creation of a middle class, which is more educated and which eventually demands
¹66 Such ratification is required under Article 6 of the Lisbon Treaty. See Press Release, ‘European
Commission and Council of Europe kick off joint talks on EU’s Accession to the Convention on
Human Rights’, 7 July 2010, at <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/
906&type=HTML> accessed 9 October 2010.
¹67 See, eg, World Commission on the Social Dimension of Globalisation, A Fair Globalization:
Promoting Opportunities for all (ILO, Geneva, 2004).
¹68 Pascal Lamy, ‘Towards shared responsibility and greater coherence: human rights, trade
and macroeconomic policy’(Speech at the Colloquium on Human Rights in the Global Economy,
Co- organized by the International Council on Human Rights and Realizing Rights, Geneva,
13 January 2010) <http://www.wto.org/english/news_e/sppl_e/sppl146_e.htm> accessed
20 September 2010.
¹69 See Joel R Paul, ‘Do International Trade Institutions Contribute to Economic Growth and
Development?’ (2003) 44 Virginia Journal of International Law 285, 337–8.
¹70 The orthodox view is that economic openness promotes economic growth. However, there are
challenges to that view: see Chapter 5, Parts D and E.

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D. Does the WTO Promote Democracy?

85

greater political and social freedom.¹7¹ Finally, foreign investors demand adherence to the rule of law, as arbitrary decision-making intolerably threatens their
investments.¹7² These theories are backed up by evidence: democracy, and civil
and political freedoms tend to flourish in richer developed States, which generally
have more liberal trade regimes, than poorer developing countries, which generally
have more restrictive regimes.¹7³
Martin Wolf has posited that economic freedoms and the promotion of a flourishing private sector help to ensure the separation of wealth and power. If the public political sector dominates economic decisions, they dominate economic power.
‘Power becomes the only route to wealth.’¹74 Furthermore, political elites are inevitably tempted to utilize oppressive means to maintain their power as ‘loss of power
threatens a loss of livelihood’.¹75 Growing economies are also important for the
maintenance of democracy and human rights. Not only do they provide governments with the resources to provide for positive rights, but it prevents ‘zero sum’
societies, where one person’s gain necessarily results in another person’s loss, which
can help to foster authoritarian governments.¹76
However, the above arguments are contestable. As discussed in Chapter 5,
some developing States have experienced de-industrialization and poor economic performance rather than growth. The link between free trade and
economic growth is not clear- cut. In any case, WTO policies do not dictate
domestic wealth distribution, so few may benefit from resultant economic
growth. The benefits of economic growth might flow only to a small elite, and
there may be corrupt connivance between these elites and the government.
Furthermore, foreign investment is attracted to the ‘rule of law’ in certain
areas such as security of contract and property rights; it is generally indifferent
to the rule of law in the area of civil, political or social freedoms, such as rights
of free expression or freedom to join trade unions. Singapore has long had an
open economy, yet has a poor record on civil and political freedoms. Similarly,
economic reforms in China have not been matched by significant political and
social reform.¹77
In this respect, it may be noted that the spread of marketization across the world
has accompanied greater global inequality.¹78 When gaps between the elites and
the poor grow, there is a more pronounced divergence in their interests, leading
¹7¹ Garcia, above n 18, 59. See also Jagdish Bhagwati, Free Trade Today (Princeton University
Press, Princeton, NJ, 2002) 43–4.
¹7² See, eg, World Bank, World Development Report 2002: Building Institutions for Markets (World
Bank, Washington DC, 2002) via <http://www.worldbank.org/wdr/2001/fulltext/fulltext2002
.htm> accessed 20 September 2010.
¹7³ See Daniel T Griswold, ‘Trading Tyranny for Freedom: How Open Markets till the soil for
Democracy’ (2004) Trade Policy Analysis no 26, 4–12 <http://www.freetrade.org/node/37> accessed
20 September 2010.
¹74 Martin Wolf, Why Globalisation Works (Yale Nota Bene, London, 2005) 30.
¹75 Ibid, 30.
¹76 Ibid, 30.
¹77 Daniel J Gervais, ‘Trips 3.0: Policy Calibration and Innovation Displacement’ in Chantal
Thomas and Joel P Trachtman (eds), Developing Countries in the WTO Legal System (Oxford
University Press, New York, 2009) 363, 393.
¹78 See Chapter 5, text at notes 151–79.

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86

Democratic Deficit and WTO

to the likely generation of rules and institutions which favour the latter over the
former.¹79 Greater inequality may lead to greater marginalization and intolerance
of the poor.
Professor Amy Chua has questioned the assumption that the twin trajectories
of free trade and democracy in the developed world recur in the developing world.
First, she notes that the development of democracy and free trade regimes in industrialized States was a slow process; universal suffrage and economic liberalization
evolved over centuries. In contrast, the comparable transitions in many developing
States have been remarkably swift, and have not allowed time for the development of appropriate economic safety nets for losers from economic liberalization,
constitutional guarantees or other domestic laws that protect minorities, or the
development of aspirational pro-market ideologies amongst a population, including those not currently benefiting from free markets.¹80 In such circumstances,
the impoverished majority may be very hostile to the inequalities created by free
markets, at least until a substantial middle class emerges, so democratization and
marketization may pull in different directions unless redistribution measures are
put in place.
More disturbingly, Chua notes that many developing States have marketdominant ethnic minorities, who seem to have benefited disproportionately
from economic globalization, which in turn has generated hostility and conflict.
Examples of this phenomenon include Chinese minorities in South East Asia,
Indians in Fiji and Africa, whites in South Africa and Zimbabwe, and foreign
investors all over the world. Marketization in such circumstances can generate a
majoritarian backlash against the relevant minority (as in Zimbabwe with land
seizures from white farmers, anti-Chinese riots in Indonesia in 1998, and measures
to penalize foreign investors in Bolivia), a backlash against democracy by a government elite in cahoots with the economic elite (such as the pro-Chinese dictatorship
of Suharto in Indonesia or pro-Indian government of Moi in Kenya), or, worst of
all, majoritarian ethnic violence, including genocide, against the relevant minority
(for example, Hutu against Tutsi in Rwanda, Serbs against Croats in the former
Yugoslavia).¹8¹ Chua concedes that ethnic conflict is caused by many factors, but
posits that the tension caused by the coincidence of racial divides with economic
divides is a dangerous brew.¹8²
In order to stave off internal hostility in such situations, States must ensure that
domestic inequality is contained and that appropriate redistributive measures are
¹79 Thomas Pogge, ‘Growth and Inequality: Understanding Recent Trends and Political
Choices’ (Winter 2008) Dissent, 6, <http://www.dissentmagazine.org/article/?article=990> accessed
20 September 2010.
¹80 See generally Amy Chua, ‘The Paradox of Free Market Democracy: Rethinking Development
Policy’ (2000) 41 Harvard International Law Journal 287.
¹8¹ See, generally, Amy Chua, World on Fire: How Exporting Free Market Democracy Breeds
Ethnic Hatred and Global Instability (Doubleday, New York, 2002). See also Anne Orford, ‘Locating
the International: Military and Monetary Interventions after the Cold War’ (1997) 38 Harvard
International Law Journal 443, 455–9, detailing the role played by IMF and World Bank policies
prior to the eruption of genocidal conflict in the former Yugoslavia.
¹8² Chua, above n 181, 16.

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E. The Paradox of Power Politics and Participation Rights in the WTO

87

in place.¹8³ Therefore, Chua’s contentions do not indicate that States should eschew
marketization and free trade. They indicate that the process should be managed
and properly sequenced, as is argued in Chapter 5.

E. The Paradox of Power Politics and
Participation Rights in the WTO
This chapter has largely focused on institutional problems within the WTO
which work to the disadvantage of certain constituencies, including developing
States. Essentially, these points relate to discrepancies in the amount of influence
and power exercised by certain actors compared to other actors within the WTO.
However, an inherent paradox arises in this assertion. That is, despite the flaws and
biases in its processes, perhaps it is arguable that the WTO enhances the power of
developing States.
Developed States are clearly more powerful than developing States in the context of shaping international economic law and policy. Nevertheless, the WTO
helps to regulate and control the behaviour of developed States, which would
other wise be legally unconstrained. For example, while the rules regarding agriculture do not go far enough in abolishing Northern protectionism, at least they
impose some constraints on those unfair practices, which did not exist prior to the
advent of the WTO.¹84 Even if the rules generated under the WTO are ultimately
unfavourable to developing States, political scientist Dr Ken Shadlen has explained:
under conditions of marked power asymmetries no rules are bad rules—they are simply
less predictable, changing with the whims of the more powerful actors, and they do not
promise reciprocal constraints.¹85

Shadlen goes on to outline how developing States have in fact exercised greater
power within the WTO than might be expected, given the power differential
between them and the developed States. For example, in the Doha round developed States have managed to stave off the imposition of a tougher intellectual
property regime via the WTO and stronger investment measures: neither outcome
is likely to eventuate from a concluded Doha deal.¹86 However, that power must
not be overstated. While developing States have managed to block certain developed country initiatives, they have not generally succeeded in promoting their
own agendas.
The deadlock in the WTO has probably contributed to the proliferation of
bilateral and regional free trade deals in the last decade.¹87 Such agreements are
allowed under WTO rules so long as they comply with the requirements of Article
XXIV of GATT. This development is not good news for developing States. The
¹8³ Wolf, above n 174, 29.
¹84 See Chapter 6, Part B.
¹85 Ken Shadlen, ‘Resources, Rules and international political economy: the politics of development in the WTO’ in Joseph, Kinley, and Waincymer (eds), above n 1, 115.
¹86 See generally, ibid.
¹87 Ibid, 131.

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88

Democratic Deficit and WTO

power differential in some bilateral contexts is much worse than in the WTO, in
which the power of developing States is enhanced by the consensus rule.¹88 For
example, the US clearly had the upper hand in concluding deals with Morocco,
Jordan and even Australia. The EU has superior power in its current negotiations
over European Partnership Agreements with countries in Asia and the Pacific.¹89
It is therefore not surprising that bilateral agreements tend to impose more onerous requirements compared to WTO obligations, which favour the interests of
developed States, such as so-called ‘TRIPS plus’ provisions regarding intellectual
property.¹90
The above observations do not mean that developed States should simply accept
bad rules and not seek better rules within the WTO. Developing States (and civil
society organizations) should seek to amend imperfect world trade laws in the face
of the realities of power imbalances. The ‘realist’ nature of power politics cannot
preclude the validity of identifying flaws in the political and other processes of an
international organization. It is not acceptable to simply throw up one’s hands and
lament that such flaws are inevitable and better than some worse alternative.

F. Conclusion
Democratic deficit probably characterizes most international organizations,
including the WTO. However, the unusual power of WTO rules, as well as particular characteristics of its internal processes (for example, secrecy within negotiations, the single compulsory undertaking), generate more acute anxieties about its
democratic deficit. The WTO’s internal processes and its inputs do not justify its
output. Therefore, one strategy is to reform the WTO’s internal processes. Indeed,
it is fair to point out that the constituencies identified as disadvantaged during the
Uruguay round of negotiations, social justice interests and developing States, have
exercised far more influence in the Doha round. Nevertheless, enormous challenges
are entailed in reforming internal processes to allow for the proper consideration
of the perspectives of these constituencies. For example, richer States will always
have greater economic power than poorer States and will always be tempted to
abuse their superior bargaining positions (though the identity of richer States may
change). It may be impossible to accommodate all of the various agendas of trade
and non-trade NGOs, not to mention the agendas of the various States, within the
WTO negotiating framework.¹9¹ The stalling of the Doha round indicates that the
increased negotiating clout of developing States and the increased participation
and vigilance of NGOs have reduced the possibility of consensus agreement.
Nevertheless, given that the stakeholders in the WTO process extend far beyond
the traditional GATT/WTO trade negotiators, continued exclusion or relegation
¹88 See also World Development Report 2006, above n 12, 215–16.
¹89 See Chapter 9, text at notes 72–89.
¹90 See Chapter 7, Part F.
¹9¹ UNHCHR, above n 44, para 45; Sutherland Report, above n 25, 44–5; Keohane and Nye,
above n 2, 8; Howse, above n 105, 112.

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F. Conclusion

89

of non-trade interests from and continued negotiation disadvantage for poorer
States within WTO internal processes is not justifiable. It may also be impossible
to proceed with WTO negotiations without a significantly improved democratic
pedigree.¹9² An increase in input legitimacy may be needed in order to justify the
WTO’s output legitimacy. Paradoxically, more inclusive ‘input’ may inevitably
reduce the strength of the WTO’s output.¹9³ The stakes of the WTO’s output, in
terms for example of a single undertaking and strong legal enforcement of obligations, may have to be lowered, allowing for example for more plurilateral agreements or ‘exit options’ for States.¹94 An easing of the ‘legal’ side of the WTO to
accommodate its political side may be necessary.¹95 This may sound like a weak
option, especially given that the strong judicialization of trade law has often been
regarded as the jewel in the WTO’s crown. On the other hand, a better democratic
pedigree would render the resultant agreements more legitimate and acceptable to
the populations of Member States.¹96
Current WTO output probably exceeds its current input legitimacy, which justifies a dilution of its powers. In any case, increased input would be likely to lead
to a dilution of WTO outputs. Deceleration in the global free trade project will be
viewed by many as an unfortunate compromise that is a ‘second best’ option. That
said, it may be the only option that is politically feasible in the short term. Specific
proposals in this regard are discussed in Chapter 9.
Furthermore, it must be remembered that the supposed ‘depoliticization’ of free
trade by the WTO, by removing domestic political choices in regard to trade liberalization, presumes that that particular demarcation between economics and politics is appropriate and even natural, given that free trade is presumed to be the way
to achieve economic growth.¹97 As will be discussed in Chapter 5, this neoliberal
presumption is challengeable.
An alternative strategy, discussed further in Chapter 10, is to boost the strength
of non-economic areas of international governance in order to provide for a greater
balance of interests and agendas at the international level. Such an option does not
seem politically achievable in the short term, but must be a long term goal of the
international community.¹98
The vacuum in global trade negotiations is currently being filled by proliferating
bilateral and regional free trade agreements. This is an unfortunate development
¹9² Howse comments on the potential veto power of ‘outsiders’ generated by their ability to expose
‘fault lines’ in proposed deals, which must become public at some stage prior to ratification: Howse,
above n 105,116.
¹9³ See Pauwelyn, above n 65, 337–46.
¹94 Pauwelyn, above n 65, 340, 343. See also Wolf, above n 174, 211, and Stiglitz and Charlton,
above n 47, 104, questioning the notion of the single undertaking.
¹95 See also Joost Pauwelyn, ‘The Transformation of World Trade’ (2005–2006) 104 Michigan
Law Review 1.
¹96 See also Keohane and Nye, above n 2, 27; Raustiala, above n 8, 862. See also Deborah Z Cass,
The Constitutionalization of the World Trade Organization. Legitimacy, Democracy, and Community
in the International Trading System (Oxford University Press, Oxford, 2005) 221–3.
¹97 Chang, above n 43, 175–6.
¹98 See also Pascal Lamy, ‘The Place and Role of the WTO (WTO law) in the International Legal
Order’, Address to the European Society of International Law, 19 May 2006.

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90

Democratic Deficit and WTO

in terms of redressing democratic deficits in trade negotiations and outcomes.
Nevertheless, this development does not mean that disadvantaged constituencies
should simply accept whatever unsatisfactory deal might be on the table in the
Doha negotiations.
Finally, it is often postulated that free trade rules help to promote political openness in conjunction with economic openness. There are however legitimate arguments, including the thesis of Amy Chua, to indicate that a happy marriage between
democracy and free markets cannot be presumed in the developing world.

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4
‘Human Rights’ Restrictions On Trade
The WTO is generally designed to facilitate free trade between States. In this chapter, the WTO compatibility of restrictions on trade that States may wish to impose
for ‘human rights’ reasons is examined.
A differentiating feature of the trade restrictions discussed in this chapter, compared to those proposed in following chapters, is that they largely concern restrictions which developed States (‘the North’) wish to impose on developing States
(‘the South’). These human rights restrictions are at the cutting edge of the alleged
schism between activists in the North and governments in the South, which was
discussed in Chapter 3.¹ Indeed, a UN Report from 2000 reveals the deep distrust
of the South over trade and human rights linkages:
The tying of trade to human rights in the fashion in which it has so far been done is problematic for a number of reasons. In the first instance, it too easily succumbs to the charge
by developing countries of neo-colonialism. Secondly, the commitment of Northern countries to a genuinely democratic and human rights-sensitive international regime is rendered
suspect both by an extremely superficial rendering of the meaning of human rights, and by
the numerous double standards that are daily observed in the relations between countries
of the North and those of the South.²

However, one cannot blithely dismiss the occasional desirability of the imposition
of trade measures for human rights reasons. After all, many of the States in the
South that object to such measures are in fact terrible abusers of human rights. It
might be appropriate to apply such measures as a response to the appalling human
rights record of another State, or to restrict or otherwise regulate the import of a
product that has been produced in a way that breaches human rights. Furthermore,
States in the North (and indeed all States) have a duty under human rights law to
take measures to prevent or regulate the entry of products or services into their
jurisdictions which might harm the human rights of their own populations.
This chapter first examines the notion of human rights trade sanctions, both
on a general and a product basis. The relevant scope of GATT and GATS obligations is then examined, including the prohibitions on discrimination as well as
relevant exceptions in Article XX of GATT and Article XIV of GATS. This law
is examined with regard to its effect on human rights trade measures. The same
¹ See Chapter 3, text at notes 90–4.
² J Oloka-Onyango and Deepika Udagama, ‘The Realization of Economic, Social and Cultural
Rights: Globalization and its impact on the full enjoyment of Human Rights’, UN doc. E/Cn.4/
Sub.2/2000/13 (15 June 2000) 17 (footnotes omitted).
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92

‘Human Rights’ Restrictions on Trade

analysis is then undertaken with regard to the SPS and TBT agreements. The most
commonly proposed human rights trade measures relate to labour rights, so the
possibility of a new labour rights or ‘social’ clause in the WTO is examined. The
role of waivers in bringing WTO rules into compliance with human rights is then
discussed. Finally, the potential for WTO rules to open up States to trade which
improves human rights will be examined, by inquiring into whether WTO rules
might be used to challenge laws mandating extensive internet censorship.

A. Human Rights Trade Measures
General human rights sanctions
General human rights sanctions arise where a State imposes economic sanctions
against a State to protest against the latter State’s human rights record, and/or to
impose pressure on the latter State to change its ways. Examples are the comprehensive economic sanctions imposed against the military government in Burma by
the US and Canada.³ Burma is a WTO member, so bans on its imports prima facie
breach WTO obligations regarding quotas (with a zero quota being imposed on
such goods) and MFN. Are such sanctions permissible under the WTO?
Article XXI permits ‘national security’ exceptions, none of which have been
interpreted in the WTO dispute settlement system. The equivalent exception
provision in GATS is Article XIV bis. Article XXI(a) only permits the withholding of certain information and is therefore not applicable. Article XXI(b)(i) and
(ii) only apply to prevent trade in fissionable material and armaments. Article
XXI(c) permits trade restrictions which are mandated under the UN Charter
‘for the maintenance of international peace and security’. Article XXI(c) essentially permits States to comply with Security Council sanctions imposed under
Chapter VII of the UN Charter: the Security Council may impose mandatory
economic sanctions on a State under Article 41 of the Charter if it deems (under
Article 39) that the relevant State is threatening international peace and security.
Under Article 25, States must comply with these sanctions, so Article XXI(c)
ensures that the WTO Agreement does not confl ict with the UN Charter. For
example, the Security Council imposed extensive sanctions on Iraq throughout
the 1990s due to its failure to comply with UN weapons inspections. No question of WTO legality arose as Iraq was and is not a WTO member. Nevertheless,
such sanctions would have been legal under Article XXI(c) if Iraq had been a
member of the WTO. However, it is doubtful that Article XXI(c) applies to
sanctions imposed by the General Assembly (GA), the plenary body within the
UN. The recommendation of sanctions by the GA is more common than their
imposition by the Security Council, but GA resolutions are not legally binding.
Therefore, sanctions that are recommended by the GA, such as those against
³ See Burmese Freedom and Democracy Act 2003 (US) and Special Economic Measures (Burma)
Regulations (SOR/2007-85) (Canada), 13 December 2007.

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A. Human Rights Trade Measures

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South Africa in the 1970s and 1980s,4 are not necessarily ‘saved’ from WTO
illegality under Article XXI(c).
Article XXI(b)(iii) permits WTO Members to take actions which ‘it considers
necessary for the protection of its essential security interests . . . taken in time of
war or other emergency in international relations’ (emphasis added). This provision
seems to permit trade restrictions between belligerents in a military conflict, and
in conflicts which fall short of war but are nevertheless an international relations
‘emergency’. The perpetration of egregious human rights abuses by a State such as
Burma, coupled with the extreme disapproval of those abuses by another State,
might count as such an emergency. On the other hand, it might be difficult to
maintain that human rights abuses in a far-off State, even of the most severe kind,
threaten a State’s security interests.5
In any case, States seem to have much discretion under Article XXI(b)(iii). The
measures do not actually have to be ‘necessary’: the inquiry instead seems to focus
on whether the State imposing the measures ‘considers’ that they were necessary.
Given a relevant State will inevitably assert that it did consider the measures to be
necessary, it would seem difficult for a WTO dispute settlement body to find otherwise. Indeed, given its language, it is questionable whether Article XXI(b)(iii) is
even justiciable.6
Article XX of GATT and Article XIV of GATS permit restrictions on trade
for ‘non-trade’ reasons beyond national security. These exceptions are discussed in
detail below. It is unlikely that any of those provisions would permit such blanket
unilateral sanctions.7
Is it desirable for general human rights sanctions to be allowed? It is well known
that the enforcement system of international human rights law is its Achilles heel.
The most common form of sanction against a human rights abusing State is unilateral or multilateral condemnation, that is ‘naming and shaming’. While all
States attempt to stave off such shaming, the sanction ‘has been conspicuously
unsuccessful in motivating prompt changes in behaviour by delinquent States’,8
especially the most incorrigible violators who are often immune from domestic
pressure due to their extensive suppression of opposition voices and the media.
4 South Africa had been a GATT member since 1948. The Security Council only ever mandated an arms embargo on South Africa, rather than comprehensive sanctions. SC Resolution 418
(4 November 1977) mandated an arms embargo under Chapter VII of the UN Charter. While
Resolution 569 (26 July 1985) urged States to adopt further measures against South Africa, that
Resolution was not adopted under Chapter VII so those recommendations were not mandatory.
5 Carlos Manuel Vázquez, ‘Trade sanctions and human rights—past, present, and future’ (2003)
6 Journal of International Economic Law 797, 825.
6 See Anthony E Cassimatis, Human Rights Related Trade Measures under International Law
(Martinus Nijhoff, Leiden, 2007) 330; Peter Van den Bossche, The Law and Policy of the World Trade
Organization (Cambridge University Press, Cambridge, 2005) 629–31; Vázquez, above n 5, 824;
Michael Ewing- Chow, ‘First do no harm: Trade sanctions and human rights’ (2007) 5 Northwestern
Journal of International Human Rights 153, 168.
7 See also Vázquez, above n 5.
8 Sarah Joseph and Joanna Kyriakakis, ‘United Nations and Human Rights’ in Sarah Joseph
and Adam McBeth (eds), Research Handbook on International Human Rights Law (Edward Elgar,
Cheltenham, 2010) 27.

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‘Human Rights’ Restrictions on Trade

At the other end of the scale, the use of military force to stop a State from violating human rights is illegal in international law unless authorized by the Security
Council.9 Economic sanctions are therefore the strongest legal measure available
in general international law to punish a State for its continuation of human rights
abusive behaviour.¹0 Therefore, WTO law may be curtailing an important means
of enforcing human rights law if it prohibits such sanctions. For example, economic sanctions probably played a large role in the eventual conformity of South
Africa and Serbia-Montenegro with international demands regarding human
rights.¹¹
However, unilateral economic sanctions may often have little effect beyond
the symbolic, as the target State may recoup some or even all resultant trade
losses with new trading partners. Furthermore, the sanctioning State will lose
influence in the target State.¹² Clearly the strongest unilateral sanctions are those
imposed by trading giants such as the US and EU, especially in situations where
the sanctioning State/s comprise a large percentage of pre-existing trade with a
country. Unilateral sanctions can also set off a domino effect, prompting copycat sanctions by other States or action by international institutions.¹³ Economic
sanctions imposed by the Security Council are of course the most effective sanctions, as they deprive the target State of alternative trading partners. However,
Security Council sanctions are rare, and are normally limited rather than comprehensive.¹4 Furthermore, comprehensive trade sanctions can have the effect of
provoking nationalistic backlashes and entrenching regimes, rather than their
presumed desired effect of prompting a disgruntled population to force a regime
to change its ways.¹5
Economic sanctions are often deeply problematic from a human rights point
of view. Vázquez eloquently notes that sanctions ‘treat human beings as pawns in
a geo-political game’, contrary to the bottom line of human rights which treats
human beings as ends rather than means.¹6 Unfortunately, sanctions often lead
to grave suffering on the part of innocent target populations if a recalcitrant
9 See UN Charter, Articles 2(4) and 2(7). Arguments over the legality or illegality of ‘humanitarian intervention’ have animated lawyers and scholars for many years, especially since the NATO
bombings of Serbia to stop ethnic cleansing in Kosovo. This author believes that the majority of international lawyers consider unilateral humanitarian intervention to be illegal under international law.
¹0 See generally on the legality of economic sanctions under general international law, Cassimatis,
above n 6, at 259–66, and 433; James Harrison, The Human Rights Impact of the World Trade
Organisation (Hart, Oxford, 2007) 98–9; Vázquez, above n 5, 799–800.
¹¹ On South Africa, see Ewing- Chow, above n 6, 174–6. On Serbia, see Charles J Kacsur,
‘Economic Sanctions Targeting Yugoslavia: An Effective National Security Strategy Component’
(2003) Storming Media.
¹² Perhaps such effects are occurring in Sudan and Zimbabwe, which are both the subject of sanctions from Northern countries, and both now engage in extensive trade with China, which never
imposes human rights sanctions. Sudan is not a member of the WTO, though it is engaged in accession negotiations. Zimbabwe has been a member since March 1995.
¹³ Harrison, above n 10, 105, commenting on the history of sanctions against South Africa.
¹4 Political problems, such as the veto power of the five permanent members of the Security
Council (namely, China, France, Russia, UK, and the US), hamper the decision-making powers of
the Security Council; the only States that are likely to be the subject of Chapter VII sanctions are
those States that lack an ally amongst the Permanent 5.
¹5 Ewing- Chow, above n 6, 153.
¹6 Vázquez, above n 5, 837.

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A. Human Rights Trade Measures

95

government refuses to cave in to the demands of the sanctioning States.¹7 The
Iraqi sanctions are illustrative of the devastating effects that sanctions can have.
The sanctions severely impacted the economy and many aspects of daily life,
affecting the drinking water supply, agriculture, electricity, and the telecommunications and transport systems. Th is led to significant human rights problems
including an increase in infant and maternal mortality rates, malnutrition, illiteracy and even deaths. The most vulnerable groups, such as children, the elderly and nursing mothers, were particularly affected.¹8 Similarly, Ewing- Chow
reports that US sanctions have caused few problems for Burma’s military junta,
but have hit the civilian population hard.¹9 Concerns regarding effects on innocent parties have led to ‘smart sanctions’, which are more tailored to harm culpable leaders rather than innocent populations in the form of asset freezes, travel
bans, and bans on strategic commodities such as arms. Many smart sanctions
regimes do not raise WTO issues as they do not affect the movement of goods
and services.
In 1997, the Committee on Economic, Social and Cultural Rights issued General
Comment 8 on ‘The relationship between economic sanctions and respect for
economic, social and cultural rights’. The Committee stated at paragraph 3:
While the impact of sanctions varies from one case to another, the Committee is aware
that they almost always have a dramatic impact on the rights recognized in the Covenant.
Thus, for example, they often cause significant disruption in the distribution of food, pharmaceuticals and sanitation supplies, jeopardize the quality of food and the availability of
clean drinking water, severely interfere with the functioning of basic health and education
systems, and undermine the right to work. In addition, their unintended consequences can
include reinforcement of the power of oppressive élites, the emergence, almost invariably,
of a black market and the generation of huge windfall profits for the privileged élites which
manage it, enhancement of the control of the governing élites over the population at large,
and restriction of opportunities to seek asylum or to manifest political opposition. While
the phenomena mentioned in the preceding sentence are essentially political in nature,
they also have a major additional impact on the enjoyment of economic, social and cultural
rights.²0

Hence, the Committee urged States to consider the likely impacts on the enjoyment of economic, social, and cultural rights in designing and imposing sanctions
regimes, and to monitor those impacts while sanctions are imposed.²¹ Sanctioning
States must take alleviating measures if those impacts breach ICESCR rights,

¹7 See John Mueller and Karl Mueller, ‘Sanctions of Mass Destruction’ (1999) 78 Foreign Affairs 43.
¹8 Office of the High Commissioner for Human Rights (OHCHR), ‘The Human Rights Impact
of Economic Sanctions on Iraq’ (Background paper prepared by the Office of the High Commissioner
for Human Rights for the meeting of the Executive Committee on Humanitarian Affairs)
(5 September 2000) <http://www.casi.org.uk/info/undocs/sanct31.pdf> accessed 22 September 2010.
¹9 Ewing- Chow, above n 6, 174.
²0 See also Report of the Secretary- General on the Work of the Organization, UN GAOR 53rd Sess.,
Supp. No. 1, UN doc. A/53/1 (1998) para 64.
²¹ CESCR, ‘General Comment 8: The relationship between economic sanctions and respect for
economic, social and cultural rights’, UN doc. E/C.12/1997/8, 12 December 1997, paras 11–13.

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96

‘Human Rights’ Restrictions on Trade

especially if the sanctions cause ‘disproportionate suffering [to] vulnerable groups
within the targeted country’.²²
The UN General Assembly adopted a resolution in 2009 which unambiguously
condemned the use of unilateral economic sanctions, largely on the basis of their
detrimental human rights impacts.²³ The voting pattern confirmed that economic
sanctions are an area of North/South dispute, with 132 voting in favour and 54
(largely developed) States voting against.
International human rights law never requires the imposition of general sanctions. Rather, human rights law imposes conditions on sanctions regimes if they
should be adopted. Therefore, a prohibition on ‘human rights trade sanctions’
under WTO law would not directly conflict with human rights law, as human
rights law does not ever demand that a State enforce its norms by imposing general
economic sanctions on a delinquent State.²4

Product-based trade measures based on human rights
A State may wish to restrict the import of a particular product due to concerns
over human rights abuses associated with that product. The concerns may relate to
harms the product could cause to the State’s own population (‘inward measures’),
such as the damage caused by asbestos or tobacco products which prejudice rights
to health and life. Another relevant measure might be the regulation of water providers in ways that breach GATS but which ensure that low-cost water is available
to poor people. A State undoubtedly has obligations to protect the rights of its
populous so it is obliged under international human rights law to implement some
inward measures. If WTO law prohibits such inward measures, a conflict arises
with international human rights law.
Alternatively, the human rights concern might relate to human rights abuses
associated with a product from an exporting State (‘outward measures’): for
example, the targeted products might be those manufactured in conditions of
forced labour.²5 Another example would be measures aimed at preventing the
trade in certain goods, such as ‘conflict diamonds’ in Western Africa, which
have fuelled conflicts and associated gross human rights violations.²6 The human
rights analysis of outward measures is more complex, as the relevant human rights
are those of members of the exporting State’s population, rather than people in
²² Ibid, para 14. Note that the Committee is confirming a type of extraterritorial obligation for
States: see generally, Chapter 8 below. The Committee also confirmed that sanctions do not remove
ICESCR obligations from the target State: para 10.
²³ UNGA, ‘Human Rights and Unilateral Coercive Measures’, UN doc. A/RES/63/179
(18 December 2008).
²4 See also Vázquez, above n 5, 802 and 821; Harrison, above n 10, 100–1.
²5 See also the typology developed by Harrison, above n 10, at 61–7.
²6 For an overview of the issues involved in conflict diamonds, see: Global Witness, ‘Conflict
Diamonds. Possibilities for the Identification, Certification and Control of Diamonds’ (2000)
(London, Global Witness) <http://www.globalwitness.org/media_library_detail.php/86/en/conflict_
diamonds> accessed 24 April 2010.

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B. Do Human Rights Trade Measures Prima Facie Breach GATT/GATS?

97

the territory of the State imposing the measures. It is argued in Chapter 8 that
States have extraterritorial obligations to the people of other States. However,
it is doubtful that such extraterritorial duties would generally require a State to
restrict the trade in goods from other States that were manufactured in a way
that harmed human rights.²7 Rather, extraterritorial obligations are more likely
to entail cooperative rather than coercive measures.²8 Outward measures are
unlikely to be mandated save in exceptional circumstances, such as perhaps the
‘conflict diamonds’ situation.²9 Such a duty might arise if an importing State
knows or should know that its market for the relevant product is so important
that the abuse would stop or significantly decrease if it closed off that market.
For example, suppose State A imposes a ban on the import of clothing from State
B because that clothing is manufactured by children in exploitative conditions,
and suppose that State A’s market constitutes 80 per cent of State B’s clothing
exports. The ban might prompt State B to take measures against child labour so
as to re-open its market access to State A. Alternatively, State B might find new
markets. In that situation, at least State A has absolved itself of any allegation
of complicity in the child labour. Unfortunately, the consequence of such measures in some situations might be to worsen the situation for the relevant children.
Perhaps the clothing industry in State B will collapse, and the children forced into
worse industries, such as mining or prostitution. Therefore, in the scenario given,
it seems unlikely that State A is compelled under international human rights law
to ban imports of clothing from State B.³0
The WTO compatibility of product-based human rights measures, whether
inward or outward, is discussed below.

B. Do Human Rights Trade Measures Prima
Facie Breach GATT/GATS?
A threshold question in determining whether a human rights measure breaches
WTO provisions is whether there is a prima facie breach. The lesser the scope of
the WTO provisions, the greater a State’s discretion to implement human rights
trade measures. In this section, key provisions regarding the scope of GATT and
²7 See also UNHCHR, Human Rights and World Trade Agreements: Using General Exception
Clauses to Protect Human Rights (Office of the High Commissioner for Human Rights, New York
and Geneva, 2005) 8 <http://www.ohchr.org/Documents/Publications/WTOen.pdf> accessed
20 September 2010); see also Adam McBeth, International Economic Actors and Human Rights
(Routledge, Oxford, 2010) 129; Vázquez, above n 5, 821.
²8 Eg, Article 2(1) of the ICESCR talks of international cooperation, which does not seem to
include hostile measures such as targeted trade embargoes.
²9 See also Chapter 6, text at and before notes 158–161 on trade in ‘biofuels’.
³0 Note that Harrison, above n 10, at 80 cites The Economist from 13 July 1999 in stating that only
5% of working children are employed in export industries. Ewing- Chow, above n 6, reports that
thousands of children were laid off in Bangladesh due to the threat of US trade sanctions, with some
moving into ‘more hazardous activities such as prostitution’, at 173.

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98

‘Human Rights’ Restrictions on Trade

GATS obligations will be analysed. Issues regarding the SPS and TBT agreements
are considered below. TRIPS and the AoA are considered in separate chapters,
while the other WTO agreements are examined in less detail in this book.

‘Like’ goods and services
The discrimination provisions of GATT and GATS, namely MFN and national
treatment provisions, are enlivened when ‘like’ goods or services are treated differently. How has the word ‘like’ been interpreted? The broader the concept of ‘like’
goods and services, the broader the scope of the non-discrimination provisions.
A key issue from a human rights point of view is whether goods can be differentiated on the basis of its production or process methods (PPMs). For example,
are shoes manufactured by child labourers ‘like’ shoes when compared to those
manufactured by adults? Is salmon that is harvested in a way that harms sustainable rights to food ‘like’ salmon that is harvested in a sustainable way?
In the GATT Tuna cases,³¹ the impugned US measures prohibited the import of
tuna from a State unless that State satisfied US standards on dolphin safe fishing practices. Both panels decided that tuna caught in a dolphin-safe way could not be distinguished for the purposes of GATT obligations from other tuna. In US—Shrimp,
measures which distinguished between shrimp caught with a ‘turtle excluder device’
(TED) and shrimp caught without a TED, so as to protect sea turtles, were also
deemed to distinguish between ‘like’ shrimp products.³² WTO and GATT jurisprudence therefore suggests that ‘PPMs that are not physically evident in the final product cannot be used to distinguish between otherwise “like products” ’.³³
In European Communities—Measures Aff ecting Asbestos and Products Containing
Asbestos (EC—Asbestos)³4 the impugned provisions concerned an EC ban on
building products made with chrysolite asbestos fibres. Canada argued that such
products were ‘like’ other building products used for the same purposes, such as
‘PCG’ fibres.³5 Were they ‘like’ products for the purposes of Article III of GATT,
which prescribes that imported goods receive the same treatment as local goods?
The Appellate Body reasoned that the determination of ‘likeness’ depended on the
degree of competitiveness and substitutability between the two products (asbestos and PCG products).³6 In determining such matters, the Appellate Body paid
regard to ‘the properties, nature and quality of the products’, ‘the end use of the
products’, ‘consumers’ tastes and habits’ (or perceptions and behaviour), and ‘the
³¹ United States—Restrictions on Imports of Tuna, GATT doc. DS21/R (Report of the Panel produced 3 September 1991, never adopted) (‘Tuna I’) and United States—Restrictions on Imports of
Tuna GATT doc. DS29/R (Report by Panel, adopted 16 June 1994) (‘Tuna II’).
³² United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO doc. WT/
DS58/R (15 May 1998) (Report of the Panel) (‘US—Shrimp I’).
³³ See also United States—Taxes on Automobiles, GATT doc. DS31/R (Report of the Panel)
(11 October 1994) para 5.54.
³4 European Communities—Measures Aff ecting Asbestos and Products Containing Asbestos,
WTO doc. WT/DS135/AB/R, AB-2000-11 (12 March 2001) (Report of the Appellate Body)
(‘EC—Asbestos’).
³5 Polyvinyl alcohol fibres (PVA), cellulose, and glass fibres are collectively referred to as PCG
fibres by the Appellate Body. See ibid, para 84.
³6 Ibid, para 98.
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B. Do Human Rights Trade Measures Prima Facie Breach GATT/GATS?

99

tariff classification of the products’.³7 The Appellate Body found that the carcinogenic and toxic nature of asbestos fibres compared to PCG fibres had to be
taken into account in assessing the ‘competitive relationship’ between the products.³8 Ultimately, the different products were found not to be ‘like’, due to differing physical characteristics and, interestingly, differing consumer perceptions.
This decision, while still focusing on physical attributes, might open the way for
more nuanced approaches to the notion of ‘like’ products, potentially for human
rights or other social purposes.³9 Furthermore, one may note a comment from the
Panel in EC—Measures Aff ecting the Approval and Marketing of Biotech Products,40
concerning differences in treatment between biotech products and non-biotech
products:
it is not self-evident that the alleged less favourable treatment of imported biotech products
is explained by the foreign origin of these products rather than, for instance, perceived differences between biotech products and non-biotech products in terms of their safety . . . 4¹

The Biotech case concerned the SPS agreement, discussed below, rather than the
non-discrimination provisions of GATT. However, the comment implies that ‘a
perceived difference in terms of safety’, even if that difference is unproven (distinguishing the circumstances from those in Asbestos), may justify a finding that the
goods are not ‘like’.4²
Furthermore, it may be noted that one Appellate Body member in Asbestos, in
a concurring opinion, suggested that the determination of ‘like’ products should
take into account issues beyond economic considerations.4³ This opinion seems to
open the door to the possibility that products can be differentiated by reference to
non-economic considerations, such as their impact on human rights.
Dr James Harrison has raised the issue of whether goods might be distinguished
on the basis of the nature of a producer. For example, could preferential regulations be applied to fruit produced by impoverished small farmers compared to
fruit produced by a multinational corporation on the basis that the fruit are not
‘like’? A State may wish to apply such regulations in order to boost the incomes
and livelihoods of struggling farmers, an aim which would conform with international human rights law. Harrison doubts that the Asbestos test of ‘likeness’ could
be stretched so as to permit differential treatment in such an instance.44 Indeed,
the relevance of producer characteristics to a determination of likeness has been
rejected by WTO panels.45
A test of likeness which focused on the aims and effects of an impugned regulation, as was applied by a GATT panel in US—Malt Beverages,46 might permit
³7 Ibid, para 101.
³8 Ibid, para 115.
³9 McBeth, above n 27, 128.
40 European Communities—Measures Aff ecting the Approval and Marketing of Biotech Products,
WTO docs. WT/DS291/R, WT/DS292/R and WT/DS293/R (29 September 2006) (Reports of the
Panel). The case concerned a challenge to a de facto moratorium on the approval of genetically modified organisms (GMOs) by the EC as well as bans on GMOs issued by certain individual EC States.
4¹ Ibid, para 7.2514, emphasis added.
4² McBeth, above n 27, 135.
4³ EC—Asbestos (Appellate Body), above n 34, para 154.
44 Harrison, above n 10, 195.
45 United States—Standards for Reformulated and Conventional Gasoline, WTO doc. WT/DS2/R
(29 January 1996) (Report of the Panel) (‘US—Reformulated Gasoline’) para 6.11.
46 United States—Measures Aff ecting Alcoholic and Malt Beverages, GATT doc. DS23/R (Report
of the Panel, adopted 19 June 1992) paras 5.25 and 5.71ff.
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100

‘Human Rights’ Restrictions on Trade

greater regulatory autonomy for States.47 Such a test might permit more regulations, including those which promote human rights and are adopted for nonprotectionist purposes, and which do not have a disproportionate effect on foreign
trade. Such an approach would more closely resemble the tests of discrimination
adopted under human rights law. For example, the HRC has stated, with regard to
the guarantees of non-discrimination in the ICCPR, that:
not every differentiation of treatment will constitute discrimination, if the criteria for such
differentiation are reasonable and objective and if the aim is to achieve a purpose which is
legitimate under the Covenant.48

However, a test of aims and effects has been rejected under WTO law, for
example by the Panel and Appellate Body in Japan-Alcoholic Beverages II.49 The
non-trade purpose of a law is generally relevant to the application of GATT exceptions in Article XX, rather than an assessment of whether like goods have been
treated differently under Articles I or III. The use of Article XX, an exceptions
clause, is a more difficult avenue for justifying regulations adopted for non-trade
purposes (including human rights purposes), as the regulating State bears the burden of proof in establishing the application of an exception, whereas the complainant State bears the burden of proof in establishing that discrimination between
like goods has arisen.50
Regarding GATS, the issue of ‘like’ services is likely to depend on issues such
as the characteristics of the service, the classification and description of the service
in the UN Central Product Classification (CPC) system, and ‘consumer habits
and preferences’ regarding the relevant service or service provider.5¹ A particular
concern regarding GATS is that it may prohibit the regulation of essential services, such as the provision of utilities or education, which are designed to ensure
that such services are accessible to the poor. In this regard, it seems unlikely that
the interpretation of ‘like’ services will take into account differences between
private utility providers or private education providers in rich areas compared
to providers, including government providers, in poorer areas. As noted by
Dr Andrew Lang:
it would be hard to argue that two identical services were not like simply because of the
socio-economic status of the consumers of that service. Such a distinction would be
unthinkable in the goods context.5²
47 Harrison, above n 10, 193–4.
48 HRC, ‘General Comment No. 18: Non-discrimination’, UN doc. HRI/GEN/1/Rev.1
(10 November 1989) para 13.
49 See WTO docs. WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (4 October 1996)
(Report of the Appellate Body), para 18: see also WTO doc. WT/DS8/R (11 July 1996) (Report of
the Panel).
50 See also Rüdiger Wolfrun, Peter-Tobias Stoll, and Anja Seibert-Fohr, WTO: Technical Barriers
and SPS Measures (Martinus Nijhoff, Leiden, 2007) para 34. See also Harrison, above n 10, 215.
5¹ Van den Bossche, above n 6, 323–4.
5² Andrew Lang, ‘The GATS and Regulatory Autonomy: a Case Study of Social Regulation of the
Water Industry’ (2004) 7 Journal of International Economic Law 801, 830, see generally, 828–30. See
also Chapter 5.

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B. Do Human Rights Trade Measures Prima Facie Breach GATT/GATS? 101

Discrimination against ‘like’ goods
Under both national treatment and MFN obligations, States may not discriminate between like goods. The Appellate Body and Panels have consistently found
that both formal (de jure) discrimination and factual (de facto) discrimination are
prohibited.5³ Furthermore, discrimination must cause disadvantage to the relevant imported products: there is no problem, for example, if imports are treated
more favorably than local goods, or if the application of different rules results in
substantively equal conditions of competition.54 The GATT Panel in Thailand—
Cigarettes in 1990 gave an interesting example of an apparently neutral law that
might nevertheless cause disadvantage to imported goods. A general ban on cigarette advertising would, it was suggested, have favoured local cigarettes because, at
that time, Thai brands were better known than imported brands.55
The inclusion of de facto discrimination is justified on the basis that the nondiscrimination obligations could be circumvented by cleverly drafted laws. The
result is that the prohibitions on discrimination have a very broad scope. For
example, the adoption by a State of unusually high regulatory standards with
regard to a particular product might seem non-discriminatory, as it applies to local
goods (so there is no apparent breach of national treatment standards) as well as all
overseas goods (so there is no breach of MFN). However, unusually high standards
might require foreign producers of the particular product to set up separate production lines to continue exports to the relevant State, so discrimination in effect
might almost always arise.56
More recently, the Appellate Body appeared to significantly narrow the test of
discrimination in Dominican Republic—Measures aff ecting the importation and
internal sale of cigarettes.
[T]he existence of a detrimental effect on a given imported product resulting from a
measure does not necessarily imply that this measure accords less favourable treatment to
imports if the detrimental eff ect is explained by factors or circumstances unrelated to the foreign
origin of the product . . . 57

The quote seems to indicate that a measure which has a legitimate regulatory purpose, but which impacts disproportionately on imported goods, is not relevantly
discriminatory, as the ‘detrimental effect is explained’ by non-trade factors. If so,
the quote would signal a significant rollback of the test of factual discrimination.
5³ See, eg, Canada—Certain Measures Aff ecting the Automotive Industry, WTO docs. WT/DS139/
AB/R and WT/DS142/AB/R, AB-2000-2 (31 May 2000) (Report of the Appellate Body) para 78.
54 United States—Section 337 of the Tariff Act of 1930, GATT Doc L/6439 (7 November 1989)
(Report of the Panel) para 5.11; Korea—Measures aff ecting imports of fresh, chilled and frozen beef,
WTO docs. WT/DS161/AB/R and WT/DS169/AB/R, AB-2000-8 (11 December 2000) (Report of
the Appellate Body) para 137.
55 Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, GATT doc. DS10/R
(7 November 1990) (Report of the Panel) para 78. Such a measure was not at issue in the case. The
Panel also suggested that such a ban would be allowed under Article XX(b).
56 Robert Hudec, ‘ “Circumventing” Democracy: the Political Morality of Trade Negotiations’
(1993) 25 NYU Journal of International Law and Politics 311, 318.
57 WTO doc. WT/DS302/AB/R (25 April 2005) (Report of the Appellate Body) para 96
(emphasis added).

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102

‘Human Rights’ Restrictions on Trade

It arguably reintroduces the ‘aims and effects’ test as being relevant to the issue of
whether discrimination has arisen between like goods, rather than being relevant
to the question of whether the relevant goods are actually ‘like’. Dr Lorand Bartels
has suggested that Dominican Republic—Cigarettes indicates that a measure which
disproportionately impacts on foreign goods will not be deemed discriminatory
under GATT if the importer is ‘reasonably able to meet the conditions for more
favourable treatment’.58 It is premature however to confirm such a major reversal of
prior GATT/WTO law.
If a State’s law is found to discriminate against like goods contrary to its GATT
obligations regarding national treatment or MFN, it may attempt to justify the
measure under one of the general exceptions recognized in Article XX. Part of the
test for compliance with Article XX involves another test for non-discrimination
stemming from its introductory clause (or ‘chapeau’), which is discussed below.
In any case, the WTO’s mandate now clearly extends beyond discriminatory
measures under the SPS and TBT agreements. Under those agreements, a measure will be in breach if it fails to satisfy certain minimum requirements, even if
it is not discriminatory. Furthermore, as discussed directly below, the prevailing
interpretation of ‘quantitative restrictions’ in Article XI of GATT and Article XVI
of GATS lessens the need for a successful WTO complainant to establish that a
measure is actually discriminatory.

Quantitative restrictions
Article XI prohibits quantitative restrictions on goods. A narrow interpretation
of Article XI would simply prohibit de jure or de facto import quotas.59 In the
Tuna cases, the measures were found to impose a zero quota on tuna from certain
countries because their tuna catches failed to comply with dolphin conservation
standards, so the measures were in prima facie breach of Article XI. A similar decision arose from the Panel in Shrimp,60 and was not questioned before the Appellate
Body. Regarding GATS, the US ban on internet gambling services from Antigua
was found to breach Article XVI of GATS, as it amounted to the imposition of a
zero quota on those services.6¹
David Driesen has convincingly criticized the prevailing interpretation of Article
XI. Commenting on the Tuna cases, he states that ‘Tuna/Dolphin does not explain
why a measure, which allows any country to choose to export unlimited quantities
of tuna (by choosing to comply with conservation standards), should be considered
a quantitative restriction on trade.’6² If a State can export without hindrance by
58 See Lorand Bartels, ‘Trade and Human Rights’ in D Bethlehem, D McRae, R Neufeld, and I Van
Damme (eds), Oxford Handbook of International Trade (Oxford University Press, Oxford, 2009) 587.
59 David M Driesen, ‘What is Free Trade? The Real Issue Lurking behind the Trade and
Environment Debate’ (2001) 41 Virginia Journal of International Law 279, 293.
60 US Shrimp I (Panel), above n 32, paras 7.17 and 8.1.
6¹ Tim Wu, ‘The World Trade Law of Censorship and Internet Filtering’ (3 May 2006) 10 <http://
papers.ssrn.com/sol3/papers.cfm?abstract_id=882459> accessed 22 September 2010.
6² Driesen, above n 59, 338–9.

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B. Do Human Rights Trade Measures Prima Facie Breach GATT/GATS? 103
complying with a regulation, that circumstance is indicative of a qualitative rather
than a quantitative restriction. This interpretation of GATT significantly undermines the ability of States to enforce regulations at its borders.6³ And it might be
impossible or impractical to enforce some regulations once the offending goods
have passed border control.
Article III of GATT, prescribing national treatment, states in an ad note that
‘any regulation’ which is enforced on an ‘imported product’ at the border is nevertheless an internal regulation subject to Article III. In such cases, Article XI should
not apply.64 However, the GATT Tuna panels held that the measures regulated a
process rather than a product so Article III did not apply. The significance of this
outcome is that Article XI, in prima facie prohibiting ‘zero quotas’, seems to apply
to any neutral regulation of goods (which does not distinguish between local and
foreign goods) which prohibits non-complying imports.65
Tuna/Dolphin’s narrow construction of the Ad Note to Article III made the [impugned
measure] illegal only because of broad construction of Article XI. This broad construction
of Article XI goes beyond the anti-mercantilist limit on quotas necessary to sustain the
non-discrimination principle and embraces a laissez-faire rule limited only by applicable
defenses. Hence, narrow construction of the ad note implies greater movement toward
laissez-faire trade.66

Laissez-faire principles, which dictate broad-based ‘freedom’ for traders to trade
without hindrance, pose a greater threat to a State’s regulatory capacities than a
mercantilist approach, which challenges only discriminatory regulations.
The Tuna interpretation of Article XI was essentially followed by the Panel in
Shrimp, and was not questioned before the Appellate Body. Driesen’s insightful
analysis of Tuna applies equally to Shrimp. While there was a zero quota on shrimp
caught without a TED, unlimited amounts of shrimp harvested with a TED could
be imported: the impugned requirement was again qualitative not quantitative.
A similar approach to quantitative restrictions was taken in US—Gambling under
GATS. The WTO Appellate body found that the US had opened up its market to
gambling and recreational services without specifying any quantitative restrictions.67
US regulations banned online gambling. The Panel found the ban imposed a ‘zero
quota’ on online gambling services from Antigua, thus prima facie breaching the
market access provisions of Article XVI of GATS. On appeal, the US argued that
other requirements, such as that of national treatment in Article XVII, should apply
in the context of prohibitions on the entry of certain services, and that the Panel’s
expanded interpretation of Article XVI had disturbed ‘the balance between liberalization and the right to regulate’.68 The Appellate Body upheld the Panel’s decision.
6³ Ibid, 339–40.
64 Van den Bossche, above n 6, 329.
65 Driesen, above n 59, 339.
66 Ibid, 340.
67 Market access and national treatment obligations under GATS only apply to the services that
a State nominates in its ‘schedule of commitments’; qualifications may be included in that schedule
(including quantitative restrictions). See Chapter 5.
68 United States—Measures Aff ecting the Cross-Border Supply of Gambling and Betting Services,
WTO doc. WT/DS285/AB/R, AB-2005-1 (7 April 2005) (Report of the Appellate Body) para 224,
see also para 222.

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104

‘Human Rights’ Restrictions on Trade

It is arguable that a ‘quantitative restriction’ in relation to online gambling
should relate to measures such as limits on the times that US consumers could
access the service, or limits on the amounts of money that might be gambled in this
way. A total ban seems less concerned with regulating the ‘quantity’ of a service (or
a good), and more designed to protect consumers from the malevolent aspects of
a particular service (or a good). The national treatment provisions in GATT and
GATS should suffice to prevent the protectionist use of such total bans, so it is
submitted that Article XI GATT and Article XVI GATS should not apply in such
circumstances. Therefore, this author disagrees with the prevailing interpretations
of those provisions.

C. Articles XX GATT and XIV GATS
Article XX GATT and Article XIV GATS are the ‘general exception’ provisions
which allow States to depart from their GATT/GATS obligations to pursue nontrade objectives. While none of the exceptions expressly relate to ‘human rights’ per se,
some of the exceptions might save human rights trade measures from WTO illegality.
Article XX of GATT reads, in part:69
Subject to the requirement that such measures are not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination between countries where the
same conditions prevail, or a disguised restriction on international trade, nothing in this
Agreement shall be construed to prevent the adoption or enforcement by any contracting
party of measures:
(a) necessary to protect public morals;
(b) necessary to protect human, animal or plant life or health; . . .
(d) necessary to secure compliance with laws or regulations which are not inconsistent
with the provisions of this Agreement . . . ;
(e) relating to the products of prison labour;
(f) imposed for the protection of national treasures of artistic, historic or archaeological
value;
(g) relating to the conservation of exhaustible natural resources if such measures
are made effective in conjunction with restrictions on domestic production or
consumption; . . .

The commentary below will focus on paragraphs (a), (b) and (g), with some reference to analogous jurisprudence under paragraph (d).
Paragraph (e) is the only explicit WTO provision which deals with labour. It
is not however a human rights provision as prison labour is not per se prohibited under human rights law.70 Rather, paragraph (e) is an economic provision
which is designed to prevent States from gaining unfair advantages by exporting
goods which are artificially cheap due to the availability of inexpensive prison
labour.7¹
69 I have omitted clauses that are irrelevant to the purposes of this book.
70 Eg, Article 8(3)(b) of the ICCPR states that the prohibition on forced labour does not apply to
prevent ‘hard labour’ as a punishment for a crime.
7¹ McBeth, above n 27, 119.

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C. Articles XX GATT and XIV GATS

105

Paragraph (f) relates to the human right to enjoy one’s culture under Article
15(1)(a) of the ICESCR. Examples of a relevant measure might be a restriction on
the export of national treasures.7² It has not yet been interpreted by the GATT and
WTO dispute settlement bodies. However, the exception seems to relate only to
trade restrictions on tangible cultural property, rather than trade measures which
protect culture generally.7³ It seems unlikely that Article XX(f) is broad enough to
safeguard all of the rights in Article 15(1)(a).
Regarding culture, Article IV GATT permits States to impose quotas on
the screenings of foreign fi lms. Cultural protection has been an area of dispute within GATT and WTO negotiations, with the EC and particularly
France arguing for extensive protection and the US arguing that products of
cultural value beyond fi lms are caught within GATT disciplines.74 An early
WTO decision in Canada—Certain measures concerning periodicals75 gives rise
to legitimate concern that the dispute settlement bodies may not be sufficiently
sensitive to cultural issues. The dispute was triggered by the marketing in
Canada of a ‘split-run’ version of the US magazine, Sports Illustrated, whereby a
separate ‘Canadian’ version of the magazine was sold in Canada with some special Canadian sports content. Canada enacted measures to protect Canadian
periodicals, with their uniquely Canadian perspective and content, from being
squeezed out by US split run periodicals. Sports Illustrated Canada shut down
within a month of the introduction of the impugned measures, which included a
large discriminatory excise.76 Despite the clear relevance of media products to a
State’s cultural milieu, as well as the particular risk to Canada of being swamped
by US cultural material given its proximity,77 the Panel stated that ‘cultural
identity was not an issue’ in the case.78 My concern here is not necessarily with
the outcome of the case, in which the Canadian measures were found to breach
Canada’s WTO obligations. My concern is with the apparent inability by the
WTO Panel to recognize the obvious cultural issues at play in this case. On the
other hand, as discussed below, WTO dispute settlement bodies were prepared
to identify the cultural element in Chinese restrictions on the imports of publications and audio-visual entertainment products in China—Measures aff ecting trading rights and distribution services for certain publication and audiovisual
entertainment products.79

7² Export limitations are prima facie prohibited under Article XI GATT.
7³ See Chi Carmody, ‘When “Cultural Identity was not at Issue”: Thinking about Canada- Certain
Measures concerning Periodicals’ (1999) 30 Law and Policy in International Business 231, 256.
74 Ibid, 259–60.
75 WTO docs. WT/DS31/R (14 March 1997) (Report of the Panel) and WT/DS31/AB/R,
AB-1997-2 (30 June 1997) (Report of the Appellate Body).
76 Carmody, above n 73, 283–7.
77 Ibid, 279.
78 Canada—Certain Measures Concerning Periodicals, WTO doc. WT/DS31/R (14 March 1997)
(Report of the Panel) para 5.45.
79 China—Measures aff ecting trading rights and distribution services for certain publication and
audiovisual entertainment products, WTO docs. WT/DS363/R (12 August 2009) (Report of the
Panel) and WT/DS363/AB/R, AB-2009-3 (21 December 2009) (Report of the Appellate Body)
(‘China Entertainment Products’).

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106

‘Human Rights’ Restrictions on Trade

Article XIV is the equivalent exceptions provision in GATS. It reads, in part:
Subject to the requirement that such measures are not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination between countries where
like conditions prevail, or a disguised restriction on trade in services, nothing in this
Agreement shall be construed to prevent the adoption or enforcement by any Member of
measures:
(a) necessary to protect public morals or to maintain public order;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to secure compliance with laws or regulations which are not inconsistent
with the provisions of this Agreement including those relating to . . .
(ii) the protection of the privacy of individuals in relation to the processing and
dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety . . .

Paragraph (a) is the only provision that has been subject to interpretation by the
DSBs, and is discussed below. It differs from its GATT counterpart in that it
refers to the maintenance of public order as well as the protection of public morals.
Paragraph (b) seems identical to the equivalent paragraph (b) in Article XX GATT.
Finally, paragraph (c) has no counterpart in GATT, and provides extra protection
for the human right to privacy, and perhaps human rights associated with security
of the person and ‘safety’, such as the right to life.
Before embarking on a detailed examination of the jurisprudence under these
exception provisions, some general matters must be addressed, namely extraterritorial application and the process of interpretation.

Extraterritorial application of Article XX exceptions
In the GATT Tuna disputes, US measures regarding tuna imports were found to
breach GATT in both cases. In Tuna I, the Panel suggested that the US was prohibited from adopting measures designed to enforce its environmental standards
extraterritorially.80 Tuna II softened that line, indicating that the US could impose
extraterritorial measures so long as they were not intended to coerce changes in
policies in other States.8¹ Of course, outward measures are coercive and would not
therefore be allowed according to the Tuna panels.
However, in Shrimp-Turtle, the WTO Appellate Body explicitly did not
decide ‘whether there [was] an implied jurisdictional limitation in Article XX(g)
[and presumably the rest of Article XX], and if so, the nature or extent of that
limitation’.8² A jurisdictional nexus between the US and the sea turtles protected
by its impugned measures was found, as some of the migratory turtles passed
through US waters, so the question of extraterritoriality did not have to be

80 Tuna I, above n 31, paras 5.27 and 5.33.
8¹ Tuna II, above n 31, para 5.15.
8² United States—Import Prohibition of Certain Shrimp and Shrimp Products (‘US—Shrimp I’),
WTO doc. WT/DS58/AB/R, AB-1998-4 (12 October 1998) (Report of the Appellate Body) para 133.

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C. Articles XX GATT and XIV GATS

107

answered. Therefore, it remains possible for outward measures to be valid under
WTO law.8³
In any case, the Tuna jurisprudence on extraterritoriality is arguably incoherent. Any trade measure, whether inward or outward, can have detrimental
extraterritorial impacts and therefore be deemed to be coercive. For example,
a ban on hormone-injected beef by the EC, a measure challenged in European
Communities—Measures concerning meat and meat products (hormones) (discussed below), was an inward measure allegedly designed to protect the health
of Europeans. However, the ban could have ‘coerced’ overseas farmers to refrain
from using those hormones in order to avoid jeopardizing their European
markets.84

Process of interpreting Article XX and Article XIV exceptions
Exceptions to treaty provisions are normally interpreted narrowly. For example, human rights bodies openly claim to interpret qualifications to rights
strictly.85 However, the Appellate Body has not explicitly taken this approach
to the general exceptions provisions. Rather, it claims to take a ‘balancing’
approach, whereby it balances in each individual case the interests of trade liberalization against the relevant non-trade value.86 However, as argued below,
that approach has not been borne out in practice. Rather, it is submitted that
the dispute settlement bodies have tended to prioritize the trade side of the
equation.
In order to rely on Article XX GATT or Article XIV GATS, a State must
pass a three-step test before a measure will be saved from WTO illegality.87
The following rules are gleaned from Article XX jurisprudence and are likely to
be the same for Article XIV. First, the impugned measure must ‘fall within the
range of policies’ designed to pursue the relevant end.88 Second, the impugned
measure must be ‘necessary’ to achieve the desired goal, or, for Article XX(g),
it must ‘relate to’ that goal.89 The third step is that the impugned measure
must satisfy the requirements of the ‘chapeau’, that is the opening clause, of
Article XX.
8³ See also Cassimatis, above n 6, 348.
84 Sarah Joseph, ‘Democratic Deficit, Participation and the WTO’ in Sarah Joseph, David
Kinley, and Jeff Waincymer (eds), The World Trade Organization and Human Rights: Interdisciplinary
Perspectives (Edward Elgar, Cheltenham, 2009) 338–9.
85 See, eg, Belyatsky et al v Belarus, UN doc. CCPR/C/90/D/1296/2004 (24 July 2007) and
Lee v Republic of Korea, UN doc. CCPR/C/84/D/1119/2002 (both HRC); see also HRC, ‘General
Comment No 27: Freedom of Movement (Art. 12)’, UN doc. CCPR/C/21/Rev.1/Add.9 (2 November
1999) paras 11–18.
86 United States—Standards for Reformulated and Conventional Gasoline, WTO doc. WT/DS2/
AB/R, AB-1996-1 (29 April 1996) (Report of the Appellate Body) para 18. See also Van den Bossche,
above n 6, 599–600, and Harrison, above n 10, 206–7.
87 Lang, above n 52, 832.
88 US—Reformulated Gasoline (Panel), above n 45, para 6.20.
89 The exact framing of this second step depends on the actual words of the clause of Article XX
which is at issue.

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108

‘Human Rights’ Restrictions on Trade

Protection of public morals and public order
Article XIV(a) GATS has an ad note, stating that the exception can only be
invoked ‘where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society’. Article XX(a), drafted in 1947 along with the original GATT, contains no such ad note.
The exceptions regarding public morals are potentially very broad, and there
is little indication from the preparatory documents to the treaties to shed light
on their meaning. Harrison quotes Charnovitz in saying that morality measures
include, ‘at least’, measures concerning ‘slavery, weapons, narcotics, liquor, pornography, religion, compulsory labour and animal welfare’.90
US—Measures aff ecting the Cross-Border Supply of Gambling and Betting
Services9¹ concerned a challenge by Antigua and Barbuda to a number of US laws
which prohibited internet gambling in the US. The US defended the measures
under Article XIV GATS on the basis that they were necessary to protect public
morals and public order. In particular, the prohibition was said to be necessary to
combat ‘money laundering, organized crime, fraud, underage gambling and pathological gambling’.9²
The Panel interpreted the term ‘public morals’ as denoting ‘standards of right
and wrong conduct maintained by or on behalf of a community or nation’,9³ and
‘public order’ as pertaining to ‘the preservation of the fundamental interests of a
society, as reflected in public policy and law’.94 The Appellate Body agreed that the
US measures passed the first step of the Article XIV test, as they were measures that
were conceivably necessary to protect morals.95 The Panel had added that public
morals vary according to ‘prevailing social, cultural, ethical and religious values’,
and that Members had some discretion in defining the concepts for themselves
‘according to their own systems and scales of values’.96 This aspect of the Panel’s
decision was not mentioned on appeal.
Those definitions certainly indicate that a measure imposed for the purposes of
protecting human rights, whether inward or outward, could fall within the public
morals/order exceptions. Professor Robert Howse has stated:
In the modern world, the very idea of public morality has become inseparable from the
concept of human personhood, dignity and capacity reflected in fundamental rights. A
conception of public morals or morality that excluded notions of fundamental rights would
simply be contrary to the ordinary contemporary meaning of the concept.97

90 Harrison, above n 10, 209, citing Steve Charnovitz, ‘The Moral Exception in Trade Policy’ in
Steve Charnovitz (ed), Trade Law and Global Governance (Cameron May, London, 2002) 361.
9¹ United States—Measures Aff ecting the Cross-Border Supply of Gambling and Betting Services,
WTO docs. WT/DS285/R (10 November 2004) (Report of the Panel) and WT/DS285/AB/R, AB
-2005-1 (7 April 2005) (Report of the Appellate Body).
9² US Gambling (Panel), above n 91, paras 6.465, 6.486.
9³ Ibid, see also para 6.461.
94 Ibid, para 6.467.
95 US—Gambling (Appellate Body), above n 91, paras 296–9.
96 US—Gambling (Panel), above n 91, para 6.461.
97 Robert Howse, ‘Back to Court After Shrimp/Turtle? Almost but not quite yet: India’s shortlived challenge to labour and environmental exceptions in the European’s Union’s generalized system of preferences’ (2003) 18 American University International Law Review 1333, 1368.

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C. Articles XX GATT and XIV GATS

109

Howse adds a further justification for the use of international human rights law as
a touchstone for the interpretation of the public morals clauses, in stating that the
exceptions could be ‘almost limitless if the content of public morals does not have a
universal element’.98 McBeth supports this idea of ‘ensuring a degree of universality’, given the common fear that Article XX exceptions might be abused to disguise
protectionist measures.99
The Appellate Body has not confirmed the Howse thesis. If it adopted the evolutionary approach to interpretation that it took in Shrimp with regard to Article
XX(g) (discussed below), it could use modern human rights treaties to interpret
the public morals exceptions.¹00 If it was to do so, the full range of human rights
based trade measures might plausibly be allowed under the public morals exceptions. An inward measure could be justified on the basis that it fulfilled a State’s
human rights obligations. A ban on goods manufactured by children, a productbased outward measure, could be said to promote the global moral purpose of
combating child labour and thus protecting human rights. General sanctions
could be justified as promoting the global moral purpose of combating an egregious regime that violates human rights. Alternatively, the use of public morals
may transform outward measures into inward measures. That is, the morals being
protected are those of the State’s own population, who may not wish to be exposed
to goods tainted by human rights abuses. Just as inward measures have an outward
effect, outward measures arguably have an inward effect in terms of protecting the
‘public morals’ of consumers.¹0¹ Therefore, the exceptions regarding public morals
and public order (the latter only in GATS) may provide an opportunity for States
to justify trade restrictive human rights measures, such as those based on labour
rights, which do not otherwise come under another clause in Articles XX or XIV.
In China—Measures aff ecting trading rights and distribution services for certain
publication and audiovisual entertainment products,¹0² the US challenged Chinese
measures which required that foreign books, movies, and music be imported
through government-approved agents. China justified the measures as necessary to
protect public morals, as the laws ensured that the content of the imports complied
with Chinese censorship laws. Both the Panel and the Appellate Body found that
the mandated use of government-approved agents to import cultural goods was
not necessary to protect public morals. Therefore, both bodies were able to sidestep
the issue of whether China’s censorship laws were per se justifiable as measures to
protect public morals.¹0³ Indeed, the point was essentially conceded by the US:
China notes that the United States does not appear to dispute that China has a sovereign
right to put in place a system designed to review and control the content of cultural goods
98 Robert Howse, ‘The World Trade Organization and the Protection of Workers’ Rights’ (1999)
3 Journal of Small and Emerging Small Business Law 131, 143.
99 McBeth, above n 27, 117; see also Harrison, above n 10, 209.
¹00 Harrison, above n 10, 212; Cassimatis, above n 6, 360.
¹0¹ See also Harrison, above n 10, 66. See also text above at n 84.
¹0² China Entertainment Products (Panel and Appellate Body), above, n 79.
¹0³ See Bridges Weekly Trade News Digest, ‘WTO rules against Chinese restrictions on foreign
books, movies, music, 9 September 2009. See also below, Part G.

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that enter its territory. The United States also does not appear to dispute that China is entitled to decide the level of protection that it requires.¹04

However, the Panel then added:
China has decided that the control of cultural content is a matter of fundamental importance, and that it requires a complete exclusion from its territory of materials which could
have a negative impact on public morals. The right to set such standard of enforcement and
to put in place a system that will maintain such standard is unquestionable and recognized
also by the Appellate Body jurisprudence.¹05

Therefore, the public morals exception may be so broad as to permit a State to
adopt extensive censorship measures. While some censorship is certainly justified
for the purposes of protecting public morals and public order, such as censorship
of child pornography or genuine national security information, China’s censorship
laws are excessive from a human rights point of view. This issue is discussed further
below.¹06

Protection of health
Article XX(b) GATT and Article XIV(b) GATS allow for measures that protect public health. Such measures are clearly of relevance to the human right
to an adequate standard of health (Article 12 ICESCR) and the right to life
(Article 6 ICCPR). The HRC has confirmed that the right to life has a broad
interpretation, such that States must take ‘positive measures’ to protect the
right, including ‘positive measures to reduce infant mortality and to increase
life expectancy, especially in adopting measures to eliminate malnutrition
and epidemics’.¹07 Trade measures regarding protection of the rights to food
and water, both essential for health and life, should also come within Article
XX(b). A broad interpretation of Article XX(b) might permit measures which
promote all human rights that protect physical and mental security, such as
the right to be free from torture and certain prohibitions on labour rights
abuses.
The following are examples of cases where the impugned measures have been
found to constitute policies aimed at protecting health within the meaning of
Article XX(b) GATT: US measures which specified standards of cleanliness
for gasoline sold in the US in US—Standards for reformulated and conventional
gasoline,¹08 the ban in Asbestos on chrysolite asbestos products,¹09 and a ban in

¹04 China Entertainment Products (Panel), above n 79, para 4.573.
¹05 Ibid, para 4.574.
¹06 See also below, Part G.
¹07 HRC, ‘General Comment No 6: The right to life (art. 6)’, Sixteenth Session, 1982, 30 April
1982, para 5.
¹08 WTO docs. WT/DS2/R (29 January 1996) (Report of the Panel) and WT/DS2/AB/R,
AB-1996-1 (29 April 1996) (Report of the Appellate Body).
¹09 The Appellate Body considered the Article XX issue in EC Asbestos (Appellate Body), above
n 34, even though Article XX was not strictly engaged, as the measures had not breached the national
treatment provisions of GATT.

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C. Articles XX GATT and XIV GATS

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Brazil—Measures aff ecting imports of retreaded tyres¹¹0 on the import of retreaded
tyres, as discarded tyres were breeding grounds for mosquitoes which increased the
incidence of mosquito-borne diseases.

The test of ‘necessity’
The public morals and health exceptions are only permissible if they are deemed
to be ‘necessary’ to achieve their respective goals. In Thailand—Cigarettes,¹¹¹
a GATT panel found that the test of necessity required that there be no available alternative measures that were GATT consistent or less GATT inconsistent which could reasonably be used to achieve the desired ends. The ban on the
import of foreign cigarettes in Thailand—Cigarettes, which prima facie breached
Article XI, was imposed due to harmful additives in imported cigarettes and a
desire to reduce tobacco consumption for health reasons. The GATT Panel suggested that the following measures, which did not distort trade as much as the
impugned measure, might have sufficed: labelling requirements, ingredient disclosure regulations, and a ban on tobacco advertisements.¹¹² It is doubtful that
such measures were as effective as the impugned measures in achieving Thailand’s
health aims. The early test of ‘necessity’ was criticized for being too strict, and
arguably ‘impossible to satisfy’.¹¹³ Despite criticism of the test, the Gasoline Panel
adopted the Thailand—Cigarettes test and found that the impugned US ‘clean
air’ measures were not necessary in order to promote health as less trade restrictive
measures were available.¹¹4
In Korea—Various Measures on Beef,¹¹5 the Appellate Body, in a case on Article
XX(d), stated that a measure did not have to be ‘indispensable’ in order to be ‘necessary’. A determination of ‘necessity’ involved a ‘weighing and balancing’ process.
Korea—Beef therefore modified the strict ‘least trade restrictive’ test. The Appellate
Body has followed this modified test in Asbestos, Gambling, and Dominican
Republic—Measures aff ecting the importation and internal sale of cigarettes. The
Appellate Body in the latter case summed up the law on ‘necessity’ as follows:
The Appellate Body Reports in Korea—Various Measures on Beef, EC—Asbestos and
US—Gambling indicate that, in the assessment of whether a proposed alternative to the
impugned measure is reasonably available, factors such as the trade impact of the measure, the importance of the interests protected by the measure, or the contribution of the
measure to the realization of the end pursued, should be taken into account in the analysis.
The weighing and balancing process of these three factors also informs the determination whether a WTO-consistent alternative measure which the Member concerned could
¹¹0 WTO Docs WT/DS332/R (12 June 2007) (Report of the Panel) and WT/DS332/AB/R,
AB-2007- 4 (3 December 2007) (Report of the Appellate Body).
¹¹¹ Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, GATT Doc DS10/R
(7 November 1990) (Report of the Panel).
¹¹² Ibid, paras 77–8.
¹¹³ Lang, above n 52, 833.
¹¹4 The measures were discriminatory, as discussed below in text before n 138, so less discriminatory options were available. US—Reformulated Gasoline (Panel), above n 45, para 6.22.
¹¹5 Korea—Measures aff ecting imports of fresh, chilled and frozen beef, above n 54.

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reasonably be expected to employ is available, or whether a less WTO-inconsistent measure is reasonably available.¹¹6

The Appellate Body in Dominican Republic—Cigarettes went on to approve a quote
from US—Gambling, stating that an alternative measure was not available if it
was ‘merely theoretical in nature’ or where it imposed ‘an undue burden on that
Member’.¹¹7 These clarifications indicate that the Appellate Body will be sensitive
to a State’s technical and financial capacities to implement alternative measures.¹¹8
Finally, the alternative measure has to ‘preserve for the responding Member its right
to achieve its desired level of protection with respect to the objective pursued’.¹¹9
In Asbestos, the Appellate Body confirmed that ‘necessity’ does not relate to the
goal of a measure, but rather the necessity of the means to that end.¹²0 This decision implies that a State may seek to attain any level of health protection that it
desires, or, by analogy, any level of protection of public morals (or public order
under GATS). However, one outcome of the new balancing test of ‘necessity’ is
that, while the Appellate Body will not question the validity of an end once it
is deemed to fall within a paragraph of Article XX, the perceived importance of
that end ultimately makes a difference in deciding whether the measure utilized
is necessary. The Appellate Body in Asbestos, in finding that the measures were in
fact necessary, was influenced by the fact that the goal pursued, the protection of
human health from well-known and life-threatening health risks, was ‘both vital
and important in the highest degree’.¹²¹
In Brazil—Retreaded Tyres, the Panel stated that ‘few interests are more “vital”
and “important” than protecting human beings from health risks’.¹²² Brazil
explained that it had banned imports of retreaded tyres in order to reduce the
health risks posed by waste tyres, which became mosquito breeding grounds and
also generated toxic tyre fires. The ban on imports meant that those imports were
replaced by domestic retreads, which meant fewer local tyres became waste tyres.
The Appellate Body noted that the ban could be justified even though it was as
trade restrictive as was possible.¹²³ However, it disagreed with Brazil’s contention
¹¹6 Dominican Republic—Measures Aff ecting the Importation and Internal Sale of Cigarettes, WTO
doc. WT/DS302/AB/R, AB-2005-3 (25 April 2005) (Report of the Appellate Body) 70. See also
United States—Certain measures relating to shrimp from Thailand, WTO doc. WT/DS343/AB/R
(Report of the Appellate Body) and United States—Customs Bond Directive for merchandise subject
to anti- dumping/countervailing duties, WTO doc. WT/DS345/AB/R (Report of the Appellate Body)
para 316.
¹¹7 US—Gambling (Appellate Body), above n 91, para 308, quoted at Dominican Republic
Cigarettes (Appellate Body), above n 116, para 70.
¹¹8 Lang, above n 52, 834.
¹¹9 US—Gambling (Appellate Body), above n 93, para 308, quoted at Dominican Republic
Cigarettes (Appellate Body), above n 116, para 70.
¹²0 The Appellate Body examined Article XX on appeal even though the measures did not
need to be justified under Article XX as there was no discrimination between like goods. See also
US—Reformulated Gasoline (Panel), above n 45, para 6.22.
¹²¹ EC—Asbestos (Appellate Body), above n 34, para 172.
¹²² Brazil—Measures aff ecting imports of retreaded tyres, WTO doc. WT/DS332/R (12 June
2007) (Report of the Panel) para 7.108, cited with approval by the Appellate Body in WTO doc WT/
DS332/AB/R, AB-2007- 4 (3 December 2007) (Report of the Appellate Body) paras 144 and 179.
¹²³ Brazil—Retreaded Tyres (Appellate Body), above n 122, para 150.

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C. Articles XX GATT and XIV GATS

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that such a ban would be necessary if it had only a ‘marginal or insignificant’ effect
because it aimed ‘to reduce risk exposure to the maximum extent possible’.¹²4
Thus, the impugned measure must be reasonably effective in order to be deemed
‘necessary’.
In its decision in Brazil—Tyres, the Appellate Body found that the ban was
necessary. Its trade impacts were outweighed by the importance of the ban in
reducing health risks caused by waste tyres. It supported the Panel’s finding that
alternative measures proposed by the appellant, the EC, including the use of tyres
in landfill, recycling, incineration, and stockpiling, were not reasonably available
to Brazil or were not appropriate alternative policies (for example, they carried their
own risks).
Extrapolating from Asbestos and Brazil—Retreaded Tyres, the Appellate Body has
signalled a great willingness to concede the necessity of impugned measures when
public health issues are at stake.¹²5 The promotion of human rights is also of the
highest importance.¹²6 These cases also indicate that a less strict test of necessity,
compared to the test from Thailand—Cigarettes, has been adopted, which increases
the capacities of States to enact human rights measures that restrict trade.
In US—Gambling, the Appellate Body overturned the Panel’s decision and
found that the US’s measures were necessary to protect public morals and public
order. The Panel had stated that the US should have negotiated with Antigua before
banning internet gambling. In the view of the Appellate Body, consultations were
‘not an appropriate alternative . . . because consultations are by definition a process,
the results of which are uncertain and therefore not capable of comparison with
the measures at issue in this case’.¹²7 As no other alternative measure had been
raised, the Appellate Body found that the measure was necessary to protect the
US’s chosen level of protection for public morality and public order.
In China—Audiovisual entertainment products, the Appellate Body found
that the impugned measures were not necessary in order to protect public morals because less trade restrictive measures were reasonably available to achieve the
same level of protection of morality, so the measure was not particularly important
in achieving China’s ends. For example, China could simply apply its national censorship laws to the imported products in the same way as it applied those laws to
the like domestic products.¹²8 There was no need to restrict the entities that could
physically import the relevant goods in order to ensure compliance with its censorship regime.
Inward measures, especially those designed to protect health, seem likely to
pass the necessity test so long as they are reasonably effective in achieving a goal
within Article XX. Outward measures seem to be less likely to satisfy the necessity criterion. Indeed, outward measures would rarely satisfy the test given that
unilateral economic sanctions are often ineffective (or even counterproductive)¹²9
¹²4 Ibid.
¹²5 McBeth, above n 27, 125.
¹²6 Ibid, 123.
¹²7 US—Gambling (Appellate Body), above n 91, para 317.
¹²8 See Bridges Weekly Trade News Digest, above n 103.
¹²9 Jenny Schultz and Rachel Ball, ‘Trade as a weapon? The WTO and human rights-based trade
measures’ (2007) 12 Deakin Law Review 41, 64.

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114

‘Human Rights’ Restrictions on Trade

in promoting human rights compliance in the target State. Furthermore, less
trade restrictive means of registering a protest against a State’s human rights
abuses would often be reasonably available.¹³0 Of course, the effectiveness of sanctions increases according to the power of a State. It would seem unsatisfactory if
human rights sanctions were only available to powerful States under WTO law.¹³¹
However, an outward measure designed to protest against a State’s human rights
abuses, whether general or product-based sanctions, might pass muster under the
necessity test if the relevant desired impact was not the effect on the target State’s
behaviour, but the assuaging of the conscience and satisfaction of the moral code of
consumers in the sanctioning State.

Protection of environment
Article XX(g) is not directly relevant to human rights measures. Rather, it concerns measures that protect environmental ends. Nevertheless, Article XX(g) cases
are relevant because environmental measures can be necessary to protect human
health as well as rights to food and water.¹³² Article XX(g) cases also act as signposts to the potential outcomes in future cases concerning human rights.
As noted in Chapter 2, the Appellate Body in US—Shrimp utilized a number
of modern environmental treaties to interpret the scope of Article XX(g).¹³³ For
example, it rejected an argument that the reference therein to ‘exhaustible natural resources’ referred only to mineral or ‘non-living’ resources: the Appellate
Body found that living resources were ‘susceptible of depletion, exhaustion
and extinction’.¹³4 The Appellate Body went on to note that while Article
XX(g) had been drafted over 50 years earlier (under the original GATT treaty),
modern and ‘evolutionary’ notions of environmental protection could inform
its interpretation of the provision in 1998.¹³5 Therefore, a measure designed
to protect the endangered sea turtle was a measure ‘related to’ Article XX(g)
purposes.
Unlike Articles XX(a) and XX(b), a measure under Article XX(g) does not have
to be ‘necessary’: it must simply ‘relate to’ environmental ends. In US—Gasoline,
the Appellate Body confirmed that this test was not as strict as that of ‘necessity’
under Articles XX(a) and (b). Indeed, the impugned measures in US—Gasoline
were not found to be ‘necessary’ for the purposes of Article XX(b), but they were
found to ‘relate to’ ends that came within Article XX(g). Therefore, the impugned
measures ‘passed’ the second stage of the test for Article XX(g) but not Article
XX(b).¹³6 A measure passes the ‘related to’ test so long as it was ‘primarily aimed at’
¹³0 See also Vázquez, above n 5, 819.
¹³¹ Ibid, 834–5; Schultz and Ball, above n 129, 75–6.
¹³² See CESCR, ‘General Comment No 14: The right to the highest attainable standard of health’,
UN doc. E/C.12/2000/4 (11 August 2000) para 15.
¹³³ See Chapter 2, text at n 123.
¹³4 US—Shrimp I (Appellate Body), above n 82, para 128.
¹³5 Ibid, paras 129–30.
¹³6 On US—Gasoline, see Jennifer Schultz, ‘The demise of “green” protectionism: the WTO
decision on the US Gasoline rule’ (1996) 25 Denver Journal of International Law and Policy 1.

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C. Articles XX GATT and XIV GATS

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ends within Article XX(g), or is ‘reasonably related to’ those ends. The less onerous
test for Article XX(g) may supply an alternative justification for health measures
related to the environment if a justification under Article XX(b) should be found
not to be ‘necessary’.¹³7

The chapeau
The chapeaus in both Articles XX and XIV state that measures passed under one of
the relevant sub-paragraphs are not allowed if they amount to ‘arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a
disguised restriction on international trade’. The chapeau has been interpreted as a
safeguard against abuse of Article XX rights by States. The ‘chapeau’ test has been
the downfall of most measures that a WTO Member has sought to justify under
Article XX. Almost all such measures have ultimately been found to be discriminatory in a way that breaches the chapeau.
In US—Gasoline, the impugned ‘clean gas’ measures were not justified under
Article XX(g) (having failed to reach even the third stage of the Article XX test
under Article XX(b)) as different administrative regulations for measuring pollutants applied, respectively, to US producers of gasoline and to those in the complainant States, Venezuela and Brazil. The measures failed the chapeau test as they
were clearly discriminatory. In US—Gambling, the US ultimately lost because the
federal Interstate Horseracing Act permitted remote gambling on horse races by
some US providers. This discrimination in favour of certain US companies suggested that the measures were in fact ‘disguised restrictions on trade’ rather than
measures designed to protect public morals. The discrimination in these two cases
was fairly blatant.¹³8
In US—Shrimp, the measures failed the chapeau test, partly because the US
had dealt with different countries in different ways without justification. For
example, while it had negotiated a treaty on the issue of saving the sea turtle with
Latin American States, it had unilaterally embargoed shrimp from other States
without consultation and without sufficient consideration of whether those countries might have adopted equivalent measures which avoided the incidental killing
of sea turtles while harvesting shrimp. The US amended its laws in the wake of
Shrimp; those modifications were challenged by Malaysia in US—Shrimp (Article
21.5—Malaysia) (‘Shrimp 2’).¹³9 The Appellate Body found that the new measures,
which allowed shrimp imports from States where there were programmes in place
that were comparably effective in saving the turtle, were WTO legal. The Shrimp
litigation indicated a preference by the WTO for cooperative rather than coercive
solutions: States should at least attempt to resolve grievances before imposing trade
¹³7 See Harrison, above n 10, 217.
¹³8 Note however that the US disputes the interpretation of the relevant horse racing statute by
the Panel and Appellate Body in US—Gambling.
¹³9 United States—Shrimp Import Prohibition of Certain Shrimp and Shrimp Products—Recourse
to Article 21.5 by Malaysia, WTO docs. WT/DS58/RW (15 June 2001) (Report of the Panel) and
WT/DS58/AB/RW, AB-2001- 4 (22 October 2001) (Report of the Appellate Body).

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116

‘Human Rights’ Restrictions on Trade

restrictions. The Shrimp precedent indicated that outward product-based measures
might need to be preceded by negotiations with the relevant States before their
unilateral imposition is permitted under WTO law. However, the imposition of a
requirement of negotiations by a Panel was overturned by the Appellate Body in
the later decision in US—Gambling.¹40
Driesen has queried one of the discrimination findings in Shrimp. To recap,
both US and foreign shrimp fleets were required to use TEDs. The measure was
found to be discriminatory and contrary to the chapeau of Article XX GATT, as
the regulation did not take into account the ‘different conditions’ that might arise
in foreign States.¹4¹ However, the decision did not identify why or even whether
those ‘different conditions’ rendered it difficult for other States to install TEDs.
The US arguably failed to discriminate in favour of the foreign fleets by exempting
them from the TED requirement.¹4² Shrimp arguably indicates that any neutral
measure that somehow obstructs international trade, even if applied equally to
domestic trade, might nevertheless be construed as discriminatory.¹4³
In Brazil—Retreaded Tyres, the measures failed the test in the chapeau for two reasons. First, the Appellate Body noted that Brazil’s goals were blatantly undermined
by the fact that non-retreaded used tyres could still be imported. Secondly, Brazil
was a member of the MERCOSUR regional trade grouping, and had exempted its
MERCOSUR partners from the retreaded tyres ban. Brazil had lost a challenge to
its import ban before a MERCOSUR tribunal, despite the existence of a regional
exemption akin to Article XX(b). The Appellate Body found that the MERCOSUR
exemption cut against the health promotion goals of the measure, and therefore
manifested a breach of the chapeau. As Brazil had not cited health reasons for the ban
before the MERCOSUR tribunal, the Appellate Body suggested that its decision did
not necessarily ‘result from a conflict between provisions under MERCOSUR and
the GATT 1994’.¹44 However, this circumstance does not seem to have been decisive
in the Appellate Body’s reasoning: it seems that it was quite prepared to find ‘arbitrary
and unjustifiable’ discrimination, and that the measure was a ‘disguised restriction
on trade’, even if such discrimination arose from a clash between MERCOSUR and
GATT obligations. The result in Brazil—Tyres is that Brazil can maintain its ban if
it extends it appropriately.¹45 However, it might not be so easy for Brazil to extend
the ban to MERCOSUR countries, due to its apparent obligations (according to a
MERCOSUR tribunal) to allow the import of tyres under MERCOSUR.¹46
General human rights sanctions against a State could well fail the chapeau test
unless a State imposed like sanctions on all States with a similarly bad human rights
record. Such even-handedness is not typical of general human rights sanctions.
¹40 See above, text at note 127.
¹4¹ US—Shrimp I (Appellate Body), above n 82, para 164.
¹4² Driesen, above n 59, 333.
¹4³ Joseph, above n 84, 337.
¹44 Brazil—Retreaded Tyres (Appellate Body), above n 122, para 234.
¹45 See Hannes Schloemann, ‘Brazil Tyres: Policy Space confirmed under GATT Article XX’,
Bridges Monthly, Year 12 No 1, February 2008, via <http://www.ictsd.org>.
¹46 See also Brazil—Measures aff ecting imports of retreaded tyres—ARB-2008-2/23—Arbitration
under Article 21.3(c)—Award of the Arbitrator, WT/DS332/16 (29 August 2008) (‘Brazil—
Retreaded Tyres—Arbitration’).

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C. Articles XX GATT and XIV GATS

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For example, as noted above, Canada and the US have imposed extensive trade
sanctions on Burma. While Burma undoubtedly commits horrendous human
rights abuses, other WTO members arguably have similarly bad records, such as
the Central African Republic or the Democratic Republic of the Congo.¹47 While
such measures are unlikely to be imposed for protectionist purposes, they could
amount to ‘arbitrary or unjustifiable discrimination between countries where the
same conditions prevail’.¹48

Conclusion on GATT/GATS jurisprudence
The above survey of WTO cases signals three trends. First, the Appellate Body and
the Panels engage in a high level of scrutiny in examining a State’s impugned measures under WTO law. There is little sign of a margin of discretion being accorded
to States. Notwithstanding the landmark Asbestos decision, the goal of a law is
normally irrelevant in determining if products are ‘like’ for the purposes of GATT,
and it seems likely the same approach will be adopted under GATS.
Secondly, a wide interpretation has been given to ‘discrimination’ for the purposes of MFN and national treatment obligations. While the definition may have
been rolled back in Dominican Republic—Cigarettes, a very broad interpretation
has been given to the prohibition of quantitative restrictions. Altogether, these
interpretations give GATT and GATS obligations a broad scope. The broader their
scope, the greater their impact on a State’s regulatory capacities.
Thirdly, the interpretation of the Article XX (and Article XIV) exceptions has
arguably been quite narrow. Certainly, the interpretation of the values which are
promoted within the various sub-paragraphs has been quite broad. The Appellate
Body and Panels will refrain from questioning the validity of the social ends that
a State wishes to pursue if those ends feasibly fall within Article XX GATT or
XIV GATS. However, their perception of the importance of the ends pursued is
clearly important in deciding whether a measure is ‘necessary’ under Article XX
or Article XIV. The Appellate Body in Shrimp I confirmed that Article XX(g) and
presumably the other sub-paragraphs will be interpreted dynamically in the light
of contemporary values. The public morals exceptions appear to be the only provisions which might permit human rights trade measures in general. However,
a broad interpretation of Article XX(b) (or Article XIV(b) GATS) could allow
a State to defend measures which protect a number of human rights related to
human security.
For a time, the utility of these exceptions was undermined by a very strict test
of ‘necessity’ that was manifested in Thailand—Cigarettes and US—Reformulated
Gasoline. This second step in the Article XX test has however become less strict,
with the ‘least trade restrictive’ test being replaced by a ‘weighing and balancing’
test which gives greater weight to non-trade values. And indeed, the impugned
measures in a number of cases have ‘passed’ this test of necessity, as seen in Asbestos,
Gambling, and Retreaded Tyres. The test was not passed in China—Audiovisual
¹47 See also Vázquez, above n 5, 823.

¹48 Ewing Chow, above n 6, 166–7.

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118

‘Human Rights’ Restrictions on Trade

Entertainment Products. The less strict ‘relating to’ test under Article XX(g) was
‘passed’ in Gasoline and Shrimp. However, the remaining hurdle of the chapeau
has only been surmounted fully in Shrimp II (with no chapeau analysis taking
place in Asbestos).
It is submitted that outward measures are far less likely to be legal under WTO
law than inward measures. For example, it will be difficult to establish that an
outward measure is necessary. It would seem easier to justify an inward measure by
reference to public morals, public order (in GATS), or the need to protect human
health. All human rights trade measures will have to be carefully crafted in order
to avoid falling foul of the non-discrimination requirement in the chapeau.
The outcomes from the WTO’s dispute resolution process regarding social measures have been criticized by social justice campaigners. For example, environmentalists have argued that the WTO unduly ‘undermines necessary environmental
legislation’.¹49 Certainly, most challenges to social measures under WTO law have
resulted in the legislation being found to breach WTO provisions in some respect.
However, the criticism may not be fair. After all, the cases may simply signal that
a State can adopt social regulations but must ensure that they are not relevantly
discriminatory. However, given the width of the test of discrimination under the
chapeau, as pointed out by Driesen in regard to Shrimp, that requirement may be
more onerous than it sounds. Furthermore, the removal of discrimination can be
potentially difficult, as indicated by Brazil in requesting extra time to negotiate
with its MERCOSUR partners over a resolution to the Tyres dispute.¹50
The human rights obligations of the State adopting human rights trade measures
will rarely be at issue with regard to outward measures because States are rarely
if ever obliged to impose such sanctions under international human rights law.
However, human rights obligations are clearly at issue for many inward measures.
From a human rights point of view, it is troubling that an explicit human rights
exception is not included within Articles XX and XIV. Furthermore, it is troubling
that a human rights measure, such as the health measure in Brazil Tyres, should be
subjected to scrutiny according to its impact on trade.¹5¹ Perhaps it is unfortunate
that human rights considerations are ‘weighed’ or ‘balanced’ against non-human
rights concerns at all. After all, ‘adherence to free trade obligations’ is not a recognized limitation to any human right, and international human rights bodies
have never indicated that they accept WTO compliance as an excuse for limiting a
human rights obligation.¹5²
However, there is perhaps nothing wrong, from a human rights point of view,
with the Panels and Appellate Body insisting that a less trade restrictive option be
taken if it is reasonably available, given that the determination of such reasonable
availability pays due deference to a State’s desired level of protection of an Article
XX (or Article XIV) value, as well as a State’s capacities to implement an alternative
measure. In this regard, it is interesting to speculate on the outcome of a human
¹49 Van den Bossche, above n 6, 623 (noting such arguments).
¹50 See Brazil—Retreaded Tyres—Arbitration, above n 146.
¹5¹ See also McBeth, above n 27, 124.
¹5² See also Harrison, above n 10, 218–19.

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C. Articles XX GATT and XIV GATS

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rights assessment of the Brazil Tyres measure. The measure would have been found
to conform to the right to health, but the exceptions regarding used tyres and
MERCOSUR countries would have been found to undermine that conformity.
That is, human rights bodies would possibly have condemned the same flaws in the
scheme as the Appellate Body. However, under human rights law, the abolition of
the import ban would not be an acceptable solution, whereas trade law dictates the
lifting of the import ban if those flaws cannot be fi xed.¹5³
A social measure which restricts free trade can also impact badly on the enjoyment of human rights. If one accepts that free trade increases wealth, trade restrictions diminish that wealth, and consequently can impact on the enjoyment of
economic, social, and cultural rights. However, the ‘diminution of aggregate
wealth’ could not constitute a legitimate limit to human rights, particularly in
respect of a measure that simultaneously and directly promotes human rights. On
the other hand, severely detrimental impacts on the livelihoods of people, such
as those in an offshore export industry who are put out of work by a major trading partner’s import ban, could potentially be classified as harms to the right to
work (Article 6 ICESCR) and the right to an adequate standard of living (Article
11 ICESCR). Such violations might arise if those offshore workers are vulnerable
people in a poor State that lacks the capacity to compensate for their losses or cope
with sudden economic adjustments.¹54 This issue is discussed in greater detail in
Chapters 5, 6, and 8, and below in regard to SPS measures.
Free trade restrictions do not, of course, always have such serious human rights
impacts: resultant market losses may only rarely harm the livelihoods of affected
offshore traders to such an extent as to harm their human rights. Yet the potential generation of human rights abuses by protectionist measures indicates that, in
principle, some limitation on the regulatory power of the State to restrict free trade
is welcome from a human rights point of view. However, the WTO dispute resolution bodies do not take into account the ‘effect on human rights caused by trade
restrictions’ in deciding whether protectionist measures are or are not permissible;
they explicitly focus on the trade impact per se (which may or may not impact on
human rights).
So far, States have not specifically relied on human rights obligations to defend
social legislation in WTO litigation. For example, Brazil did not refer to the right
to health in Brazil—Tyres. It is a matter of speculation as to why States are not
using explicit human rights claims to bolster their arguments before the WTO.
¹5³ Indeed, Article 3.7 of the Understanding on Rules and Procedures Governing the Settlement
of Disputes states, in part:
In the absence of a mutually agreed solution, the first objective of the dispute settlement
mechanism is usually to secure the withdrawal of the measures concerned if these are
found to be inconsistent with the provisions of any of the covered agreements.
Thus, Article 3.7 dictates a preference for withdrawal of the impugned measures if a mutual agreement to a solution does not arise.
¹54 See Ha-Joon Chang, Bad Samaritans: the Myth of Free Trade and the Secret History of Capitalism
(Bloomsbury Press, New York, 2008) 73, commenting that loss of livelihood in the developing world
can be a matter of ‘life and death’. See also below, note 156, for an example of such arguments being
made in the context of indigenous peoples in a developed State.

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‘Human Rights’ Restrictions on Trade

One reason may be that the bureaucrats that prepare arguments for WTO litigation are not human rights experts.¹55
As noted, very few social measures have survived challenge before WTO panels
or the Appellate Body. This circumstance may have a chilling impact on social
legislation where that regulation has an impact on foreign trade. However, the
case statistics reflect the outcomes of very few cases. A new case on the horizon,
concerning complaints by Canada and Norway against EC bans on seal products,
might reveal more about the approach of the Panels, and perhaps the Appellate
Body, in this respect.¹56

D. The SPS and TBT Agreements
The SPS Agreement regulates sanitary and phytosanitary standards while the TBT
Agreement regulates the technical standards which a State may apply to products.
Both of these Agreements regulate the extent to which a State can use such standards when those standards restrict foreign trade. They are discussed in turn below.

The SPS
Sanitary and phytosanitary (SPS) standards are measures aimed at protecting
human animal or plant life from food-borne risks, pests or diseases.¹57 Hence, they
are standards that are essentially imposed on agricultural goods, which restrict
the entry of non-compliant goods.¹58 The SPS Agreement imposes restrictions on
a State’s ability to implement certain inward measures. Given the importance of
agriculture to the livelihoods of most of the world’s poorest people, as discussed in
Chapter 6, and the importance of quarantine measures in protecting consumers
and others from health risks or risks to food supplies, SPS measures can set up a
clash of respective human rights interests.
The SPS Agreement imposes the following disciplines on SPS measures. States
should only adopt SPS measures which are necessary to protect the health of
humans, animals, and plants (Article 2.2). Such measures should be based on
scientific evidence and principles (Article 2.2), and must comply with MFN and
¹55 See Stephen Powell, ‘The place of human rights law in World Trade Organization rules’ (2004)
16 Florida Journal of International Law 219, 220.
¹56 European Communities—Measures prohibiting the importation and marketing of seal products,
WTO docs. WT/DS400/1 (2 November 2009) (Requests for Consultations by Canada) and WT/
DS401/1 (5 November 2009) (Request for Consultations by Norway). It is notable, from a human
rights point of view, that the Canadian Inuit argue that the ban threatens their livelihoods and their
communities: see, eg, ‘Canadian Seal Hunters lose bid to lift EU import ban’, ABC News, 29 October
2010, at <http://www.abc.net.au/news/stories/2010/10/29/3051380.htm?section=world>.
¹57 Van den Bossche, above n 6, 463.
¹58 In the Asbestos case, Canada had initially claimed that the ban on asbestos products was in
breach of the SPS Agreement as well as the GATT (see WT/DS/135/3, 9 October 1998). Presumably
this claim was based on the reference in the SPS Agreement to ‘diseases’ (such as, perhaps, asbestosrelated cancer). However, Canada did not pursue the claim before the Panel (see Appellate Body
report, above n 34, fn 4).

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D. The SPS and TBT Agreements

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national treatment principles (Article 2.3).¹59 Finally, Article 2.4 confirms that
SPS measures are permissible under WTO law so long as they comply with the SPS
agreement: they are not subject to a separate challenge under GATT.
Article 3 of the Agreement expresses a preference for harmonized SPS standards. To that end, States may base their standards on international standards or
conform to those standards. If a State does so, its SPS measures are presumed to
comply with the SPS Agreement. A State may still choose to impose a higher level
of protection of health under its SPS standards than is achieved under a relevant
international standard. However, if a State does so, it must justify its SPS standards
by reference to a scientific risk assessment.¹60
The concept of risk is crucial under the SPS Agreement. ‘Risk assessment’ is a
scientific process for establishing the risks entailed (for example, in the ingestion
of a certain microbe), taking into account likelihood and magnitude of risk. ‘Risk
management’ is a process for determining the level of protection required from a
certain risk and choosing SPS measures accordingly. Risk management decisions
take into account risk assessment, but also societal values, consumer preferences,
industry interests and costs.¹6¹
Article 5.1 requires that SPS measures be based on a risk assessment, taking into
account recognized risk assessment techniques. In EC—Measures concerning meat
and meat products (hormones),¹6² the Appellate Body clarified that there must be a
rational relationship between risk assessment and the measure adopted, and that
the assessment must ‘reasonably support’ the measure.¹6³
Article 5.2 specifies some scientific and technical factors that Members should
take into account in assessing risks such as the existence of ‘pest- or diseasefree areas’;¹64 that list is not exhaustive. Article 5.3 specifies certain economic
criteria that should be taken into account in devising SPS standards, such as
production losses in the event of the entry of a particular pest or disease into the
country.¹65
Article 5.5 requires that Members avoid ‘arbitrary or unjustifiable distinctions’
in their SPS measures if these distinctions ‘result in discrimination or a disguised
restriction on international trade’. Article 5.6 requires Members to ensure that
their SPS measures are ‘not more trade-restrictive than required to achieve their
appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility’. That is, a State should adopt a less trade restrictive measure if it is reasonably available and will achieve the same level of desired
protection.
Finally, Article 5.7 deals with the situation where there is a dearth of scientific
evidence on relevant risks. WTO Members in that situation may adopt provisional
¹59 Van den Bossche, above n 6, 463.
¹60 Ibid, 464.
¹6¹ Ibid.
¹6² European Communities—Measures concerning meat and meat products (hormones), WTO docs.
WT/DS26/AB/R and WT/DS48/AB/R, Ab-1997-4 (16 January 1998) (Report of the Appellate Body).
¹6³ Ibid, para 193.
¹64 Eg, Australia can justify stronger measures to keep out rabies, given that rabies does not exist
in Australia, compared to a country that already has rabies.
¹65 See also Van den Bossche, above n 6, 465.

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‘Human Rights’ Restrictions on Trade

SPS measures. Members should review provisional SPS measures as more evidence
becomes available, with a view to modifying them as appropriate.
It is clear that the SPS Agreement is not only concerned with eliminating trade
discrimination: it imposes minimum standards on permissible SPS standards to the
extent that they affect trade. Those minimum standards relate to the requirements
for risk assessments and the need for proportionality to be maintained between
those risk assessments and the measures adopted. In Beef Hormone, the Appellate
Body found that the impugned measures breached the SPS Agreement even though
they did not discriminate between EC and foreign products. Driesen argues that
the decoupling of the regulation of SPS measures from non-discrimination provisions was a big step by the WTO towards ‘trade free of national regulation under a
broad laissez-faire conception’.¹66
The cases decided so far under WTO law have essentially concerned the provisions regarding risk assessment.¹67 Restrictions on genetically modified organisms (GMOs) were subject to a challenge before a WTO Panel in EC—Measures
aff ecting the approval and marketing of biotech products.¹68 The case concerned a
challenge to a de facto moratorium on the approval of GMOs by the EC as well
as bans on GMOs by certain individual EC States. The relevant moratorium and
bans were found to breach the SPS on the basis that risk assessments on GMOs had
not been carried out and had been unduly delayed. The breaches of the risk assessment requirements were blatant. Thus, the substantive issue of whether imports of
GMO foods could be restricted or banned was not addressed.
EC—Beef Hormone concerned an EC ban on all hormone-treated meat,
including local products and imports, due to concerns about the health impacts
of hormones including possible carcinogenic effects. The EC measures applied
a higher sanitary protection measure than that recommended by the Codex
Alimentarius, the relevant international standards body. The ban was found to
breach the SPS Agreement, as it was found not to be properly based on a risk
assessment.
The Appellate Body in Beef Hormone confirmed strict requirements for risk
assessments.¹69 There must be proof of risk, rather than mere theoretical uncertainty.¹70 However, an assessment may go beyond ‘controlled laboratory conditions’ and take into account consequences ‘in the real world where people live and
work and die’.¹7¹ The assessment must be focused on the particular type of risk
at issue rather than on a generalized risk of harm.¹7² Risk assessments can focus
on qualitative and quantitative assessments of risk. That is, assessments do not
have to establish a ‘minimum magnitude of risk’; they must simply establish that
¹66 Driesen, above n 59, 285.
¹67 Caroline E Foster, ‘Public Opinion and the interpretation of the World Trade Organisation’s
Agreement on Sanitary and Phytosanitary Measures’ in Joseph, Kinley, and Waincymer (eds), above
n 84, 288.
¹68 WT/DS291-293/R (29 September 2006) (Report of the Panel).
¹69 The following summary is taken from Van den Bossche, above n 6, 465.
¹70 EC—Hormones (Appellate Body), above n 162, para 186.
¹7¹ Ibid, para 187.
¹7² Ibid, para 200.

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D. The SPS and TBT Agreements

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a risk assessment justifies the measure taken.¹7³ Finally, a Member may rely on risk
assessments conducted by other States or by international organizations.¹74
The dispute resolution bodies have used scientific risk assessment as the touchstone for deciding whether an SPS measure is rational, implying that scientific
assessments are objective and relatively unimpeachable. The Beef Hormone decision was heavily influenced by the relevant Codex standard, which was lower than
that of the EC. However, the relevant standard had been adopted by the organization by a margin of 33-29 with seven abstentions,¹75 a vote which is hardly
indicative of an uncontroversial standard. The marginal nature of this vote was
not taken into account by the Panel (or the Appellate Body). While that approach
showed more fidelity to the words of the SPS Agreement,¹76 it probably unduly
undermined the ability of States to depart from Codex standards in the interests
of promoting the right to health. In fact, this level of reliance on science raises
greater problems ‘in terms of cultural autonomy and democratic legitimacy’.¹77
Scientific assessments are not value-free or culturally uniform.¹78 Science is also
often ‘incomplete and uncertain’.¹79 Nor is it stable, as scientific opinion on a
matter constantly evolves.
Dr Caroline Foster has argued that the assessment of risk must involve objective and subjective elements. While risk involves consideration of the likelihood
and magnitude of an eventuality, the Panels and Appellate Body have tended to
focus on likelihood, which is much easier to measure in objective technical terms
(so long as there is sufficient available scientific evidence).¹80 Yet an assessment
of magnitude clearly entails subjective elements, as questions of magnitude ‘will
always hinge partly on value judgments by the society that is to be subjected to the
risk’.¹8¹ Therefore, in her view, the Panels should take public opinion into account
in making decisions under the SPS. Such consideration would result in more transparent decision-making. Presently, Panels and Appellate Body are likely influenced by their own views of the risk at issue but they do not tend to acknowledge
those views.¹8² A problem with Foster’s proposal is that consumer choice might
be manipulated for protectionist ends. For example, regarding the GMO issue, it
has been argued that European consumers are being brainwashed by a barrage of
GMO-propaganda produced by protectionist farmers in an unholy alliance with
¹7³ Ibid, para 186. See also Australia—Measures aff ecting importation of salmon, WTO doc. WT/
DS18/AB/R, AB-1998-5 (20 October 1998) (Report of the Appellate Body) para 124.
¹74 EC—Hormones (Appellate Body), above n 162, para 190.
¹75 Jürgen Kurtz, ‘A Look behind the Mirror: Standardization, Institutions and the WTO SPS
and TBT Agreements’ (2007) 30 University of New South Wales Law Journal 504, 518.
¹76 European Communities—Measures concerning meat and meat products (hormones), WTO
doc. WT/DS48/R/CAN (18 August 1997) (Report of the Panel) para 8.69.
¹77 David Winickoff and others, ‘Adjudicating the GM food wars: Science, Risk, and Democracy
in World Trade Law’ (2005) 81 Yale Journal of International Law 81, 91, 92.
¹78 Winickoff and others, ibid, trace the differing social science and regulatory experiences of the
EC and the US in the context of ‘testing’ GMOs at 93–6.
¹79 Foster, above n 167, 309.
¹80 Ibid, 297–8.
¹8¹ Ibid, 298.
¹8² At 299, ibid, Foster notes that the Panel in Biotech seemed to believe that the risk entailed in
biotech products was not great, ‘a view seemingly not shared by Austria, France, Germany, Italy,
Greece and Luxembourg’.

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‘Human Rights’ Restrictions on Trade

influential NGOs.¹8³ However, Foster argues that evidence of the provision to the
public of appropriate information could be sought, including evidence of a process
of public consultation and deliberation (including processes which take account
of the views of affected offshore exporters).¹84 Furthermore, she does not argue
that public opinion should be the decisive consideration. Scientific risk assessment would retain an important role in SPS decisions,¹85 but the opinions of the
people to be affected by the decisions would be another relevant consideration.
Consideration of public opinion would accord with democratic principles, including rights of political participation in Article 25 of the ICCPR.¹86 Finally, it may
lend some much-needed legitimacy to the WTO’s dispute resolution processes,
given that States have been very reluctant to implement WTO decisions which run
counter to domestic public opinion.¹87
The EC in Beef Hormone attempted to justify its ban on the basis of the precautionary principle, to the effect that it was entitled to ban hormone-injected beef to
ensure protection for European consumers from potentially deadly harm until the
safety of such hormones was established. The Appellate Body found that the precautionary principle was partially enshrined in Article 5.7, but that Article 5.7 did
not override the risk assessment requirements of Articles 5.1 and 5.2.¹88
It is possible that the interpretation of the SPS decision in Beef Hormone overly
constrains a Member’s ability to adopt inward health measures, particularly in
situations where there is insufficient scientific evidence accompanied by a suspicion of serious health risks. Certainly, the EC policy probably would have been
applauded by international human rights bodies, though it is perhaps a stretch to
claim that the forced entry of hormones into the EC beef market would breach the
right to health. On the other hand, Special Rapporteurs on the Right to Health¹89
and the Right to Food¹90 have endorsed the precautionary principle, with the latter
claiming that it was an especially appropriate principle to apply in the context of
genetically modified foods.
Despite their positive impact on the right to health, SPS measures are highly
problematic for developing States. Most of the poorest people in the world depend
on agriculture for their livelihoods and SPS measures can pose onerous trade barriers which threaten those livelihoods, and hamper the abilities of agricultural
workers to climb out of poverty. For example, an EU regulation, which requires
dairy products made from cow’s milk to be produced from cattle milked mechanically, effectively prevents trade with the many small producers who cannot afford
¹8³ Lawrence A Kogan, ‘Trade protectionism: Ducking the truth about Europe’s GMO policy’
International Herald Tribune (New York), 27 November 2004.
¹84 Foster, above n 167, 303–4.
¹85 Ibid, 290 and 306.
¹86 Ibid, 306–8. See also Chapter 3, Part B.
¹87 Ibid, 287 and 309.
¹88 EC—Hormones (Appellate Body), above n 162, paras 124–5.
¹89 See Human Rights Council, ‘Report of the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health; Preliminary note on the
mission to Ecuador and Colombia’, UN doc. A/HRC/7/11/Add.3 (4 March 2007) 17.
¹90 See UN Press Release, ‘Statement on Issue of Genetically Modified Food by Special
Rapporteur on the Right to Food’, 12 November 2002, <http://www.unhchr.ch/huricane/huricane
.nsf/view01/40D2D521A7678C13C1256C6F005688C3?opendocument> and <http://www.ohchr
.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=2251&LangID=E> accessed 7 May 2010.

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D. The SPS and TBT Agreements

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mechanization.¹9¹ As another example, a World Bank report in 2001 found that
the SPS standards imposed by the EU in respect of aflatoxins, which were set above
international standards, would cut African exports of nuts and grains by 64 per
cent at a cost of US$640 million.¹9² Those trade losses caused significant human
rights harms in terms of the right to work and the right to an adequate standard of
living, especially given the limited adjustment capacities of African economies. At
the same time, it was estimated that the aflotoxin measures reduced health risks by
1.4 deaths per billion per annum.¹9³
The aflatoxin case study gives rise to a difficult conundrum from a human rights
point of view. Those 1.4 per billion people undoubtedly have a right to life. Should
Europe be required to lower its SPS standard and jeopardize the lives of 1.4 people
per billion in order to safeguard the livelihoods and the rights of those dependent
on the nut and grain export industry?¹94 The right to life is not absolute: one may
not be ‘arbitrarily’ deprived of one’s life.¹95 Is the subjection of a person to such a
low risk a breach of the right to life? Certainly, no State has an obligation to reduce
all lethal risks to zero. Otherwise, for example, States would be commonly condemned by human rights bodies for permitting people to drive cars at potentially
lethal speeds.
The Appellate Body in Beef Hormone added in a footnote which noted that if the
arguments regarding the dangers of the hormones were true, 371 women in the
EU out of a population in 1995 of 371 million were likely to develop breast cancer,
perhaps implying that those potentially lethal illnesses were justified by the liberalizing effects of allowing hormone-injected beef into the EU.¹96 In contrast, the EC
had argued that any risk, even ‘a risk of one in a million’, was sufficient justification for an SPS measure.¹97 From a human rights point of view, it is questionable
whether a State is obliged to protect against such slight threats to life and health.
On the other hand, trade liberalization per se does not justify a retrogressive measure (such as the removal of the hormone ban if one accepts that the hormones
might cause breast cancer for a few women) with regard to the right to health,
even one which only raises the risk by a ‘one in a million’ chance.¹98 However, the
countervailing human rights of traders, if their rights to work and to a livelihood
¹9¹ Kurtz, above n 175, 512.
¹9² Tsenuhiro Otsuki, John S Wilson, and Mirvat Sewadeh, ‘A Race to the Top? A Case Study of
Food Safety Standards and African exports’( World Bank Policy Research Working Paper No 2563)
(World Bank, Washington DC, February 2001).
¹9³ Ibid.
¹94 See also Joel P Trachtman, ‘Developing Countries, the Doha round, Preferences, and the
Right to Regulate’ in Chantal Thomas and Joel P Trachtman (eds), Developing Countries in the WTO
Legal System (Oxford University Press, New York, 2009) 122. See also Chapter 8 below on the notion
of extraterritorial obligations.
¹95 See Article 6 ICCPR. I will not undertake a comparable analysis regarding a possible limit to
rights of political participation in Article 25, which could also be qualified by being balanced against
the human rights of offshore traders. See also Chapter 3, text at notes 155–6.
¹96 EC—Hormones (Appellate Body), above n 162, fn 182; see also Anne Orford, ‘Beyond
Harmonization: Trade, Human Rights and the Economy of Sacrifice’ (2005) 18 Leiden Journal of
International Law 179, 191.
¹97 EC—Hormones (Appellate Body), above n 162, para 29.
¹98 See also Chapter 1, text at notes 71–2 on retrogressive measures under the ICESCR.

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‘Human Rights’ Restrictions on Trade

were seriously threatened, might justify such a measure. It is doubtful that such
human rights were threatened by the EU’s hormone ban, given that the aggrieved
traders were located in developed States, so it is unlikely their rights to an adequate
standard of living were seriously threatened.¹99
At the least, developed States (which generally impose the strictest SPS standards) must negotiate with and supply technical assistance to developing States
(which are the least able to comply with strict SPS standards) to ameliorate the
harshest impacts of their SPS measures. Furthermore, efforts must be made to
increase developing country participation in relevant standard setting bodies such
as Codex.²00 Article 9 of the SPS agreement recommends the provision of technical assistance. Article 9(2) specifies:
Where substantial investments are required in order for an exporting developing country
Member to fulfil the sanitary or phytosanitary requirements of an importing Member,
the latter shall consider providing such technical assistance as will permit the developing
country Member to maintain and expand its market access opportunities for the product
involved (emphasis added).

Like most provisions concerning the provision of international assistance,
Article 9(2) is not mandatory.²0¹
Further illumination of the impact of the SPS Agreement on the right to health
may be forthcoming if a current trade dispute between South Korea and Canada
leads to a Panel decision. The dispute concerns Korean restrictions on bovine meat
and meat products from Canada due to the risk of bovine spongiform encephalopathy (‘mad cow disease’).²0²

The TBT
The TBT agreement regulates ‘technical regulations and standards’ which might
impose barriers to trade. Like the SPS, it imposes requirements of national treatment and MFN, and certain minimum standards.²0³ Technical regulations and
standards are mandatory measures which prescribe product characteristics for an
identifiable product or group of products.²04 Examples of such regulations include
labelling and packaging requirements. Onerous requirements can unduly hinder
foreign trade.
Under Article 2.2, technical requirements must not be more trade restrictive than necessary. They must be adopted for a legitimate purpose, which
imposes a minimum standard requirement rather than a requirement of nondiscrimination: a non-discriminatory technical requirement which fails to
¹99 They also probably had access to alternative markets, including local markets. Furthermore,
alternative hormone-free methods of production may have been available to affected producers.
²00 See generally, Kurtz, above n 175. See also Chapter 3, text at notes 52–4.
²0¹ See also SPS, Article 10. See also Chapter 5, text at notes 31–4.
²0² Korea— Measures aff ecting the importation of bovine meat and meat products from Canada,
WTO doc. WT/DS391/1 (15 April 2009) (Request for Consultations by Canada).
²0³ TBT, Articles 2.1, 2.2.
²04 Van den Bossche, above n 6, 458.

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D. The SPS and TBT Agreements

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appropriately serve a legitimate purpose will breach the TBT. Article 2.2 contains a non-exhaustive list of such purposes, such as the protection of human
health and the environment. Presumably, the protection of human rights would
suffice as a legitimate purpose. Where an international standard for a technical
requirement exists, a Member’s technical requirement should be based on that
standard (Article 2.4).²05 However, a Member may depart from that standard if
the standard is not effective in fulfi lling the objective pursued, or if there are geographical or climatic factors, or technological problems, that render the international standard inappropriate.
The definition of a technical standard is very broad. In Asbestos, the Appellate
Body gave some clues as to the measures affected by the TBT agreement. It found
that the ban on asbestos fibres (with some limited exceptions) prescribed technical requirements for an identifiable group of products, that is ‘all products that
might contain asbestos’.²06 Therefore, it overruled the Panel and found that the
measures fell within the TBT. However, the Appellate Body did not go on to
examine whether the asbestos prohibition breached the TBT. The Panel, having decided that the TBT did not apply, accordingly failed to rule on Canada’s
claims under the TBT. As the Panel had not dealt with the TBT claims in detail,
the Appellate Body found itself unable to do so.²07 The Appellate Body did note
that the TBT obligations were ‘diff erent from, and additional to’ GATT obligations.²08 Therefore, it is possible that the win for the right to health in the Asbestos
case could possibly be undone by a new claim regarding the TBT compliance of
the prohibition.²09
The Appellate Body perhaps recognized the breadth of the consequences of its
finding regarding the TBT Agreement in Asbestos in stating:
We note, however—and we emphasize—that this does not mean that all internal measures
covered by Article III:4 of the GATT 1994 ‘affecting’ the ‘sale, offering for sale, purchase,
transportation, distribution or use’ of a product are, necessarily, ‘technical regulations’
under the TBT Agreement. Rather, we rule only that this particular measure . . . falls within
the definition of a ‘technical regulation’ given in Annex 1.1 of that Agreement.²¹0

Nevertheless, the Appellate Body did not hint at any particular limit to the definition of a ‘technical standard’ beyond an indication that a total prohibition on a
particular product might not be a technical standard in regard to that product.²¹¹
It is therefore very possible that the TBT, especially given its explicit prescription
of minimum standards beyond non-discrimination obligations, significantly

²05 See, on this requirement, European Communities—Trade Description of Sardines, WTO
doc. WT/DS231/AB/R, AB-2002-3 (26 September 2002) (Report of the Appellate Body) para 249.
²06 EC—Asbestos (Appellate Body), above n 34, para 75.
²07 Ibid, para 83.
²08 Ibid, para 80, emphasis not added.
²09 No such challenge has arisen.
²¹0 EC—Asbestos (Appellate Body), above n 34, para 77.
²¹¹ Ibid, para 71. The Appellate Body suggested that the ban on asbestos fibres prescribed no
characteristics for the fibres themselves. Note also that the TBT Agreement does not apply to SPS
standards, which are dealt with exclusively under the SPS Agreement (Article 1.5).

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128

‘Human Rights’ Restrictions on Trade

constrains the regulatory capacities of States, and may therefore limit their abilities
to implement human rights trade measures.
For example, it is fairly certain that the TBT regulates the mandatory imposition of labeling requirements.²¹² While spurious and onerous labelling requirements should probably be restricted, human rights considerations demand that
the interpretation of the TBT ensures that consumer rights to informed choices
regarding the food they consume are not prejudiced by overzealous labeling prohibitions.²¹³ For instance, labels which identify GMOs should be permitted under
the TBT, so as to enable a consumer to avoid such products if he or she wishes.
Such a labelling requirement would not be onerous.²¹4 While such labels might
place genetically modified products at a disadvantage in markets where consumers
are largely hostile to GMOs, the rights of consumers to such information should
prevail over rights of free trade.
We await further interpretation of the TBT by the Panels and the Appellate
Body to clarify the extent of its constraints on State regulatory capacities. However,
human rights advocates might be skeptical that the right balance will be struck,
given the lack of human rights expertise and the predominance of trade expertise
on the Panels and the Appellate Body.
However, the breadth of the TBT might open a door for the application of
human rights measures. McBeth has suggested that any measure which sought
to impose labour rights standards as a condition for the importation of goods
might be a technical requirement subject to the TBT.²¹5 If such measures were
imposed by reference to the standards of the International Labour Organization
(ILO), they might be deemed to be based on an international standard and
therefore ‘rebuttably presumed not to create an unnecessary obstacle to trade’
under Article 2(5). Such a measure would not be totally immune from WTO
challenge under the TBT or the GATT,²¹6 but would at least benefit from a
presumption of WTO compatibility. Indeed, that approach could perhaps be
applied to any trade restrictive measure that applied a human rights standard.
Th is argument is stronger in regard to inward measures, where human rights
obligations apply, rather than outward measures, where they would rarely if
ever apply.

²¹² The TBT would not constrain voluntary labeling schemes adopted by industry groups:
Cassimatis, above n 6, 401.
²¹³ See CESCR, ‘General Comment 12: The Right to Adequate Food’, UN doc. E/C.12/1999/5
(12 May 1999) para 11, on the right of consumers to information about the nature of the food they are
eating. Similarly, people have a right to make informed choices regarding their own health, including perhaps the right to choose to avoid GMOs which can only be protected if labelling is allowed:
see General Comment 14, above n 132, para 37. Article 19(2) ICCPR guarantees the right to freedom
of expression, including the right to seek and receive information, though this right may not apply
outside the context of government information. See also Schultz and Ball, above n 129, 57–9.
²¹4 I would include here labels which identify the possibility of some GMOs in the product, given
that some manufacturers might be unable to guarantee the total absence of GMOs.
²¹5 McBeth, above n 27, 131–2.
²¹6 The GATT also applies to technical measures, though the TBT would prevail in the unlikely
event of a clash between the two treaties: Van den Bossche, above n 6, 459.

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E. Waivers

129

E. Waivers
Under Article IX of the Marrakesh Agreement, a WTO obligation may be waived
in exceptional circumstances if approved by three quarters of WTO members.
Waivers may be used to allow the departure from WTO rules for human rights
reasons. For example, the General Council adopted a waiver to permit Members
to restrict the diamond trade to diamonds certified under the Kimberley Process
Certification Scheme.²¹7 The Kimberley Process Certification Scheme is designed
to guard against the trade in diamonds that indirectly fund civil wars in Africa.
In the waiver, initially adopted in May 2003, the General Council explicitly
recognizes:
the extraordinary humanitarian nature of this issue and the devastating impact of conflicts
fuelled by the trade in conflict diamonds on the peace, safety and security of people in
affected countries and the systematic and gross human rights violations that have been
perpetrated in such conflicts . . . ²¹8

Susan Aaronsen describes the waiver as an important precedent, which was ‘the
first time that the WTO . . . approved a waiver to protect human rights’.²¹9 It may
be noted that the US and Canada refused to join the Kimberley Scheme unless the
WTO adopted an explicit waiver to permit that Scheme. That reluctance demonstrates how States can prioritize WTO considerations over human rights considerations, given the clear link between the diamond trade and gross human rights
violations in West Africa.²²0
Another waiver with positive ramifications for human rights was adopted in
August 2003, concerning the ‘Implementation of Paragraph 6 of the Doha
Declaration on the TRIPS Agreement and Public Health’.²²¹ This waiver has
important implications for the right to health and is discussed in Chapter 7 of this
book.
As a ‘solution’ to any possibility that WTO rules might hinder the adoption
of human rights trade measures, the possibility of waiver is important but limited. Most obviously, waivers can only be adopted if there is a significant degree of
political will in the form of the consent of three quarters of the WTO membership.
Waivers are therefore unlikely to arise in contentious areas. Nor are they likely to
arise if the waiver authorizes trade measures against politically powerful Members,
²¹7 See WTO, ‘Waiver Concerning Kimberley Process Certification Scheme for Rough
Diamonds’ (Decision of 15 May 2003), WTO doc. WT/L/518 (27 May 2003). See also <http://
www.kimberleyprocess.com>; Harrison, above n 10, 92–5.
²¹8 WTO, above n 217, preamble.
²¹9 Susan Aaronsen, ‘Seeping in slowly: how human rights concerns are penetrating the WTO’
(2007) 6 World Trade Review 413, 428.
²²0 See Harrison, above n 10, 94, and 236. Even though the Kimberley Scheme regulated outward
measures, it is possible that the continued engagement in trade in conflict diamonds by the US and
Canada would breach their human rights obligations, given the close causal relationship between
that trade and the financial base of groups perpetrating egregious human rights abuses.
²²¹ WTO, ‘Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement
and Public Health’ (Decision of 30 August 2003), WTO doc. WT/L/540 (2 September 2003).

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130

‘Human Rights’ Restrictions on Trade

as those Members will likely mobilize enough political support to prevent the adoption of a waiver. Furthermore, waivers are only meant to be temporary measures,
and human rights problems often cannot be ‘temporarily’ resolved.²²² Having said
that, waivers can be extended. For example, the Kimberley waiver initially only
lasted until the end of 2006. It has since been extended to the end of 2012.²²³

F. A ‘Labour Rights’ Clause for the WTO?
Labour rights are recognized in many treaties under the auspices of the ILO. ‘Core
labour standards’ are recognized in the ILO Declaration on Fundamental Rights
at Work 1998 as: freedom of association and the right to collective bargaining,
freedom from forced labour, freedom from child labour, and the right to nondiscrimination in employment. Aspects of labour rights are also recognized in the
ICESCR in articles 6 (the right to work), 7 (right to just and equitable conditions
of work) and 8 (trade union rights), as well as in articles 8 (freedom from slavery
and forced labour) and 22 (freedom of association) of the ICCPR.
The most commonly mooted outward measures in academic and activist literature are those targeted at labour rights violations in other States. Examples
are measures which restrict imports of goods that are manufactured by children,
under conditions of forced labour, or in States where trade unions are suppressed
or banned. Relevant trade measures might be aimed at coercing a State into raising
its labour standards.
Labour rights measures may however be conceptualized as inward measures,
designed to rectify the distorting effects of unfair trade practices.²²4 An exporting State may be attaining an unfair competitive advantage in permitting excessively low wages and exploitative practices, lowering the ‘normal’ cost of the labour
component of goods or services. The effect can be to drive workers out of jobs
in the importing State, or to depress their working conditions. This phenomenon
(if it exists) is sometimes termed ‘social dumping’.²²5 Ordinary dumping arises
when goods are exported at less than their normal value. Dumping is not prohibited under WTO law, but States are permitted to respond to dumping by taking anti-dumping measures pursuant to Article VI GATT and the Agreement on
Implementation of Article VI. Anti-dumping measures are supposed to counteract
the unfair nature of dumping. By analogy, social dumping also constitutes unfair
trade, which should therefore justify analogous countermeasures.²²6 Indeed,
²²² Aaronsen, above n 219, 429.
²²³ WTO, ‘Kimberley Process Certification Scheme for Rough Diamonds’ (Decision of 15
December 2006), WTO doc. WT/L/676 (19 December 2006).
²²4 Robert Wai, ‘Countering, Branding and Dealing: Using Economic and Social Rights in and
Around the International Trade Regime’ (2003) 14 European Journal of International Law 35, 60.
²²5 Walter Goode, Dictionary of Trade Policy Terms, 5th edn (Cambridge University Press,
Cambridge, 2007) 392.
²²6 See also Joseph E Stiglitz and Andrew Charlton, Fair Trade for All (Oxford University Press,
New York, 2005) 153–4.

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F. A ‘Labour Rights’ Clause for the WTO?

131

notions of social dumping probably underpin the exception in Article XX(e) concerning prison labour.
A related concern is that the global trade competition catalysed by WTO rules
generates a ‘race to the bottom’ in that States will compete with each other to offer
conditions designed to attract investment, such as low wages and poor labour conditions, or will depress labour conditions to maintain trade competitiveness. If
the ‘race to the bottom’ thesis is true, the progressive realization of labour rights is
being undermined, and free trade is acting as a catalyst for human rights abuses.
In such a case, it would be appropriate for WTO rules to alleviate that impact by
safeguarding labour rights in some way.
Labour is an inherent aspect of trade. The trade/labour link is explicitly recognized in the preamble to the Marrakesh Agreement, with its references to ‘economic endeavour’ and ‘full employment and a large and steadily growing volume of
real income’.²²7 Proposals for inclusion of a ‘social clause’ to protect against labour
rights violations were part of the proposals for an International Trade Organization
in the immediate post-war period.²²8 Indeed, social clauses have been included in
a number of commodities agreements.²²9 It is arguably odd that a topic such as
intellectual property is within the WTO tent, which came late to the trade debate,
while labour remains outside.²³0 Indeed, the inclusion of intellectual property
rights in the WTO agreements was ostensibly motivated by similar arguments that
arise today with regard to labour: the intellectual property regime needed to be
strengthened in order to prevent it from being weakened by the growth of global
trade.²³¹ That is, the enforcement regime that pre-existed TRIPS was weak, as is
the case today with the ILO and labour rights.
Labour rights reform became a necessary part of the industrial revolution in
developed States to curb abuses.²³² Likewise, stronger global labour rights protection is probably needed to ward off labour abuses in the current globalized economic revolution.²³³ Such protection could take the form of a minimum standards
clause, performing a similar function to TRIPS regarding intellectual property
protection. Alternatively, the protection of labour rights could form an exception
to WTO free trade obligations along the lines of the existing Article XX/XIV
²²7 World Commission on the Social Dimension of Globalisation, A Fair Globalization: Promoting
Opportunities for all (ILO, Geneva, 2004) para 505.
²²8 Steve Charnovitz, ‘The (neglected) employment dimension of the World Trade Organization’
in Virginia A Leary and Daniel Warner (eds), Social Issues, Globalisation and International Institutions
(Martinus Nijhoff, Leiden, 2006) 138–9. See Chapter 1, text at n 2.
²²9 Eg, social clauses were included in the International Coffee Agreement of 2001 and in the tin
and sugar agreements of 1954: Goode, above n 225, 392.
²³0 See also Deborah Z Cass, The Constitutionalization of the World Trade Organization (Oxford
University Press, New York, 2005) 235.
²³¹ Chantal Thomas, ‘The WTO and labor rights: strategies of linkage’ in Joseph, Kinley, and
Waincymer (eds), above n 84, 276–7.
²³² See Simon Deakin, ‘Social Rights in a Globalized Economy’ in Philip Alston (ed), Labour
Rights as Human Rights (Oxford University Press, Oxford, 2005) 38, and, for an account of the evolution of social rights in Great Britain, 26–38.
²³³ See also World Commission on the Social Dimension of Globalisation, above n 227, at xiii
and paras 426, 501.

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132

‘Human Rights’ Restrictions on Trade

exceptions, permitting the unilateral imposition of trade sanctions in response to
poor labour rights standards in the sanctioned State. As noted below, there are
other potential models for a social clause which may be worth exploring.
The idea of a social clause within the WTO agreements was defeated at the
WTO Ministerial Conference in Singapore in 1996.²³4 In the Singapore
Ministerial Declaration, WTO Members reaffirmed a ‘commitment to the observance’ of core labour standards, but they rejected ‘the use of labour standards for
protectionist purposes, and [agreed] that the comparative advantage of countries,
particularly low-wage developing countries’ must not be ‘put into question’.²³5
Thus, developing States are generally opposed to a social clause because they fear
that it would be abused for protectionist purposes to undercut their comparative
advantages in labour costs.²³6 Hence, the WTO confirmed that the ILO was ‘the
competent body to set and deal with [labour] standards’, rather than the WTO.²³7
Whilst it is laudable that the WTO Members affirmed their support for the ILO’s
work, the fact remains that the ILO’s record in enforcing labour rights is, in the
words of Professor Chantal Thomas, ‘woeful’.²³8 It is therefore submitted that
there is merit in reviving the debate over the explicit linkage of trade and labour
within the WTO framework.
The existence of a race to the bottom regarding labour standards is disputed.²³9
While workers across the industrialized world perceive greater job insecurity due
to globalization, those fears are not necessarily well founded.²40 Certainly, any
increase in jobs caused by export markets might create demand for labour by
providing jobs where there were none, and even drive up wages.²4¹ For example,
reports from China in mid-2010 suggest that this phenomenon may be starting to
take place in that country.²4²
There is no evidence that foreign investment is generally being redirected to
states with poor labour rights regimes.²4³ Many factors drive foreign investment,
of which the price of labour is but one, including the adequacy of infrastructure,
²³4 Thomas, above n 231, 281.
²³5 WTO, ‘Singapore Ministerial Declaration’ (Adopted on 13 December 1996), WTO doc. WT/
MIN(96)/DEC (18 December 1996) para 4.
²³6 See also Anita Chan and Robert JS Ross, ‘Race to the Bottom: international trade without
a social clause’ (2003) 24 Third World Quarterly 1011, 1012; Ilan Kapoor, ‘Deliberative democracy
and the WTO’ (2004) 11 Review of International Political Economy 522, 534; World Commission on
the Social Dimension of Globalisation, above n 227, para 425. See also Mahathir Mohammed, ‘East
Asia will find its own roads to democracy’ International Herald Tribune, 17 May 1994.
²³7 Singapore Ministerial Declaration, above n 235, para 4.
²³8 Thomas, above n 231, 258.
²³9 See also Harrison, above n 10, 77–80.
²40 WTO and ILO, Trade and Employment: Challenges for Policy Research (WTO Secretariat,
Geneva, 2007) 89.
²4¹ Department of Foreign Affairs and Trade, Globalisation: Keeping the Gains (Commonwealth
of Australia, Canberra, 2003) 11; Oxfam, Rigged Rules and Double Standards (Oxfam, London,
2002) 51 and 55.
²4² See, eg, David Barboza, ‘As China’s Wages Rise, Export Prices Could Follow’ New York Times,
7 June 2010 <http://www.nytimes.com/2010/06/08/business/global/08wages.html> accessed
22 September 2010.
²4³ See, eg, Bob Hepple, Labour Laws and Global Trade (Hart, Oxford, 2005) 14–15. See also
OECD, Trade, Employment and Labour Standards (OECD, Paris, 1996) and OECD, International
Trade and Core Labor Standards (OECD, Paris, 2000).

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F. A ‘Labour Rights’ Clause for the WTO?

133

property rights regimes, availability of and attractiveness to skilled staff, levels of
crime and corruption, and security issues. Notwithstanding higher labour rights
protection, developed States clearly have huge advantages over developing States in
attracting foreign investment. They also have huge advantages in terms of worker
productivity.
Indeed, a pattern has emerged in many developing States with some of the worst
labour records of de-industrialization (indicating jobs lost in the manufacturing
sector)²44 and transformation from food exporting to food importing status (indicating a loss of jobs in the agricultural sector).²45 Low labour costs do not seem to
coincide with success in the modern global economy.²46 Furthermore, numerous
studies have indicated that conditions in factories in developing States run by foreign investors, even if poor, are better than those run by local entrepreneurs.²47 The
same is reportedly true of the much-maligned export processing zones (EPZs),²48
though there is evidence of widespread gender discrimination, poor occupational
health and safety (which impacts on rights under Article 7 ICESCR) and occasional mistreatment of workers.²49
However, the above circumstances do not mean that there is no race to the bottom. In response to claims regarding the ‘good’ labour rights record of foreign
investors in developing States compared to local businesses, it may be noted that
foreign investors often do not run factories themselves, but instead source supplies from local contractors. Those contractors may compete with each other to
offer attractively cheap labour to those investors.²50 Therefore, unconscionable
labour standards may be hidden in a supply chain. Furthermore, there are some
instances where labour standards in EPZs are ‘explicitly lower’ than in the rest of
a country.²5¹
A relevant indicator in identifying a race to the bottom is whether the advent
of global competition has prompted governments to reduce labour entitlements.
Indeed, many governments certainly act as if deregulation of the labour force and
a diminution of labour rights is needed in order to compete in the global economy.²5² For example, a recent report by the NGO War on Want, based on ILO
reports and other authoritative materials, asserts that free trade has caused or at
²44 See also Chapter 5, Part E. See also War on Want, ‘Trading away our jobs: How free trade
threatens employment around the world’ (2009) at <http://www.waronwant.org/attachments/
Trading%20Away%20Our%20Jobs.pdf>.
²45 See also Chapter 6, text at notes 75–8.
²46 See also Martin Wolf, Why Globalisation Works (Yale Nota Bene, London, 2005) 233.
²47 Ibid, 238–9.
²48 An EPZ is an area where a State permits the duty-free import of primary goods or components
for the purposes of further processing and assembly and subsequent export: Goode, above n 225, 182.
²49 Andrew Lang, Trade Agreements, Business, and Human Rights: the case of export processing zones
(Corporate Responsibility Initiative, Working Paper no 57) (April 2010) 18–20.
²50 See Van den Bossche, above n 6, 15, citing a War on Want report, ‘The Global Workplace’,
from 2004.
²5¹ Lang, above n 249, 20.
²5² Hepple, above n 243, 10 and 17; Steve Charnovitz, ‘Labor in the American Free Trade
Area’ in Philip Alston (ed), above n 232, 163–5; United Nations Human Settlements Programme,
Global Report on Human Settlements 2006: The Challenge of Slums (UN Habitat, London, 2006) 53;
Harrison, above n 10, 79.

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134

‘Human Rights’ Restrictions on Trade

least coincided with widespread job losses and deteriorating job conditions across
the world.²5³ While some deregulation in some markets might be warranted, a
labour rights clause in the WTO might curb measures which ill-advisedly drive
standards so low as to breach human rights.
In a 2007 report on trade and employment compiled under the joint auspices of
the WTO and the ILO, the authors concluded:
trade policies and labour and social policies do interact and that greater policy coherence
between the two domains can help ensure that trade reforms have significantly positive
effects on both growth and employment.²54

The report does not explicitly discuss a labour rights clause. However, it does recognize that trade and labour policies should not develop in isolation from each
other, and that benign or beneficial impact on the latter by the former cannot be
presumed.
If global economic integration and competition is generating a race to the bottom, there is a human rights imperative to address that circumstance to ensure
the maintenance of some form of minimum social floor. If the race to the bottom
does not exist, that circumstance would indicate that there is no real comparative
advantage in the maintenance of low labour conditions. In that case, a social clause
should not disrupt the balance of trade, but it might facilitate a decrease in labour
rights violations. While this author believes that respect for labour rights is important in and of itself, I add that an increase in labour rights and conditions can have
beneficial economic effects, such as the creation of a more productive and healthier
workforce with higher morale.²55 Furthermore, a social clause might incentivize
diversification away from low-skilled labour as a basis for a State’s comparative
advantage. An export economy based on such labour is highly vulnerable, so such
diversification is beneficial where possible.²56
The labour rights debate in the WTO has been an area of North/South dispute.
However, international labour rights are designed to protect all workers all over
the world. There are demands in developing States for decent jobs just as there are
in industrialized nations.²57 Indeed, a labour rights clause is perhaps more likely
to protect jobs in developing States from unconscionable competition from other
developing States.²58 The demand for labour in a State can easily be undermined
by the cheaper availability of labour in another State. For example, War on Want
has reported how one in seven ‘maquilas’ in Mexico (where raw products are processed via assembly lines in sectors such as textiles and electronics) closed within
a year of China joining the WTO; the number of closures had nearly doubled a
²5³ See generally, War on Want, above n 244.
²54 WTO and ILO, above n 240, 10.
²55 At ibid, 66, the WTO and ILO note studies that show that freedom of association and collective bargaining rights ‘do not harm the export potential of developing countries and may even
stimulate it’. See also Hepple, above n 243, 15–16.
²56 See Chapter 5, text at notes 196–200.
²57 World Commission on the Social Dimension of Globalisation, above n 227, paras 66–9,
92–4.
²58 See, generally, Anita Chan and Robert J S Ross, above n 237. See also World Commission on
the Social Dimension of Globalisation, above n 227, para 389.

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F. A ‘Labour Rights’ Clause for the WTO?

135

year later.²59 The same report states that Chinese jobs are now threatened by even
cheaper labour in Vietnam.²60
While the governments of developing States are against a social clause, the same
is not necessarily true of their trade unions, many of which are supportive of a
social clause.²6¹ An empirical survey in 2002 of the attitudes of members of two
major global union federations (representing members from across the world) in
the education and metalwork sectors uncovered ‘overwhelming support among
union official and delegates’ for a social clause.²6²
Labour standards are currently imposed under regional²6³ and bilateral trade
and investment treaties.²64 Furthermore, the WTO permits States to unilaterally
offer preferential trade terms to underdeveloped States under the General System
of Preferences (GSP).²65 Both the US and the EU base certain GSP schemes on
adherence to labour and human rights standards.²66 In European Communities—
Conditions for the granting of tariff preferences to developing countries, the Appellate
Body indicated that such conditions can be attached to GSP schemes so long as
they are offered and applied in a non-discriminatory manner.²67 GSP measures
might be characterized as carrots rather than sticks, enticing but not forcing States
to adopt appropriate labour standards. However, a trade carrot can rapidly metamorphose into a stick, as the sudden withdrawal of preferential market access can
²59 War on Want, above n 244, 13; see also B Lynn, ‘Trading with a Low-Wage Tiger’ (2003)
14 The American Prospect 10 (available via <http://www.prospect.org/print/V14/2/lynn-ba.html>
accesssed 24 January 2006; Oxfam, above n 242, 79 and 139. See also Stiglitz and Charlton, above
n 226, 23.
²60 War on Want, above n 244, 32. See, however, text at note 242 above.
²6¹ See also Robert JS Ross and Anita Chan, ‘Reframing the Issue of Globalization and Labor
Rights’ (Revised from Presentation at the Political Economy of World Systems 2002 Conference,
University of California at Riverside) (undated) 10–11 <http://irows.ucr.edu/conferences/pews02/
pprross.doc> accessed 22 September 2010.
²6² See, generally, Gerard Griffin, Chris Nyland, and Anne O’Rourke, ‘Trade Unions and the
Social Clause: A North South Union Divide?’ (National Key Centre in Industrial Relations, Monash
University, Working Paper No 81, December 2002) <http://www.buseco.monash.edu.au/mgt/
research/working-papers/nkcir-working-papers/nkcir-workingpaper-81.pdf> accessed 20 September
2010 (quote from 15).
²6³ Eg, the North American Free Trade Agreement (NAFTA) contains a side agreement on labour
rights in the North American Agreement on Labor Cooperation. See also the Central American Free
Trade Agreement (CAFTA), Chapter 16. The US launched the first ever labour dispute under a free
trade agreement against Guatemala in 2010: see ICTSD, ‘Targeting Guatemala, US Launches FirstEver Labour Rights Dispute Under an FTA’ (2010) 14 Bridges Weekly Trade News Digest.
²64 See, eg, the Free Trade Agreements between the US and Jordan, and the US and Morocco. See
generally, Hepple, above n 243.
²65 See Chapter 5, text at notes 25–30.
²66 Eg, under the ‘GSP +’ arrangements of the EU, GSP preferences may be granted to certain
states if they ratify and implement certain labour rights treaties (and other human rights treaties),
and GSP preferences may be withdrawn due to systemic violations of certain labour rights conventions. GSP preferences have been withdrawn from Burma and Belarus on the basis of labour rights
violations. See Council Regulation (EC) No 552/97 of 24 March 1997 temporarily withdrawing access
to generalized tariff preferences from the Union of Myanmar (1997) Official Journal L 085, 8; Council
Regulation (EC) No 1933/2006 of 21 December 2006 temporarily withdrawing access to the generalised
tariff preferences from the Republic of Belarus (2006) Official Journal L 405, 35. On the US GSP
scheme, see Lang, above n 249, 31–2, and Harrison, above n 10, 112–13.
²67 See European Communities—Tariff Preferences, WTO doc. WT/DS246/AB/R (7 April 2004)
(Report of the Appellate Body).

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136

‘Human Rights’ Restrictions on Trade

have severe consequences for industries that have depended on that access and have
structured their business accordingly.²68
The existence of regional, bilateral and unilateral imposition of labour standards
strengthens the argument for a general WTO labour rights clause. A multilateral
approach to labour standards ensures greater consistency, and is less prone to abuse
and political arbitrariness than bilateral and unilateral approaches.²69 Of course, a
multilateral approach is also preferable from a labour rights perspective.
As noted above, labour rights measures might feasibly be permitted under the
‘public morals’ exceptions in Articles XX(a) GATT and XIV(a) GATS. From the
perspective of developing States, an explicit clause, with its parameters negotiated
openly by the plenary WTO membership, is preferable to a clause imposed via
interpretation by the judicial branch of the WTO.
If the threshold for minimum labour standards was set at an appropriate level,
those standards should not undercut any legitimate comparative advantages of a
State. There is, for example, nothing wrong per se from a human rights point of
view for State A to have lower wages than State B if State A has a lower cost of living
compared to State B. This will normally be the case if State A is a developing State
and State B is a developed State. Nor is there anything wrong with an industry
moving to take advantage of lower wages in State A, so long as some appropriate
provision for the loss of jobs in State B is made.²70 In such a scenario, State B has
a greater capacity to provide compensation for the loss of jobs if it is a developed
State through, for example, alternative employment, social security benefits, or
retraining programmes.
Labour rights protection in the WTO could take many forms. A starting point
would be to provide for protection of the core labour rights recognized by the ILO
complemented by the extra labour rights in the ICESCR. A labour rights clause
could constitute a sword, that is the mandating of minimum standards by the
WTO, or a shield, by permitting the unilateral enforcement of labour rights by
way of trade sanctions. Just as important as the substantive content of such a clause
would be its institutional platform. Labour rights protection could arise within
the WTO framework, or be a joint initiative between the WTO and the ILO, or
could entail the strengthening of existing ILO mechanisms, coupled with assurances that WTO rules would ‘stay out of the way’ and not obstruct those mechanisms.²7¹ For example, persistent and egregious labour rights abuses in Burma
have resulted in the exceptional authorization of trade (and other) sanctions by the
ILO under article 33 of the ILO Constitution in 2000.²7² The US has accordingly
imposed sanctions on Burma in 2003.²7³ So far, the US has not been criticized by
²68 Hepple, above n 243, 102–3; UNDP, Asia Pacific Human Development Report 2006: Trade on
Human Terms (UNDP, Colombo, 2006) 137.
²69 See Chapter 3, Part E.
²70 WTO and ILO, above n 240, 60.
²7¹ See Robert Howse, Brian Langille, with Julien Burda, ‘The World Trade Organization and
Labour Rights: Man bites Dog’ in Leary and Warner (eds), above n 228, esp at 173–4, 189, 194–8,
223 and 229–31.
²7² Constitution of the International Labour Organization (1919).
²7³ It may be noted that the ban affects all goods, rather than only goods likely to have been
manufactured under poor labour conditions: see Ewing- Chow, above n 6, 157.

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G. The Potential Emancipatory Eff ect of ‘Good’ Trade

137

or within the WTO for these measures, perhaps an appropriate example of de facto
forbearance regarding an issue that is a serious human rights issue and perhaps
only incidentally a trade issue.²74
An explicit labour rights clause could introduce measures outside the blunt
instrument of sanctions, with trade sanctions only being authorized as an explicit
last resort.²75 There could for example be a peace clause dictating a moratorium on
sanctions for a number of years. Developing States could benefit from longer timelines for full compliance, as occurred under TRIPS. Such timelines could accord
with the ICESCR in light of the principle of progressive realization. Technical
assistance could be provided on a mandatory basis to facilitate transition and
implementation by the poorest States. Instead of being subjected to sanctions, a
delinquent State could first be compulsorily referred to investigation by and/or
compulsory consultation with the ILO.²76 An attractive component of this last
proposal is that labour matters would be entrusted to a specialist labour rights
body, rather than the WTO’s dispute settlement bodies, who lack labour rights
expertise. Such a proposal would also add flesh to the bones of the decision adopted
in the Singapore Declaration of 1996 that labour rights be addressed by the ILO,
and that the WTO support it in that endeavour.
This latter model of cooperation, whereby labour rights are strengthened by
their inclusion within WTO agreements, but remain ‘enforced’ by the ILO, could
be exported to other areas, such as other human rights or the environment. Indeed,
the effective incorporation of certain ILO standards within the WTO framework
would not be so revolutionary: it would follow the precedent set under TRIPS
whereby the intellectual property standards established by the World Intellectual
Property Organization (WIPO) are incorporated within the WTO framework.²77
These themes of inter-institutional cooperation and the strengthening of bodies
outside international economic law are further elaborated in Chapter 10, Part D.

G. The Potential Emancipatory Effect of ‘Good’ Trade
The above commentary focuses on the impact of WTO rules on the ability of States
to prohibit trade that is potentially ‘bad’ for human rights. In this section, I examine the potential for WTO rules to promote trade that is ‘good’ for human rights.
In other words, WTO rules might compel the import of goods or services which
in some way promote human rights. A timely example is to ask whether WTO
²74 See also Jeff rey L Dunoff, ‘The Death of the Trade Regime’ (1999) 10 European Journal of
International Law 733, 757ff.
²75 Sarah Joseph, ‘Trade to Live or Live to Trade’ in M Baderin and R McCorquodale (eds),
Economic, Social and Cultural Rights in Action (Oxford University Press, Oxford, 2006) 413–14. See
also Griffin, Nyland, and O’Rourke, above n 262, 5.
²76 See also Bryan Schwartz, ‘The Doha Round and Investment: Lessons from Chapter 11 of
NAFTA’ (2003) 3 Asper Review of International Business and Trade Law 1, 8; Hepple, above n 243, 274.
²77 See Frederick M Abbott, ‘Distributed Governance at the WTO-WIPO: an evolving model for
open-architecture integrated governance’ (2000) Journal of International Economic Law 63, esp at 75ff.

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138

‘Human Rights’ Restrictions on Trade

rules might prohibit China’s current rules on internet and media censorship, which
arguably breach the human right to freedom of expression.
The ‘Great Firewall of China’ is ‘a system of filters and bottlenecks that effectively shutters the country within its own intranet’.²78 The firewall restricts access
by Chinese internet users to much information, such as information about the
Tianenmen Square protests and crackdown of 1989, and dissidents such as the
Dalai Lama, Uigher leader Rebiya Kadeer and the Falun Gong. Censorship is permitted under international human rights law to the extent that it might be necessary to promote legitimate countervailing interests such as public morals or public
order.²79 However, the level of censorship practised by China does not conform
with the right to freedom of expression. China however is not a party to any treaty
which protects that right.²80 It is of course arguable that freedom of expression is
protected under customary international law and that China is therefore bound to
respect the right in international law. Furthermore, other WTO members which
heavily censor the internet, such as Vietnam and Turkey, clearly have international
obligations to protect freedom of expression.
In early 2010, the First Amendment Coalition, a California-based NGO, urged
the US government to challenge the WTO legality of Chinese internet restrictions.
Internet giant Google similarly lobbied the US government in 2007.²8¹ The First
Amendment Coalition claims that the firewall is an illegal barrier to trade. For
example, it ‘degrades the performance of websites based outside the country’,²8²
so the argument may be made that it impairs foreign competition via the internet
in China’s huge market. Indeed, it was reported that Google rapidly lost market
share in China after moving its operations outside the firewall to Hong Kong early
in 2010.²8³
Professor Tim Wu has surveyed some of the issues that would arise in any relevant WTO challenge to Chinese internet censorship. He notes that physical goods
ordered over the internet are goods subject to GATT regulations. Online services
which do not involve downloads, such as the use of search engines, are probably
services subject to GATS. There is uncertainty over the classification of a third
category: downloads that are kept in digital form, such as electronic books.²84 It
is possible that the latter category could fall under both GATT and GATS.²85
China’s commitments are broader under GATT, as its GATS obligations are
largely dependent upon its voluntary commitments in its GATS ‘schedule of commitments’. However, China’s services commitments are quite extensive, reflective
of the extra commitments that are often extracted from acceding States. China
²78 Peter Scheer, ‘Obama should back Google with more than rhetoric: the US should challenge China’s “firewall” before the WTO’, 19 January 2010, <http://www.firstamendmentcoalition
.org/2010/01/obama- should-back-up- google-with-more-than-rhetoric-the-us- should- challenge
-chinas-firewall-before-the-wto/> accessed 7 February 2010.
²79 See Article 19(3) ICCPR.
²80 China has signed but not ratified the ICCPR.
²8¹ See, eg, Christopher S Rugaber, ‘Google fights internet censorship’ Washington Post, 25 June
2007.
²8² Scheer, above n 278.
²8³ See, eg, ‘Google losing market share in China’ The Boston Globe, 23 April 2010.
²84 Wu, above n 61, 7.
²85 In China—Audiovisual Entertainment Products, the Appellate Body confirmed that a measure
could fall under both sets of provisions: see above n 79, paras 193–4.
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G. The Potential Emancipatory Eff ect of ‘Good’ Trade

139

has committed to some liberalization of ‘online information and database retrieval
services’ and to ‘open’ access for the crossborder supply of ‘data processing services’.
It is possible that such commitments could be interpreted dynamically to entail
market access commitments to the provision of search engines.²86 Furthermore,
US—Gambling indicates that censorship, even of limited websites, amounts to
a zero quota in respect of those websites, in potential breach of the market access
provisions in Article XVI of GATS.²87
Other Chinese regulations might also simultaneously breach human rights law
and WTO law, such as regulations which limit the wi-fi capabilities and mobile
applications of mobile phones and computers in order to preserve the Chinese
government’s ability to eavesdrop on its population. Such practices breach the
human right to privacy, and of course have detrimental effects on political rights
as it allows the Chinese government to identify and track political dissidents.
These regulations also impact on trade. The Apple I-Phone was released in the
Chinese market two years after its global launch without its wi-fi capabilities. New
software must be installed in computers before they can be shipped to China.²88
Again, it is plausible that such measures breach WTO rules in the GATT and/or
the TBT.²89
Of course, China would seek to justify its laws under the public morals exceptions of GATT and GATS, and the public order exception in GATS. It would be
very interesting to see how a Panel or the Appellate Body would deal with China’s
extensive political censorship. If the exceptions were interpreted in light of international human rights law, just as Article XX(g) was interpreted in light of international environmental law in Shrimp I, it might be concluded that measures which
breach human rights cannot be classified as measures which protect public morals
or public order. While China might be able to plea that it is not bound by those
human rights obligations, it is notable that one of the parties in Shrimp I, the US,
was not a party to the relavant environmental treaties.²90 Furthermore, under the
ad note to Article XIV, China may find it difficult to maintain that its level of
censorship counters a ‘genuine and sufficiently serious threat . . . to one of the fundamental interests of society’.²9¹ On the other hand, the Panel seemed to concede a
very broad scope for China’s sovereign right to censor cultural products in Chinaaudiovisual entertainment products, as noted above.²9² Neither the Panel nor the
Appellate Body had reason, however, in that case to extensively discuss the substance of the Chinese censorship regime, as their decisions focused on the means
by which China was enforcing that regime.
Even if China could establish that its censorship laws fell within the realm of
public morals/public order laws, it would still have to overcome the hurdles of the
necessity test and, perhaps most problematically, the chapeau test. Regarding the
²86 Wu, above n 61, 24–6.
²87 Brian Hindley and Hosuk Lee-Makiyama, ‘Protectionism Online: Internet Censorship and
International Trade Law’ (2009) ECIPE Working Paper No 12/2009, 9.
²88 See Fredrik Erixon and Hosuk Lee-Makiyama, ‘Chinese Censorship Equals Protectionism’
Wall Street Journal, 6 January 2010.
²89 Hindley and Lee-Makiyama, above n 287, 8.
²90 See also Chapter 2, text at notes 123–6.
²9¹ Hindley and Lee-Makiyama, above n 287, 14.
²9² See above, text at note 105.
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140

‘Human Rights’ Restrictions on Trade

necessity test, China might find it difficult to justify the total block placed on certain overseas internet sites by the Great Firewall, compared to more selective filtering mechanisms.²9³ For example, Thailand censors certain pages of Amazon,
rather than the whole site.²94 China has the technological capacity to adopt selective filtering, given the investment made to set up the Great Firewall, unlike poorer
countries.²95 Regarding the chapeau, China’s laws impose different standards
of censorship, depending on whether a site is located within or outside China.
While China-based companies are not in an ‘enviable position’, given that breach
of Chinese censorship law leads to ‘crackdowns, expropriations and jail sentences’,
offshore sites are ‘simply censored without official notice or any possibility of taking the matter to domestic courts’.²96 The difference in treatment might amount to
arbitrary discrimination and disguised protectionism under the chapeau to Article
XX or XIV.

H. Conclusion
The obligations of WTO Members under GATT, GATS, the SPS, and the TBT
are very broad. The broader a Member’s WTO obligations, the more a State’s regulatory capacities are restricted. The extent of the restriction on State capacities to
discharge human rights obligations is uncertain, largely due to the dearth of relevant WTO cases. A survey of that case law indicates that States are more likely to
be permitted to adopt inward measures rather than outward measures.
Certain exceptions to WTO obligations are permitted. Waivers provide one
avenue for preserving the ability of States to implement their human rights duties,
though significant political will is needed in order for such waivers to be adopted.
The impact of Article XXI GATT and Article XIV bis GATS is uncertain given
that there are no cases on those provisions. In contrast, there have been a number
of relevant cases on Article XX GATT and Article XIV GATS.
The effect of WTO laws on State human rights regulatory capacities is probably
not as profound as had been indicated by earlier GATT cases, such as the Tuna
cases and Thailand—Cigarettes. The most problematic WTO case to date, from a
human rights point of view, is probably Beef—Hormone, where greater deference
to the precautionary principle would have been preferable from a human rights
perspective. Other cases, such as Asbestos, US—Gambling and Brazil—Tyres,
have indicated that States retain significant regulatory capacities to protect public
health, and perhaps a raft of human rights considerations under the public morals
exceptions, so long as the relevant measures are necessary and non-discriminatory.
The latter requirement has been the downfall of many challenged social measures,
and from a human rights point of view, has probably been interpreted more extensively than is desirable.
²9³ Hindley and Lee-Makiyama, above n 287, report at 5 that 18,000 foreign websites are totally
blocked.
²94 Ibid, 6.
²95 Ibid, 14.
²96 Ibid, 15.

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H. Conclusion

141

The global competition prompted by WTO rules may have prejudiced the global enjoyment of labour rights. It is argued above that the idea of some form of
labour rights clause within the WTO should be revisited.
The detrimental human rights impact of certain measures which obstruct free
trade, such as consequences for offshore rights to livelihood amongst affected traders, particularly in poor States, must not be forgotten. In that respect, the benefit
to human rights of some restrictions on protectionist measures must be acknowledged. This issue arises again in Chapter 6, in regard to the failure of the Agreement
on Agriculture to adequately restrain certain protectionist measures. However, it
may be noted that no WTO decision has been explicitly influenced by consideration of offshore human rights impacts. It is doubtful that WTO law dictates that
the permissibility of a measure with a protectionist effect varies according to its
impact on the human rights of persons in the relevant export industry.
Certain trade restrictions may harm the enjoyment of human rights inside the
regulating State, such as overly broad restrictions on internet content. The potential emancipatory effect of WTO laws in such situations is examined above. If such
a case is ever to be brought to the WTO dispute resolution bodies, the extent of the
use of human rights law on the interpretation of relevant WTO rights, duties and
exceptions will be particularly instructive.

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5
The WTO, Poverty, and Development
Poverty is the major cause of human misery in today’s world. World Bank
fi gures indicate that 25 per cent of the world’s population live in extreme
poverty, defi ned as US$1.25 a day, calculated according to the dollar’s purchasing power in 2005.¹ Ongoing extreme poverty severely undermines their
enjoyment of their human rights, and of itself may represent a human rights
violation.² The imperative of addressing poverty and underdevelopment is consistently stressed by the international community, such as in the Millennium
Development Goals³ and the UN World Summit in September 2005.4 For
example, the fi rst Development Goal is to halve extreme poverty and hunger
by 2015.
The WTO promotes market freedoms which, it is argued in orthodox trade
theory, increase aggregate wealth, which should enhance the ability of all States
to protect economic and social rights and alleviate poverty. Indeed, Oxfam estimated in 2002 that an increase of 5 per cent in the share of world trade by low
income states ‘would generate more than $350 billion—seven times as much as
they receive in aid’. Trade is a more empowering way of climbing out of poverty,
and frees the poor from ‘exposure to the whims and fads of donors who govern
access to aid budgets’.5
Evaluation of the human rights impact of the WTO necessarily involves an
assessment of its impact on poverty and development. In this chapter, the first
section will focus on the links between poverty and human rights violations. The
argument that current WTO rules are unfair to poorer developing States compared to richer developed States is then explored. The impact of trade liberalization on poverty and inequality is then discussed. Suggestions for WTO reforms in
favour of developing States are then proposed.

¹ Shaohua Chen and Martin Ravallion, ‘The developing world are poorer than we thought, but
no less successful in the fight against poverty’ (World Bank Policy Research Working Paper 4703,
August 2008) (World Bank Development Research Group).
² See A Sengupta, ‘On the Theory and Practice of the Right to Development’ (2002) 24 Human
Rights Quarterly 837, 884–6.
³ See <http://www.un.org/millenniumgoals/index.html> accessed 31 January 2006.
4 UNGA, ‘Resolution adopted by the General Assembly’, UN doc. A/Res/60/1 (24 October
2005) (adopting the 2005 World Summit Outcome) paras 17–68.
5 Oxfam, Rigged Rules and Double Standards (Oxfam, London, 2002) 48.

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A. Poverty and Human Rights Violations

143

A. Poverty and Human Rights Violations
Some characterize living in a state of poverty as a human rights abuse in itself.6
At the very least, the poor suffer disproportionately from human rights abuses.
The link between poverty and violations of economic, social, and cultural rights
is obvious: the poor clearly fare worst in terms of access to food, water, housing,
health care, education, social security, and employment. Their opportunities are
limited due to a greater lack of influence, literacy, housing standards and nutrition,
as well as their subjection to pronounced discrimination and social exclusion. Their
life expectancies are shorter, and rates of infant and maternal mortality are higher.
Their civil and political rights are clearly compromised, with less physical security,
greater exposure to forced labour and modern forms of slavery, lesser access to justice (for example, legal institutions and representation may be practically unavailable due to lack of funds and knowledge), greater levels of discrimination, and less
participation in political life. In short, the elimination of poverty and the promotion of human rights are clearly inter-related objectives.7 The link was recognized
by US President Roosevelt in his famous address to Congress on 6 January 1941
which prepared the US for the possibility of entering into the Second World War,
where he proclaimed ‘freedom from want’ as one of four essential human freedoms.
The importance of freedom from want is now proclaimed in the preamble to the
UDHR and the two Covenants.
The Committee on Economic, Social and Cultural Rights has defined poverty
as ‘a human condition characterized by sustained or chronic deprivation of the
resources, capabilities, choices, security and power necessary for the enjoyment of
an adequate standard of living and other civil, cultural, economic, political and
social rights’.8 The need to combat poverty is one of the recurring themes in the
ICESCR and one of the major preoccupations of the Committee in conducting
dialogues with States.9
The main argument in favour of free trade is that it leads to economic growth
and development. To the extent that poverty is exacerbated by a State’s lack of
resources, economic growth and development within that State should help a
State alleviate poverty. However, economic growth by itself does not necessarily
lead to poverty alleviation due to possible inequities in the distribution of extra
wealth. The right to development enshrined in the Declaration on the Right to
Development (DRD) recognizes that development is more than an economic
process, and entails far more than an increase in GDP figures. Far too often,
6 See, eg, United Nations Development Programme (UNDP), Poverty Reduction and Human
Rights: A Practice Note (2003) iv; Thomas Pogge, ‘Recognized and Violated: the Human Rights of the
Global Poor’ (2005) 18 Leiden Journal of International Law 717.
7 See generally, UNGA, ‘Report of the Independent Expert on the Question of Human Rights
and Extreme Poverty’, UN doc. A/63/274 (13 August 2008).
8 Committee on Economic, Social and Cultural Rights, ‘Poverty and the International Covenant
on Economic Social and Cultural Rights’, UN doc. E/C.12/2001/10 (10 May 2001) para 8.
9 Ibid, para 1.

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144

WTO, Poverty, and Development

development projects take place in disregard of the rights of local people, particularly the poor, who might for example be arbitrarily evicted without compensation
to make way for an infrastructure or investment project. In contrast, the human
right to development prescribes the realization of all human rights (civil, political,
economic, social, and cultural) through an equitable process, entailing ‘the free,
effective and full participation of all individuals concerned and that individuals
must have equal opportunity of access to the resources of development and receive
fair distribution of the benefits of development and income’.¹0 Such a process takes
account of and includes the poor.

B. Current WTO Rules and Developing States
In order to assess the effect of WTO rules on poverty and the development process,
it is necessary to assess its impact on developing States, the home of the vast majority of the world’s poor. That is not to deny the existence of poverty in developed
States; it is to recognize that developed States have greater capacities to combat
poverty within their own borders if they have the political will to do so. Developing
States have lesser capacities and far greater numbers of poor people, and are therefore more vulnerable if dislocations and adjustments are forced on them by international trade rules and policies.
Of course, States themselves do not have human rights, so any ‘unfairness’ or
‘inappropriateness’ within WTO rules with respect to developing States does not
directly raise human rights issues. However, the impact of WTO rules on particular types of States bears an instrumental relationship with the facilitation of those
States’ capacities to fulfil their human rights obligations. In particular, increased
growth should increase available resources, which should in turn facilitate development and poverty alleviation and a concomitant increase in the level of enjoyment
of human rights. However, growth and development may not necessarily lead to
such outcomes. Thus, this issue bears an instrumental and indirect relationship
with human rights rather than a direct relationship. Nevertheless, this issue is of
crucial importance to the subject matter of this book.
A rights consistent trade policy with respect to poverty and development will
have the following elements. First, a State’s trade policy should actually contribute
to economic development and growth so as to enhance opportunities for climbing out of poverty. Secondly, the State must ensure that it retains and improves its
capacities to fulfil its human rights obligations, including its obligations to provide
for the rights of those who need assistance. It must also of course exercise those
capacities in good faith. Thirdly, the State should implement strategies to ensure
that the gains from economic growth and development are equitably distributed.
Finally, the trade policy should be rooted in core human rights principles such
¹0 Commission on Human Rights, ‘Mainstreaming the right to development in international
trade law and policy at the World Trade Organization (paper prepared by Robert Howse)’, UN
doc. E/CN.4/Sub.2/2004/17 (9 June 2004) para 10.

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B. Current WTO Rules and Developing States

145

as non-discrimination, participation, empowerment, and accountability.¹¹ While
these factors are intrinsically linked, it is the first factor which is the main focus of
this chapter.
At this point, it is worth noting that developing States are differentiated within
the WTO between developing States and least developed countries (LDCs).
LDCs have a GNI per capita of around $US750 per person and graduate from
LDC status when they reach $US900 GNI per capita.¹² Hence a State is not
an LDC if it has a per capita income of $US2.50 per day. A further unofficial
category of developing States is that of small and vulnerable economies (SVEs),
which are characterized by certain vulnerabilities, such as ‘physical isolation, geographical dispersal and distance from the main markets’, as well as inadequate
infrastructure and markets.¹³ While SVEs may be richer than LDCs, they are
still very poor countries.

Bias against developing States within the WTO
In Chapter 3, the disadvantages for developing States within WTO processes
were discussed. Current substantive WTO rules, as reflected in the Marrakesh
Agreement, are also biased in favour of developed States against developing
States,¹4 as has been conceded by the Director-General of the WTO, Pascal Lamy.
He stated, in his famous call for a ‘Geneva consensus’ in a speech in New York in
2006:
The impression has also arisen that in the case of the multilateral trading system, [flaws
in the system] have tended to work to the disadvantage of a certain part of the WTO
Membership, that comprising the developing countries. This bias will in the long run not
be sustainable and it is therefore necessary to correct it if we want the multilateral trading
system to thrive. . . .
In sum, while the political decolonization took place more than 50 years ago, we have
not yet completed the economic decolonization. It is therefore one of the purposes of the
current multilateral negotiations to continue the rebalancing of our rules in favour of
developing countries.¹5
¹¹ See, eg, Office of the High Commissioner for Human Rights, ‘Report on Indicators for
Promoting and Monitoring the Implementation of Human Rights’, UN doc. HRI/MC/2008/3
(6 June 2008) para 10.
¹² The income criteria for LDCs varies from year to year. These income estimates reflect the
World Bank’s 2006 triennial review of LDCs. There are also other criteria, relating to low levels of
human resource development and high degrees of economic vulnerability. See, generally, <http://
www.un.org/esa/policy/devplan/profi le/criteria.html> accessed 20 September 2010.
¹³ See WTO doc. WT/COMTD/SE/W/20, 9 February 2006 and Rashid S Kaukob, ‘Development
Effects of the Doha Round on Small and Vulnerable Economies [SVEs]’ (CUTS CITEE Working
Paper 1/2009) <http://www.cuts-citee.org/pdf/WP09- 01.pdf> accessed 20 September 2010.
¹4 Sarah Joseph, ‘Trade to Live or Live to Trade’ in Mashood Baderin and Robert McCorquodale
(eds), Economic, Social and Cultural Rights in Action (Oxford University Press, Oxford, 2006) 393–
400. See also Ilan Kapoor, ‘Deliberative democracy and the WTO’ (2004) 11 Review of International
Political Economy 522, 527.
¹5 Pascal Lamy, ‘It’s Time for a new “Geneva Consensus” on making trade work for development’
(Emile Noel Lecture New York University Law School, New York, 30 October 2006) esp at 3–4
<http://www.wto.org/english/news_e/sppl_e/sppl45_e.htm> accessed 19 September 2010.

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146

WTO, Poverty, and Development

Much permissible protectionism under WTO rules affects goods in which some
developing States have a comparative advantage, particularly agricultural goods,
which deprives developing States of external markets. At the same time their underdeveloped industries have been exposed to competition from the developed world.
The asymmetrical impact of international economic law is exacerbated by the policies of the International Monetary Fund (IMF) and the World Bank, which are
largely dictated by developed States, but which only bind their client borrowers,
largely developing States.¹6 The political philosopher Professor Thomas Pogge has
suggested, bluntly, that:
the design of the global institutional order reflects the shared interests of the governments,
corporations, and citizens of the affluent countries more than the interest in global poverty
avoidance, insofar as these interests conflict.¹7

The implementation of WTO rules is not currently achieving optimal outcomes
regarding promotion of the right to development and the alleviation of poverty
because current rules are biased against the poorest States. At worst, unbalanced
WTO rules could exacerbate underdevelopment and poverty in those States, and
therefore prejudice the right to development as well as economic, social, and cultural rights in the poorest States. In this respect, the economists Joseph Stiglitz
and Andrew Charlton report that, by some estimates, 48 LDCs have suffered
economic losses of around US$600 million per year as a result of the Uruguay
Round.¹8
The unfairness in the current rules as well as Doha Round proposals is explained
below.

Special and differential treatment
The development needs of the developing States (‘the South’) are blatantly more
pressing than those of developed States (‘the North’). These special needs are recognized in the WTO and are served by numerous provisions allowing for ‘special
and differential treatment’ (SDT). The need for SDT is referenced in the preamble
to the Marrakesh Agreement which states:
Recognizes . . . that there is a need for positive efforts designed to ensure that developing
countries, and especially the least developed among them, secure a share in the growth of
international trade commensurate with the needs of their economic development.

¹6 In late 2008, the IMF lent money to Iceland after the collapse of its banking system in the wake
of the Great Financial Crisis, a rare instance of a developed State being subjected to IMF disciplines.
‘IMF approves $2.1bn Iceland loan’, BBC News (online at <http://news.bbc.co.uk/1/hi/7738874
.stm>), 20 November 2008. Greece received a loan in 2010. Helena Smith, ‘Greece activates €45bn
EU/IMF loans’ The Guardian, 23 April 2010 <http://www.guardian.co.uk/business/2010/apr/23/
greece-activates-eu-imf-loans> accessed 22 September 2010.
¹7 Pogge, above n 6, 725.
¹8 Joseph E Stiglitz and Andrew Charlton, Fair Trade for All (Oxford University Press, New York,
2005) 47.

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B. Current WTO Rules and Developing States

147

Most SDT provisions in WTO agreements permit longer timelines for compliance for developing nations.¹9 Furthermore, developing States have relatively high
tariff bindings,²0 so their WTO obligations in respect of granting market access to
goods are not generally as onerous as those of developed States.
‘Trade aid’, that is aid designed to alleviate the burdens of trade liberalization,
is recognized as essential, and was formalized after the Singapore Ministerial
meeting in 1996. The Singapore Plan of Action provided for the creation of the
‘Integrated Framework for Trade-Related Technical Assistance to Least Developed
Countries’,²¹ which coordinates policy efforts in this regard between the WTO
and other international financial and development agencies,²² and identifies technical assistance needs in relevant States. Since 2000, the Integrated Framework
has presided over a trust fund to finance trade reform in LDCs.²³ However, there
are concerns that trade aid has not added to the aid budgets of donor States: rather
aid money is being redirected into trade aid leaving recipient States no better off in
terms of total aid receipts.²4
SDT measures were authorized in the GATT after the Tokyo Round (1973–
1979) with the introduction of the ‘Enabling Clause’, which permits preferential
market access for developing States and limits the expectations of reciprocity in
negotiating rounds to levels ‘consistent with development needs’.²5 Thus, States
(especially developed States) may offer preferential market access to developing
States under the ‘General System of Preferences’ (GSP) without breaching the
MFN principle. An example of a current GSP measure is the European Union’s
‘Everything but Arms’ (EBA) initiative, under which the EU imposes no duties
or quotas on imports from LDCs apart from arms and armaments.²6 The EBA
is a welcome departure from the normal practice of States excluding goods of the
greatest interest to developing States from GSP schemes, which seriously undermines their utility for GSP beneficiaries. However, the effectiveness of the EBA
¹9 Bernard Hoekman, ‘Operationalizing the Concept of Policy Space in the WTO: Beyond
Special and Differential Treatment’ (2005) 8 Journal of International Economic Law 405, 406;
J Hunter, ‘Broken Promises: Agriculture and Development in the WTO’ (2003) 4 Melbourne
International Law Journal 299, 315.
²0 Each WTO Member commits to a schedule of ‘tariff bindings’ regarding named goods. A
Member may not impose tariffs above those bound rates.
²¹ WTO, ‘Singapore Ministerial Declaration’ (Adopted on 13 December 1996), WTO doc. WT/
MIN(96)/14 (18 December 1996).
²² Those other agencies are the IMF, the International Trade Centre, UNCTAD, the UNDP, and
the World Bank.
²³ Hunter, above n 19, 317.
²4 See Human Rights Council, ‘The Cotonou Partnership Agreement between the European
Union (EU) and the African, Caribbean and Pacific Countries (ACP countries) (Report by Dr Maria
van Reisen, High Level Task Force on the Right to Development), UN doc. A/HRC/12/Wg.2/TF/
CRP.3/Rev.1 (5 May 2009), para 59, commenting on the EU’s aid budget.
²5 Hoekman, above n 19, 405–6. The full name of the Enabling Clause is ‘Differential and More
Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries’, L/4903,
GATT BISD 26S/203, 28 November 1979.
²6 See European Commission, ‘Everything but Arms’ (undated) <http://ec.europa.eu/trade/
wider-agenda/development/generalised-system-of-preferences/everything-but-arms/> accessed 20
September 2010. Full trade liberalization under the EBA (outside the arms field) has only recently
been completed, as liberalization for bananas, rice, and sugar was phased in over a decade.

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WTO, Poverty, and Development

(and other GSP schemes) is undermined by complex requirements regarding rules
of origin, whereby all production must be verified as taking place in an LDC, creating administrative and compliance costs for LDCs.²7 While richer States are not
required to implement the Enabling Clause by offering preferential terms to poorer
States, conditions apply if they do, such as the requirement of non-discriminatory
implementation: preferences must be offered on similar terms to similarly situated
States and be based on objective criteria.²8
One problem with GSPs is that they are dependent upon the largesse of the
importing State: their withdrawal can have sudden and dramatic impacts on
the exporting State if it has become dependent on the maintenance of the GSP.
This situation can easily arise in developing economies with little diversification.
Therefore, GSP schemes can be manipulated to secure desirable outcomes for the
importer rather than the intended beneficiary, the exporter. For example, the US
has threatened withdrawal of GSP preferences from States which do not respect
higher standards of intellectual property protection than those mandated under
TRIPS.²9 The vagaries of GSPs mean that they do not necessarily promote sustainable economic policies. GSPs leave developed States as the drivers of trade policies
in developing States, rather than developing States driving their own policies.³0
The most important SDT provisions are not compulsory: developed States do
not have to offer trade aid nor do they have to offer preferential market access
to developing States.³¹ Hortatory provisions which call for special treatment are
far more common in WTO rules than the granting of enforceable advantages
to developing States.³² Furthermore, most of the longer timelines granted under
WTO agreements have expired, yet massive economic inequalities remain. The
timelines have proven to be arbitrary: a better trigger for the end of SDT is the
attainment of some level of development rather than the expiry of a particular
month of December.³³ SDT provisions have not apparently accommodated the
‘real needs’ of developing States.³4
²7 See Olivier Cadot and Jaime de Melo, ‘Why OECD Countries should reform Rules of Origin’
[2008] 23 World Bank Research Observer 77. See also Paul Collier, The Bottom Billion (Oxford
University Press, New York, 2008) 169; Stiglitz and Charlton, above n 18, 181.
²8 See European Communities—Tariff Preferences, WTO doc. WT/DS246/AB/R (7 April 2004)
(Report of the Appellate Body), and discussion in J Harrison, ‘Incentives for Development: the EC’s
Generalized System of Preferences, India’s WTO Challenge and Reform’ (2005) 42 Common Market
Law Review 1663.
²9 Ken Shadlen, ‘Resources, Rules and international political economy: the politics of development in the WTO’ in Sarah Joseph, David Kinley, and Jeff Waincymer (eds), The World Trade
Organization and Human Rights: Interdisciplinary Approaches (Edward Elgar, Cheltenham, 2009)
119, n 22.
³0 See also Stiglitz and Charlton, above n 18, 100.
³¹ J Michael Finger and Philip Schuler, ‘Implementation of Uruguay Round Commitments: the
Development Challenge’ (World Bank policy research working paper no. 2215, September 1999) 5.
³² Anthony E Cassimatis, Human Rights Related Trade Measures under International Law
(Martinus Nijhoff, Leiden, 2007) 405.
³³ See also Yong-Shik Lee, Reclaiming Development in the World Trading System (Cambridge
University Press, Cambridge, 2006) 157.
³4 Thomas Cottier, ‘From Progressive Liberalization to Progressive Regulation’ (2006) 9 Journal
of International Economic Law 779, 788. See also Joel Trachtman, ‘Legal Aspects of a Poverty Agenda

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C. The Uruguay Round Bargain

149

It is also worth noting that significant pressure on developing States regarding
trade liberalization has been generated outside the WTO. For example, many
developing States have been forced by bodies such as the IMF and the World
Bank, as part of loan conditions, to impose much lower tariff s than those to
which they are bound under the WTO.³5 These external pressures from international financial institutions pertain largely to developing States as they are by
far the major clients of such institutions. The existence of such ‘arm-twisting’,
even though the WTO is not responsible for it, undermines the efficacy of the
WTO’s SDT provisions and is probably not taken into sufficient account in
WTO negotiations.

C. The Uruguay Round Bargain
It is simplistic to analyse the Uruguay Round bargain as a deal between the North
and the South. Of course, the trading interests of States within these two blocs are
not uniform.³6 Nevertheless, the following analysis will demonstrate significant
iniquities between North and South in current WTO rules.³7
Developing States undertook proportionately more obligations to open up market access to foreign goods than developed States in the Uruguay Round: their tariff cuts were deeper.³8 Admittedly, their tariff bindings were higher thus allowing
greater room for significant cuts. However, as noted above, many developing States
have been forced to maintain tariff levels lower than those to which they are committed under the WTO due to loan conditions imposed by international financial
institutions.
Developing States reluctantly agreed to the extension of the old GATT regime
into areas such as services and intellectual property, which operate to the advantage
of the North.³9 Furthermore, provisions regarding investment measures, accession
and non-tariff barriers also work to the disadvantage of developing States. These
disadvantages are now explained.

at the WTO: Trade Law and “Global Apartheid” ’ (2003) 6 Journal of International Economic Law 3,
10–11.
³5 Joel R Paul, ‘Do International Trade Institutions Contribute to Economic Growth and
Development?’ (2003) 44 Virginia Journal of International Law 285, 319; Oxfam, above n 5, 126–8.
³6 Eg, EU preferences for certain African and Caribbean and Pacific States (ACP States) were
challenged successfully by Latin American developing States in European Communities—Regime for
the Importation, Sale and Distribution of Bananas, WTO docs. WT/DS27/R/ECU, WT/DS27/R/
GTM, WT/DS27/R/HND, WT/DS27/R/MEX (all 22 May 1997) (Reports of the Panel), WTO
doc. WT/DS27/AB/R, AB-1997-3 (9 September 1997) (Report of the Appellate Body): the Bananas
litigation essentially pitted the interests of banana producers in Latin America against those in ACP
States.
³7 See also Shadlen, above n 29, 111.
³8 Finger and Schuler, above n 31, 6.
³9 Caroline Dommen, ‘Raising Human Rights Concerns in the World Trade Organization:
Actors, Processes and Possible Strategies’ (2002) 24 Human Rights Quarterly 1, 12; Amrita Narlikar,
The World Trade Organization: A Very Short Introduction (Oxford University Press, New York, 2005),
74; Shadlen, above n 29, 109.

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150

WTO, Poverty, and Development

GATS
The Marrakesh Agreement introduced the General Agreement on Trade in Services
(GATS). MFN obligations under Article II apply to all services, so a State must
ensure non-discriminatory treatment with regard to all foreign service providers
viz each other.40 Market access and National Treatment obligations under Articles
XVI and XVII only apply to the services that a State nominates. Once a service
has been so nominated in a State’s ‘schedule of commitments’, a State is required
not to discriminate against foreign commercial providers in favour of local providers, subject to any qualifications it has made in its schedule.4¹ Under Article XXI,
a State can only withdraw a service liberalization commitment if it compensates
affected WTO Members, a considerable disincentive against such withdrawal.4² In
US—Measures aff ecting the Cross-Border Supply of Gambling and Betting Services,4³
the WTO’s Appellate Body confirmed that it takes a dynamic approach to interpretation of a State’s schedule. As the US had nominated ‘recreational services’ in
its Schedule, the Appellate Body concluded that those services included online betting services, even though online gambling did not exist at the time the US drafted
the relevant part of its Schedule.44
Of course, foreign service providers can play a very positive role in improving
service infrastructure, and providing more efficient services at a higher quality
than governments or local providers. However, GATS constrains the capacities of States to regulate such foreign providers: the extent of these regulatory
constraints is uncertain given the dearth of cases on GATS. A concern in this
regard is that many services, such as the provision of water, health services or
education, directly impact on the enjoyment of economic, social, and cultural
rights. GATS disciplines might undermine access by the poor to such services as
commercial providers of servicers focus on profit rather than the satisfaction of
human rights.45 For example, the prohibitions on discrimination might render
it difficult for a State to impose differing regulations, such as pricing regulations, across its territory according to regional or social needs.46 Th is problem
40 States were able to list MFN exemptions under Annex II GATS prior to its adoption on
1 January 1995. In principle, these exemptions should have been withdrawn by 2005 (Annex II,
para 6), and must at least be reviewed and be the subject of current negotiations.
4¹ Eg, typical conditions include nationality or residence requirements for executives, the holding
of a certain amount of assets in local currency, and conferral of tax privileges on local suppliers. See
Peter Van den Bossche, The Law and Policy of the World Trade Organization (Cambridge University
Press, Cambridge, 2005) 365.
4² Adam McBeth, International Economic Actors and Human Rights (Routledge, Oxford,
2009) 157.
4³ WTO doc. WT/DS285/AB/R, AB-2005-1 (7 April 2005) (Report of the Appellate Body).
44 See also China—Measures Aff ecting Trading Rights and Distribution Services for Certain
Publication and Audiovisual Entertainment Products, WTO doc. WT/DS363/AB/R, AB-2009-3
(21 December 2009) (Report of the Appellate Body) paras 338–411, where the Appellate Body
agreed with the Panel’s finding that China’s GATS commitments regarding ‘sound recording distribution services’ included distribution via internet and other electronic means. See also Tim Wu, ‘The
World Trade Law of Censorship and Internet Filtering’, 3 May 2006, available via <http://papers
.ssrn.com/sol3/papers.cfm?abstract_id=882459> accessed 7 February 2010, 13, 19.
45 Oxfam, above n 5, 227 and 229.
46 McBeth, above n 42, 155.

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C. The Uruguay Round Bargain

151

is of most concern in developing States, which lack adequate social safety nets
to assist the poor if they should be deprived of access to essential services.47
A number of States, including developing States, have made commitments to
open up services in the arenas of primary and secondary education (for example,
Tonga, Mexico) and health related and social services (for example, Cambodia,
Sierra Leone).
Under Article I(3) GATS, the treaty does not apply to services ‘supplied in
the exercise of governmental authority’, which is defined in sub-paragraph (c)
as ‘any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers’. Th is exception could ensure that many
social measures adopted by governments in providing services are unaffected by
GATS.48 However, its scope is unclear. A plain language reading indicates that
it only applies to those (increasingly rare) instances of not-for-profit government
monopolies.49 Its language seems to not apply, for example, in the context of
education if any private schools exist in a State. Even a government run service
that charges a nominal fee might be excluded.50 Furthermore, the opportunity
for developing States to utilize this exception has been undercut by past World
Bank and IMF loan conditionalities, which have dictated the privatization of
many services.5¹
One of the most prominent areas of contention over GATS concerns its potential impact in the arena of the provision of water services. This author knows
of no specific commitments in the area of water provision as yet,5² though such
commitments may be made in the future. GATS, after all, promotes ‘progressively greater liberalisation from initially modest levels’.5³ In any case, it is wrong
to say that no water commitments have been made, as provision of water may be
ancillary to the provision of other services which have been scheduled, such as
sewage services (where numerous commitments have been scheduled by WTO
members).54
Dr Andrew Lang has investigated the claims that GATS unduly restricts social
regulations designed to help the poor in respect of access to water, and concluded
that GATS might threaten such regulations. He notes that the differential treatment of two private operators, if one operates in an impoverished area and another
in a rich area, might breach GATS.55 Furthermore, some preferential treatment

47 See generally, Commission on Human Rights, ‘Liberalization of Trade in Services and Human
Rights: Report of the High Commissioner on Human Rights to the Economic and Social Council’,
UN doc. E/CN.4/Sub.2/2002/9 (25 June 2002), especially at paras 51–67.
48 Another exception in Article XIII(1) concerning government procurement is also unclear, but
is likely to be narrower than the Article I(3) exception: see Andrew Lang, ‘The GATS and Regulatory
Autonomy: a Case Study of Social Regulation of the Water Industry’ (2004) 7 Journal of International
Economic Law 801, 821–2.
49 McBeth, above n 42, 155.
50 Ibid, 155.
5¹ Martin Khor, ‘Implications of some WTO rules on the Realisation of the MDGs’, Third World
Network Trade & Development Series 26 (TWN, Malaysia, 2005) 23.
5² WTO, ‘Misunderstandings and scare stories: the WTO is not after your water’ <http://www
.wto.org/english/tratop_e/serv_e/gats_factfiction8_e.htm> accessed 20 September 2010.
5³ Lang, above, n 48, 814.
54 Ibid, 815–6.
55 Ibid, 811–12.

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152

WTO, Poverty, and Development

might often be conferred on a government water provider in order to ensure it can
continue operations and provide low cost water. According to Lang:
non-discrimination obligations may make such treatment practically impossible, by requiring that any preferential treatment is offered on an objective basis to all service providers,
whether public or private.56

There is also a danger of ‘regulatory chill’, in that States may refrain from adopting measures such as cross-subsidies from richer water consumers to poorer water
consumers for fear of breaching GATS.57
Article XIV GATS allows general exceptions to the treaty’s application for the
purpose of promoting certain non-trade ends, such as the protection of ‘public
morals’ and ‘public order’ in Article XIV(a). One cannot state with confidence
that these exceptions ensure that a State can regulate foreign service providers in
order to ensure human rights protection. These exceptions are discussed in light of
WTO case law in Chapter 4.
Finally, services liberalization has arisen in areas where developed States have
a comparative advantage, such as in financial and telecommunications services.
Comparatively little progress has arisen with regard to the cross-border provision
of a temporary unskilled labour force, where developing States have a comparative
advantage.58

TRIPS
The TRIPS Agreement has probably generated the greatest concern over its effect
on developing nations and human rights. Developed nations had to comply fully
by 1 January 1996, while developing nations had until 2000 and the LDCs had to
comply by 2006. The timeline for the latter has now been extended to 2013, but
LDCs are not allowed to wind back their level of implementation.59 Worryingly,
Amrita Narlikar has stated:
at least some developing countries have revealed in subsequent interviews that the technicalities of TRIPS had evaded them at the time when the agreement was being negotiated. Rather, they had believed that the TRIPS agreement would be limited to counterfeit
goods.60

Intellectual property (IP) rights grant innovators and inventors monopoly rights
over the sale of their creations for a certain period of time. This facility encourages
56 Ibid, 823: see also 812.
57 Ibid, 812.
58 Stiglitz and Charlton, above n 18, 116–17. See generally, Dipankar Dey, ‘Movement of Natural
Persons (Mode 4) under GATS: Advantage Developing Countries’ (2006) Social Science Research
Network <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949435> accessed 19 September
2010. See also generally Joel P Trachtman, ‘The Role of International Law in Economic Migration’
(2008) (Society of International Economic Law Inaugural Conference 2008 Paper) <http://papers
.ssrn.com/sol3/papers.cfm?abstract_id=1153499> accessed 19 September 2010; World Bank, World
Development Report 2006: Equity and Development (World Bank, Washington DC, 2006) 208–9.
59 See WTO, ‘Poorest countries given more time to apply intellectual property rules’ (WTO
2005 Press Releases, 29 November 2005), WTO doc. IP/C/40.
60 Narlikar, above n 39, 82.

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C. The Uruguay Round Bargain

153

people to market their creations, thus making them publicly available, and also
encourages research and creative endeavour, which might be stymied if copycats
could immediately compete with creators and inventors. A rationale for the global
extension of IP rights under TRIPS is to encourage greater foreign investment and
local innovation in the South.6¹ Indeed, the right to enjoy the fruits of one’s creations is recognized by Article 15(1)(c) of the ICESCR.
Of course, the prices of IP-protected goods are inflated by the lack of competition. Therefore, under international human rights law, IP rights must be balanced
for example against the rights of the general community to enjoy the benefits of
new technological developments. The latter rights are recognized in the ICESCR
at Article 15(1)(b). Further, ‘there is substantial evidence that the existing rules
for patents and copyrights are overly protective, providing a larger reward than
is necessary and stifling competitive forces’6² and further innovation. Jagdish
Bhagwati has stated that ‘few believe that the optimum [patent] extends as high as
the 20-year patent rule that was forced into the World Trade Organization by the
business lobbies’.6³
TRIPS presently mandates the regressive transfer of wealth from the South to
the North because most patents are owned by people, particularly companies,
from the North.64 Populations in the South, where patent rights were not generally respected prior to TRIPS, must now pay more for patented goods. The biggest
losers are the poor in developing countries, who cannot afford the price increases.
This situation is particularly problematic when the goods are essential for the
enjoyment of human rights, such as foods and essential medicines, as is discussed
in Chapters 6 and 7.
Even prominent free trade advocates are wary of TRIPS. Contrary to the thrust
of the other WTO agreements, TRIPS restricts trade as it bans trade by non-IP
holders in IP-protected goods. Bhagwati has stated that the TRIPS agreement
‘does not belong’ and ‘retards the process of trade liberalisation’.65
The United Nations Development Program (UNDP) has proposed that a moratorium on TRIPS enforcement with respect to patents of essential items should
be imposed, during which the WTO should thoroughly review its impact on the
6¹ See Shanker A Singham, ‘Competition Policy and the Stimulation of Innovation: TRIPS and
the interface between Competition and Patent Protection in the Pharmaceutical Industry’ (2000) 26
Brooklyn Journal of International Law 363, 375–85.
6² Paul, above n 35, 329. See also, eg, Tom G Palmer, ‘Are Patents and Copyrights Morally
Justified? The Philosophy of Property Rights and Ideal Objects’ (1990) 13 Harvard Journal of Law
and Public Policy 911, 914; Peter Drahos, ‘The Rights to Food and Health and Intellectual Property in
the Era of ‘Biogopolies’ in Stephen Bottomley and David Kinley (eds), Commercial Law and Human
Rights (Ashgate, Dartmouth, 2002) 227.
6³ J Bhagwati, ‘Economic Freedom: Prosperity and Social Progress’ (Keynote Speech at the
Conference on Economic Freedom and Development in Tokyo, 17–18 June 1999), 7 <http://time
.dufe.edu.cn/wencong/bhagwati/freedom_tokyo.pdf> accessed 20 September 2010.
64 United Nations Development Programme (UNDP), Human Development Report 2005:
International Cooperation at a Crossroads: Aid, Trade and Security in an Unequal World (UNDP,
New York, 2005) 135.
65 Jagdish Bhagwati, ‘Afterword: The Question of Linkage’ (2002) 96 American Journal of
International Law 126, 128.

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poor.66 However, that is not the trend of world trade negotiations. Numerous
‘TRIPS plus’ agreements, that is agreements which provide even greater IP protection than that imposed under TRIPS, have been concluded on a regional and
bilateral basis throughout the world. As noted by Oxfam, ‘TRIPS has now become
a bottom line rather than a top line’.67 TRIPS is discussed in greater detail in
Chapters 6 and 7.

TRIMS
The Agreement on Trade Related Investment Measures (TRIMS) prohibits the
use of certain regulatory measures by a State against foreign investors who manufacture goods in its territory. Prohibited measures include conditions relating to
local content (that is, a requirement that certain supplies, or a quota of supplies, be
sourced locally by the investor), which have historically been used by States to promote domestic industrial development.68 Developing States were given more time
to comply with TRIMS: only LDCs are still permitted to depart from TRIMS and
only under strict conditions.69
TRIMS is arguably not a particularly consequential agreement. It probably
does not, for example, prohibit measures such as regulation of the hiring practices of foreign investors, or technology transfer or joint venture requirements, all
‘time-honoured . . . instruments of industrial promotion’.70 However, local content
requirements are also important development instruments, as they aim to ‘generate
backwards linkages from foreign investors to local manufacturers’.7¹ Nevertheless,
local content measures are probably inconsistent with Articles III (National
Treatment) and XI (prohibition on quotas) GATT, so TRIMS may simply confirm
an interpretation of Articles III and XI which would otherwise have been reached
by the dispute settlement bodies.7² Such an interpretation was signalled in 1984
in a successful GATT challenge by the US against Canadian local content laws
in its automotive industry.7³ Nevertheless, it is possible that TRIMS represents an
undesirable fait accompli in terms of the definitions of those GATT provisions, and
an unjustified constraint on development policies.74
66 UNDP, above n 64, 148. See also Frederick M Abbott and Jerome H Reichmann, ‘The Doha
Round’s Public Health Legacy: Strategies for the Production and Diff usion of Patented Medicines
under the Amended TRIPS Provisions’ (2007) 10 Journal of International Economic Law 921, 987.
67 Oxfam, above n 5, 221; see also UNDP, above n 64, 136.
68 Khor, above n 51, 35. See also below, text at notes 225–34.
69 The Hong Kong Declaration permits LDCs to phase out all such investment measures by
2020, subject to various conditions; see Hong Kong Declaration, Annex F: Special and Differential
Treatment.
70 Shadlen, above n 29, 125.
7¹ Ibid, 126.
7² See TRIMS, Article 2.
7³ Canada—Administration of the Foreign Investment Review Act, BISD 30S/140 (1984) (GATT).
See also Indonesia—Certain Measures Aff ecting the Automobile Industry, WTO docs. WT/DS54/R,
WT/DS55/R, WT/DS59/R, WTDS64/R (2 July 1998) (Report of the Panel).
74 See Robert Wade, ‘What Strategies are Viable for Developing Countries Today? The World
Trade Organization and the Shrinking of Policy Space’ (2003) 10 Review of International Political
Economy 621, 627–8. See also Canada—Administration of the Foreign Investment Review Act, above

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C. The Uruguay Round Bargain

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Non-tariff barriers
Certain non-tariff barriers are regulated for the first time under the WTO, namely
technical barriers to trade under the TBT agreement and sanitary and phytosanitary measures under the SPS agreement. In a sense, their adoption was a win for
developing States, as such measures are sometimes imposed arbitrarily by developed States. Hence, their regulation at least restricted the use of such barriers.75
However, these rules regarding non-tariff barriers largely reflect the standards
of developed States. For example, developing State participation in some of the
organizations which develop universal standards for the purposes of the SPS agreement, such as the Codex Alimentarius regarding food safety standards, is inadequate.76 Developing States have also incurred disproportionate implementation
costs regarding those new standards.77 Harvard economist Dani Rodrik states
that it:
has been estimated that it costs a typical developing country $150 million to implement
requirements under just three of the WTO agreements; [those regarding] customs evaluation, sanitary and phytosanitary measures, and intellectual property. . . . [T]his is a sum
equal to a year’s development budget for many of the least developed countries.78

The costs include the development of the institutions needed to comply with developed country standards, monitoring and testing programmes, and ‘non-recurring
commitments such as the development of laboratory infrastructure and processing
facilities’.79 Given other government imperatives, such as providing for education
and shelter, this may not be ‘money well spent’.80
The rules regarding subsidies under the Agreement on Subsidies and
Countervailing Measures (SCM) do not favour developing States. Subsidies consist of government supports for industry. They obstruct trade if they favour local
traders over foreign traders. Certain subsidies, such as export subsidies and import
substitution subsidies, which have historically been used by successful industrializers to kickstart industries, are now forbidden.8¹ Other subsidies, also used in the
past to promote industrialization by now-developed States, may be challenged
and subjected to countervailing measures (which are designed to offset the effect
n 73, para 5.2, where the Panel implies that the same interpretation of GATT might not apply to
developing States.
75 See Caroline E Foster, ‘Public Opinion and the interpretation of the World Trade Organisation’s
Agreement on Sanitary and Phytosanitary Measures’ in Joseph, Kinley, and Waincymer (eds), above
n 29, 285 at 286; Joel P Trachtman, ‘Developing Countries, the Doha round, Preferences, and the
Right to Regulate’ in Chantal Thomas and Joel P Trachtman (eds), Developing Countries in the WTO
Legal System (Oxford University Press, New York, 2009) 122.
76 See Jürgen Kurtz, ‘A Look behind the Mirror: Standardization, Institutions and the WTO SPS
and TBT Agreements’ (2007) 30 University of New South Wales 504, 517–19. See also Chapter 3, text
at notes 52–54.
77 Narlikar, above n 39, 71; Hoekman, above n 19, 410.
78 Dani Rodrik, The Global Governance of Trade: As if Development Really Mattered (UNDP, New
York, 2001) 26.
79 Kurtz, above n 76, 514.
80 Ibid, 514.
8¹ Note that developing States are permitted to use export subsidies under Article 27(2) of the
SCM until they reach an average annual income of $1000USD per person.

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WTO, Poverty, and Development

of subsidies and therefore to punish the State utilizing those subsidies). These bans
and restrictions on subsidies hinder the ability of developing States to ‘catch up’,
as discussed below.8² Indeed, most countervailing measures have targeted policies
in developing States.8³ In contrast, certain agricultural subsidies are permitted,
and have been used by developed States to severely harm agricultural industries in
the South, as described below and in Chapter 6. Finally, certain subsidizing activities, which are effectively only available to rich States, are allowed.84 For example,
the extensive investments into research in the US defence industry, which have
historically had beneficial spill-over benefits for civilian industries such as information technology and aviation, are permitted.85 It is fair to suggest that WTO
rules forbid the types of subsidies which developing States might realistically aim
to use, but permit those effectively only available to developed States.86
Anti- dumping measures are permitted under Article VI GATT and the
Agreement on Implementation of Article VI of the General Agreement on
Tariff s and Trade to counteract the practice of dumping in order to combat
unfair competition from goods imported at less than their normal value. Thus,
anti- dumping measures are another non-tariff barrier. The WTO’s dumping
rules are extremely complex, which favours developed States given their wealth
of technical expertise. Furthermore, certain developed States are hypocritical
in their imposition of dumping measures. The US standards used to determine if another State is engaged in dumping are different to its comparable
domestic standards regarding anti- competitive practices. Stiglitz has suggested
that few US companies could satisfy the international standard, while most
international traders could satisfy the domestic standard. Thus, US dumping
law is abused to target international competition rather than to target unfair
competition.87
As with dumping measures, developed States have also abused the leeway
offered under WTO laws regarding safeguards under Article XIX GATT and the
Agreement on Safeguards.88 Agricultural safeguards are governed by different
rules, and are discussed in Chapter 6.

Accession
WTO rules and practices are particularly unfair to States that choose to accede
to the WTO. An acceding State essentially has to satisfy the demands of each
WTO member that chooses to join the Working Party established for its accession:

8² See also Lee, above n 33, 74–6.
8³ Ibid, 76.
84 Ha-Joon Chang, Bad Samaritans: the Myth of Free Trade and the Secret History of Capitalism
(Bloomsbury Press, New York, 2008) 77.
85 Stiglitz and Charlton, above n 18, 131; see also Ha-Joon Chang, Kicking Away the Ladder
(Anthem Press, London, 2003) 31.
86 See Mehdi Shafaeddin, ‘Is Industrial Policy Relevant in the 21st Century?’ Third World
Network Trade & Development Series 36 (TWN, Malaysia, 2008) 19.
87 Joseph Stiglitz, Making Globalization Work (Penguin, London, 2007) 93.
88 Stiglitz and Charlton, above n 18, 128–9.

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C. The Uruguay Round Bargain

157

any WTO Member can join such a Working Party.89 Incumbent Members have
exploited accession processes to impose onerous conditions on acceding Members
which they do not need to reciprocate.90 These conditions can set precedents for
future Members, who may face even more onerous requirements. For example,
Oxfam has suggested that the proposed conditions for Samoa, which had not
yet joined the WTO at the time of writing, are more onerous than the ‘bad deal’
received by Cambodia, which acceded in 2004.9¹ The precedent value of accession deals explains why harsh requirements are extracted from SVEs and LDCs by
States that hardly trade with them: those precedents are perceived as valuable for
future negotiations with States with significant economies such as Russia.9²
Conditions for new members often include additional obligations, not imposed
under existing WTO rules (‘WTO plus’ conditions), as well as a loss of concessions that a State would normally be entitled to under WTO rules (‘WTO minus’
conditions).9³ For instance, the Commonwealth secretariat has determined that
acceding States typically commit to greater liberalization in the trade in services
than incumbents.94 As an example of a ‘WTO plus’ requirement, Tonga, which
acceded to the WTO in 2007, had to commit to liberalizing a large number of
services, even though GATS generally permits States to choose which services
they will open up to foreign competition.95 Tonga has an average tariff binding
of 35 per cent, which is much lower than most comparable developing States.96
Regarding ‘WTO minus’ conditions, Tonga became fully bound by TRIPS as
of 1 January 2008, so there was virtually no delay in full implementation, even
though all incumbent developing States had benefited from longer timelines to
facilitate implementation in the original Marrakesh Agreement.
Most acceding States, and most of those yet to accede, are developing States.
Of course, a State can choose not to accede, at the risk of being shut out of the
world economy. Nevertheless, it is difficult to justify such lopsided ‘bargains’, concluded without recognizable reciprocity in either negotiating power or outcomes.97
The General Council of the WTO has urged Members to exercise restraint in
89 Jane Kelsey, ‘World Trade and Small Nations in the South Pacific Region’ (2004–05) 14 Kansas
Journal of Law and Public Policy 248, 265.
90 UNDP, Asia Pacific Human Development Report 2006: Trade on Human Terms (UNDP,
Colombo, 2006) 131.
9¹ See Oxfam, ‘Submission by Oxfam New Zealand to Ministry of Foreign Affairs on the WTO
accession negotiations of Samoa’ (September 2005) 5–6, 10, <http://www.oxfam.org.nz/imgs/
whatwedo/mtf/onz%20on%20samoa%20wto%20accession.pdf> accessed 20 September 2010.
9² Kelsey, above n 89, 274; Stiglitz and Charlton, above n 18, 161.
9³ UNDP, above n 90, 131.
94 R Grynberg and others, Paying the Price for Joining the WTO (Commonwealth Secretariat,
London, 2002) 39, quoted in Commission on Human Rights, ‘The right of everyone to the enjoyment
of the highest attainable standard of physical and mental health: Report of the Special Rapporteur,
Paul Hunt: Mission to the World Trade Organization’, UN doc. E/CN.4/2004/49/Add.1 (1 March
2004) para 68.
95 Kelsey, above n 89, 271: see also Oxfam, ‘Proposed WTO Accession: Key Issues for Tonga’
(Oxfam New Zealand Discussion Paper, Auckland, 2005) 8–11 <http://www.oxfam.org.nz/imgs/
pdf/wto%20key%20issues%20for%20tonga.pdf> accessed 20 September 2010.
96 Oxfam New Zealand Discussion Paper, above n 95, 13.
97 Kelsey, above n 89, 266 (fn 132).

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WTO, Poverty, and Development

negotiating deals with LDCs in a Decision on ‘Accession of Least Developed
Countries’ from 20 January 2003.98 Unfortunately, Samoa, an LDC which is still
negotiating its accession protocol at the time of writing, reported that the Decision
changed nothing.99
The rules regarding accession must be amended as they cannot be described as
remotely fair. Objective rules should be prescribed and applied to States according
to their levels of economic development.¹00

The Northern side of the bargain
The developed States’ side of the bargain was to agree to some liberalization regarding agriculture and textiles, products which had been omitted from prior GATT
negotiations, under the Agreement on Agriculture (AoA) and the Agreement on
Textiles and Clothing (ATC).¹0¹ Agricultural goods and textiles are products
where many developing states have a comparative advantage. However, the AoA
and the ATC ‘left vast scope for continued protectionism’.¹0²
Indeed, despite the fact that average tariffs in developed States are quite low,
goods of interest to developing States are disproportionately targeted by tariff
peaks, that is those tariff bindings that are considerably higher than those averages.¹0³ In 2005, the UNDP stated:
On average, low-income developing countries exporting to high-income countries face
tariffs three to four times higher than the barriers applied in trade between high-income
countries. . . . Developing countries count for less than one-third of developing country
imports but for two-thirds of tariff revenues collected.¹04

As a concrete example, Valentine Sendanyoye-Rugwabiza, a Deputy Director
General of the WTO, reported in 2006 that the US collected more tariffs from
imports from Cambodia than from French imports, even though the amount of
the former imports equated with one tenth of the latter.¹05
Prior to the WTO, trade in textiles was regulated by the Multi Fibre
Agreement, under which several States imposed quotas on textiles from developing States.¹06 Under the ATC, the EC, the US, Canada and Norway (ATC
States) were permitted to maintain quotas but had to progressively increase
98 WTO, ‘Accession of Least-Developed Countries’ (Decision of 10 December 2002), WTO
doc. WT/L/508.
99 Kelsey, above n 89, 266 (fn 132).
¹00 Stiglitz and Charlton, above n 18, 163.
¹0¹ This Agreement was a transitional arrangement which terminated on 1 January 2005, so trade
in textiles and clothing is now subject to normal GATT rules.
¹0² Narlikar, above n 39, 26. See generally, Hunter, above n 19, and Christine Breining-Kaufman,
‘The Right to Food and Trade in Agriculture’ in Thomas Cottier, Joost Pauwelyn, and Elizabeth Bürgi
(eds), Human Rights and International Trade (Oxford University Press, Oxford, 2005) 341–81.
¹0³ Lee, above n 33, 35; Stiglitz and Charlton, above n 18, 51 and 125.
¹04 UNDP, above n 64, 127. See also Stiglitz and Charlton, above n 18, 47–8.
¹05 Valentine Sendanyoye-Rugwabiza, ‘Is the DDA a Development Round’ (Address at
the London School of Economics, 31 March 2006) 3 <http://www2.lse.ac.uk/PublicEvents/
pdf/20060331-WTO.pdf> accessed 20 September 2010.
¹06 Stiglitz and Charlton, above n 18, 44.

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C. The Uruguay Round Bargain

159

them through three stages until 2005, when all quotas had to be abolished and
textiles integrated into normal GATT disciplines. As it happened, ATC States
backloaded their quota reduction commitments and utilized permissible safeguards as much as possible to delay commercial benefits to developing countries
until the expiry of the ATC,¹07 in accordance with the letter but not the spirit of
the ATC.¹08 In effect, some of the richest States took full advantage of their own
SDT provisions! Th is backloading also gave the beneficiaries of those quotas,
often LDCs like Bangladesh, less time to adjust to the loss of those quotas and
subsequent exposure to greater competition from non-beneficiaries like China
and India. Furthermore, developed States dominated exports in the textiles sector, and the ATC States increased their export shares between 1995 and 2002,
‘indicating that the case for continued protection [was] weak’.¹09 Since expiry
of the ATC, developed States, even non-ATC States such as Australia and New
Zealand, have maintained above-average tariff rates on textiles and especially
clothing.¹¹0
Agricultural produce in the US and the EU remains heavily subsidized, so developing States have found it difficult to penetrate those lucrative markets.¹¹¹ Indeed,
subsidized agricultural exports have made their way to developing states, undercutting local farmers and driving them out of business.¹¹² Furthermore, while the AoA
mandated the binding of all agricultural tariff lines, developed States only committed to prohibitively high tariffs. The World Bank, in its World Development
Report of 2008, estimated that the removal of protectionist measures by developed
States ‘would induce annual welfare gains for developing countries estimated to be
five times the current annual flow of aid to agriculture’.¹¹³
Cotton subsidies have been particularly controversial, and have been described
as an ‘iconic issue’ in the lead-up to the ill-tempered Cancún Ministerial.¹¹4
Indeed, certain aspects of the US’s subsidies programme were found to contravene WTO laws in United States—Subsidies on Upland Cotton in 2002 by a WTO
Panel, affirmed by the Appellate body in 2005.¹¹5 By 2009, the US had still not
complied with the decision, so an arbitrator authorized $US295 million worth of
¹07 Khor, above n 51, 9.
¹08 Hildegunn Kyvik Nord s, ‘The Global Textile and Clothing Industry post the Agreement on
Textiles and Clothing’ (Discussion Paper No 5) (WTO, Switzerland, 2004) 14–16.
¹09 Ibid, 16.
¹¹0 See Indicator 39 for the Millennium Development Goals, ‘Average Tariffs imposed by
Developed Countries on Agricultural Products and Textiles and Clothing from Developed
Countries’ <http://www.statistics.gov.lk/MDG/Indicators%20New/Poverty%20Indicators%2039
.pdf> accessed 15 May 2010.
¹¹¹ Paul, above n 35, 325–6; Breining-Kaufman, above n 102, 368.
¹¹² Breining-Kaufman, above n 102, 368; Oxfam, above n 5, 93 and 116.
¹¹³ World Bank, World Development Report 2008: Agriculture for Development (World Bank,
Washington DC, 2008) 11.
¹¹4 Trachtman, above n 75, 124.
¹¹5 United States—Subsidies on Upland Cotton, WTO doc. WT/DS297/R (8 September 2004)
(Report of the Panel); United States—Subsidies on Upland Cotton, WTO doc. WT/DS267/AB/R
(3 March 2005) (Report of the Appellate Body).

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160

WTO, Poverty, and Development

retaliatory measures by Brazil.¹¹6 The impact of the cotton subsidies is particularly
acute in the ‘C4’ countries of West Africa: Benin, Burkina Faso, Chad, and Mali.
These States produce cotton at half the cost compared to the US, yet the the US
is the world’s largest cotton exporter. In 2003, the C4 reported in the WTO that
US cotton subsidies in 2001 amounted to 60 per cent more than Burkina Faso’s
entire GDP: the subsidies benefited a few thousand American farmers and penalize about a million farmers in Africa. The C4 States, some of the poorest in the
world, estimated that their consequent direct and indirect losses amounted to $1
billion a year.¹¹7
Subsidies also artificially lower commodity prices on the world market. If
growers from developing States were not forced to compete by offering their produce at low prices, the higher prices would assist to alleviate poverty in grower
communities. For example, the World Bank has reported that US and European
cotton subsidies depressed world cotton prices by 71 per cent in 2001–2002, again
with devastating effects on the incomes of cotton growers in Africa and central
Asia.¹¹8
The unfairness and perverse consequences of the current WTO arrangements
for agriculture are further discussed in Chapter 6.

Conclusion on current WTO rules
Current trade rules, such as those allowing for the maintenance of trade barriers
regarding agriculture and the mandating of trade barriers in the form of intellectual property rights, are biased against developing states. This circumstance
undermines the WTO’s stated goal of improving living standards across the world,
and its potential for promoting development and alleviating poverty, as the populations in greatest need are disadvantaged.

D. Free Trade, Economic Growth, and Poverty
Clearly, the introduction of balance and fairness into WTO rules is desirable from
the perspective of developing States. A different question arises as to whether liberalization per se is a prudent strategy from a human rights point of view. The justification for trade liberalization is that it will improve global and national economic
efficiency, and lead to economic growth and development. This is said to be so even
on a unilateral basis, as liberalization will improve the efficiency of a State’s industries and allow its consumers access to cheaper goods.

¹¹6 See United States—Subsidies on Upland Cotton—Recourse to Arbitration by the United States
under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, WTO docs. WT/DS267/ARB/1
and WT/DS267/ARB/2 (31 August 2009) (Decision by the Arbitrator).
¹¹7 See WTO, ‘Poverty Reduction: Sectoral Initiative in Favour of Cotton’ (WTO Committee on
Agriculture), WTO doc. TN/AG/Gen.4 (16 May 2003).
¹¹8 World Development Report 2006, above n 58, 212.

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D. Free Trade, Economic Growth, and Poverty

161

From a human rights point of view, the important issue is whether liberalization is likely to lead to poverty alleviation and better economic outcomes on a
distributive basis rather than better economic performance on a national or global
basis. Nevertheless, it is relevant to human rights to assess whether liberalization
promotes economic growth, as that outcome should increase a State’s capacities
to fulfil its human rights obligations. Conversely, economic regression decreases
those abilities. Furthermore, the short term detrimental impacts of free trade,
which are undeniable for those in inefficient industries, cannot be justified if the
long term benefits are not in fact likely to eventuate.¹¹9 Of course, if free trade
is promoting economic growth, such growth per se does not alleviate poverty
due to possible distributional discrepancies. The impact of trade liberalization
on economic growth, poverty, inequality and development is therefore examined
further below.

Comparative advantage: theory and practice
In 1776, the economist Adam Smith challenged the protectionist orthodoxies of
the time by proposing the theory of ‘absolute advantage’—that State A should
produce goods for which it has an advantage over State B, and should export
those goods to B, while importing from B goods for which B has an advantage
with regard to State A. Advantages derive from country conditions, such as climate, natural resources, size of population, and levels of urbanization. So long
as trade between the States is not obstructed by trade barriers, both countries
benefit from cheaper goods and have more efficient industries which concentrate on the most suitable production outputs, rather than wasting resources on
inefficient industries. David Ricardo advanced Smith’s theory in 1817 by promulgating the theory of ‘comparative advantage’, which applied to all countries
regardless of whether they had an ‘absolute advantage’ in the production of any
product. State A, according to Ricardo, should concentrate on producing and
exporting those goods which it is best suited to produce while importing from
State B those goods that B is best at producing. The theory applies even if State A
has an absolute advantage over State B with regard to the production of all goods.
Suppose A is better at producing both wheat and grapes than B, and that A is better at producing wheat than grapes. B is better at producing grapes than wheat.
Under Ricardo’s theory, A should concentrate on producing and exporting wheat
to B, while importing grapes from B, as A suffers an opportunity cost in diverting resources from wheat to grapes. B should concentrate on its grape production. Under this theory of comparative advantage, numerous advantages accrue
to all States if they trade freely without trade barriers. The production processes
brought about by specialization become more efficient and sustainable in each
State, while consumers in all States enjoy access to lower priced goods of the best
¹¹9 The converse proposition however is not necessarily true. That is, short term consequences
are not necessarily justified under international human rights law, even if the long term benefits do
arise.

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162

WTO, Poverty, and Development

quality. Furthermore, increased competition from free trade provides incentives
to increase efficiency and to innovate.¹²0
Of course, numerous economic theories have built on or departed from this
200-year-old theory. Many modern economists recognize qualifications and
nuances to this pure trade theory.¹²¹ However, most free trade advocates still see
comparative advantage as ‘offering the best description of how international trade
creates wealth’.¹²² The WTO’s website proclaims the theory of comparative advantage as ‘arguably the single most powerful insight into economics’.¹²³
Ricardo’s theory is based on a perfect market.¹²4 Professor Joel R Paul has listed
four requirements for a perfect market where prices reflect the true costs of production: an absence of trade barriers, homogeneous goods (where a product from State
A may substitute for a product from State B), perfect consumer knowledge of the
relevant market so that consumers buy goods at the most competitive price, and an
adequate pool of buyers and sellers to stave off market manipulation by monopolistic practices.¹²5
The most obvious trade distortions arise from barriers to free trade. Despite the
efforts of the GATT and the WTO, numerous trade barriers still exist. Indeed,
certain trade barriers are mandated, namely IP rights under TRIPS. Linked to
IP protection are distortions which arise from marketing, whereby consumers
are convinced that certain branded products (where trademarks are protected
IP) are better than others, which allows those products to be sold for a higher
price.
Markets are also distorted by monopolies and anti-competitive practices, which
currently remain outside the mandate of the WTO. Multinational corporations
(MNCs) dominate world trade and have enormous exploitable advantages against
new competitors. Much international trade today is in fact conducted within
MNCs: an MNC will often import components from its offshore subsidiaries
even if lower priced components are available elsewhere.¹²6 The severe impact of
monopolies in agricultural markets is discussed in Chapter 6.
The application of the theory of comparative advantage in the context of a free
flow of capital resources across borders, such that the trade advantages within a
¹²0 Paul, above n 35, 290–2.
¹²¹ Van den Bossche, above n 41, 19–20.
¹²² G Richard Shell, ‘Trade Legalism and International Relations Theory: An Analysis of the
World Trade Organization’ (1995) 44 Duke Law Journal 829, 858. See also Jagdish N Bhagwati,
‘Challenges to the Doctrine of Free Trade’ (1993) 25 New York University Journal of International
Law and Politics 219 (1993); Michael H Davis and Dana Neascu, ‘Legitimacy, Globally: The
Incoherence of Free Trade Practice, Global Economics, and the Governing Principles of Political
Economy’ (2001) 69 University of Missouri Kansas City Law Review 733.
¹²³ WTO, ‘Understanding the WTO: The Case for Open Trade’ (undated) <http://www.wto
.org/english/thewto_e/whatis_e/tif_e/fact3_e.htm> accessed 18 September 2010. Martin Wolf, in
Why Globalisation Works (Yale Nota Bene, London, 2005), describes the idea of comparative advantage as ‘perhaps the cleverest in economics’ at 80.
¹²4 See also Stiglitz and Charlton, above n 18, 115.
¹²5 Paul, above n 35, 292. See also 292–6.
¹²6 Ibid, 295. Van den Bossche, above n 41, states that ‘two thirds of all trade takes place within
companies’ at 9. However, he states that the amount is ‘one third’ at 703.

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D. Free Trade, Economic Growth, and Poverty

163

State can be appropriated by offshore traders, is dubious.¹²7 In this respect, one
may note the difference between measuring economic performance by Gross
Domestic Product (GDP), the market value of all goods and services produced
within a State, and Gross National Income (GNI), which differentiates according
to the ownership of income, thus taking account of the income which stays in a
country, or which is imported into a country by its nationals (such as those MNCs
headquartered in a country), and excluding income exported out of the country
(such as by foreign MNCs).¹²8 If production (of goods or services) in a State is
dominated by foreign MNCs with little trickle-down to local businesses, and the
State is home to few investors with offshore activities, its GNI will lag significantly behind its GDP. In such a situation, GDP is an over-optimistic indicator
of the State’s economic performance.¹²9 This is not to say that foreign investment
is bad for an economy: such investment can of course provide jobs, technological
transfer, and business for local industries. It is simply to suggest that outflows of
capital ultimately benefit or ‘confer advantage’ on the receiving rather than the
sending State.¹³0
Finally, comparative advantage theory dictates that efficiency gains will ensue
from the transfer of the means of production, such as labour and capital, from
inefficient industries to efficient industries.¹³¹ However, the freed-up capital may
in some cases move offshore. Furthermore, Stiglitz and Charlton have noted that
developing States in fact have vast labour reserves. Therefore, ‘trade liberalization
is not required to “free up” these resources for use in new industries’.¹³² Removal of
protection for existing industries therefore may mean that underemployed people
in inefficient industries move to ‘zero-productivity unemployment’.¹³³
Therefore, the relevance of Ricardo’s theory to the realities of the present day
is questionable.¹³4 Paul has estimated the amount of goods traded in a ‘perfect
market’ to be 25 per cent of the world’s exports ‘and probably significantly less’.¹³5
In any case, assertions of the benefits of a truly free trade regime may never move
beyond the theoretical. Free markets are currently impeded by the significant level
of protectionism which is permitted under WTO rules as well as globally mandated IP rights. Political realities render it unlikely that world barriers will ever

¹²7 See also Wolf, above n 123, 83 (quoting Ronald Jones, Globalization and the Theory of Input
Trade (MIT Press, Cambridge, Massachusetts, 2000) 135–6), though Wolf argues that ‘this qualification to the theory seems far less important than one might expect’ due to the general lack of foreign
direct investment in many developing States.
¹²8 See OECD, ‘Glossary of Statistical Terms’ <http://stats.oecd.org/glossary/detail.asp?ID=1176>
accessed 20 September 2010.
¹²9 See ‘GDP and GNI’, OECD Observer No 246–247, December 2004–January 2005 <http://
www.oecdobserver.org/news/fullstory.php/aid/1507/GDP_and_GNI.html> accessed 22 September
2010.
¹³0 Of course, outflows may be matched by inflows, in which case GDP and GNI are equivalent.
And in some States, GNI outpaces GDP, as in Japan in 2004.
¹³¹ Wolf, above n 123, 81.
¹³² Stiglitz and Charlton, above n 18, 6.
¹³³ Ibid, 26; see also 194.
¹³4 Oxfam, above n 5, 57–60.
¹³5 Paul, above n 35, 298.

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WTO, Poverty, and Development

allow for the truly free movement of labour, so a truly free trade regime will never
materialize.¹³6

Freer trade and economic growth
Nevertheless, trade barriers across the world have dropped under the auspices of
the GATT and the WTO,¹³7 so orthodox economic theory holds that there should
have been significant increases in wealth across the world, even if those increases
are not as much as could be expected in a perfectly free market. And indeed, global
economic output has soared in the last 20 years.¹³8 However, this does not mean
that trade liberalization in a State will automatically lead to decreases in poverty in
that State.
The positive effect of free trade on economic growth is often presumed.¹³9
However, world economic patterns have not conformed to orthodox theoretical expectations.¹40 While certain influential studies have purported to compare
groups of ‘globalizing’ countries with ‘non-globalizers’, reporting that the former
group has recorded greater rates of economic growth,¹4¹ those studies reveal nothing about the trade policies of the respective States.¹4² States that engage in significant international trade may nevertheless maintain highly trade restrictive
policies. China (which only joined the WTO in 2001), India, South Korea, and
Taiwan have all experienced outstanding rates of growth, but those growth spurts
began long before those States undertook liberalizing reforms.¹4³ Vietnam, which
only joined the WTO in 2007, is another apparent economic success story, where
growth and poverty reduction have occurred under a protectionist regime.¹44 On
the other hand, the results in the open economies of El Salvador and Mexico have

¹³6 Dani Rodrik, ‘How to Save Globalisation from its Cheerleaders’ (2007) 1 The Journal of
International Trade and Diplomacy 1, 10–11. <http://dev.wcfia.harvard.edu/sites/default/fi les/
Rodrick_HowToSave.pdf> accessed 20 September 2010; World Development Report 2006, above
n 58, 210. See also Wolf, above n 123, 89.
¹³7 Furthermore, liberalization outside the GATT/WTO framework has been induced in developing countries by international financial institutions as conditions for loans.
¹³8 See the statistics cited in David Kinley, Civilising Globalisation (Cambridge University Press,
Cambridge, 2009) 14.
¹³9 See, eg, Robert Howse, above n 10, paras 15 and 29 (criticizing this ‘neo-liberal article of
faith’).
¹40 World Bank, Economic Growth in the 1990s: Learning from a Decade of Reform (World Bank,
Washington DC, 2005) <http://www1.worldbank.org/prem/lessons1990s/> accessed 19 September
2010; Rodrik, above n 136.
¹4¹ See, eg, David Dollar and Aart Kraay, ‘Trade, Growth and Poverty’ (World Bank Policy
Research Working Paper No 2615) (World Bank, Washington DC, June 2001) <http://wdsbeta
.worldbank.org/external/default/WDSContentServer/IW3P/IB/2002/08/23/000094946_02082
304142939/Rendered/PDF/multi0page.pdf> accessed 22 September 2010 and David Dollar and
Aart Kraay, ‘Growth is Good for the Poor’ (World Bank Policy Research Working Paper No 2587)
(World Bank, Washington DC, April 2001) <http://wdsbeta.worldbank.org/external/default/
WDSContentServer/IW3P/IB/2001/05/11/000094946_01042806383524/Rendered/PDF/
multi0page.pdf> accessed 22 September 2010.
¹4² Oxfam, above n 5, 130–1.
¹4³ Rodrik, above n 78, 18 and 24; Paul, above n 35, 312–13.
¹44 Rodrik, above n 78, 21.

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D. Free Trade, Economic Growth, and Poverty

165

been ‘underwhelming’ in terms of growth, employment, poverty reduction, and
real wages.¹45
Furthermore, the economist Ha-Joon Chang states that growth rates across the
world and particularly in developing States from 1960 to 1980 were higher than
those between 1980 and 2000, even though economic policies were far more liberal in the later period. He states:
So we have an apparent ‘paradox’ here—at least if you are a Neo-liberal economist. All
countries, but especially developing countries, grew much faster when they used ‘bad’ policies during the 1960–1980 period than when they used ‘good’ ones in the following two
decades.¹46

The studies essentially demonstrate that countries reduce trade barriers as they
have become richer,¹47 but some countries may have reduced trade barriers prematurely. The studies do not demonstrate that trade liberalization per se is a guarantor
of or a prerequisite to growth,¹48 though it often boosts pre-existing growth.¹49 A
2005 World Bank report concedes that the correlation between trade liberalization and economic growth is inconclusive.¹50

Freer trade, poverty, and inequality
Even if economic liberalization promotes economic growth, that circumstance may
not translate into benefits for the poor. Growth per se does not necessarily mean
that the increases in wealth are fairly distributed. The Committee on Economic,
Social and Cultural Rights recently stated:
Economic growth has not, in itself, led to sustainable development and individuals
and groups of individuals continue to face socio-economic inequality, often because of
entrenched historical and contemporary forms of discrimination.¹5¹

Let us turn to examine statistics regarding the incidence of poverty in this age
of global economic integration, which has undoubtedly been facilitated by the
WTO and its predecessor GATT. A word of caution must however be noted:
global statistics regarding poverty are the subject of enormous dispute.¹5² It is
¹45 Rodrik, above n 136, 14–15. See also Oxfam, above n 5, 127; Chantal Thomas, ‘Poverty
Reduction, Trade, and Rights’ (2003) 18 American University International Law Review 1399, 1406.
¹46 Chang, above n 85, 128–9. See also Chang, above n 84, 27–8.
¹47 Rodrik, above n 78, 22.
¹48 UNDP, above n 64, 119; Dan Ben-David, Håkan Nordström, and Alan Winters, ‘Trade,
Income Disparity, and Poverty’ (WTO Special Studies 5) (WTO, Geneva, 1999), 59.
¹49 UNDP, above n 64, 119.
¹50 World Bank, above n 140; see also UNDP, above n 64, 119.
¹5¹ Committee on Economic, Social and Cultural Rights, ‘General Comment No 20: NonDiscrimination in Economic, Social and Cultural Rights (art 2, para 2)’, UN doc. E/C.12/GC/20
(2 July 2009) para 1.
¹5² See, for a discussion on the difficulty of estimating poverty, Sanjay G Reddy and Thomas
W Pogge, ‘How not to count the poor’ (Columbia University paper, version 6.2) (2005) <http://
www.columbia.edu/~sr793/count.pdf> accessed 22 September 2010. See also World Development
Report 2006, above n 58, 44. Wolf, above n 123, describes ‘all poverty estimates’ as ‘inherently
arbitrary’ at 163.

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166

WTO, Poverty, and Development

therefore not possible to present unimpeachable statistics regarding poverty and
inequality.¹5³
There is general agreement that there has been improvement in the absolute and
proportionate number of poor people since 1980, if living in a state of poverty is
defined as living on the World Bank standard of $US1.25 or less a day (with the US
dollar calculated as having the same purchasing power as in 2005).¹54 For example,
World Bank economists Shaohua Chen and Martin Ravallion estimated that there
were 1.9 billion poor people in 1980, about half the world’s population, compared
to 1.4 billion, or a quarter of the world’s population, in 2005.¹55 However, patterns
in this respect differ across the world. In 2005, the UNDP reported a decrease in
poverty from 1990 in Asia, calculated at the old World Bank rate of $US1 a day at
1993 rates, a slight increase in Africa, static poverty lines in Latin America, and an
increase in poverty in Central and Eastern Europe and the former Soviet bloc.¹56
Furthermore, the reduction in absolute poverty is not so clear-cut if China is taken
out of the equation.¹57
In any case, the number of people living in poverty remains enormous. To recap,
Chen and Ravallion found that a quarter of the world’s people lived in extreme
poverty in 2005. Furthermore, a simple thought experiment serves to indicate that
the $US1.25 a day marker is very low indeed:¹58 it is intuitively difficult to conceive
of a person living on $US2 a day as not being ‘poor’. The following figures may
be gleaned from statistics gathered by the World Bank on poverty levels in 2005:
40 per cent of people in the world live on $US2 or less a day and 95 per cent of the
developing world live on less than $US10 a day.¹59
Has the gap between rich and poor expanded in the last few decades?
Measurement of inequality is complicated by the existence of different measures of inequality: inter-State inequality (comparing median incomes between
¹5³ Eg, while it is contended below that inequality has increased in the last two decades, Wolf
contends otherwise in Wolf, above n 123, Chapter 9.
¹54 See also Pranab Bardhan, ‘Globalisation and human rights: an economist’s perspective’ in
Joseph, Kinley, and Waincymer (eds), above n 29, 92–3; Kinley, above n 138, 15.
¹55 Shaohua Chen and Martin Ravallion, ‘The developing world are poorer than we thought,
but no less successful in the fight against poverty’ (World Bank Policy Research Working Paper
No 4703) (World Bank, Washington DC, August 2008) <http://siteresources.worldbank.org/
JAPANINJAPANESEEXT/Resources/515497-1201490097949/080827_The_Developing_
World_is_Poorer_than_we_Thought.pdf> accessed 22 September 2010.
¹56 Oxfam, above n 5, 66. See also United Nations Development Programme (UNDP), Human
Development Report 2004: Cultural Liberty in Today’s Diverse World (UNDP, New York, 2004) 130.
¹57 UN Commission on the Private Sector and Development (CPSD), Unleashing Entrepreneurship:
Making Business work for the Poor (UNDP, New York, 2004) 6, via <http://www.undp.org/cpsd/
report/index.html> accessed 22 September 2010.
¹58 Reddy and Pogge, above n 152, disputed the validity of the $US1 a day marker: the same arguments would apply to the new poverty marker of $US1.25 a day.
¹59 These figures are gleaned from graphs available from the World Bank’s site on ‘Poverty Reduction and Equity’ (see <http://siteresources.worldbank.org/INTPOVERTY/Images/
PovTrends_large1.gif> accessed 22 September 2010) for the $US2 a day figure and Martin Ravallion,
Shaohua Chen, and Prem Sangraula, ‘Dollar a Day Revisited’ (World Bank Policy Research Working
Paper No 4620) (World Bank, Washington DC, May 2008) fn 5 (for the $US10 a day figure)). See
also <http://www.globalissues.org/article/26/poverty-facts-and-stats> accessed 22 September 2010,
which reports that 80% of the world live on less than $US10 a day, and 50% on less than $US2.50.

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D. Free Trade, Economic Growth, and Poverty

167

States), population-weighted State inequality (comparing median incomes
between States, taking into account the population of each State), and global
inequality (comparing income inequality between all human beings in the
world).¹60 Inequality has worsened on all measures bar the population weighted
comparison of States,¹6¹ where inequality has decreased largely due to significant economic growth in China and India, which account for nearly 40 per
cent of the world’s population.¹6² However, both countries seem to be experiencing increased intra-State inequality.¹6³ On intra-country inequality generally, the data indicate an ambiguous picture that is difficult to interpret:¹64
it ‘is increasing in some countries but is decreasing or ambiguous in other
countries’.¹65
As with absolute poverty, the statistics regarding inequality in the world are
staggering. In 2007, the UNDP reported that the richest 20 per cent of people
accounted for 75 per cent of world income, while the bottom 40 per cent
accounted for 5 per cent, and that 80 per cent live in States where ‘income differentials are widening’.¹66 World Bank figures indicate that the top 10 per cent are
responsible for 59 per cent of world consumption, the top 20 per cent for 76.6 per
cent, the bottom 50 per cent just 7.2 per cent, and the bottom 20 per cent for
1.5 per cent.¹67
Perhaps it is arguable that increasing inequality is not objectionable if the
plight of the poor nevertheless improves: it is perhaps acceptable for economic
globalization to improve the welfare of the poor at a lesser rate than that enjoyed
by the rich.¹68 However, a situation of extreme inequality, termed ‘global apartheid’ by South African President Thabo Mbeki in 2002,¹69 is inherently undesirable. Amartya Sen has stated that ‘[r]elative deprivation in the space of incomes
can yield absolute deprivation in the space of capabilities’.¹70 Sen’s ‘capabilities’
refer to a person’s ability to function in society. While there is clearly a difference between the absolute and relative poor in terms of some capabilities, such as
¹60 World Development Report 2006, above n 58, 57. See also Kinley, above n 138, 27–8.
¹6¹ World Development Report 2006, above n 58, 63–5. See also Anthony B Atkinson and Andrea
Brandolini, ‘Global World Inequality: Absolute, Relative or Intermediate?’ (2004) <http://www-1
.unipv.it/deontica/ca2004/papers/atkinson%20brandolini.pdf> accessed 22 September 2010. See
also Thomas Pogge, ‘Growth and Inequality: Understanding Recent Trends and Political Choices’
(2008) Dissent <http://www.dissentmagazine.org/article/?article=990> accessed 20 September
2010.
¹6² See also World Development Report 2006, above n 58, 68.
¹6³ See ibid, 45. See Save the Children, Freedom from Hunger for Children under Six (Save the
Children, India, 2009), for a recent disturbing report on the continuing severity of child malnutrition in India despite the fast growth in its economy. On inequality in China, see Pogge, above
n 161, 6–7.
¹64 World Development Report, above n 58, 45–6.
¹65 Bardhan, above n 154, 92.
¹66 UNDP, Human Development Report 2007/2008. Fighting climate change: Human solidarity in
a divided world (Palgrave Macmillan, Hampshire/New York, 2007) 25.
¹67 World Bank, World Development Indicators database (2008) 4 <http://databank.worldbank
.org/ddp/home.do> accessed 22 September 2010.
¹68 Thomas, above n 145, 1403; Wolf, above n 123, 140.
¹69 Mbeki is quoted by Trachtman, above n 34, 3. See also Oxfam, above n 5, 23.
¹70 Amartya Sen, Inequality Re-Examined (Oxford University Press, Oxford, 1995) 115.

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168

WTO, Poverty, and Development

freedom from hunger, there may be little difference between the absolute and
relative poor regarding other capabilities, such as the ‘capability to live without
shame’ or to have self respect.¹7¹ Furthermore, inequality can generate social
instability and conflict: ‘[a]n island of affluence surrounded by an ocean of poverty feels no security in a rising tide’.¹7² Finally, the further removed the rich are
from the poor, the greater the divergences in their interests, and the greater the
likelihood that rules (over which the rich have greater control and influence) will
be generated which benefit the former at the expense of the latter.¹7³
International human rights law does not demand that there be no inequality.
It is not a breach of human rights for there to be rich people and poor people in
a society. But there should be reasonable equality of opportunity in terms of, for
example, access to education and participation in the political process. As with
poverty, extreme inequality often accompanies human rights abuses or is generated
by human rights abuse. Most obviously, inequality is generated by discrimination,
long prohibited in international human rights law. For example, discrimination on
various grounds, including discrimination on ‘any . . . status’, is prohibited under
Articles 2(1) and 26 of the ICCPR and Article 2(2) of the ICESCR. The Committee
on Economic, Social and Cultural Rights remarked, regarding discrimination on
the basis of one’s socio-economic situation:
Individuals and groups of individuals must not be arbitrarily treated on account of belonging to a certain economic or social group or strata within society. A person’s social and
economic situation when living in poverty or being homeless may result in pervasive discrimination, stigmatisation and negative stereotyping which lead to the refusal of or unequal access to the same quality of education and health care as others, as well as the denial
of or unequal access to public places.¹74

It is difficult to determine the causes of persistent grave poverty and increased
inequality.¹75 Globalization, including the economic interactions mandated under
the WTO, such as decreased trade barriers and increased IP protection, is one
potential cause: other likely factors include technological change, which tends to
benefit the rich more than the poor,¹76 and local instability in poor countries.¹77
The World Bank reported in 2006 that the relationship between trade openness

¹7¹ See also Amartya Sen, ‘Poor, Relatively Speaking’ (1983) 35 Oxford Economic Papers 153,
159–63.
¹7² Paul, above n 35, 320.
¹7³ Pogge, above n 161, 6. See also Margot Salomon, ‘Global Economic Policy and Human Rights:
Three Sites of Disconnection’ (2010) Carnegie Ethics Online <http://www.cceia.org/resources/
ethics_online/0043.html> accessed 22 September 2010.
¹74 General Comment No 20, above n 151, para 35.
¹75 Bardhan, above n 154, 92–3. Wolf, above n 123, 140 and 170.
¹76 The mobile phone is a rare instance of a recent technological change that has radically changed
the lives of poor people. In contrast, few poor people have access to a television set or a computer. See, eg, Matthew Bishop, ‘Mobile Phone Revolution’, Developments (undated) <http://www
.developments.org.uk/articles/loose-talk-saves-lives-1/> accessed 14 May 2010.
¹77 Bardhan, above n 154, 92–3.

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E. Liberalization & Development: The Way Forward for Developing States

169

and inequality was ambiguous and diverse across states and within different state
sectors (for example, urban and rural populations).¹78
In light of the statistics, it seems fair to surmise that the modern era of globalization has served the interests of the richer ‘few’ far more than the poor ‘many’, and
that it has sustained if not created a system of astonishing global inequity. At the
least, it seems that the design of the global economy, including the mechanisms
for free trade, should be adjusted to make a greater effort to combat poverty and
inequality. As the World Bank has stated:
In sum, global actions can play a key role in redressing inequitable rules and helping
equalize endowments. The rules that govern markets for labour, goods, ideas, capital, and
the use of natural resources need to become more equitable.¹79

E. Liberalization and Development: The Way
Forward for Developing States
All developing States wish to catch up in economic terms to industrialized countries in the North. Success in doing so should lead to massive decreases in world
poverty. What strategies, in terms of trade liberalization, should be followed by
developing States? What should the States of the South be aiming for in terms of
their own WTO obligations in order to appropriately develop their economies?
Orthodox economic thinking, particularly since the 1980s, favours trade liberalization as a path to industrialization and development. However, as noted above,
the linkage between liberalization of trade and greater growth cannot be taken for
granted. As stated by the UNDP:
The evidence to support the proposition that import liberalization is automatically good
for growth is weak—almost as weak as the opposite proposition that protectionism is good
for growth.¹80

As conceded by the UNDP, ongoing static protectionism is not a long term
prescription for economic success.¹8¹ Once an industry has been appropriately
fostered by relevant domestic policies, only export markets can assist those
industries to grow. Participation in world markets has certainly assisted many
economies in the North and the South to grow and to gain access to imported
technologies.¹8²
Liberalization in most industrial sectors should probably occur at some stage in
a State’s development, so the question is one of ‘when’ and at what rate liberalization should occur, rather than ‘if’ it should ever occur. Implicit in such propositions is that liberalization can be premature and counterproductive. The following
concerns arise with regard to premature liberalization in developing states.
¹78 World Development Report 2006, above n 58, 194–5.
¹79 Ibid, 223.
¹80 UNDP, above n 64, 119.
¹8¹ Rodrik, above n 78, 24; Oxfam, above n 5, 24 and 61–2.
¹8² Department of Foreign Affairs and Trade, Globalisation: Keeping the Gains (Commonwealth
of Australia, Canberra, 2003) 5.

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170

WTO, Poverty, and Development

Loss of tariff revenue
The reduction of tariffs in developing States is problematic, as tariffs are an effective source of government revenue which is necessary for the provision of government services and programmes crucial to the enjoyment of economic, social, and
cultural rights by the poor, as well as other government initiatives.¹8³ Stiglitz and
Charlton report that tariff revenues comprise one third of the budgets of LDCs.¹84
Tariffs are relatively simple to administer and collect compared to other taxes, such
as goods and services taxes or income taxes.¹85 Many developing States lack the
infrastructure to properly police collection of the latter types of taxes, especially
given the prevalence in developing States of informal workforces and black markets.¹86 The IMF has estimated that, in the 25 years to 2005, less than 30 per cent
of lost tariff revenue was recovered by developing States through other means.¹87

Institutional reforms and social safety nets
There is no doubt that local and international factors outside the remit of the WTO
will impact on a State’s ability to maximize the benefits and minimize the detriments
of free trade. A State’s levels of political stability, corruption, infrastructure and welfare support, indebtedness, and social services such as education and health, are all
highly determinative of a State’s ability to benefit from WTO rules.¹88 Reform in
these areas will provide a greater fillip to a State’s development prospects than rapid
liberalization.¹89 States must develop infrastructure to cope with the inevitable
social consequences of liberalization. For example, social safety nets should exist to
compensate the inevitable losers from liberalized trade.¹90 States should also build
up the capacity of their social services such as education and health to facilitate the
creation of a higher skilled, more productive workforce.¹9¹ Of course, such capacitybuilding also facilitates the enjoyment of economic, social, and cultural rights. In
this respect, the World Bank stated in its World Development Report of 2006:
The ideal balance is a combination of gradual but committed liberalisation with extensive
engagement in complementary measures that broaden opportunities for all: education,
infrastructure, competition, and safety nets.¹9²
¹8³ Mehdi Shafaeddin, ‘Does Trade Openness Favour or Hinder Industrialization and
Development?’ Third World Network Trade & Development Series No. 31 (TWN, Malaysia, 2006) 6.
¹84 Stiglitz and Charlton, above n 18, 188.
¹85 Van den Bossche, above n 41, 379.
¹86 See also Lorand Bartels, ‘Trade and Human Rights’ in Daniel Bethlehem, Donald McRae,
Rodney Neufeld, and Isabelle Van Damme (eds), Oxford Handbook of International Trade (Oxford
University Press, Oxford, 2009) 579, and International Assessment of Agricultural Knowledge,
Science and Technology for Development (IAAKSTD), Agriculture at the Crossroads (IAAKSTD,
Washington DC, 2009), 456. See also Stiglitz and Charlton, above n 18, 28.
¹87 Thomas Baunsgaard and Michael Keen, ‘Trade Revenue and (or?) Trade Liberalisation’ (2005)
IMF Working Paper No. 05/112. See also Carin Smaller and Sophia Murphy, Bridging the Divide: a
human rights vision for global food trade (Institute of Agriculture and Trade Policy, Geneva, 2008) 13.
¹88 Thomas, above n 145, 1408.
¹89 Trachtman, above n 34, 18.
¹90 Paul, above n 35, 300; see also Oxfam, above n 5, 91. See also Lamy, above n 15, 5.
¹9¹ Thomas, above n 145, 1408; Trachtman, above n 34, 18; see also World Commission on the
Social Dimension of Globalisation, A Fair Globalization: Promoting Opportunities for all (ILO,
Geneva, 2004) para 73; Chang, above n 85, 102.
¹9² World Development Report 2006, above n 58,198.
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E. Liberalization & Development: The Way Forward for Developing States

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Ironically, given this statement by the World Bank, the capacities for developing
States to provide such ‘complementary measures’ have been undermined by loan
conditions imposed by the international financial institutions which have dictated
the slashing of public spending.
Arguably, the building up of such capacities constitutes a ‘development policy’. Developing States have a limited amount of leeway under Article XVIIIB
GATT to take certain measures to implement a programme of economic development. A narrow meaning was given to ‘economic development’ programmes in
India- Quantitative Restrictions on Imports of Agricultural, Textile and Industrial
Products,¹9³ indicating that little policy space is in fact available under this
provision.¹94

Static and dynamic comparative advantage
Premature liberalization may trap a developing State in sectors in which it has
a comparative advantage, namely primary production and low cost unskilled
manufacturing, which is not in the longer term interests of that State.¹95 In this
respect, the problems associated with liberalization in agriculture are discussed in
Chapter 6.
Specialization in low skilled manufacturing can generate mass migration to
urban areas, leading to overcrowding and social stresses as many of the affected
cities lack adequate infrastructure to cope with this influx of people many of
whom, whilst employed, remain poor.¹96 As noted in Chapter 4, a comparative
advantage based on low labour costs can be swiftly undermined by the availability of lower cost labour from other States:¹97 such job creation is ‘unstable and
dependent on low labour standards’.¹98 Foreign capital is highly mobile so it can
easily relocate to cheaper countries quickly.¹99 Technological changes can also
render low-skilled workforces redundant. Resultant job losses cause severe economic dislocation and hardship, as low skilled labourers may find it very difficult to migrate to other sectors²00 and developing States are rarely able to provide
adequate social security.
¹9³ WTO docs. WT/DS90/R (6 April 1999) (Report of the Panel) and WT/DS90/AB/R, AB1999-3 (23 August 1999) (Report of the Appellate Body).
¹94 See Chapter 3, text at notes 72–75.
¹95 Shafaeddin, above n 183, 12.
¹96 In this respect, see United Nations Human Settlements Programme, Global Report on Human
Settlements 2006: The Challenge of Slums (UN Habitat, London, 2006) xxv, reporting that in 2001,
924 million people, or nearly one third of the global urban population, lived in slums. Slums dominated urban centres in Sub-Saharan Africa (71.9 % of residents), with high rates in other developing
countries (58% in South- Central Asia, 36.4% in Eastern Asia, 33.1% in Western Asia, 31.9% in
Latin America and the Caribbean, 28.2% in Northern Africa, and 28% in South East Asia). Slum
populations soared during the 1990s, and the same is likely to have happened in the 2000s.
¹97 See Chapter 4, text at notes 257–260.
¹98 War on Want, ‘Trading away our jobs: How free trade threatens employment around the
world’ (2009) 22.
¹99 Oxfam, above n 5, 40 and 82–3.
²00 Paul, above n 35, 315; Robert Wai, ‘Countering, Branding and Dealing: Using Economic
and Social Rights in and Around the International Trade Regime’ (2003) 14 European Journal of
International Law 35, 50; Oxfam, above n 5, 40 and 82–3; Bob Hepple, Labour Laws and Global
Trade (Hart, Oxford, 2005) 17.
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Finally, developing economies based on mineral or energy resources seem to
have been afflicted by the so-called ‘resource curse’, whereby such States have
suffered from conflict (as groups fight for control of the territory containing the
resources), corrupt politics²0¹ (partially fed by MNCs bargaining for control
over the resources),²0² disconnection from other parts of the economy leading to
uneven development and inequality,²0³ overinflated currencies which harm other
exports,²04 and volatile prices.²05
A developing State will be a very vulnerable player in the global economy if
its comparative advantages lie solely in primary commodities and low-skilled
manufacturing, which is the situation of most developing States.²06 Their prospects for sustained economic growth are not high without a path to significant
diversification.
As noted by Mehdi Shafaeddin, a former economist for the United Nations
Conference on Trade and Development (UNCTAD), the theory of comparative
advantage, which underlies the promotion of swift liberalization, does not explain
how underdeveloped States, or ‘latecomers’, can upgrade their economies so as to
properly ‘catch up’.²07 The economist Yong-Shik Lee adds:
Despite the brilliance of the market economic theory developed by Adam Smith and
accepted and elaborated by subsequent economists, it is intrinsically difficult to understand how economies in the relatively primitive stages, depending heavily on the production of primary products, can build industries that would yield higher income without
some deliberative effort on the part of the government, particularly when the private sectors lack both resources and information to do so.²08

Ha-Joon Chang adds that Ricardo’s theory is ‘absolutely right’ for States that are
willing to accept their ‘current levels of technology as given’, but that the theory
fails where States wish to ‘acquire more advanced technologies’ and develop their
economies.²09
Free trade theory focuses on static comparative advantages, which are of low
quality in many developing States, rather than dynamic comparative advantages,
those that are created by targeted economic policies, and provides no means
for a State to graduate from the former to the latter and broaden its industrial
base.²¹0 Underdeveloped industries are not able to compete in a free market with
developed industries from overseas, and are not able to develop in the absence of
protection.

²0¹ See Collier, above n 27, 44–50.
²0² Stiglitz, above n 87, 138–44.
²0³ Collier, above n 27, 81.
²04 See ibid, 39–40, explaining this aspect of the resource curse, known as the ‘Dutch disease’
after the effect of North Sea gas on the Dutch economy in the 1960s: resource exports caused the
local currency to rise against foreign currencies, rendering other exports less competitive. See also
Stiglitz, above n 87, 147–9.
²05 Wolf, above n 123, 147; Collier, above n 27, 40–1.
²06 UNDP, above n 64, 118–19; Oxfam, above n 5, 62, 71–3, 75, and 77.
²07 Shafaeddin, above n 183, 12; see also Chang, above n 85, 126.
²08 Lee, above n 33, 54.
²09 Chang, above n 84, 47.
²¹0 SM Shafaeddin, ‘Towards an Alternative Perspective on Trade and Industrial Policies’ (2005)
36 Development and Change 1143, 1145–6.

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E. Liberalization & Development: The Way Forward for Developing States

173

Infant industry protection
An alternative path to swift trade liberalization is that of infant industry protection. This strategy involves the temporary protection and development of select
industries by government policies (for example, regarding tariffs and subsidies).
Those industries are gradually exposed to greater competition until they near maturity, when liberalization is feasible and even necessary to ensure competitive and
innovative practices.²¹¹ Indeed, the economist Ha-Joon Chang reports how Adam
Smith himself advised the newly independent US to focus on agriculture rather
than protect its nascent manufacturers from European competition. Smith’s advice
was not followed. Instead, high tariff barriers were erected to protect US manufacturing.²¹² The US is of course now the world’s major industrialized nation. Chang
confidently asserts that ‘the US economy would not have got where it is today without strong tariff protection at least in some key infant industries’.²¹³
Infant industry protection ideally takes place in stages, with the first stage industries leading to diversification into second stage industries, which again need to
benefit from a period of protection, and so on. For example, a State might choose
to protect the production of textiles, and then diversify into the higher value
and higher skilled arena of textile machinery.²¹4 An example of successful infant
industry protection, which led to the creation of significant industrial capacity
and comparative advantage in a cutting edge industry, is that of Brazil’s aerospace
industry.²¹5 Oxfam cites Mauritius as another State which has successfully and
recently adopted infant industry policies.²¹6
Indeed, all successful industrializers went through a phase of protecting infant
industries, with the exceptions of the city territory of Hong Kong,²¹7 Chile,²¹8 and
perhaps, in the nineteenth century, Switzerland and the Netherlands.²¹9 In contrast, premature liberalization has generated de-industrialization and disappointing economic outcomes. The US for example reverted to protectionism to protect
its industries from the UK after a period of ill-considered liberalization between
1847 and 1861.²²0 The free trade mantra that is being foisted upon developing
States through the WTO and other institutions is a clear case of: ‘do as we say, not
as we did’.²²¹
Colonies, which had liberal economies forced upon them by colonizers, experienced sluggish economies and de-industrialization. The economic situation was
exacerbated by colonial policies which discouraged competition with the colonizer
and the upgrading of industrial capacities beyond primary production.²²² The
²¹¹ Shafaeddin, above n 183, 63.
²¹² Chang, above n 85, 5.
²¹³ Ibid, 61.
²¹4 Shafaeddin, above n 210, outlines the process of infant industry protection at 1152–4.
²¹5 Shafaeddin, above n 183, Chapter 8. See, eg, the website for Embraer-Empresa Brasilia de
Aeronáutica S.A. <http://www.embraer.com/english/content/home/> accessed 22 September 2010.
²¹6 Oxfam, ‘Partnership or Power Play? How Europe should bring Development into its trade
deals with African, Caribbean, and Pacific countries’ (Oxfam Briefing Paper 110, 21 April 2008) 12.
²¹7 Shafaeddin, above n 183, 20.
²¹8 Chang, above n 84, 28.
²¹9 See, generally, Chang, above n 85, esp at 18, 60, 64 and 127.
²²0 Shafaeddin, above n 183, 21. See also Chang, above n 85, 27 and 30.
²²¹ Chang, above n 84, 16.
²²² Shafaeddin, above n 183, 22; Chang, above n 85, 51–3.

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174

WTO, Poverty, and Development

trend of negative growth in the colonies was only reversed after 1880, when they
regained some policy autonomy and introduced protectionist measures.²²³ It has
been estimated that this period of tight colonial control retarded the growth of the
manufacturing sector in the developing world by 85 to 95 per cent.²²4
States should therefore target and nurture niche industries to facilitate the
development of dynamic and sustainable comparative advantages.²²5 As noted,
all developed States built their industries and developed their comparative advantages on the back of protectionist policies prior to their current states of liberalization.²²6 The same is true of the ‘tiger economies’ of South East Asia.²²7 For
example, had South Korea freed up its economy 35 years ago, it would probably
be a poor country specializing in the production of rice.²²8 Instead it protected
its steel and automobile industries from competition until they were able to withstand it. It is now an acknowledged success story of globalization.²²9 Similarly,
Rodrik notes:
[T]he Republic of Korea and Taiwan freely resorted to unorthodox strategies: they protected the home markets to raise profits, implemented generous export subsidies, encouraged their firms to reverse engineer foreign patented products and imposed performance
requirements such as export-import balance requirements and domestic content requirements on foreign investors (when foreign companies were allowed in).²³0

In contrast, Mexico has failed to significantly upgrade or diversify its industrial
capacities after over two decades of liberalization.²³¹
It is therefore legitimate for developing States, in their own self interest, to resist
pressure towards rapid liberalization. However, many of the strategies used to
build successful industries, which have catalysed high quality growth in certain
East Asian economies, are now restricted or banned under WTO rules.²³² For
example, targeted protectionism via tariffs is illegal under GATT while subsidies
are prohibited or actionable under the Agreement on Subsidies and Countervailing
Measures (SCM).²³³ Reverse engineering is illegal under TRIPS and domestic
content requirements for foreign investors are outlawed under TRIMS and probably GATT.²³4 Rodrik has summarized the situation by stating that ‘[t]he exchange
²²³ Shafaeddin, above n 183, 22.
²²4 Ibid, 23–4, citing P Bairoch, Economic and World History (Brighton, Wheatsheaf, 1993) 88.
²²5 Rodrik, above n 78; Oxfam, above n 5, 233. World Commission on the Social Dimension of
Globalisation, above n 191, xiii.
²²6 Oxfam, above n 5, 26; World Commission on the Social Dimension of Globalisation, above
n 191, para 362.
²²7 Thomas, above n 145, 1406; Oxfam, above n 5, 147. See also UNDP, above n 90, 146.
²²8 Joseph Stiglitz, ‘Social Justice and Global Trade’ (2006) 169 Far Eastern Economic Review 18,
19. See also Lee, above n 33, 7–8.
²²9 World Commission on the Social Dimension of Globalisation, above n 191, paras 364–5.
²³0 Rodrik, above n 78; Oxfam, above n 5, 147 and 233; Thomas, above n 145, 1406.
²³¹ Shafaeddin, above n 183, Chapter 7, esp at 58. See also Stiglitz and Charlton, above n 18, 24;
Chang, above n 84, 68.
²³² Rodrik, above n 78, 19; Oxfam, above n 5, 233.
²³³ Shafaeddin, above n 86, 12–13.
²³4 See also Michael H Davis and Dana Neacsu, ‘Legitimacy, Globally: The Incoherence of Free
Trade Practice, Global Economics, and the Governing Principles of Political Economy’ (2001)
69 University of Missouri Kansas City Law Review 733, 777–8.

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E. Liberalization & Development: The Way Forward for Developing States

175

of reduced policy autonomy in the South for improved market access in the North
is a bad bargain where development is concerned’.²³5
Finally, as wryly noted by Shafaeddin:
[a] long period (20 years) of infant-industry protection of new technologies and new products is allowed under the TRIPS Agreement, but temporary infant-industry protection of
new industries, or new export activities, in developing countries is not allowed.²³6

Shafaeddin’s contention reveals pertinent hypocrisy in the current WTO regime.
IP rights provide infant industry protection to innovative products, where the
North has a comparative advantage. Beneficiaries receive this protection regardless of whether they are vulnerable entities in actual need of protection in order to
thrive in the global marketplace. As noted in Chapter 7, the pharmaceutical industry is a major beneficiary of IP rights even though it was extraordinarily profitable
before and certainly after the advent of TRIPS. The same type of protection is not
available in the South to the infant industries they might wish to protect, such as
promising yet underdeveloped domestic industries, which are far more likely to be
entities that will die without protection.
Article XVIII:7 GATT permits developing States to modify their tariff schedules ‘in order to promote the establishment of a particular industry’, thus providing
for a limited infant industry exception. The modification of tariffs however does
not address some of the other policy restrictions outlined above. Furthermore, a
State must negotiate with affected Members and provide compensation to them in
order to utilize this exception. Negotiation can take considerable time, entailing
significant delays, while the provision of compensation is burdensome and therefore a disincentive for developing States.²³7 No State has made use of this exception, indicating that it is not an adequate proviso regarding infant industries.²³8

Conclusion
A gradual sequenced approach to liberalization in underdeveloped States, incorporating the development of appropriate institutional capacities and dynamic niche
markets, is preferable to the reduced policy space entailed in rapid and potentially
premature liberalization.²³9 A gradual approach allows a State to prepare for and
absorb the inevitable adjustments of trade liberalization.²40 The UNDP has stated:
The starting point should be the recognition that the purpose of multilateralism is
not to impose common rules or a free market blueprint on all countries with different
²³5 Rodrik, above n 78, 27.
²³6 Shafaeddin, above n 86, 19
²³7 Lee, above n 33, 31.
²³8 Van den Bossche, above n 41, 678.
²³9 UNDP, above n 64, 135; Dani Rodrik, ‘Trading in Illusions’ (March/April 2005)
Foreign Policy 55. See also Rodrik, above n 136, and Robert Driskill, ‘Deconstructing the arguments for free trade’ (February 2007) 15–16 <http://www.vanderbilt.edu/econ/faculty/Driskill/
DeconstructingfreetradeAug27a2007.pdf > accessed 22 September 2010.
²40 Rodrik, above n 78, 24; Oxfam, above n 5, 139, 145, 241 and 246; Ben-David and others,
above n 49, 61–2. See also World Development Report 2006, above n 58, 179.

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176

WTO, Poverty, and Development

approaches and different levels of development, but to accept the case for diverse public
policies.²4¹

Hence, developing States should be granted significant policy autonomy to be able
to develop their economies.
Stiglitz and Charlton have suggested that all States, including developing States,
should be required to open up to developing States which are ‘poorer and smaller
than themselves’.²4² Adoption of this proposal would depart from a core tenet of
the WTO, the principle of MFN. It would accord with the human rights version
of the principle of non-discrimination (as opposed to the trade version), which
dictates that unequals need not (and sometimes must not) be treated equally.
In any case, MFN is already considerably undermined by the spider’s web of
bilateral and regional free trade agreements and by the GSP. The Stiglitz/Charlton
proposal would avoid some of the problems of free trade agreements, discussed in
Chapter 9, and the arbitrariness of the GSP, under which development policy is
driven too much by developed States.
The Stiglitz/Charlton proposal would help to increase burgeoning South/
South trade. Indeed, lesser policy autonomy is needed for emerging economies,
such as China and India, but such States cannot be treated as if they are already
developed: both States contain massive populations of poor people, and remain far
poorer than the States of the North. They should be entitled, like their Northern
competitors in previous decades and centuries, to continue to adopt ‘catch up’ policies.²4³ However, the required policy space for developing States is not currently
permitted under WTO rules or envisaged under current Doha proposals.²44
There are of course economic arguments against such proposals. Greater policy
space for developing States could undermine their resolve to innovate and create
competitive industries.²45 Infant industry protection may result in costly failure
as governments might choose the wrong industries to protect, or be convinced by
local vested interests to simply protect all industries with across-the-board policies of import substitution. States might find it politically difficult to wind down
protection when it is no longer needed,²46 leading to ‘complacency and sloth’.²47
In short, governments may well be too inept and corrupt to manage the infant
industry process.²48

²4¹ UNDP, above n 64, 135.
²4² Stiglitz and Charlton, above n 18, 94; see also 95–103.
²4³ Wade, above n 74, 631.
²44 Wolf, above n 123, concedes that current WTO rules may place ‘unreasonable constraints’
on the ‘policy discretion’ of developing States at 204. At 211–12, he states that infant industry arguments should be re-examined in the context of WTO obligations.
²45 Cottier, above n 34, 788; Fernando R Tesón and Jonathan Klick, ‘Global Justice and Trade:
a Puzzling Omission’ (2007) FSU College of Law, Public Law Research Paper No. 285, FSU College
of Law, Law and Economics Paper No. 07-24, 28 <http://papers.ssrn.com/sol3/papers.cfm?abstract_
id=1022996> accessed 22 September 2010.
²46 See Van den Bossche, above n 41, 26.
²47 Chang, above n 84, 66.
²48 Daniel J Gifford and Robert J Kudrle, ‘Trade and Competition Policy in the Developing
World’ in Thomas and Trachtman (eds), above n 75, 395 at 411. See also David M Trubek and
M Patrick Cottrell, ‘Robert Hudec and the Theory of International Economic Law’ in Thomas and
Trachtman (eds), above n 75, 129 at 145.

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E. Liberalization & Development: The Way Forward for Developing States

177

Many economists believe that the widespread use of protectionist policies by
developing States, particularly in Latin America, in the 1950s and 1960s, have
discredited the infant industry argument. Those policies led to false dawns in
terms of economic growth until the early 1970s, but those economies flat-lined in
the 1970s and crashed in the 1980s.²49 However, there were possible alternative
causes for the 1980s crises, such as ‘exogenous factors independent of domestic
politics’, debt policies or capital market policies.²50 In this respect, Stiglitz and
Charlton point out that all Latin American economies failed in the 1980s, even
those that had not pursued infant industry policies.²5¹ Furthermore, just as the
crises of the 1980s prompted the discrediting of infant industry protection and
the global promotion of neo-liberal policies, perhaps the Great Financial Crisis
of 2008–2009 has discredited those latter policies, especially given the massive
levels of government intervention, generally anathema to neoliberal policies,
which ensued to steady the economic ship.²5² The fact is that the automatic
discrediting of policies due to large scale economic crises is simplistic as numerous causes have probably contributed to the crises of the 1980s and the late
2000s.
Government failure in the management of the infant industry process is of
course possible. Indeed, an absence of failures would probably indicate that infant
industry policies are overly timid.²5³ More concerning perhaps is the possibility of
corruption or weak political will in removing industry protections. In this regard,
Rodrik has suggested that the dangers of government abuse of policy space could
be tempered by the placement of procedural conditions on States. In particular,
protectionist policies should be targeted, maintained and reduced by an open and
transparent process within a State, to help to ensure against undue influence by
influential sectors at the expense of society at large.²54 Furthermore the capacities of many of today’s underdeveloped States are no worse than those of war-torn
South Korea in the 1950s, so replication of that country’s success is possible,²55 at
least in the absence of certain WTO rules. Ironically, proponents of free trade do
not tend to cite government ineptitude as a reason to delay trade liberalization,
even though such ineptitude undermines a State’s ability to benefit from liberalization, and certainly undermines its ability to safeguard the rights of those displaced
from their livelihoods by such liberalization. As noted in Chapter 8, corruption
can arise during the process of opening up markets as well as in the process of regulating markets.²56
The varying scenarios for underdeveloped States arising from the restoration
of policy space to facilitate potential protectionism contrast with the extreme
²49 Wolf, above n 123, 130–1; Stiglitz and Charlton, above n 18, 19–20.
²50 Stiglitz and Charlton, above n 18, 21.
²5¹ Ibid, 22.
²5² See also Joseph Stiglitz, Freefall: Free Markets and the Sinking of the Global Economy (Allen
Lane, London, 2010) 222.
²5³ Stiglitz and Charlton, above n 18, 37; see also 90.
²54 Dani Rodrik, One Economics, Many Recipes: Globalization, Institutions, and Economic Growth
(Princeton, Princeton University Press, 2008) 231. See also Trubek and Cottrell, above n 248,
145–6; Stiglitz and Charlton, above n 18, 38.
²55 Shafaeddin, above n 86, 44.
²56 See also Chapter 8, text at notes 76–84.

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178

WTO, Poverty, and Development

likelihood that premature liberalization will destroy underdeveloped yet promising
industries ‘without necessarily leading to the emergence of new ones’.²57 Rapid liberalization forces developing States to continue specializing in low growth primary
production and unskilled labour at the bottom of the development ladder while
industrialized States specialize in high value manufactured and technological
commodities and services. The most vulnerable developing States may specialize in
‘losing’ while developed States specialize in ‘winning’.²58 It also denies developing
States the policy space, and the room to dictate industrial policy and even to make
mistakes, which was enjoyed by now-developed States during their own path to
development.²59
At the same time, the general benefits of market access for the South to the North
are clear. An optimal outcome for the South from future WTO negotiations is therefore true asymmetry, arguably reflecting the intended spirit of the Enabling Clause of
1979, as well as certain sentiments in the preamble to the Marrakesh Agreement.²60
Implementation of the current SDT provisions are however premised on the South
continuing to ‘move forward’ on liberalization, when a pause or even a reversal in
that regard would be more beneficial for many States.²6¹ As noted by Shafaeddin,
SDT should be a rule rather than an exception within the WTO, at least at this
point in time given the huge inequalities in economic capacities among States.²6²

F. Developing States, the WTO, and Human Rights
Current WTO rules undoubtedly favour the interests of the North over the South,
which undermines the WTO’s capacity to alleviate poverty, as its rules favour the
richest nations on earth. Even worse, adherence to current WTO rules is counterproductive in some situations for the development of the economy of developing
States. Indeed, the Uruguay round reportedly delivered 70 per cent of its benefits to developed States,²6³ while some of the poorest States in the world were net
losers.²64 In such circumstances, it might be argued that WTO rules are preventing those States from fulfilling their human rights obligations, thus generating or
at least contributing to human rights violations by those States. WTO rules may
be removing or weakening essential policy levers needed to pursue development
²57 Shafaeddin, above n 183, 66.
²58 See Olivier De Schutter, International Trade in Agriculture and the Right to Food (Dialogue
on Globalization Occasional Paper No 46) (Friedrich Ebert Stiftung, Geneva, 2009) 22, citing
Eduardo Galeano, Las venas abiertas de América Latina, xxi Siglo Veintuno de Espana, 1971.
²59 See also Lee, above n 33, 159; Stiglitz and Charlton, above n 18, 89.
²60 Collier, above n 27, 171 recommends ‘an unreciprocated reduction in trade barriers against the
bottom billion’ (emphasis in the original).
²6¹ See Breining-Kaufman, above n 102, 373–6, on the need for ‘affirmative action’ or ‘positive
discrimination’ within the WTO. See also Thomas Pogge, ‘Priorities of Global Justice’ (2001) 32
Metaphilosophy 6, 13.
²6² Shafaeddin, above n 210, 1159.
²6³ Stiglitz, above n 87, 78.
²64 Stiglitz and Charlton, above n 18, 47.

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F. Developing States, the WTO, and Human Rights

179

goals, in order to fulfil the right to development and economic social and cultural
rights.²65
For example, the generation of further unemployment in some developing
States, through de-industrialization brought about premature trade liberalization represents a retrogressive step with regard to the right to work in Article
6 of the ICESCR. The right to work does not equate with an unconditional
right to be employed,²66 especially given that it is a progressive right. Instead,
States should adopt, ‘as quickly as possible, measures aiming at achieving full
employment’.²67 As with all ICESCR rights, retrogressive measures, such as
those which increase unemployment, are a presumptive breach of Article 6.²68
The introduction of liberalizing measures which squeeze out local industries by
opening up economies to well-financed off shore competitors, leading to unemployment in many underdeveloped States because there are few alternative industries for workers to migrate to, is such a regressive measure. A classical economic
response to this argument would be to say that further jobs will be created in the
long term through liberalization. However, further jobs could perhaps be saved
in the short term without sacrificing long term societal employment prospects
by adopting policies of gradual liberalization along with well-targeted protectionism. The Committee on Economic, Social and Cultural Rights has stated,
regarding Article 6:
The failure of States parties to take into account their legal obligations regarding the
right to work when entering into bilateral or multilateral agreements with other States . . .
constitutes a violation of their obligation to respect the right to work.²69

Further detrimental human rights outcomes prompted by WTO rules, it will be
argued, arise in the case of the right to food (Chapter 6) and the right to health
(Chapter 7).
The previous paragraphs focus on the impact of WTO rules on the capacity of
a State to fulfil its human rights obligations to persons within its territory.²70 An
issue arises as to whether the North has any obligations to the South under human
rights law to facilitate the creation of fairer WTO rules. This issue is discussed in
Chapter 8.

²65 Robert E Robertson, ‘Measuring State Compliance with the Obligation to Devote the
“Maximum Available Resources” to Realizing Economic, Social, and Cultural Rights’ (1994)
16 Human Rights Quarterly 693, 694. See also Olivier De Schutter, ‘A Human Rights Approach to
Trade and Investment Policies’ in The Global Food Challenge: Towards a Human Rights Approach to
Trade and Investment Policies (FIAN and others, 2009) 22.
²66 Committee on Economic Social and Cultural Rights, ‘General Comment 18: The right to
work (art. 6)’, UN doc. E/C.12/GC/18 (6 February 2006) para 6.
²67 Ibid, para 19.
²68 See Chapter 1, text at notes 71–2.
²69 General Comment 18, above n 266, para 33.
²70 Note that human rights obligations are generally owed to all persons within territory and
jurisdiction (see below, regarding jurisdiction), regardless of their nationality. That is, human rights
are not confined to a State’s citizens.

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180

WTO, Poverty, and Development

G. Conclusion
Current WTO rules are unfair to developing States. This unfairness is undermining the ability of the WTO to fulfil its mandate, mentioned in the WTO preamble,
to improve living standards across the world. This statement is not controversial:
the WTO Director-General, Pascal Lamy, has conceded as much. A more controversial proposition is that further liberalization across all States is not a panacea
for alleviating ongoing poverty in developing States, as it could lead to premature
liberalization. A preferable policy trajectory within the WTO is for policy space to
be preserved and indeed restored to poorer States within the WTO, while markets
for developing States within developed States are opened. Alas, as will be seen in
Chapter 9, such proposals are not reflected in current Doha proposals.

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6
The WTO and the Right to Food
In this chapter, the effect of WTO rules on the enjoyment of the right to food is
examined. The human right to food will first be described, followed by an overview of current statistics regarding world hunger. The biased impact of current
international trade rules on agricultural trade between developed and developing
States, which was raised in Chapter 5, will be analysed in fuller detail. Problems
regarding free trade and agriculture are then examined, such as the detrimental
effects of volatile markets, cartels and specialization, and the alternative path of
empowering small farmers is explored. The impact of TRIPS on the right to food is
then analysed, before moving to the chapter’s conclusions with recommendations
for relevant WTO reforms.
Much of the analysis in this chapter focuses on whether WTO rules and free
trade policies generally are producing or are likely to produce an environment in
which States, particularly developing States, can discharge their obligations with
regard to the right to food. Thus, the analysis largely concerns the instrumental
relationship between WTO rules and free trade to human rights protection, rather
than direct implementation of the right to food.

A. The Right to Food
The right to food is recognized in Article 11 of the ICESCR. Article 11(1) generally guarantees the right to an adequate standard of living for a person and his/
her family, including ‘adequate food’. States must take appropriate steps to realize
the right, ‘recognizing to this effect the essential importance of international cooperation based on free consent’. Article 11(2) specifically concerns the right to
food and reads:
2. The States Parties to the present Covenant, recognizing the fundamental right of
everyone to be free from hunger, shall take, individually and through international cooperation, the measures, including specific programmes, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the
principles of nutrition and by developing or reforming agrarian systems in such a way
as to achieve the most efficient development and utilization of natural resources;
(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

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182

The WTO and the Right to Food
In General Comment 12, the Committee on Economic, Social and Cultural Rights
confirmed that the right to food entails, for all, ‘physical and economic access at all
times to adequate food or means for its procurement’.¹ Food must be available in
a quantity and of a quality ‘sufficient to satisfy the dietary needs of individuals,
free from adverse substances, and acceptable within a given culture’.² Availability
means that food must be accessible ‘either for feeding oneself directly from productive land or other natural resources, or for well functioning distribution, processing
and market systems’ which can ensure that food reaches those who need it, rather
than only those who can afford it.³

As with all human rights, States must respect, protect, and fulfil the right to food.
As with all economic, social, and cultural rights, there is a minimum core content
to the right to food:4 its core content essentially consists of ensuring that people
within jurisdiction are ‘free from hunger’.5 If a State lacks the resources to guarantee this minimum standard, it must demonstrate that it has sought international
assistance to ‘ensure the availability and accessibility of the necessary food’.6
Of particular relevance to States as Members of the WTO, General Comment
12 states at paragraph 36:
States should recognize the essential role of international cooperation and comply with
their commitment to take joint and separate action to achieve the full realization of the
right to food. In implementing this commitment, States parties should take steps to respect
the enjoyment of the right to food in other countries, to protect that right, to facilitate
access to food and to provide the necessary aid when required. States parties should, in
international agreements when relevant, ensure that the right to adequate food is given
due attention and consider the development of further international legal instruments to
that end.

General Comment 12 thus endorses the notion of extraterritorial obligations owed
by a State to the people of another State. This notion is discussed in Chapter 8.
Indeed, an obligation regarding international cooperation is stressed within
Article 11 itself.
Related to the right to food is the concept of ‘food security’, which is defined by
the FAO as follows:
Food security exists when all people, at all times, have physical, social and economic access
to sufficient, safe and nutritious food to meet their dietary needs and food preferences for
an active and healthy life.7

Enjoyment of food security is a key component of the right to food, to which the
Committee has added a requirement that food be accessible for both present and
future generations, is a key component of the right to food.8
¹ Committee on Economic, Social and Cultural Rights, ‘General Comment 12: The right to adequate food (Art. 11)’, UN doc. E/C.12/1999/5 (12 May 1999) para 6.
² Ibid, para 8.
³ Ibid, para 12.
4 See Chapter 1, text after note 81.
5 General Comment 12, above n 1, para 17.
6 Ibid.
7 Rome Declaration on World Food Security and World Food Summit Plan of Action,
17 November 1996 (Rome, Italy).
8 General Comment 12, above n 1, para 7.

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A. The Right to Food

183

Finally, national strategies regarding the right to food should be implemented in
accordance with core human rights principles: ‘accountability, transparency, people’s participation, decentralization, legislative capacity and the independence of
the judiciary’.9 Thus, food policies should not be dictated or overly influenced by
remote international bodies, or foreign countries, to which a State’s people have
little input.
General Comment 12 was essentially endorsed by the intergovernmental
Council of the Food and Agricultural Organization (FAO) when it adopted the
Voluntary Guidelines on the Right to Food.¹0 Given its endorsement by governments, these Guidelines are vested with significant authoritative status.

World hunger statistics
As of 2009, the figures regarding world hunger are truly distressing. The
Millennium Development Goals Report of 2009 stated that 17 per cent of the population in developing countries were undernourished (including 29 per cent of those
in sub-Saharan Africa), while 26 per cent of children in the developing world are
underweight.¹¹ Indeed, ‘one third of child deaths worldwide are attributable to
under-nutrition’.¹² Overall, more than a billion people live in hunger.¹³
This desperate picture was exacerbated by the advent of a World Food Crisis of
2007–2008. During this period world food prices soared due to a variety of factors. Oil price hikes caused rises in the prices of transportation, as well as agricultural inputs such as pesticides and fertilizers.¹4 Commodities speculation caused
price rises unrelated to the supply and demand of the agricultural commodities in
question.¹5 Increased production of biofuels, discussed below, led to diversion of
food crops and therefore higher prices brought about by greater scarcity. Weatherrelated events, such as ongoing drought in Australia, a key grain producer, generated smaller grain harvests, again leading to higher prices.
The higher prices, ironically, could have assisted the poor as poor farmers might
have been able to take advantage of the high selling prices. Indeed, large gains in
food trade balances were experienced by Russia, Kazakhstan and Argentina, as
well as some other developing States, particularly in South America and South-East
Asia. However, large food trade imbalances arose in Africa and Southern Asia.¹6
Most poor farmers were not in a position to take advantage of the opportunities
9 Ibid, para 23.
¹0 FAO, Voluntary Guidelines to support the progressive realization of the right to adequate food in the
context of national food security (FAO, Rome, 2005) 5–7.
¹¹ UN, The Millennium Development Goals Report 2009 (DESA, New York, 2009) 4, 11–12.
¹² Ibid, 12.
¹³ See Olivier De Schutter, International Trade in Agriculture and the Right to Food (Dialogue on
Globalization Occasional Paper No. 46) (Friedrich Ebert Stiftung, Geneva, 2009) 11.
¹4 See Human Rights Council, ‘Report of the Special Rapporteur on the right to food, Olivier De
Schutter: Building resilience: a human rights framework for world food and nutrition security’, UN
doc. A/HRC/9/23 (8 September 2008) Annex 1, para 2.
¹5 Peter Wahl, ‘The Role of Speculation in the 2008 Food Price Bubble’ in FIAN and others (eds),
The Global Food Challenge: Towards a Human Rights Approach to Trade and Investment Policies (FIAN,
Germany, 2009) 68–75.
¹6 Report of the Special Rapporteur on the right to food, above n 14, 31.

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184

The WTO and the Right to Food

afforded by higher produce prices due to an inability to afford necessary inputs,
such as fertilizer and oil, and the suddenness of, and their consequent unpreparedness for, the price rises.¹7 Rather, many farmers suffered in their capacity as consumers of food.
A real tragedy regarding hunger is that there is, presently, enough arable land to
provide for food for everybody. In 2005, the then Special Rapporteur on the Right
to Food, Jean Ziegler, stated:
According to the FAO, the planet could already produce enough food to provide 2,100
kcals per person per day to 12 billion people (double the existing world population).¹8

The pervasive nature of hunger and its spike during the World Food Crisis is
and was not caused by a lack of food supply.¹9 Certainly, serious threats to food
supply, particularly in the form of climate change, loom large on the horizon.²0
Nevertheless, it is scandalous that vast numbers suffer and die of malnutrition
while huge amounts of food are wasted. Large percentages of post-harvest crops
spoil in developing States due to a lack of storage facilities and poor means of transport.²¹ This anomaly regarding supply existing alongside hunger arises on an international and a national basis: India for example has a trade surplus in food and yet
is home to 231 million starving people.²² Given that the problem currently lies
with distribution rather than supply, it is arguable that the MDGs, in aiming only
to halve hunger by 2015, are outrageously under-ambitious.²³ The problem is that
the hungry are generally unable to afford food at prevailing prices, and are therefore often bypassed in the food distribution chain. The solution is to find a way to
deliver food to the hungry who cannot presently afford it, even if it is physically
available.
However, this ‘solution’ is not as simple as it may appear, given that half of
the undernourished are in fact smallholder farmers,²4 who have become or have
remained poor due to poor prices for their produce and an inability to take
¹7 Ibid, para 28.
¹8 Commission on Human Rights, ‘Report of the Special Rapporteur on the right to food, Jean
Ziegler’, UN doc. E/CN.4/2005/47 (24 January 2005) para 5.
¹9 FIAN and others, above n 15, Introduction, 3.
²0 See International Assessment of Agricultural Knowledge, Science and Technology for
Development (IAAKSTD), Agriculture at the Crossroads (IAAKSTD, Washington DC, 2009)
35–43.
²¹ See Peggy Oti-Boateng, Losses and Wastes in the Food Chain (FAO, Rome, 2001). A study from
the University of Arizona from 2004 indicates that 40–50% of food which is ready for harvest in
the US is wasted, as is 14% of household food purchases. See Jeff Harrison, ‘Study: Nation Wastes
Nearly Half its Food’, UA News, 18 November 2004 <http://uanews.org/node/10448> accessed
22 September 2010. See also Carin Smaller and Sophia Murphy, Bridging the Divide: a human rights
vision for global food trade (Institute of Agriculture and Trade Policy, Geneva, 2008) 5.
²² WTO, ‘Trade liberalization and the right to food’ (Forum debate) transcript available via
<http://www.wto.org/english/forums_e/debates_e/debate14_e.htm> accessed 22 September 2010.
²³ See Thomas Pogge, ‘Growth and Inequality: Understanding Recent Trends and Political
Choices’ (2008) Dissent <http://www.dissentmagazine.org/article/?article=990> accessed 20
September 2010.
²4 Special Rapporteur on the Right to Food, above n 14, n 8, citing UN Millennium Project,
Halving Hunger: It can be done, summary version of the report of the task force on hunger (The Earth

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B. Trade and Food

185

advantage of sporadic higher prices (such as those available in 2007–2008). The
current Special Rapporteur on the Right to Food, Olivier De Schutter, recently
described smallholders as ‘the single most important group of those who are food
insecure in the world today’.²5 In order to preserve the interests and rights of those
farmers, any delivery of food in the form, for example, of food aid or unduly cheap
exports must not be done in such a way as to deprive such farmers of viable markets
in which to earn their livelihoods.

B. Trade and Food
In order to examine the effect of international trade rules on the right to food, it is
necessary to first analyse its effect in the agricultural arena, the source of food.

WTO agricultural rules
As noted in Chapter 5, WTO rules presently permit developed States to protect their agricultural markets to the detriment of those in developing States by
way of high tariff s and continued subsidies. These issues are further discussed
below. These issues are instrumentally related to human rights protection, as
they impact on the capacity of States to fulfi l their obligations regarding the
right to food.
Agriculture was excluded from GATT until the adoption of the Agreement on
Agriculture (AoA) in 1995 as part of the WTO package. For several decades prior
to 1995, the EU and US in particular had extensively subsidized their agricultural
industries, largely in competition with each other.²6 Developing States used different mechanisms to intervene and support their own agricultural sectors. However,
these programmes were forcibly dismantled from the 1980s onwards due to loan
conditionalities imposed by the IMF and World Bank, the international financial
institutions (IFIs). During the Uruguay round negotiations, the EC and US were
largely concerned with and influenced by each other: the interests of the developing world were a back seat concern.
All this meant that the WTO’s AoA was primarily designed to accommodate the agricultural trade interests of the major industrialized countries. It hardly addressed the specific
needs of developing countries with food security problems, including the need to support
and promote agriculture.²7
Institute, Columbia University, 2005) 6. Those figures state that 50% of the hungry are smallholders, 20% are landless, 10% are pastoralists, fisherfolk and forest users, and 20% live in urban areas.
²5 See Human Rights Council, ‘Report of the Special Rapporteur on the Right to Food, Olivier
De Schutter: Agribusiness and the Right to Food’, UN doc. A/HRC/13/33 (22 December 2009)
para 28.
²6 Tobias Reichert, ‘Agricultural Trade Liberalization in Multilateral and Bilateral Trade
Negotiations’ in FIAN and others, above n 15, 31.
²7 Ibid, 31. See also Martin Wolf, Why Globalisation Works (Yale Nota Bene, London, 2005) 216.

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186

The WTO and the Right to Food

The AoA contains the following provisions regarding the troublesome issue of subsidies. Developed states are permitted to provide support for 5 per cent of the total
value of agricultural goods per annum, while developing States are permitted to
provide support for 10 per cent of such product. Few developing States can afford
to reach their minimum threshold, while all developed States can.²8 Beyond those
minimum thresholds, members are obliged to reduce levels of support for domestic agriculture, known as Aggregate Measures of Support (AMS) or ‘amber box’
measures. Developed States had to reduce domestic support by 20 per cent, and
developing States had to reduce such subsidies by 13.3 per cent, from the levels of
support provided in 1986–1988. No WTO member can introduce new types of
domestic support. These rules in fact benefit developed States, which had much
greater levels of domestic support during that base period.²9 Export subsidies must
be reduced, and new export subsidies cannot be introduced if they did not exist in
a base period of 1986–1990. As developing States did not have export subsidies in
this period, they are precluded from introducing such subsidies yet they must tolerate competition from subsidized agricultural exports from developed countries.³0
Some types of support, known as ‘blue box’ or ‘green box’ subsidies, are exempt
from AoA rules so there are no obligations to reduce them. Blue box subsidies
are amber box subsidies coupled with a condition that recipient farmers limit
their production, so they should discourage overproduction which distorts world
trade. Developing States cannot generally afford such subsidies, and there is no
restriction on exporting blue box products.³¹ Green box subsidies are deemed to
be non-trade distorting or minimally trade distorting, and must comply with conditions in Annex 2 of the AoA. Such subsidies may for example be designed to
promote agricultural research, food security, environmental protection, and rural
infrastructure. They may also involve ‘decoupled’ direct payments to and income
support for farmers, that is payments that are not linked to production rates. The
blue and green boxes have proven controversial as it is argued that these subsidies in fact have significant protectionist effects,³² and that the EU and the US in
particular have manipulated the box designations to maintain current spending
levels.³³ Indeed, while AMS measures have reduced significantly since the advent
of the AoA, no significant reduction is evident when using the alternative OECD
measurement of protectionist support measures, the production support estimate
(PSE).³4
²8 Human Rights Council, ‘Report of the Special Rapporteur on the right to food, Olivier De
Schutter: Mission to the World Trade Organization’, UN doc. A/HRC/10/5/Add.2 (25 June 2008)
para 11; FAO, The State of Food and Agriculture: Agricultural Trade and Poverty—Can Trade Work for
the Poor? (FAO, Rome, 2005) 31–2.
²9 Caroline Dommen, ‘Raising Human Rights Concerns in the World Trade Organization:
Actors, Processes and Possible Strategies’ (2002) 24 Human Rights Quarterly 1, 35; Report of the
Special Rapporteur on the right to food, above n 28, para 11.
³0 Report of the Special Rapporteur on the right to food, above n 28, para 13.
³¹ De Schutter, above n 13, 14.
³² FAO, above n 28, 8 and 32.
³³ See, generally, Ricardo Meléndez-Ortiz, Christophe Bellmann, and Jonathan Hepburn (eds),
Agricultural Subsidies in the Green Box (Cambridge University Press, Cambridge, 2009).
³4 FAO, above n 28, 30–1. See also Wolf, above n 27, 216; Joseph E Stiglitz and Andrew Charlton,
Fair Trade for All (Oxford University Press, New York, 2005) 50.

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B. Trade and Food

187

Amber box measures will be likely to be significantly reduced upon conclusion
of the Doha round, and a timetable laid out for elimination of export subsidies.
However, trade distortions will remain due to continued use and abuse of the green
and blue boxes, as there are no serious indications that those boxes will be disciplined after the Doha round. Doha round proposals are discussed in Chapter 8.
The AoA does not combat ‘tariff escalation’.³5 Processed agricultural commodities are subjected to higher ‘escalating’ tariffs than raw or primary goods. The
UNDP in 2005 reported:
In Japan tariffs on processed food products are 7 times higher than on first-stage products;
in Canada they are 12 times higher.³6

Tariff escalation encourages developing States to concentrate on primary agrarian production, while further refinement and processing of products takes place
elsewhere. A large component of the price of commodities such as coffee and
cocoa reflects post-harvest processing such as roasting of coffee beans or grinding of cocoa, which largely occurs in richer countries.³7 This perverse tariff structure discourages nations from developing secondary agricultural industries and
higher level industrial capacities.³8 Essentially, tariff escalation helps to prevent,
and is arguably designed to prevent, developing States from climbing the ladder of
development.³9
The AoA rules permit the North to protect its agricultural markets from competitive growers in the South through the use of high tariffs and subsidies. Worse
still, Northern protectionism deprives Southern agriculture of other markets, and
even competes, unfairly, with local farmers in their own markets. For example,
Wouter Vandenhole has written a compelling case for the harm caused in developing States by EU sugar subsidies which have not only blocked imports from
developing States, but have also caused overproduction, so sugar is exported to
developing States, destroying local markets.40
Overproduced subsidized Northern produce are one of the main causes of
import surges, which hurt local producers as they reduce demand and lower
prices.4¹ A study by the South Centre of import surges in 56 developing States
found that 16 per cent of agricultural imports were imported under a surge. The
³5 J Hunter, ‘Broken Promises: Agriculture and Development in the WTO’ (2003) 4 Melbourne
International Law Journal 299, 311.
³6 United Nations Development Programme (UNDP), Human Development Report 2005:
International Cooperation at a Crossroads: Aid, Trade and Security in an Unequal World (UNDP, New
York, 2005) 127.
³7 IAAKSTD, above n 20, 459; Oxfam, Rigged Rules and Double Standards (Oxfam, London,
2002) 161.
³8 Hunter, above n 35, 312. See also Oxfam, above n 37, 102–3.
³9 De Schutter, above n 13, 13. See also Wolf, above n 27, 213–14; Stiglitz and Charlton, above
n 34, 125.
40 Wouter Vandenhole, ‘Third states obligations under the ICESCR: a case study of EU sugar
policy’ (2007) 76 Nordic Journal of International Law 73. See also Report of the Special Rapporteur
on the right to food, Jean Ziegler, above n 18, para 51.
4¹ Martin Khor, ‘Implications of some WTO rules on the Realisation of the MDGs’ Third World
Network Trade & Development Series 26 (TWN, Malaysia, 2005) 17–18.

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188

The WTO and the Right to Food

surges disproportionately affected the poorest States: surges affected 23 per cent of
agricultural imports in LDCs and 21 per cent of imports in Small and Vulnerable
Economies.4² The frequency of surges is also confirmed in the Import Surge Briefs
of the FAO.4³
The AoA is probably not the main reason why developing States are unable to
combat import surges. The tariff bindings for agricultural products in developing
States are generally in the very high band of 50 to 100 per cent,44 though the bound
rates for acceding States are far lower.45 Since the 1980s, IFI conditionality has
forced many developing States to maintain far lower applied rates to their Uruguay
round bound rates. Since the 1990s, regional and bilateral trade treaties have also
imposed stronger constraints on developing States.46 Indeed, the IMF has intervened to prevent the defensive raising of tariffs to combat these surges.47 Current
Doha proposals would effectively remove flexibility from many developing States.48
Unfair trade measures which harm local markets under the WTO may be
challenged under the provisions regarding dumping (Article VI GATT and the
Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994). ‘Dumping’ arises where goods are exported at a lower price than
their normal value, causing injury to the competing local industries. However,
the export and local prices of a product may well be the same if all of its production is subsidized. In any case, dumping rules have proven to be too cumbersome
and complicated to provide an appropriate remedy for developing States against
import surges.49 The complexity of dumping rules plays into the hands of developed States, who have the expertise and facilities to comply with the requirements
for anti-dumping measures.50
A more promising defensive route for developing States, perhaps, is to use the
Agreement on Subsidies and Countervailing Measures (SCM) to combat subsidies.5¹ The SCM prohibits certain subsidies and renders other subsidies ‘actionable’ if they cause injury to local industry. Under Article 13 of the AoA, subsidies
4² South Centre, The Extent of Agricultural Import Surges in Developing Countries: What are the
Trends? (November 2009, Geneva).
4³ These papers are available via <http://www.fao.org/corp/google_result/en/?cx=018170620143
701104933%3Aqq82jsfba7w&q=import+surges&cof=FORID%3A9#1075> accessed 22 September
2010.
44 Reichert, above n 26, 32.
45 Ibid, 32.
46 Ibid, 33. See also Chapter 9, text at note 72–90.
47 Armin Paasch, ‘World Agricultural Trade and Human Rights: Case Studies on Violations of
the Right to Food of Small Farmers’ in FIAN and others, above n 15, 39, cites at 43–4 the example of
Ghana in 2003, which was apparently convinced by the IMF not to raise its rice tariff from 20% to
25% to combat an import surge, even though the higher rate was well under its WTO tariff binding.
48 Reichert, above n 26, 36. See Chapter 9, Part B.
49 Smaller and Murphy, above n 21, 18.
50 In fact, there are many examples of anti-dumping measures by developed States breaching WTO law—see, United States—Laws, Regulations and Methodology for Calculating Dumping
Margins (zeroing), WTO docs. WT/DS294/R (31 October 2005) (Report of the Panel) and WT/
DS294/AB/R, Ab-2006-2 (18 April 2006) (Report of the Appellate Body). It must be noted, however, that China and especially India have become more avid users of anti-dumping measures in the
manufacturing context: Peter Van den Bossche, The Law and Policy of the World Trade Organization
(Cambridge University Press, Cambridge, 2005) 513–14.
5¹ See also Article XVI GATT.

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B. Trade and Food

189

which complied with AoA requirements were not subject to challenge under the
SCM until 1 January 2004. That ‘peace clause’ has expired so agricultural subsidies are now challengeable under the SCM.
In 2006, a report was prepared for the US congress on the threat to US farm
subsidies posed by the expiration of the peace clause. The report concluded that
many of the subsidies were vulnerable, but added:
some trade specialists argue that numerous new WTO challenges of U.S. farm support are
unlikely. They contend that challenges require intense effort, the financial costs are high,
and the broader geopolitical consequences may far outweigh any potential trade gains.
Few developing countries have the needed resources for a challenge. In addition, there is
the inherent risk that, if the challenge fails, the effort could legitimize those very programs
targeted for discipline.5²

Th is author is not aware of any WTO case where agricultural subsidies have
been found in breach of the SCM but not the AoA, so the expiration of the
peace clause has not yet yielded substantive legal consequences. Therefore, the
relationship between the complex requirements of a challenge under the SCM
and the subsidies permitted under the AoA remains unclear. However, ongoing
litigation by Canada in respect of US corn subsidies could yield some answers.5³
Furthermore, there are signs that some Northern countries are seeking a new
peace clause in the Doha round in return for further reductions of amber box
subsidies.54
In 2002, prior to expiry of the peace clause, Brazil successfully challenged certain US cotton subsidies in United States—Subsidies on Upland Cotton.55 The relevant subsidies were found not to comply with AoA requirements and thus were
not protected by the peace clause: they were consequently prohibited or actionable
under the SCM. Similarly, EU sugar export subsidies were found in 2002 to breach
AoA requirements in EU—Export Subsidies on Sugar.56 However, in both cases, the
relevant subsidy schemes were recast in attempts to technically comply with AoA
and SCM requirements, causing continuing harm to foreign markets. Indeed, the
US’s ‘corrective’ measures have been found not to satisfy its obligations, so massive countermeasures by Brazil were authorized by an arbitrator in 2009,57 many
years after the launch of the litigation. The EU’s sugar policies continue to harm
5² Randy Schnepf and Jasper Womach, ‘Potential Challenges to US Farm Subsidies in the WTO:
a Brief Overview’, CRS Report for Congress (25 October 2006) 2.
5³ United States—Subsidies and other Domestic Support for Corn and other Agricultural Products,
WTO doc. WT/DS357/1 (8 January 2007) (Request for Consultations by Canada).
54 See Chakravarthi Raghavan, ‘Did Schwab mean the US to have a Peace Clause Plus?’ TWN
Info Service on WTO and Trade Issues, 24 July 2008.
55 United States—Subsidies on Upland Cotton, WTO docs. WT/DS297/R (8 September 2004)
(Report of the Panel) andWT/DS267/AB/R (3 March 2005) (Report of the Appellate Body).
56 European Communities—Export Subsidies on Sugar, WTO docs. WT/DS265/AB/R, WT/
DS266/AB/R and WT/DS283/AB/R, AB-2005-2 (28 April 2005) (Report of the Appellate Body).
See Vandenhole, above n 40, 81.
57 United States—Subsidies on Upland Cotton—Recourse to Arbitration by the United States under
Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, WTO doc. WT/DS267/ARB/1 and
WT/DS267/ARB/2 (31 August 2009) (Decision by the Arbitrator). See also Chapter 3, text at n 78.

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The WTO and the Right to Food

the livelihoods of cane farmers in the developing world.58 The outcomes of these
successful instances of litigation against Northern subsidies are not encouraging
for developing States, especially the poorest who are incapable of retaliating with
consequential countermeasures.59
Another protective measure that could perhaps be used against import
surges is the use of safeguards under Article XIX GATT and the Agreement
on Safeguards. Safeguards permit temporary restrictions on imports in order to
give a competing local industry some time to adjust.60 For a variety of reasons,
these provisions have been of little use to protect developing States from subsidized imports. A State seeking to use a safeguard must prove that an unexpected
surge of imports has caused serious harm to its like industry. In proving causation, that State must separate out harms caused by other factors, and explain
why those other factors have not caused the harm sought to be remedied by the
safeguard. These proof requirements are very onerous.6¹ Furthermore, given the
frequency of surges, it is difficult to maintain that they are unforeseen or unexpected. Finally, safeguards can only be imposed if trade compensation is given
to affected States, which clearly restricts the capacities of poorer States to impose
safeguards.
A special safeguards mechanism is contained in Article 5 of the AoA, whereby
safeguards can be implemented without having to prove serious injury to local
industry. However, it only applies to products that had been ‘tariffied’ (that is, subject to tariffs) prior to the AoA. As most developing States had used other protectionist mechanisms such as quotas, the safeguard is not available to them.6² Only
39 WTO members, including 22 developing States, have reserved the right to use
such safeguards.6³ They have rarely been used by developing States, possibly due
to their rigid and overly complex nature.64 In contrast, EU states have commonly
used this safeguard mechanism.65
Doha negotiations stalled in July 2008 over proposals, particularly from India,
regarding a new special safeguard mechanism (SSM) to protect food security and
smallholder livelihoods in developing countries.66 The main points of contention were the conditions that trigger the SSM, and the rate of protective tariffs
that can be imposed under the SSM. The Hong Kong Ministerial Declaration
58 See, generally, Vandenhole, above n 40.
59 See Chapter 5, text at notes 116–17.
60 Van den Bossche, above n 50, 633–4.
6¹ Robert Howse and Ruti Teitel, ‘Beyond the Divide: The Covenant on Economic, Social
and Cultural Rights and the World Trade Organization’ in Sarah Joseph, David Kinley, and
Jeff Waincymer, Th e World Trade Organization and Human Rights: Interdisciplinary Perspectives
(Edward Elgar, Cheltenham, 2009) 54–5; Aileen Kwa, ‘African Countries and EPAs: do
Agricultural Safeguards afford Adequate Protection?’ (2008) 25 South Centre Bulletin: Refl ections
and Foresights.
6² Dommen, above n 29, 36; Report of the Special Rapporteur, above n 28, para 23.
6³ WTO, ‘Market Access: special agricultural safeguards (SSGs)’ <http://www.wto.org/english/
tratop_E/agric_e/negs_bkgrnd11_ssg_e.htm> accessed 22 September 2010.
64 FAO, ‘A Special Safeguard Mechanism for developing countries’ (undated) (Trade Policy Briefs
on issues related to WTO negotiations on agriculture, No 9) 2.
65 South Centre, above n 42, 2.
66 See Bridges Daily Update, Issue 10, 30 July 2008 <http://ictsd.net/> accessed 30 July 2008.

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B. Trade and Food

191

indicated that the trigger could relate to a surge of imports in terms of volume,
which would affect demand, or a significant drop in the price of an agricultural
import.67 In July 2008, however, a draft put forward by WTO Director-General,
Pascal Lamy seemed to link the two requirements, meaning that the SSM would
rarely be applicable unless both conditions were present. Regarding the rate of
protective tariffs which can be imposed under the SSM, the July draft introduced
new and severe limits on the circumstances in which a tariff could rise above preDoha levels (that is, above the current tariff ceilings imposed after the Uruguay
round).68 There are no like requirements for use of the normal safeguard under
the Safeguards Agreement. Indeed, many proposed constraints on the SSM,
such as the proposal to limit it to no more than 2.5 per cent of tariff lines in a
12-month period, impose conditions above and beyond those applicable to normal safeguards.69
A final issue under WTO agricultural rules concerns the extent to which States
can impose non-tariff barriers to trade under the TBT and especially the SPS
Agreements. Smallholders are finding it increasingly difficult to comply with the
SPS standards imposed by developed States.70 At the same time, SPS standards are
important in protecting the right to health of consumers. SPS standards should be
negotiated fairly between North and South, and should not impose unduly rigorous standards.7¹ This issue was discussed in Chapter 4.
Developed country subsidies predate the AoA. However, the AoA has not done
enough to control those subsidies, representing a failure in the Uruguay bargain,
given it was (along with the Agreement on Textiles and Clothing) the effective quid
pro quo for the North in return for agreement by the South on GATS and TRIPS.7²
The AoA has reduced Northern subsidies, but they remain at very high levels, and
current Doha round proposals suggest that subsidies will simply shift boxes rather
than be effectively reduced. The structure of the AoA is on occasion blatantly
unfair, for example in the use of arbitrary base periods for calculation periods
which benefit the North. While tariffication of agricultural goods has not removed
significant policy space for developing States, that policy space is constrained
by IFI conditionality or other (bilateral and regional) arrangements: remaining
67 WTO, ‘Ministerial Declaration’ (Adopted on 18 December 2005, Hong Kong), WTO
doc. WT/MIN(05)/DEC (22 December 2005) para 7.
68 Martin Khor, ‘Analysis of the new WTO Agricultural and NAMA texts of 6 December 2008’
Third World Network Trade & Development Series 37 (TWN, Malaysia, 2009) para 14. See also
Reichert, above n 26, 36.
69 Khor, above n 68, paras 15–16.
70 UNGA, ‘Report of the Special Rapporteur on the Right to Food, Olivier De Schutter’, UN
doc. A/63/278 (21 October 2008) para 22; Joachin von Braun, ‘Small-Scale Farmers in Liberalised
Trade Environment’ in Tiina Huvio, Jukka Kola, and Tor Lundström (eds), Small Scale Farmers
in Liberalised Trade Environment: Proceedings of the Seminar on October 2004 in Haikko Finland
(University of Helsinki, Helsinki, 2005) 40–1; Rosebud V Kurwijila, ‘Small-scale farmers’ role and
challenges in developing Africa’s agriculture sector’ in Tiina Huvio, Jukka Kola, and Tor Lundström,
ibid, 82–3.
7¹ See, eg, World Commission on the Social Dimension of Globalization, A Fair Globalization:
Creating Opportunities for all (ILO, Geneva, 2004) para 380.
7² See Chapter 5, Part C.

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192

The WTO and the Right to Food

flexibilities under WTO law will be significantly reduced under current Doha proposals. Finally, ‘defence’ mechanisms such as anti-dumping laws, countervailing
measures against subsidies, and safeguards are currently inadequate shields for
developing States against subsidized Northern imports.

C. Food and Trade: An Uneasy Combination
Given the present inadequacy in WTO rules regarding agriculture, further and
fairer agricultural liberalization is unsurprisingly one of the main demands of
developing countries in the Doha round. Certainly, agricultural liberalization
would benefit the agricultural industries in Russia, Brazil and Argentina, as well
as States in the Cairns group,7³ which contain many of the world’s food insecure
people.74 However, many developing countries do not have a comparative advantage in agriculture. Agricultural liberalization could be counterproductive or even
disastrous for some of the poor in developing countries, and could have detrimental effects on enjoyment of the right to food.
Inequities in trade and lack of investment in agriculture have transformed
former exporting countries into importing countries. Whereas developing States
had an agricultural trade surplus of US$7 billion per annum in the 1960s, they
had a food trade deficit of US$11 billion by 2001.75 Many African States have
become net food importers after being net food exporters up until the 1970s.76
To be sure, this process of poor countries evolving into net food importers began
before the advent of the WTO. Trade liberalization in the 1980s was forced upon
many developing States by loan conditions imposed by the IFIs along with reductions in government support for farmers: the combined effect wiped out local
agricultural industries which could not compete with subsidized imports from
the North.77
A reversal of the status of food importer to self-sustainability or even food
exporter cannot be expected to happen even if trade rules are now ‘fi xed’ to reduce
global agricultural protectionism. Even if Northern subsidies were abolished, the
huge differences in productivity between the mechanized long-protected farms
of the North and the more rudimentary long-neglected agricultural operations
in many parts of the South would hardly create a level playing field: UNCTAD
7³ The Cairns group consists of a mixture of developed and developing States with strong agricultural sectors: Argentina, Australia, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica,
Guatemala, Indonesia, Malaysia, New Zealand, Pakistan, Paraguay, Peru, the Philippines, South
Africa, Thailand, and Uruguay.
74 Report of the Special Rapporteur on the Right to Food, above n 14, para 5; WTO, ‘Trade liberalization and the right to food’, above n 22. See also Ha-Joon Chang, Bad Samaritans: the Myth of
Free Trade and the Secret History of Capitalism (Bloomsbury Press, New York, 2008) 79.
75 Special Rapporteur on the Right to Food, above n 14, Annex 1, n 56, citing the FAO; see also
IAAKSTD, above n 20, 455.
76 Special Rapporteur on the Right to Food, above n 28, para 21. See also South Centre, above
n 42, 1; FAO, above n 28, 17.
77 Reichert, above n 26, 31; De Schutter, above n 13, 17.

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C. Food and Trade: An Uneasy Combination

193

reported in 2006 that the productivity of farmers in LDCs was less than one per
cent of those in the North.78
For rich States that are net food importers, such as Saudi Arabia and Qatar,
continued dependence on food imports is sustainable due to their purchasing
power: they are attractive markets for food sellers.79 However, dependence on
food imports is not sustainable for poor countries. As noted below, agricultural markets are extremely volatile, so such countries suffer when prices rise, as
occurred during the recent food crisis. They are also vulnerable to export embargoes. For example, certain rice exporting States, such as China and Vietnam,
reduced exports in order to ensure their own food security during the World
Food Crisis, gravely affecting food supplies in poorer rice importing States. The
incentive to sell to poor countries did not outweigh those States’ understandable
concern to feed their own people. The development of self-sustaining food supplies by poor States is therefore highly desirable, in order to ensure the enjoyment
of the right to food by their populations.80 Yet such a strategy, which would
necessarily involve increased protectionism on the part of the States with the
most vulnerable food sectors, cuts against the grain of WTO disciplines and
negotiations.

Subsidized imports and food aid
Some developing countries are dependent on imports for food and have limited
resources to purchase food.8¹ Many such States have therefore relied for food supply on cheap subsidized Northern imports. Of course, these imports harm the competitiveness of Southern farmers. Nevertheless, the removal of subsidized imports
by way of further liberalization is of considerable concern to net food-importing
developing countries.8² These potential negative effects of the AoA were acknowledged in the 1993 Ministerial Decision on Measures Concerning the Possible Negative
Eff ects of the Reform Program on Least Developed and Net Food-Importing Developing
Countries.8³ However, while that document is characterized by sympathy and recommendations, it introduces no binding obligations.84 ‘There is no mechanism
78 See UNCTAD, The Least Developed Countries Report 2006: Developing Productive Capacities
(UN, New York and Geneva, 2006) 137.
79 De Schutter, above n 13, 10. Even so, such States are taking measures to preserve their own
food security by buying up land in poorer States, particularly in Africa, to grow food for their own
peoples, perhaps at the expense of consumers in the latter countries. See, eg, John Vidal, ‘How food
and water are driving a 21st century African land grab’ The Guardian (London), 7 March 2010.
80 HE Mamadou Sanou, Minister for Trade of Burkina Faso, stated that self-sustainability was
probably the only way of ensuring food security for poor nations such as his own during an NGO
side event at the Geneva Ministerial, 2 December 2009. See also De Schutter, above n 13, 18.
8¹ See also ‘WTO List of Net Food Importing Developing Countries’, G/AG/5/Rev.6, 10 April
2003.
8² Hunter, above n 35, 307, fn 56; Christine Breining-Kaufman, ‘The Right to Food and Trade
in Agriculture’ in Thomas Cottier, Joost Pauwelyn, and Elizabeth Bürgi (eds), Human Rights and
International Trade (Oxford University Press, Oxford, 2005) 343.
8³ GATT doc. LT/UR/D-1/2 (1993).
84 Hunter, above n 35, 312–4; Dommen, above n 29, 33; Breining-Kaufman, above n 82, 368.

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194

The WTO and the Right to Food

within the WTO to monitor systematically the impact of the AoA reform process
on the’ Net Food Importing Developing Countries.85
Similar concerns may be raised regarding food aid. Food aid should be designed
to fulfil the nutritional needs of deprived States. However, food aid can be abused
to serve commercial interests rather than the interests of the hungry. At the Hong
Kong Ministerial, WTO Members reiterated the need to eliminate the abuse of
food aid whilst guaranteeing the maintenance of genuine emergency food aid, but
the details must still be worked on.86
Guideline 15 of FAO’s Voluntary Guidelines outlines the balance that should be
achieved in food aid programmes thus:
15.1 Donor States should ensure that their food aid policies support national efforts by
recipient States to achieve food security, and base their food aid provisions on sound needs
assessment, targeting especially food insecure and vulnerable groups. In this context,
donor States should provide assistance in a manner that takes into account food safety, the
importance of not disrupting local food production and the nutritional and dietary needs
and cultures of recipient populations. Food aid should be provided with a clear exit strategy and avoid the creation of dependency. Donors should promote increased use of local and
regional commercial markets to meet food needs in famine-prone countries and reduce dependence on food aid [emphasis added].
15.4 The provision of international food aid in emergency situations should take particular account of longer-term rehabilitation and development objectives in the recipient
countries, and should respect universally recognized humanitarian principles.

It is preferable if donors procure food from local or regional markets,87 rather
than send food from their own countries. Such procurement will assist local and
regional producers, and is more likely to be culturally appropriate. The food can
be delivered faster with lower transport costs.88 However, US legislation requires
that 75 per cent of its food aid be procured from US markets, be packed and processed in the US, and transported by US ships.89 The food is also delivered by contracted US-based NGOs. Food aid programmes should be designed to alleviate a
food crisis and facilitate sustainable food security in the target State, rather than to
promote commercial interests in the donating or exporting country by removing
unwanted surpluses.90

Trade efficiency and food
There are a number of reasons why the ‘efficiency’ gains driven by trade liberalization are not appropriate in the area of food. Trade efficiency denotes that solvent
85 Report of the Special Rapporteur on the right to food, above n 28, para 15.
86 Hong Kong Declaration, above n 67, para 6. See also Howse and Teitel, above n 61, 65–7.
87 Report of the Special Rapporteur, above n 70, para 15; M Mazoyer, ‘Protecting Small Farmers
and the Rural Poor in the Context of Globalisation’ (FAO, Rome, 2001) section 5.
88 See Katarina Wahlberg, ‘Food Aid for the Hungry?’ (2008) Global Policy Forum, 2 <http://
www.globalpolicy.org/component/content/article/217-hunger/46251-food- aid-for-the-hungry
.html> accessed 22 September 2010.
89 Ibid, 2.
90 Ibid, 1.

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C. Food and Trade: An Uneasy Combination

195

consumers purchase products (or services) at an optimum price from sellers, who
make profits to sustain and grow their business. Trade literature emphasizes that
markets will divert to those who sell for less.9¹ At the same time however, markets also divert to those willing to pay more.9² For example, land will be used to
cultivate and feed livestock for meat to satisfy the more expensive tastes of a growing South East Asian middle class, rather than to grow staple foods for the poor
and the hungry.9³ There is a finite amount of arable land, particularly given the
environmental consequences of clearing more land for farming, so production of
‘expensive’ agricultural products, including the rearing of livestock which is much
more resource intensive than the growing of vegetables, leads to the lesser production of cheaper staples.94 Yet food is a necessity of life, unlike most products and
services.95 From a human rights point of view, those who are too poor to purchase
food cannot be excluded from the food market in the same way that they can be
excluded from the markets for cars or television sets. In the wake of the World
Food Crisis, former US President Bill Clinton, who presided over the US’s final
negotiation of and ratification of the WTO Agreements, admitted in 2008 that
the world, including his administration, ‘blew it’ by treating food as if it was an
ordinary commodity.96
Agricultural activities are commercial activities, but they are also truly multifunctional, serving purposes beyond the production of commodities such as the
promotion of human welfare (nutrition, livelihoods, sustaining rural communities), traditional cultural practices (for example, hunting, gathering, food rituals),
and provision of environmental and ecological services, such as the management
of forests.97 Agricultural management systems must be devised so as to serve
these multifunctional purposes, rather than be based only on economic criteria.98
While the AoA acknowledges ‘non-trade’ concerns in some of its provisions, such
as food security and environmental protection, overall it ‘clearly fits into a programme of trade liberalization in agricultural products’, with food security and
other non-trade aims to be achieved by support rather than by any retreat from
liberalizing measures.99
9¹ See also United Nations Human Settlements Programme, Global Report on Human Settlements
2006: The Challenge of Slums (UN Habitat, London, 2006) 52.
9² De Schutter, above n 13, 10–11.
9³ Sophia Murphy, Concentrated Market Power and Agricultural Trade, August 2006 (Heinrich
Boell Stiftung, Berlin, 2006) 27.
94 Similarly, food production competes with other uses of land, such as golf courses, hotels, and
urbanization in general. See James A Paul and Katarina Wahlberg, A new era of world hunger?— the
Global Food Crisis Analyzed (Friedrich Ebert Stiftung, New York, August 2008) 3.
95 The market ethic promoted by WTO rules also poses problems with regard to other essential goods or services, such as life-saving medicines (see Chapter 7) and provision of water (see
Chapter 5).
96 Bill Clinton: ‘ “We Blew It” on Global Food: Ex-President tells UN World erred in treating
food as a commodity instead of a vital right’, CBS News, 23 October 2008 <http://www.cbsnews
.com/stories/2008/10/23/world/main4542268.shtml> accessed 22 September 2010.
97 IAAKSTD, above n 20, Executive Summary, 6; World Bank, World Development Report 2008:
Agriculture for Development (World Bank, Washington DC, 2008), 2; Von Braun, above n 70, 22.
98 IAAKSTD, above n 20, 50.
99 Special Rapporteur on the Right to Food, above n 28, para 14.

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196

The WTO and the Right to Food

Only a small percentage of food, estimated at 15 per cent of food grown, is actually traded across borders.¹00 Yet ‘international trade and investment requirements
dictate food and agricultural policies’.¹0¹ However, international agricultural
markets suffer from a number of flaws apart from the anomalies in current trade
liberalization arrangements discussed above. These flaws include: volatile markets
with predominantly low prices for primary goods, concentration of market power,
problems caused by the focus on export crops compared to food staples, and problems caused by specialization and intensive mono-cropping. These issues are now
discussed in turn.

Volatile markets
Agricultural commodities markets have generally delivered poor and erratic
returns to producers over the last three decades,¹0² partly due to chronic overproduction.¹0³ These markets suffer from a number of factors which defy the
application of orthodox economic theories regarding supply and demand.¹04 It is
difficult to tailor supply to demand due to the vagaries of climatic conditions, and
the fact that it is not easy to simply ‘move land in and out of production’¹05 to suit
market conditions. It is also expensive to store food, especially for poorer farmers, who cannot therefore stockpile produce until market conditions are more
advantageous.¹06
The so-called ‘cobweb effect’ may explain some of the structural reasons for
inherent agricultural volatility. Producers choose which crops to grow during the
planting season, four to six months prior to harvest. They will often plant large
amounts of high priced crops, and less of low priced crops. If all producers adopt
that strategy, there will be an overabundance of the high priced crops come harvest
time, so their price will drop, and a shortage of the low-priced crop, so its price will
rise. This problem is exacerbated when markets are global.¹07
Low prices mean that farmers cannot make a decent living. Price hikes are too
unpredictable for those farmers to take advantage of, so they suffer again as consumers with sudden rises in food prices. As noted above, poor States which are net
food importers cannot afford sudden price rises. At the Hong Kong Ministerial,
the problems caused by unstable commodities markets were acknowledged, yet no
solid commitments in that regard were made.¹08
¹00 De Schutter, above n 13, 43.
¹0¹ Smaller and Murphy, above n 21, 8; IAAKSTD, above n 20, 454.
¹0² See generally IAAKSTD, above n 20, 454, 458; Report of the Special Rapporteur on the
Right to Food, above n 70, para 18; Kurwijila, above n 70, 82.
¹0³ Von Braun, above n 70, 30–1; Mazoyer, above n 87, Section 2.3.
¹04 See also Report of the Special Rapporteur on the Right to Food, above n 28, para 21; Wolf,
above n 27, 206.
¹05 Sophia Murphy, ‘WTO Agreement on Agriculture: Suitable Model for a Global Food System?’
(2002) 7 Foreign Policy in Focus 3.
¹06 Murphy, above n 93, 5.
¹07 De Schutter, above n 13, 24–5.
¹08 See Hong Kong Declaration, above n 67, para 55.

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C. Food and Trade: An Uneasy Combination

197

In general, price stability and managed production, along with sustainable
methods of production, must be promoted to combat excessive market volatility.¹09
The WTO cannot shut its eyes to such widespread market failures with human
consequences. In order to do so, certain barriers to trade and the free market will
have to be promoted. For example, state trading enterprises may have a significant
role to play in stabilizing markets,¹¹0 lending market muscle to farmers, and in fact
providing robust competition to dominant agribusiness conglomerates,¹¹¹ whose
market power is discussed directly below. Such state-run marketing boards would,
however, have to avoid the inefficiency and corruption that has beset such institutions in the past, particularly in developing countries.¹¹²
It is difficult to reconcile such methods of price stabilization with free markets.
International commodities agreements, which seek to stabilize prices and supply
of particular commodities, and which clearly restrict free trade, are permitted
under Article XX(h) GATT.¹¹³ However, such agreements probably need to be
mandatory rather than merely permitted in order to avoid the undermining of
the agreements by non-participants.¹¹4 Furthermore, the parameters of the WTO
rules regarding commodities agreements, which cut against the grain of the free
trade ethos of WTO rules, are not clear. Hence, the African Group in the WTO
suggested in 2006 that the rules regarding commodities agreements be clarified as
part of the Doha negotiations.¹¹5

Cartelization
Agricultural trade is dominated by large-scale single-crop farms owned by multinational agribusiness companies.¹¹6 Indeed, many commodities markets are dominated by only a few multinational corporations (MNCs). In its World Development
Report of 2008, the World Bank stated that when the percentage of business held
within an industry by its top four companies (CR4 rating) is over 40 per cent,
‘market competitiveness begins to decline’.¹¹7 It reported that coffee had a CR4
rating of 40 per cent while the rating for coffee roasting was 45 per cent. There was
a CR4 rating of 40 per cent for international traders of cocoa, 51 per cent for coffee
grinders, and 50 per cent for confectionary manufacturers. Three companies controlled 80 per cent of the tea market.¹¹8
¹09 Murphy, above n 93, 29.
¹¹0 FAO, above n 28, 35–6; Wolf, above n 27, 206.
¹¹¹ See Murphy, above n 93, 38.
¹¹² See Report of the Special Rapporteur on the Right to Food, above n 25, para 32.
¹¹³ See also Article XI(2)(b) and XXXVI(4).
¹¹4 Mehmet Arda, ‘Global Mechanisms Relevant to Small-Scale Farmers in Liberalised Trade
Environment’ in Tiina Huvio, Jukka Kola, and Tor Lundström (eds), above n 70, 189–92; Reichert,
above n 26, 30.
¹¹5 WTO, ‘Modalities for Negotiations on Agricultural Commodity Issues—Proposal Submitted
by the African Group to the Special Session of the Committee of Agriculture’, WTO doc. TN/AG/
GEN/18 (7 June 2006).
¹¹6 Breining-Kaufman, above n 82, 368; Wolf, above n 27, 206.
¹¹7 World Development Report 2008, above n 97, 135–6.
¹¹8 Ibid, 136.

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The WTO and the Right to Food

The growth of global supply chains benefits smaller farmers by connecting
them to global markets.¹¹9 However, cartelization within these supply chains has
led to severe power imbalances between producers and buyers, allowing the latter
to exercise effective monopsony power to drive down prices paid to producers.¹²0
The price received by farmers for their produce now accounts for a tiny proportion of the value of the final product for consumers, which instead increasingly
reflect inputs by and the profits of others further up the chain, such as wholesalers,
processers, retailers,¹²¹ and other add-ons, such as the costs of a lease on a retailer’s
premises.¹²² The Special Rapporteur on the Right to Food, Olivier De Schutter,
stated in 2008:
The World Bank has noted . . . that . . . the share of the retail price retained by coffeeproducing countries Brazil, Colombia, Indonesia and Viet Nam accounting for 64 per cent
of global production declined from a third in the early 1990s to 10 per cent in 2002, while
the value of retail sales doubled. It also calculated that the developing countries’ claim on
value added in agricultural commodities declined from around 60 per cent in 1970–1972
to around 28 per cent in 1998–2000.¹²³

Other powerful players also now play a role in agricultural markets, further shifting profits and influence away from producers.¹²4 Farmers are dependent on certain inputs such as fertilizers and machinery in order to harvest a decent crop.
These markets are also overly concentrated, with the World Bank reporting a CR4
ratio of 60 per cent in the agrochemicals business in 2004.¹²5 Furthermore, farmers buy these inputs at retail prices yet sell their produce at wholesale prices to commodity buyers.¹²6
Commercial farming now relies on genetically modified seeds, which are owned
by companies, and cannot legally be replanted without their permission. Some of
these seeds decline in their productivity, so farmers must eventually purchase new
seeds rather than save seeds for replanting. Alternatively, farmers may become tied
to certain seed companies by contracts, which may be concluded without meaningful equality of bargaining power.¹²7 As an indicator of unfortunate market
dominance, Monsanto reportedly controls 41 per cent of the commercial maize
market and 25 per cent of soybean seeds globally.¹²8
¹¹9 De Schutter, above n 13, 30.
¹²0 UNDP, above n 36, 142–3; Department of Foreign Affairs and Trade (DFAT)], Globalisation:
Keeping the Gains (Commonwealth of Australia, Canberra, 2003) 47, 50.
¹²¹ The Special Rapporteur on the Right to Food reported in 2008 that 10 retailers shared 24% of
the global market: above n 14, para 36. ¹²² Ibid, para 36; Oxfam, above n 37, 161.
¹²³ Report of the Special Rapporteur on the Right to Food, above n 14, para 37, quoting World
Development Report 2008, at 136; Gary Howe and others, ‘Trade, Trade Liberalisation and SmallScale Farmer in Developing Countries: Beyond the Doha Round’ in Tiina Huvio, Jukka Kola, and
Tor Lundström (eds), above n 70, 123 at 135–6.
¹²4 IAAKSTP, above n 20, 465–6; Arda above n 114, 177 at 182.
¹²5 World Development Report 2008, above n 97, 135.
¹²6 Report of the Special Rapporteur on the Right to Food, above n 14, para 36.
¹²7 Arda, above n 114, 198; UNGA, ‘Report of the Special Rapporteur on the Right to Food,
Olivier de Schutter: Seed policies and the right to food: enhancing agrobiodiversity and encouraging
innovation’, UN doc. A/64/170 (23 July 2009) para 12.
¹²8 Murphy, above n 93, 6.

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C. Food and Trade: An Uneasy Combination

199

Supermarkets are also ‘consolidating distribution and retail markets on every
continent’, and now dominate final retail sales of agricultural products.¹²9 The
quality demands of supermarkets are very difficult for smallholders to comply
with, regarding, for example, uniformity of produce and volume.¹³0 While quality control of food products is of course important, some of these standards relate
to less important marketing issues such as ‘the look’ of a product. Furthermore,
the standards are imposed at the whim of the supermarket with little consultation
with farmers.¹³¹ The private source of these standards indicates that governments
have not seen such standards as necessary to protect consumers. However, the
private source also means that the standards are not challengeable under the SPS
Agreement.¹³² Finally, these retail industries are characterized by a high degree of
concentration and consequent market power.¹³³
As the gap between prices paid to producers and profits reaped by agribusiness
and other players, such as retailers and processors, grows, small farmers simply cannot compete. For example, the increased demand by agribusiness and big farmers
for land in order to cultivate export crops threatens the security of tenure of smaller
farmers, and there have been instances of forced eviction and expropriation with
inadequate (or no) compensation.¹³4 There is also a vast gap in terms of the respective access to relevant business information of the two groups.¹³5 In the result,
smallholders are either driven out of business and deprived of their livelihoods, or
they struggle on, adding to the ranks of the world’s hungry.
Problems regarding private monopolies are ‘conspicuously absent’ from binding ameliorating WTO initiatives.¹³6 Trade is hardly free in the absence of free
competition. At the least, the permitting of monopolies undermines one strong
rationale for free trade: lower prices for consumers.¹³7 Indeed, ‘analyses that have
been used to bolster the case for further trade liberalisation . . . assume that markets function competitively (ignoring vertical integration within value chains that
can limit competition)’.¹³8 Instead, there is a danger that agricultural liberalization
without the opening up of competition in the sector simply replaces ‘border protections with cartels’.¹³9 Domestic competition policy in developed States is largely
concerned with protecting consumers from monopoly producers, rather than protecting offshore consumers or producers from the monopoly or monopsony power
of MNCs based in their territory.¹40
¹²9 Ibid, 6.
¹³0 Kurwijila, above n 70, 85; Arda, above n 114, 180.
¹³¹ Murphy, above n 93, 14.
¹³² Arda, above n 114, 184 and 195. See also Chapter 4, Part D.
¹³³ Murphy, above n 93, 11–12. See also Thomas Reardon and others, ‘The Rise of Supermarkets
in Africa, Asia and Latin America’ (2003) 5 American Journal of Agricultural Economics 1140–6.
Alexandra Spieldoch, A Row to Hoe: the Gender Impact of Trade Liberalization on our Food System,
Agricultural Markets and Women’s Human Rights (Friedrich Ebert Stiftung, Geneva, 2007) reports
that 30 supermarket chains control one third of global food sales at 14, quoting an Oxfam report
from 2004.
¹³4 Report of the Special Rapporteur on the Right to Food, above n 70, para 34.
¹³5 Von Braun, above n 70, 22.
¹³6 UNDP, above n 36, 139.
¹³7 See Paasch, above n 47, 44.
¹³8 IAAKSTD, above n 20, 455.
¹³9 Murphy, above n 93, 29.
¹40 See Report of the Special Rapporteur on the Right to Food, above n 25, para 35; Murphy,
above n 93, 32; Smaller and Murphy, above n 21, 14. See also Daniel J Gifford and Robert J Kudrle,

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200

The WTO and the Right to Food

Attempts to introduce competition policy into the WTO failed at the
Singapore Ministerial of 1996. The focus of those discussions had been on promoting foreign competition against local fi rms in domestic markets, rather
than on curbing the power of certain MNCs in global markets.¹4¹ Instead,
mechanisms must be introduced to guard against abuse of market power by the
agribusiness sector, the providers of inputs such as seeds, and supermarkets.¹4²
Otherwise trade liberalization will disproportionately favour such entities,
which are already in the best position to take advantage of the dismantling of
global barriers, and widen the gap to their impoverished competitors.¹4³ At the
least, relevant WTO committees should seek information on the extent of market power exerted by certain fi rms, just as they routinely seek such information
on the practices of State trading enterprises.¹44 Indeed, the fact that the latter
information is sought, while the former is not, reflects the WTO’s inherent
suspicion of the public sector, compared to its inherent and ocasionally misplaced faith in the private sector.

Export orientation
Export orientation in agriculture has prompted switches from subsistence products to non-food cash crops, such as coffee, cocoa, and tobacco: conversion to cash
crops has in many cases weakened local food security.¹45 Agribusiness corporations, which dominate the market, are more likely to be ‘concerned with profitable
trade than with local-level food security’.¹46 The diversion of resources from food
can transform a country into a net food importing country,¹47 with all of the vulnerabilities associated with that status.
Furthermore, an export emphasis promotes investment in areas which are linked
to facilities which are necessary for the transportation of goods, such as ports and
airports. There has however been a concomitant lack of investment and provision
of infrastructure for more remote areas that are capable, if such investment took
place, of providing local and regional markets.¹48
The cash crop focus has resulted from an undue focus on export markets. Food
products are probably more in demand amongst regional and local markets in
‘Trade and Competition Policy in the Developing World’ in Chantal Thomas and Joel P Trachtmann
(eds), Developing Countries in the WTO Legal System (Oxford University Press, Oxford, 2009) 395,
esp at 427–8.
¹4¹ Stiglitz and Charlton, above n 34, 85; Murphy, above n 93, 33; Khor, above n 41, 37–8.
¹4² Report of the Special Rapporteur on the Right to Food, above n 14, para 38.
¹4³ See also IAAKSTD, above n 20, 7.
¹44 Murphy, above n 93, 36; Arda, above n 114, 195–6.
¹45 United Nations Human Settlements Programme, above n 91, 41.
¹46 Dommen, above n 29, 34.
¹47 See Dan Ben-David, Håkan Nordström and Alan Winters, ‘Trade, Income Disparity, and
Poverty’ (WTO Special Studies 5) (WTO, Geneva, 1999) 57, on the example of Zambia, where the
switch to cash crops ‘apparently eliminated the knowledge and seed supplies required for subsistence varieties, preventing farmers from reverting to traditional methods when the cash crop market
disappeared’.
¹48 IAAKSTD, above n 20, 459.

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C. Food and Trade: An Uneasy Combination

201

developing States; they are important yet neglected outlets for agricultural traders
in many regions.¹49
Of particular concern to the enjoyment of the right to food in recent years has
been the shifting of agricultural resources to the production of ‘biofuels’, fuels
derived from plant materials.¹50 The trend towards biofuels is driven by a need
to find alternatives to fossil fuels and a desire for energy security. However, biofuel production has diverted many crops which traditionally feed the poor, such
as maize, sugarcane, cassava, palm oil, and sorghum,¹5¹ into products which are
used by the rich to drive their cars.¹5² Most biofuel is currently produced in developed States. However, that situation is expected to change, given the availability of
agricultural land and appropriate climatic conditions in many developing States,
which are increasing production of primary commodities (for example, palm oil)
for biofuel conversion.¹5³ Significant production already takes place, largely for
export, in Brazil, Indonesia, and Malaysia.¹54
The result has been to drive up land prices¹55 and food prices, due to the lesser
availability of such products as edible commodities. The IMF has calculated
that biofuel production raised the price of maize by 70 per cent and soybeans by
40 per cent.¹56 Yet the positive environmental impacts of biofuels are questionable, due to the unsustainable practices used to produce them, such as extensive forest clearance and energy usage to convert plants into fuel. It seems very
unlikely that biofuels will make a significant dent, at least in the short term, in
demand for fossil fuels, when one compares the massive volume of grain and
land used to produce biofuel with the tiny portion of the fuel market occupied
by biofuels.¹57
The present Special Rapporteur on the Right to Food, Olivier De Schutter, has
gone so far as to say that the promotion of biofuel production and trade is so detrimental that it represents ‘a deliberately retrogressive measure’ in respect of the
right to food. In such a situation, relevant States (whether producing or importing)
have to demonstrate that biofuel production and trade is justified according to the

¹49 Ibid, 453.
¹50 UNGA, ‘Report of the Special Rapporteur on the right to food, Jean Ziegler’, UN doc.
A/62/289 (22 August 2007) paras 19–44.
¹5¹ Report of the Special Rapporteur on the right to food, above n 14, para 28.
¹5² Report of the Special Rapporteur on the right to food to the General Assembly, Jean Ziegler,
above n 150, para 23; Annex 2, para 10.
¹5³ See Report of the Special Rapporteur on the Right to Food, above n 14, Annex 2, para 10.
¹54 Nicola Colbran and Asbjørn Eide, ‘Biofuel, the Environment, and Food Security’ (Fall, 2008)
Sustainable Development Law & Policy 4.
¹55 The increased competition for land has also led to forced evictions for vulnerable peoples who
lacked secure tenure, particularly indigenous peoples. Report of the Special Rapporteur on the right
to food to the General Assembly, Jean Ziegler, above n 150, paras 38–9.
¹56 Report of the Special Rapporteur on the Right to Food, above n 14, Annex 2, para 3, n 66,
citing John Lipsky, Managing Director, IMF, Commodity Prices and Global Infl ation: Remarks at the
Council on Foreign Relations, New York City, 8 May 2008.
¹57 Report of the Special Rapporteur on the Right to Food, above n 14, Annex 2, quoting US
National Academics of Sciences. IAAKSTD, above n 20, 464 cites a study which indicates that only
15% of US transportation needs would be satisfied if all of its corn was converted into biofuel.

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202

The WTO and the Right to Food

totality of the rights in the ICESCR.¹58 He doubts that that burden can be met,
especially when the environmental benefits of biofuels are highly suspect.¹59
De Schutter’s statements may indicate that the import of biofuels constitutes
an extraterritorial breach by a State of the right to food. If so, this could be a rare
example of international human rights law compelling the adoption by a State of
trade bans (that is, ‘outward measures’) on a product.¹60 However, De Schutter
may not be going so far. He seems to be saying that States should not encourage
biofuel production (whether at home or overseas) through, for example, offerings
of subsidies and tax breaks. Removal of subsidies and other incentives would probably bring biofuel production to a halt, as biofuel use is not currently economically
viable without them.¹6¹
In any case, the clear link between some biofuel production and detrimental
impacts on the right to food indicate that measures which deter such production are
welcome from a human rights point of view. Yet a managed phase-out of the trade
of biofuels, or a phased-in policy of only importing biofuels produced in a manner
which preserves rights to food, could possibly be illegal under WTO rules.¹6²
In this respect, I note that the European Union has adopted ambitious targets to
promote the use within the EU of non-fossil fuels, which will ‘trigger a large increase
in the consumption of biofuel in the EU’.¹6³ Its Renewable Energy Directive¹64
sets out support schemes to facilitate the production and import of biofuels which
meet certain ‘sustainability criteria’. These criteria are arguably designed to ensure
that eligible biofuels have a minimal carbon footprint. The criteria are not however
aimed at mitigating effects on the right to food, and their suitability for minimizing detrimental environmental impacts is debatable.¹65 The sustainability criteria
may also breach WTO law. Unfortunately, more robust criteria, which could be
designed to protect the right to food and to redress criticisms of the environmental
impact of the current criteria, could be even more vulnerable to being found in
violation of international trade rules.¹66

Specialization
The theory of comparative advantage encourages specialization rather than
diversity in agricultural outputs. This emphasis on specialization, along with the
¹58 See Chapter 1, text at notes 71–2.
¹59 Report of the Special Rapporteur on the Right to Food, above n 14, Annex 2, paras 5–6.
¹60 See Chapter 4, text at notes 17–30.
¹6¹ Actionaid, ‘Meals per Gallon: The Impact of Industrial Biofuels on People and Global
Hunger’ (Actionaid, London, 2010) <http://www.actionaid.org/micrositeAssets/eu/assets/aa_
biofuelsreportweb100210.pdf > accessed 29 October 2010, 10. The existence of extraterritorial obligations does not exonerate the territorial State from its own obligations in respect of its own territory.
See also Chapter 8, text between notes 91 and 92.
¹6² Report of the Special Rapporteur on the Right to Food, above n 14, para 32. The impact of
WTO rules on the trade in ‘bad’ products is discussed in Chapter 4.
¹6³ Andreas Lendle and Malorie Schaus, ‘Sustainability Criteria in the EU Renewable Energy
Directive: Consistent with WTO Rules?’ ICTSD Information Note No 2, September 2010, 1.
¹64 Directive 2009/28/EC, 5 June 2009.
¹65 See generally, Actionaid, above n 161, and Lendle and Schaus, above n 163.
¹66 See Lendle and Schaus, above n 163, esp at 15.
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C. Food and Trade: An Uneasy Combination

203

commercial benefits of relevant intellectual property protection,¹67 encourages
‘vast monocultures being planted with genetically identical seed’.¹68 However, specialization can magnify losses if a crop should fail or plummet in price,¹69 and
leads to a loss of biological diversity and ecological resilience.¹70

Environmental damage
Global production of food in many developing States in the developing world,
such as Mexico and India, was fired from the 1950s by the Green Revolution, a
process involving intensive use of fertilizers, pesticides, irrigation, and better plant
varieties.¹7¹ The Green Revolution is a classic example of the economic focus of
agricultural policy with an emphasis on boosting yields. The benefits of the Green
Revolution cannot be denied, with those extra yields feeding previously hungry
people. Furthermore, the Green Revolution permitted increases in production
without the need to significantly expand areas of cultivation, which led to the preservation of forests, wetlands and greater biodiversity.
However, the extensive use of chemical fertilizers and pesticides has also
caused water pollution, soil degradation, and health problems. Cancer rates have
reportedly soared in the Punjab, one of the major sites of the Green Revolution
in India.¹7² Intensive agricultural operations also place ‘enormous stress’ on ecological resources, including water¹7³ and soil,¹74 and have even given rise to new
diseases, such as BSE (mad cow disease)¹75 and, possibly, avian flu and swine
flu.¹76 Furthermore, globalization has caused environmental damage by facilitating the ‘introduction of alien species’ to fragile ecosystems.¹77 Finally, current
agricultural activity is calculated to be the second biggest generator of global
greenhouse gas emission.¹78 A second era of like green revolution policies is not
sustainable.

¹67 Problems regarding intellectual property protection and loss of biodiversity are further discussed below.
¹68 Dommen, above n 29, 40.
¹69 Ibid, 40. See also Nicola Colbran, ‘Indigenous Peoples in Indonesia: at risk of disappearing as
distinct peoples in the rush for biofuel?’ (2010) International Journal for Minority and Group Rights,
forthcoming, paper on fi le with the author, 16.
¹70 IAAKSTD, above n 20, 10.
¹7¹ Ibid, 20.
¹7² See Mira Kamdar, ‘The threat to global food shortages’, Business Standard, 10 May 2008;
Mark Doyle, ‘The limits of a Green Revolution?’ BBC News (United Kingdom), 29 March 2007;
Daniel Zwerdling, ‘In Punjab, crowding onto the cancer train’, NPR, 11 May 2009 <http://www
.npr.org/templates/story/story.php?storyId=103569390)> accessed 22 September 2010.
¹7³ IAAKSTD, above n 20, 20–1.
¹74 Murphy, above n 105, 4. Oxfam uses the Bangladeshi prawn industry as an example of a commodities market that has impacted detrimentally on the environment, through massively increased
soil salinity, which has not benefited the poor due to ‘the high capital costs involved’ (above n 37,
92–3).
¹75 Wolf, above n 27, 191.
¹76 IAAKSTD, above n 20, 72 (the report does not mention swine flu; it predated that
pandemic).
¹77 Ibid, 40.
¹78 Smaller and Murphy, above n 21, 2. See also IAAKSTD, above n 20, 30, reporting that 30%
of emissions which generate climate change are attributable to agricultural activities: 3 and 11.
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204

The WTO and the Right to Food

Conclusion
There is a need to break from the purely economic focus in agriculture to promote more sustainable modes of agriculture.¹79 A shift in global agricultural policy
from current modes, which are focused largely on improving productivity, to a
multi-faceted approach aimed at empowering smallholders and designed to boost
development and sustainability, including food security, was recently advocated in
the Synthesis Report of the International Assessment of Agricultural Knowledge,
Science and Technology for Development (IAAKSTD). The IAAKSTD is an
intergovernmental entity created by the World Bank and the FAO. The report
was compiled over three years by 400 experts, including a wide range of scientists
and development specialists. Fifty-eight governments unreservedly accepted the
report in April 2008, which endorsed the report’s findings, while three governments expressed reservations.¹80 The report’s main conclusion was that ‘[b]usiness
as usual is no longer an option’.¹8¹

D. Empowering Smallholder Farmers
As noted above, half of the world’s underfed are smallholder farmers. Furthermore,
nearly 90 per cent of farms are smallholder operations.¹8² Around 40 per cent of
the world’s population are employed in agriculture, with the large majority of
those in small-scale farms.¹8³ Three quarters of the world’s poor are located in
rural areas,¹84 and more than half of extremely poor people make their livelihoods
from agriculture.¹85 Given those figures, it is hardly surprising that smallholders
constitute ‘the largest employment and small business group among the world’s
poor’.¹86 Yet a vastly disproportionate share of farm income, including subsidies,
goes to the 0.5 per cent of farms which are over 100 hectares in size,¹87 leading
to great bifurcation in world agricultural markets. Global agricultural policy is
largely driven by the interests of those bigger farms, rather than the vast number
of smaller farmers.
In alignment with the IAAKSTD conclusions, an appropriate strategy from the
perspective of the right to food, and poverty reduction generally, is to empower
small farmers so that they can sell their stock at prices which enable them to
become food secure and to maintain their livelihoods.¹88
¹79 IAAKSTD, above n 20, 44; World Development Report 2008, above n 97, 1.
¹80 Australia, Canada, and the US submitted some reservations. The 58 approving governments
included a range of developing nations, along with Finland, France, Ireland, Sweden, Switzerland,
and the UK. See IAAKSTD, above n 20, vii.
¹8¹ IAAKSTD, above n 20, Executive Summary, 4.
¹8² Von Braun, above n 70, 25.
¹8³ IAAKSTD, above n 20, 8.
¹84 World Development Report 2008, above n 97, 1.
¹85 IAAKSTD, above n 20, 14.
¹86 Von Braun, above n 70, 21.
¹87 Marc Cohen and others, Impact of Climate Change and Bioenergy on Nutrition (FAO and
IFPRI, Rome, 2008), 3 and 31 <http://www.fao.org/docrep/010/ai799e/ai799e00.HTM> accessed
22 September 2010.
¹88 IAAKSTD above n 20, 7–8, 15, 45, 454; World Development Report 2008, above n 97, 2, 8,
10; FAO, above n 28, 100; Howe, above n 123, 137–8.

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D. Empowering Smallholder Farmers

205

Women are the main producers of stable crops, ‘providing up to 90 per cent
of the rural poor’s food intake’.¹89 The empowerment of smallholders will necessarily involve the empowerment of women in countries where they continue to
suffer from entrenched discrimination, for example in terms of security of title to
land.¹90
Perhaps it could be argued that smallholders would be better off selling their
farms and moving into more appropriate efficient sectors.¹9¹ For example, they
could be employed by the export firms or large entrepreneurial holdings which will
probably buy them out if they sell.¹9² Certainly, some diversification of livelihoods
away from agriculture is probably desirable.¹9³ However, where are the smallholders to go? Agricultural workers, whether landed or not, dominate the populations
of poorer countries, so labour is hardly scarce. Indeed, agricultural labour is one of
the worst sectors in terms of labour rights abuses: child labour, informal, forced and
bonded labour are prevalent,¹94 as are occupational work hazards.¹95 Furthermore,
many rural households are headed by women: it is extremely difficult in practice in
many countries for women to leave their rural communities and seek new opportunities elsewhere. In any case, agribusiness and the larger farms are unlikely to
be able to gainfully employ all smallholders who lose livelihoods, especially given
greater mechanization and the truly vast number of people to absorb.¹96 The Dutch
NGO, Milieudefensie (Friends of the Earth), reported the following employment
statistics in agriculture in Sambas in West Kalimantan in Indonesia from 2006:
80,000 hectares provided subsistence and employment for 207,350 small farmers,
while 199,200 hectares run by 15 plantation companies employed only 1,944 people.¹97 For those who cannot be employed in the agricultural industry, prospects are
grim due to a lack of alternative skills. The choice may then be between staying on
small plots or joining the ‘rapidly expanding slums’ in overburdened cities.¹98
Moreover, extensive reduction in smallholders will only exacerbate the problems, discussed above, regarding the lack of competition in food and agricultural
¹89 Spieldoch, above n 133, quoting an FAO fact sheet from 2006 at 16.
¹90 Ibid, 19.
¹9¹ See Howe, above n 123, 140–1.
¹9² IAAKSTD, above n 20, 7.
¹9³ Ibid, 27.
¹94 See generally, ILO and FAO, ‘Food, Agriculture and Decent Work: Decent Employment
for the Rural Poor’ (undated) <http://www.fao-ilo.org/ilo-dec-employ/en/?no_cache=1> accessed
22 September 2010; see also IAAKSTD, above n 20, 35; World Development Report 2008, above
n 97, 6 and 17; Murphy, above n 93, 24–5. Some of these abuses arise on smallholder farms but many
arise on large farms where the labourers have no ultimate stake in the output beyond their low wages:
Paul and Wahlberg, above n 94, 8.
¹95 Agricultural work accounts for 170,000 occupational deaths per year, half of all workplace
accidents: IAAKSTD, above n 20, Executive Summary, 17.
¹96 IAAKSTD, above n 20, 44 and 457 (containing graphs indicating that further liberalization
along the lines of Doha proposals will boost land-intensive agriculture and processed agriculture, but
lead to a reduction in export markets for labour-intensive agriculture). Murphy, above n 93, 7 and 21;
FAO, above n 28, 63.
¹97 Milieudefensie (Friends of the Earth Netherlands), Lembaga Gemawan, and KONTAK
Rakyat Borneo, Policy, Practice, Pride and Prejudice: Review of Legal, Environmental and Social
Practices of Oil Palm Plantation Companies of the Wilmar Group in Sambas District, West Kalimantan
(Indonesia), July 2007, 20–1, as reported in Colbran, above n 169, 22.
¹98 Report of the Special Rapporteur on the Right to Food, above n 14, para 5; IAAKSTD, above
n 20, 43.

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markets, over-attention to cash crops, specialization and environmental degradation. Von Braun adds that inequality is worse in those developing States, mainly
in Latin America and the Caribbean, where the average farm size is larger.¹99
Furthermore, while ‘[i]n some contexts small farm size may be a barrier to investment’, small farms are nevertheless ‘often among the most productive in terms of
output per unit of land and energy’.²00 While smallholder farms cannot compete
easily with large plantations, they can nevertheless be just as if not more efficient.
After all, efficient food production is not the same thing as globally competitive mass food production. In any case, the idea of shifting small farmers into
larger operations is not realistic according to current trends, which suggest that
‘small-scale farms will continue to dominate the agricultural landscape in the
developing world, especially Asia and Africa, at least for the coming two or three
decades’.²0¹
Of course, the assertion that smallholders should give up their land and
independence to work for larger competitors is to treat those smallholders as
economic units rather than as human beings, that is means rather than ends.
Indeed, other human rights issues beyond the right to food are at stake in the
notion of letting smallholders and their communities wither and be replaced by
larger plantations focused on monocultures and exports. Local farming practices and associated communities may be essential to the maintenance of certain cultural practices, which are simply not within the concerns of modern
agribusiness.²0² In particular, indigenous peoples continue to engage, where
unmolested, in traditional hunting and gathering, fi shing, and/or other agricultural practices. As noted by Sophia Murphy, ‘food . . . is tied into some of
people’s oldest and most important rituals, religious beliefs and cultural practices’.²0³ Relevant human rights include many recognized in the Declaration on
the Rights of Indigenous Peoples, and Article 27 of the ICCPR, which protects
the rights of minority groups.²04
As noted by the current Special Rapporteur on the Right to Food, the ‘search for
sustainable solutions’ to world hunger may not be particularly attractive to private
interests.²05 In particular, regarding the need to protect smallholders:
Governments should have the policy flexibility both to protect their agricultural producers
whose livelihoods may be threatened by import surges or repressed prices and to allow for
a sufficient degree of diversity in various types of production. Second, smallhold farmers
from developing countries . . . must not be marginalized as a result of the development of
global supply chains, and they must be either better integrated in those chains (provided
the means to reap the gains from the lowering of trade barriers) or allowed to prosper by
¹99 Von Braun, above n 70, 26.
²00 IAAKSTD, above n 20, 9; see also Von Braun, above n 70, 24. See also Camilla Toulmin and
Bara Guèye, ‘Is there a future for family farming in West Africa?’ in Tiina Huvio, Jukka Kola, and
Tor Lundström (eds), above n 70, 53–73. ²0¹ IAAKSTD, above n 20, 9.
²0² Dommen, above n 29, 46.
²0³ Murphy, above n 93, 20.
²04 See the Article 27 cases discussed in Sarah Joseph, Jenny Schultz, and Melissa Castan, The
International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 2nd edn
(Oxford University Press, Oxford, 2004) paras 24.22–24.44.
²05 Report of the Special Rapporteur on the Right to Food, above n 14, para 10.

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E. Food and Intellectual Property

207

relying on local and regional markets, which must be insulated from the damaging effects
of global trade liberalization.²06

Significant investment, whether from national governments or international
donors, in better education,²07 research, facilities for credit (including microcredit)
and risk management, infrastructure, security of land tenure, safety nets for losers
from trade reform, and support for producer collectives is needed to empower
small-scale farming. If such reform does not precede greater liberalization, smallholders in the poorest countries are likely to lose from the liberalization process.²08
Rather, trade liberalization is likely to favour large agribusiness firms and exacerbate the gap and dichotomization between smallholders and agribusiness.²09
One size does not fit all: instead, ‘[f]lexibility and differentiation in trade policy
frameworks’ is needed to ensure that the poorest can also benefit from agricultural
liberalization.²¹0
Doha round negotiations in the WTO in July 2008 broke down, ostensibly over
the issue of safeguards for farmers in the developing world. The issue is however of
crucial importance if the Doha round is to conclude in a manner that promotes or
at least does not harm enjoyment of the right to food.

E. Food and Intellectual Property
Article 27(3)(b) of TRIPS requires States to provide for either patent or sui generis
intellectual property (IP) rights in ‘plant varieties’, including ‘seeds, plant cells or
DNA sequences’.²¹¹ As noted above, commercial farming is reliant on genetically
modified seeds, which are only likely to become more prevalent on present policy
trajectories. There are benefits in developing new seed varieties which might, for
example, be more resistant to diseases, pests or drought, or have higher nutritional value.²¹² However, the trend towards commercialization and privatization
of food products is not good news for the poor. Article 27(3)(b) mandates the private commercialization of certain food sources which will inevitably lead to rising prices which again threatens enjoyment of the right to food for the poor.²¹³
Th is is especially so, given the concentration of market power in companies that
own the relevant rights.
It is therefore important that the traditional and informal seed systems of farmers be preserved within global agricultural policy. Sometimes farmers have little
practical choice but to purchase commercial seeds. Usage of commercial seed

²06 Report of the Special Rapporteur on the Right to Food, above n 70, para 21.
²07 The World Development Report 2008, above n 97, describes education as ‘often the most
valuable asset for rural people to pursue opportunities’, yet ‘education levels in rural areas are dismally low worldwide’, 9.
²08 IAAKSTD, above n 20, 452–3; see also FAO, above n 28, 6–7, 106.
²09 IAAKSTD, above n 20, 44.
²¹0 Ibid, 452.
²¹¹ Report of the Special Rapporteur on the Right to Food, above n 127, para 12.
²¹² Ibid, para 9.
²¹³ Breining-Kaufman, above n 82, 355.

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208

The WTO and the Right to Food

packages may be a condition of receipt of certain subsidies or credit schemes,²¹4 or
a condition for smallholders to sell their produce to a nucleus estate.
TRIPS standards of intellectual property, which are discussed in greater detail
in Chapter 7, are inherently biased towards Northern notions of invention and
innovation compared to ancient and local indigenous knowledge systems. Indeed,
the latter have long been neglected in agricultural policy debates.²¹5 Yet such
knowledge is invaluable in dealing with environmental crises given that traditional
farming communities have been masters at adapting to environment change for
generations.²¹6 However, ‘indigenous’ or ‘traditional’ knowledge is generally not
patentable. For example, indigenous knowledge lacks an identifiable author as it
has often been passed down communally from generation to generation. Its long
term evolutionary nature may also lack the requisite ‘originality’.²¹7 In any case,
Northern notions of commodification and property rights over knowledge and
innovation are not culturally consistent with indigenous notions of community
rights and individual responsibilities over indigenous knowledge.²¹8
On the other hand, minor industrial modifications of indigenous discoveries are
patentable. In such situations of ‘bio-piracy’, the patent-holder (often a Northern
company) reaps the commercial benefits without any requirement under TRIPS to
compensate the relevant indigenous communities who are largely responsible for
the relevant idea and concept. Instead, the ‘people who originally developed [the
plant or seed varieties] must buy them back at exorbitant rates’.²¹9 Megan Davis has
commented that the past two decades has seen ‘aggressive commercial exploitation
of Indigenous knowledge’ which is worth billions to corporations and States, with
little economic benefit for indigenous peoples.²²0
Hence, TRIPS prescribes a discriminatory IP regime. Northern commercial
interests and notions of invention are protected, while biopiracy is permitted to
undermine the enjoyment of cultural rights by communities, particularly indigenous communities.²²¹ Examples of attempted biopiracy include the granting of
a patent (later overturned) in the US with regard to medical uses for tumeric,²²²
the attempt by US company Rice-Tec to patent strains of basmati rice²²³ and US
company Thermo Trilogy’s attempt to patent a medicinal product derived from the
²¹4 Report of the Special Rapporteur on the Right to Food, above n 127, para 36.
²¹5 IAAKSTD, above n 20, 17–18, 51.
²¹6 Ibid, 41; Report of the Special Rapporteur on the Right to Food, above n 127, para 8.
²¹7 See Breining-Kaufman, above n 82, 356.
²¹8 Megan Davis, ‘International Trade, the World Trade Organisation, and the Human Rights of
Indigenous Peoples’ (2006) 8 Balayi 5, 20.
²¹9 Marjorie Cohn, ‘The World Trade Organization: Elevating Property Interests above Human
Rights’ (2001) 29 Georgia Journal of International and Comparative Law 427, 435. See also generally, Dr John Mugabe, ‘Intellectual Property Protection and Traditional Knowledge’ (WIPO
Discussion on Intellectual Property and Human Rights, Geneva, 9 November 1998) via <http://
www.wipo.int> accessed 25 November 2005; Joseph Stiglitz, Making Globalization Work (Penguin,
London, 2007) 125.
²²0 Davis, above n 218, 19: the same point may be made about the commercialization of indigenous works of art, including paintings and performances.
²²¹ Dommen, above n 29, 9.
²²² Stiglitz, above n 219, 126.
²²³ See, eg, Luke Harding, ‘India outraged as US company wins patents on rice’ The Guardian,
23 August 2001.

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E. Food and Intellectual Property

209

Indian neem tree.²²4 Demonstrating the extent of this problem, the Traditional
Knowledge Digital Library was compiled over a period of eight years in India as a
tool for the prevention of misappropriations of traditional knowledge by so-called
bio-prospectors, following the finding of at least 2,000 patents worldwide for ‘medical plants and traditional systems’ that related to natural remedies and traditional
treatments that had long been part of Indian systems of medicine.²²5
IP rewards homogeneity and standardization rather than agrobiodiversity.²²6
Commercial efforts have been concentrated, so that only around 150 species are
cultivated now, and most of the world lives off only 12 species of plants.²²7 The
Special Rapporteur on the Right to Food reported in 2009 that 75 per cent ‘of
plant diversity has been essentially lost from the agricultural cycle because farmers have foregone local varieties in favour of genetically uniform varieties’.²²8
Furthermore, overly protective IP systems can hinder research by closing off the
opportunities for rival researchers to perform public interest research using patented products.²²9
Another potential problem concerns the quest for originality, which encourages
genetic modification of plant breeds. Modified foods can pose dangers to unmodified crops through cross-fertilization. Furthermore, the potential risks posed by
genetically modified food sources to human health are hotly debated.²³0
Certainly, TRIPS permits the adoption of sui generis IP systems rather than
strict patent protection for plant varieties. Therefore, IP systems may perhaps
be developed which account for the right to food and any other relevant human
rights.²³¹ It is presently uncertain whether TRIPS allows such flexibility, as sui
generis regimes must, under Article 27(3)(b), be ‘effective’.²³² Article 27(3) does not
seem to recognize relevant stakeholders beyond breeders, such as farmers, so an
effective sui generis regime under TRIPS may require greater protection for breeders than is desirable under international human rights law.²³³ On the other hand,
²²4 See Organic Consumers Association, ‘EU Patent Office revokes USA “Biopiracy” Patent
on Fungicide derived from Neem Tree Seeds’ (Press Release of 8 March 2005) <http://www
.organicconsumers.org/patent/neemtree030905.cfm> accessed 22 September 2010.
²²5 See the Traditional Knowledge Digital Library at <http://www.lexorbis.com/Traditional_
Knowledge_Digital_Library.htm> accessed 8 December 2010. Examples of revoked or withdrawn
patents, as well as active patents relating to indigenous knowledge (eg, particular uses of Ayahuasca
and Kava) can be found at <http://www.tkdl.res.in> accessed 23 May 2010.
²²6 Dommen, above n 29, 39; Shelley Edwardson, ‘Reconciling TRIPS and the Right to Food’
in Human Rights and International Trade above n 82, 387; Oxfam, above n 37, 224; Report of the
Special Rapporteur on the Right to Food, above n 127, para 38.
²²7 Report of the Special Rapporteur on the Right to Food, above n 127, para 38.
²²8 Ibid, para 38.
²²9 Ibid, paras 28–33.
²³0 IAAKSTD, above n 20, 12.
²³¹ Edwardson, above n 226, 383.
²³² See Report of the Special Rapporteur on the Right to Food, above n 70, para 26, on the uncertainty surrounding the meaning of these provisions.
²³³ Dan Leskien and Michael Flinter, Intellectual Property Rights and Plant Genetic Resources:
Options for a Sui Generis System (Issues in Genetic Resources no 6) (International Plant Genetic
Resources Institute, Rome, Italy, 1997), in discussing the minimum requirements of a sui generis system for the protection of plant varieties, stated at 26 that an effective sui generis system ‘has to be an
Intellectual Property Right (IPR), i.e. a legally enforceable right either to exclude others from certain
acts in relation to the protected plant variety, or to obtain a remuneration in respect of at least certain
uses of the plant variety by third parties.’

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The WTO and the Right to Food

Article 8 of TRIPS permits Members to take measures to protect ‘nutrition’ so long
as they are consistent with TRIPS: this article may imply that TRIPS permits sui
generis regimes that are compatible with the protection of the right to food.
Most States that have eschewed patents for plant varieties have opted or been pressured to adopt the IP system developed in Europe by the International Union for the
Protection of New Varieties of Plants (UPOV).²³4 The European Union is trying to
inject UPOV compliance into its European Partnership Agreements, currently being
negotiated with numerous developing States.²³5 UPOV grants monopoly rights
to breeders.²³6 Farmers are permitted to reuse seeds but they cannot sell produce
from those harvested seeds.²³7 It is to be hoped that in the future WTO Members
will make use of the more balanced regimes recommended in the UN Convention
on Biological Diversity 1992 (CBD) and the International Treaty on Plant Genetic
Resources for Food and Agriculture 2001, which both provide greater recognition
for the rights of farmers (and indigenous peoples), and that such regimes are recognized as TRIPS compliant.²³8 For example, the CBD acknowledges the need for recognition and compensation for the commercialization of indigenous knowledge in
Articles 8(j) and 10(c). At the time of writing, consultations were continuing within
the WTO on ‘the relationship between the TRIPS Agreement and the [CBD]’.²³9
Finally, the flexibilities available in TRIPS might be undermined by bilateral or
other free trade deals, as discussed in Chapter 7, or by contractual clauses between
farmers and the owners of seed technology.²40

F. Conclusion
What recommendations, in light of the above, can be made in respect of ongoing
Doha negotiations on agriculture? Pascal Lamy has stated that:
The reduction of trade barriers in agriculture, enhanced market access for agricultural products and the gradual decrease in subsidies provided by rich countries to their farmers . . . all
contribute to the same objective: the implementation of the right to food for all.²4¹
²³4 Report of the Special Rapporteur on the Right to Food, above n 127, para 16; Edwardson,
above n 226, 388.
²³5 See also Chapter 9, text at notes 72–90.
²³6 See International Convention for the Protection of New Varieties of Plants (of 2 December
1961, revised at Geneva on 10 November 1972 and on 23 October, 1978, entered into force
8 November 1981) 1861 UNTS) (UPOV Convention). See also Report of the Special Rapporteur on
the Right to Food, above n 127, para 14; see also Dommen, above n 29, 39; Edwardson, above n 226,
383; Oxfam, above n 37, 221.
²³7 UPOV Convention, above n 236, Article 5.
²³8 Edwardson, above n 226, 388–90; Breining-Kaufman, above n 82, 357.
²³9 See WTO, ‘The Relationship between the TRIPS Agreement and the Convention on
Biological Diversity (Council for Trade-Related Aspects of Intellectual Property Rights’, WTO
doc. IP/C/W/368/Rev.1 (8 February 2006). See generally, Laurence R Helfer, ‘Regime Shifting:
The TRIPS Agreement and the New Dynamics of International Intellectual Property Lawmaking’
(2004) 29 Yale Journal of International Law 1. See also Chapter 5.
²40 Report of the Special Rapporteur on the Right to Food, above n 127, para 41.
²4¹ Pascal Lamy, ‘Towards shared responsibility and greater coherence: human rights, trade
and macroeconomic policy’(Speech at the Colloquium on Human Rights in the Global Economy,

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F. Conclusion

211

With respect to Lamy, this statement manifests the absolute faith shown by many
free trade advocates in the beneficial outcomes of free trade. Yet such faith may be
blind.
Developed States must reduce their protectionist barriers to facilitate the
development of the agricultural industry in poorer countries, and to cease
the harm done to developing States by those measures. But what about the
rights of Northern farmers, whose rights might be harmed by the removal of
Northern protectionism?²4² Farmers are only a small part of the population in
Northern countries.²4³ The trend in Northern farming is towards small hobby
farms and large agribusiness farms.²44 In fact, ‘the main beneficiaries of current
[Northern] farm support are the largest farmers and agribusiness companies’.²45
In 2005, the UNDP reported that three quarters of EU agricultural subsidies
under its Common Agricultural Policy (CAP) went to 10 per cent of subsidy
recipients.²46 Wolf ’s figures are less extreme but still worrying: he reports that
50 per cent of CAP subsidies went to 17 per cent of farmers.²47 Stiglitz reports
that 1 per cent of US farms receive 25 per cent of agricultural support, while
87 per cent goes to the top 20 per cent of farms. He thus argues that US subsidies have in fact ‘driven out the small farmers’, who have been tempted to sell
out to agribusiness due to increased land prices.²48 Thus, a severe reduction in
subsidies would not hurt the individual farmer so much as agribusiness profits.²49 Subsidies for poorer farmers could be phased out more slowly to allow
for adjustment periods for those farmers. Furthermore, the large differences
in productivity between Northern farmers and Southern farmers indicate that
Northern farms can expect to maintain a competitive edge if subsidies were
significantly reduced or even abolished.²50 Northern States would certainly
remain food secure and essentially self-sufficient, despite increased competition
from the South.²5¹
Some liberalization by and between Southern countries should probably take
place. Those States that will benefit from the lowering of barriers by developed
States, such as China and Brazil, could also be required to open markets to poorer
States. Indeed, inter-South trade already constitutes about one third of agricultural
trade, and this trade can be expected to grow.²5² Such States will probably be able
Co-organized by the International Council on Human Rights and Realizing Rights, Geneva, 13 January
2010) <http://www.wto.org/english/news_e/sppl_e/sppl146_e.htm> accessed 18 September 2010.
²4² See Chapter 8, Part E.
²4³ IAAKSTD, above n 20, 7; Dommen, above n 29, 34.
²44 Spieldoch, above n 133, 13.
²45 Oxfam, above n 37, 114.
²46 UNDP, above n 36, 130.
²47 Wolf, above n 27, 215–16.
²48 Stiglitz, above n 219, 86.
²49 See also J Bhagwati, ‘The Poor’s Best Hope’ The Economist, 20 June 2002, 24 and Martin
Khor, ‘Implications of some WTO rules on the Realisation of the MDGs’ Third World Network
Trade & Development Series 26 (TWN, Malaysia, 2005).
²50 De Schutter, above n 13, 18.
²5¹ Reichert, above n 26, at 30 explains that the CAP originally came into being in order to make
the European Community self-sufficient in food: that goal was achieved in the late 1970s.
²5² FAO, above n 28, states at 19–20: ‘The proportion of developing country agricultural exports
going to other developing countries grew from 31 percent in 1990 to 40 percent in 2002, while on
the import side the share of developing country imports originating in other developing countries

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212

The WTO and the Right to Food

to provide institutional support mechanisms for local smallholders, given their
likely gains if Northern subsidies are reduced. Therefore, some lowering of barriers
by those States to developed States might be justified. However, care must still be
taken to ensure that safeguards are available to protect the livelihoods and rights in
such States of their large populations of poor farmers, so a well-designed safeguard
mechanism must be put in place.
The removal of subsidies will affect the availability of cheap food and food aid,
which could harm the right to food in net food importing developing States. In
that case, Northern subsidies would have to be phased out gradually to allow for
adjustment. Alternatively, adjustment costs could be assisted by the provision of
aid through this adjustment period, probably ‘at a fraction’ of the costs of current
subsidies.²5³ Food aid should be reformed to ensure that it conforms to the needs
of the recipients rather than those of donors and exporters, and does not disrupt
smallholder livelihoods in recipient states. Food aid should preferably be procured
from local or regional markets, rather than from the donor’s market. The outcomes
of WTO negotiations should facilitate such reforms of food aid. At present, this
issue is being largely ignored within the WTO.
For the majority of developing States, including poor net food importing states,
further liberalization of their own markets must be preceded by institutional
reforms, such as significant investment in local agricultural capacities designed to
ensure food security for the most vulnerable. As noted in Chapter 5, policy space
must be preserved to avoid premature liberalization with potentially or even likely
disastrous consequences.
A difficult issue arises with regard to the perverse incentives that might arise for
some developing States with the opening up of foreign agricultural markets. Such
measures might encourage certain developing States to continue to concentrate
their agricultural output on cash crops, including biofuel production, when a focus
on local food production is a better way of ensuring local food security.²54 If policy
space was preserved for the less agriculturally competitive developing States, such
a choice (between a focus on cash crops, food production for local markets, or a
mix thereof) would at least be their own rather than a policy dictated by external
actors.
In order to reduce present problems in cash crop markets, liberalizing measures
(for developed and the more agriculturally competitive developing States) within
the WTO should be accompanied by measures (either within or outside the WTO)
designed to control global volatility in agricultural markets,²55 to unravel existing
market concentrations, and to upgrade the agricultural sectors in vulnerable developing States, especially those States where the sector has declined spectacularly
during the last four decades.
expanded from 36 percent to 45 percent over the same period.’ <ftp://ftp.fao.org/docrep/fao/008/
a0050e/a0050e_full.pdf> accessed 22 September 2010.
²5³ Stiglitz, above n 219, 87.
²54 Olivier De Schutter, ‘A Human Rights Approach to Trade and Investment Policies’ in FIAN
and others, above n 15, 20.
²55 De Schutter, above n 13, 48–9.

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F. Conclusion

213

Nevertheless, a persistent focus by a State on cash crop exports, if such a focus
was to continue to harm food security in that State, would violate that State’s
obligations with respect to the right to food.²56 However, it is difficult to predict whether a focus on cash crops within a fairer agricultural trade system, with
diminished agricultural protection amongst Northern States and other States with
powerful agricultural sectors, and preserved policy space for those States with vulnerable agricultural sectors, would be a threat to food security or an avenue out of
poverty for hungry people.
The bottom line, from a human rights point of view, is that the enjoyment of
the right to food and the eradication of hunger are more important than the efficient functioning of global agricultural markets if those two goals should clash.
While the assertion that human rights always prevail over free trade obligations is
supported by this author, I recognize that that proposition remains legally controversial.²57 The proposition is surely less controversial when the right at issue (here,
the right to food and especially the right to be free from hunger) concerns life and
death, or ‘human security’.²58 Market efficiency does not ensure that the hungry
have access to food. It may well dictate the diversion of finite food resources to
wealthier markets, leaving behind those who are too poor to attract markets and
too under-resourced to compete even in a ‘fair’ market in order to climb out of
poverty. Therefore, the effects of proposals for WTO agricultural rules on human
rights and the right to food in particular should be explicitly considered during
negotiations, monitored after the rules come into effect,²59 and be adjusted if the
effects should be negative.²60 Indeed, the Office of the High Commissioner for
Human Rights recommended human rights impact studies with regard to the
right to food and trade liberalization as early as 2002, yet neither the WTO nor its
members have seen fit to do so, despite the manifest human rights obligations of
the latter.²6¹ Given the reality of hunger today, and the misery caused by the World
Food Crisis, such an approach smacks of sticking one’s head in the sand, or a slavish belief in the benefits of free trade, or both.

²56 Ibid, 43: ‘each State should decide whether or not it is resilient enough to take the risk of
increased vulnerability to external shocks, by maintaining or increasing its reliance on international
markets to increase food security at home—but it must to do in full awareness of the implication.’
²57 See Chapter 2, Part B.
²58 See, generally, Howse and Teitel, above n 61.
²59 Report of the Special Rapporteur on the Right to Food, above n 28, paras 36 and 37.
²60 See, generally, De Schutter, above n 254, 14 at 22–5. See also Smaller and Murphy, above n 21.
²6¹ Paasch, above n 47, 42.

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7
TRIPS and the Right to Health
In Chapter 6, the problematic effects of TRIPS in the area of agriculture and the
right to food were discussed. Another debate has arisen with regard to the effect of
TRIPS on the right to health, in particular its effect on access to life-saving medicines. This issue is the subject matter of this chapter, along with a more extensive
discussion of TRIPS.

A. Intellectual Property Protection: A Human Right?
TRIPS provides for the compulsory protection of intellectual property (IP) rights
by Member States of the WTO. It effectively supplanted earlier global IP regimes,
which recognized far greater flexibility for States in applying IP regimes to suit their
socio-economic needs. For example, under the Paris Convention for the Protection
of Industrial Property, States were permitted to exclude entire sectors from patentability and to individually determine the length of IP protection.¹
IP rights reward the creators of new products. IP rights generally comprise
the protection of rights of copyright (for authors of creative works), patents (for
inventors of industrial goods), trademarks (recognizable brands which convey
information to consumers about the origins and quality of goods) and trade
secrets. IP regimes typically involve the conferral of monopoly rights on the
owners of the relevant IP rights. For example, Part II of TRIPS requires States
to confer patent rights, that is exclusive rights of exploitation, for 20 years in
respect of ‘new’ inventions involving an ‘inventive step’ and which ‘are capable of industrial application’. IP regimes are said to be justified because they
encourage research, creative endeavour and innovation. For example, patentholders enjoy commercial benefits from their inventions before being exposed
to competition. A natural outcome from such monopoly rights is that prices
for IP-protected products are inflated. Th is circumstance creates problems in
terms of human rights if the product is essential for the enjoyment of human
rights yet it becomes inaccessible to poor people. A paradigmatic example of
¹ Human Rights Council, ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover’, UN doc. A/
HRC/11/12 (31 March 2009) para 24.

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A. Intellectual Property Protection: A Human Right?

215

such a problem concerns the impact of compulsory global patents on the price
of life-saving medicines.
Before investigating the specific issue of the impact of TRIPS on access to drugs,
one must examine whether IP rights are themselves human rights. Article 15(1)(c)
of the ICESCR recognizes the right of everyone ‘to benefit from the protection of
the moral and material interests resulting from any scientific, literary or artistic
production of which he is the author’. The bare words of Article 15(1)(c) seem to
indicate that IP rights might be human rights.
Article 15(1)(c) was the subject of General Comment 17 of the Committee on
Economic, Social and Cultural Rights. The Committee distinguished Article 15(1)(c)
rights from IP rights by noting that the latter were ‘of a temporary nature’ and
could be ‘revoked, licenced or assigned to someone else’, whereas human rights
were ‘timeless expressions of the fundamental entitlements of the human person’.²
The right in Article 15(1)(c) protects ‘the personal link between authors and their
creations and between peoples, communities, or other groups and their collective
cultural heritage, as well as their material interests which are necessary to enable
authors to enjoy an adequate standard of living’. In contrast, IP rights ‘primarily
protect business and corporate interests and investments’.³ In that respect, the
Committee added that Article 15(1)(c) rights vest only in human beings, rather
than corporations.4
Having distinguished IP rights from those in Article 15(1)(c), the Committee
nevertheless outlined a number of characteristics of Article 15(1)(c) rights which
resemble those commonly found under IP regimes. For example, a key justification for IP regimes is that they encourage innovation, research and development. Similarly, Article 15(1)(c) encourages ‘the active contribution of creators
to the arts and sciences and to the progress of society as a whole’.5 Furthermore,
protection of the material interests of authors must be ‘effective’,6 and there is
a core obligation to ‘respect and protect the basic material interests of authors
resulting from their scientific, literary or artistic productions, which are necessary to enable those authors to enjoy an adequate standard of living’.7 The
General Comment does not spell out the specific modalities of such effective
protection,8 but does suggest that the material interests of authors might be
protected by vesting authors with exclusive rights to exploit their work for a
period of time.9
However, recognition of such similar characteristics does not mean that
the material interests of authors are protected to the same extent as is found
in TRIPS.¹0 Indeed, divergence from TRIPS is inevitable given the nonrecognition of corporate rights and the greater recognition of qualifications to
² Committee on Economic, Social and Cultural Rights, ‘General Comment No. 17: The right
of everyone to benefit from the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which he or she is the author (art. 15, para. 1(c))’, UN
doc. E/C.12/GC/17 (12 January 2006) para 2.
³ Ibid, para 2.
4 Ibid, para 7.
5 Ibid, para 4.
6 Ibid, para 11.
7 Ibid, para 39(c).
8 Ibid, para 10.
9 Ibid, para 16.
¹0 Ibid, paras 2, 10.

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TRIPS and the Right to Health

Article 15(1)(c) due to the need to balance countervailing human rights.¹¹ In
particular:
The right of authors to benefit from the protection of the moral and material interests
resulting from their scientific, literary and artistic productions cannot be isolated from
the other rights recognized in the Covenant. States parties are therefore obliged to strike
an adequate balance between their obligations under article 15, paragraph 1 (c), on one
hand, and under the other provisions of the Covenant, on the other hand, with a view to
promoting and protecting the full range of rights guaranteed in the Covenant. In striking
this balance, the private interests of authors should not be unduly favoured and the public
interest in enjoying broad access to their productions should be given due consideration.
States parties should therefore ensure that their legal or other regimes for the protection
of the moral and material interests resulting from one’s scientific, literary or artistic productions constitute no impediment to their ability to comply with their core obligations
in relation to the rights to food [article 11], health [article 12] and education [articles 13
and 14], as well as to take part in cultural life [article 15(1)(a)] and to enjoy the benefits of
scientific progress and its applications [article 15(1)(b)], or any other right enshrined in the
Covenant. Ultimately, intellectual property is a social product and has a social function.
States parties thus have a duty to prevent unreasonably high costs for access to essential
medicines, plant seeds or other means of food production, or for schoolbooks and learning
materials, from undermining the rights of large segments of the population to health, food
and education.¹²

As noted below, exceptions to TRIPS are allowed, though it is uncertain whether
the exceptions are flexible enough to cater for the competing human rights of others. It is arguable that they disproportionately favour the commercial interests
of IP holders over countervailing public interests, including the human rights of
others. Certainly, countervailing rights are only ‘protected’ as exceptions to the
TRIPS regime. They are only relevant as a shield in defending against a failure to
fully implement TRIPS, rather than as a sword to challenge the implementation
of TRIPS. Therefore, the TRIPS regime undoubtedly elevates IP rights over other
potentially conflicting rights.
The Committee also anticipates alternatives to IP-like regimes, such as ‘one off
payments’ to creators.¹³ In line with the notion that the right is largely progressive
(as with most ICESCR rights), States have some margin of discretion in choosing
the protection regime that best suits its needs and circumstances: the Committee
also recognizes that relevant national regimes will ‘vary significantly’.¹4 This is
quite different to the ‘one size fits all’ regime in TRIPS.¹5
The General Comment has distinguished IP rights from those in Article 15(1)(c).
It is clear that TRIPS does not protect recognized human rights, especially

¹¹ Higher standards of protection are permitted, but only so long as they do not ‘unjustifiably
limit the enjoyment by others’ of other human rights: ibid, para 11.
¹² Ibid, para 35; see also paras 22 and 39(e).
¹³ Ibid, para 16.
¹4 Ibid, para 47.
¹5 A different regime is now prescribed for LDCs, who do not have to fully comply with TRIPS
until 2013, nor do they have to protect pharmaceutical products with patents until 2016. However, it
is envisaged that TRIPS will provide the model for IP protection in those States.

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B. The Right to Health

217

given that the vast majority of the rights protected under that treaty belong to
corporations.

B. The Right to Health
The most vocal criticisms of TRIPS have concerned its impact on the right to
health, particularly the impact of patent rights on the price of medicines. Prices
will be artificially inflated for the prescribed 20-year period as patent-holders
seek to maximize returns on their investment. For example, the costs of patented
drugs which combat the HIV virus are enormous. A month’s worth of Atripla,
an anti-HIV drug, costs US$1,300 a month.¹6 Such prices are only affordable in
industrialized countries due to government benefits, which are not available in
the developing world. Clearly, it is impossible for most people in the developing
world, where most HIV cases arise, to pay such prices. The result is a health divide:
HIV remains a death sentence for most sufferers in the developing world whereas
it can be managed for many years by sufferers in the developed world who have
access to alleviating medication.¹7 Similar problems, which have received far less
attention than issues regarding access to AIDS drugs, arise with regard to access
to drugs and vaccines for other treatable killer diseases. For example, most women
in the developing world cannot afford the new vaccine for cervical cancer, which is
widely available to women in the North.¹8 Numerous factors impact detrimentally
on access to medicines, such as irrational use of existing supplies,¹9 but high prices
brought about by patents are a key factor.²0
Article 12 of the ICESCR recognizes the right of everyone to the enjoyment of
the highest attainable standard of physical and mental health. Given the subject
matter of this chapter, the right will not be analysed in toto: only the aspects of the
right which may be affected by the implementation of TRIPS are highlighted.
Steps to be taken by States in respect of implementing Article 12 explicitly
include the ‘prevention, treatment and control of epidemic, endemic, occupational
and other diseases’ (Article 12(2)(c)) and the ‘creation of conditions which would
assure to all medical service and medical attention in the event of sickness’ (Article
12(2)(d)).
¹6 Daniel Costello, ‘HIV treatment becoming profitable’ Los Angeles Times, 21 February 2008.
¹7 Sarah Joseph, ‘Trade and the Right to Health’ in Andrew Clapham and Mary Robinson (eds),
Realizing the Right to Health (Swissbook, Geneva, 2009) 362–3.
¹8 Kevin Outterson, ‘Should access to medicines and TRIPS flexibilities be limited to specific
diseases?’ (2008) 34 American Journal of Law and Medicine 279, 292–3. See also Ellen FM ‘t Hoen,
‘The Global Politics of Pharmaceutical Monopoly Power: Drug patents, access, innovation and
the application of the WTO Doha Declaration on TRIPS and Public Health’ (AMB Publishers,
the Netherlands, 2009) 8 <http://www.msfaccess.org/main/access-patents/the-global-politics-of
-pharmaceutical-monopoly-power-by-ellen-t-hoen/> accessed 20 September 2010.
¹9 ’t Hoen, above n 18, 3.
²0 Frederick M Abbott and Jerome H Reichmann, ‘The Doha Round’s Public Health Legacy:
Strategies for the Production and Diff usion of Patented Medicines under the Amended TRIPS
Provisions’ (2007) 10 Journal of International Economic Law 921, 968.

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218

TRIPS and the Right to Health

The Committee’s General Comment 14 fleshed out the requirements of
Article 12. The right is not a right to be healthy: clearly a variety of factors, such as
lifestyle and genetic predispositions, impact on whether a person is in good health
or not. Instead, the ‘right to health must be understood as a right to the enjoyment
of a variety of facilities, goods, services and conditions necessary for the realization
of the highest attainable standard of health’.²¹ Health facilities, programmes, and
resources (goods and services) must be available, accessible, acceptable and of good
quality.²² An element of accessibility is affordability.²³
The right includes access to ‘essential drugs’, as defined by the World Health
Organisation (WHO),²4 of suitable quality²5 on a non-discriminatory basis.²6 In
fact, the right of access to such drugs is described as a core obligation, a presumptively immediate rather than progressive obligation.²7
General Comment 14 links the identification of essential drugs to the WHO’s
list of essential medicines, which has been updated from time to time since its
initial adoption in 1977. Only about 5 per cent of drugs on the current list are protected by patent.²8 How can this be, when numerous patented medicines are the
only treatments available, or are the most effective treatments, for certain deadly
diseases? One important criterion for inclusion on the WHO list is cost effectiveness. Given that many States cannot afford patented medicines, they are not ‘cost
effective’ so they are excluded from the list.²9 The exclusion of patented medicines
is caused by their high prices rather than any lack of comparable (or superior) effectiveness compared to the cheaper medicines on the list.
General Comment 14 was adopted in 2000. A report by the Special Rapporteur
on the Right to Health, Paul Hunt, in 2006 revisited the issue of the ‘human right
to medicines’.³0 The WHO list was retained as a starting point for identifying the
core obligation of a State in respect of providing essential medicines.³¹ However,
States also have progressive obligations with regard to the provision of all effective
drugs, whether on the list or not.³² As with all progressive obligations, States should
not take retrogressive steps³³ with regard to the availability of such drugs, which
may preclude the introduction of a patent regime which causes prices to skyrocket.
Another core obligation identified in General Comment 14 is to ‘take measures
to prevent, treat and control epidemic and endemic diseases’.³4 This obligation is
²¹ Committee on Economic, Social and Cultural Rights, ‘General Comment 14: The right to the
highest attainable standard of health (art. 12)’, UN doc. E/C.12/2000/4 (11 August 2000) para 9.
²² Ibid, para 12.
²³ Ibid, para 12(b).
²4 Ibid, para 12(a).
²5 Ibid, para 12(d).
²6 Ibid, para 12(b).
²7 Ibid, para 43(d); see Chapter 1, text after note 81.
²8 See Amir Attaran, ‘How Do Patents And Economic Policies Affect Access To Essential
Medicines In Developing Countries?’ (May/June 2004) Health Aff airs 155.
²9 See World Health Organization, The World Medicines Situation (WHO, 2004) Chapter 7, via
<http://apps.who.int/medicinedocs/en/d/Js6160e/9.html> accessed 20 September 2010.
³0 UNGA, ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest standard of physical and mental health, Paul Hunt’, UN doc. A/61/338 (13 September 2006)
para 37.
³¹ Ibid, para 57.
³² Ibid, para 58.
³³ See Chapter 1, text at notes 71–2. See also General Comment 14, above n 21, para 32.
³4 Ibid, para 44(c).

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B. The Right to Health

219

separate to the obligation regarding the provision of essential medicines. Of course,
one way of combating epidemics and endemic diseases is to facilitate access to the
drugs which counter those illnesses, whether they are on the WHO list or not.
Furthermore, the Committee has included the following as examples of State
practices that violate Article 12:
the adoption of laws or policies that interfere with the enjoyment of any of the components
of the right to health; and the failure of the State to take into account its legal obligations regarding the right to health when entering into bilateral or multilateral agreements
with other States, international organizations and other entities, such as multinational
corporations.³5

Clearly, the Committee believes that a State’s acceptance of TRIPS or other WTO
obligations breaches its ICESCR obligations if fulfilment of the former obligations
jeopardize enjoyment of the right to health.
In an earlier statement about the relationship between IP and other ICESCR
rights in 2001, the Committee was more blunt:
any intellectual property regime that makes it more difficult for a State to comply with its
core obligations in relation to health, food, education, especially, or any other right set out
in the Covenant, is inconsistent with the legally binding obligations of the State party.³6

As noted in Hunt’s 2006 report, States are at the least expected to take advantage
of TRIPS flexibilities (discussed below) to make life-saving medicines available to
their populations.³7
Of relevance to States’ obligations as members of the WTO is the following
statement from General Comment 14:
Depending on the availability of resources, States should facilitate access to essential health
facilities, goods and services in other countries, wherever possible and provide the necessary
aid when required. States parties should ensure that the right to health is given due attention
in international agreements and, to that end, should consider the development of further
legal instruments. In relation to the conclusion of other international agreements, States
parties should take steps to ensure that these instruments do not adversely impact upon the
right to health. Similarly, States parties have an obligation to ensure that their actions as
members of international organizations take due account of the right to health.³8

The Committee in General Comment 14 thus endorses the notion of extraterritorial obligations, which is discussed in Chapter 8.
The recognition of a right of access to medicine was endorsed by consensus in the
UN Human Rights Council in 2009.³9 The 53 Council members, most of whom
³5 Ibid, para 50.
³6 Committee on Economic, Social and Cultural Rights, ‘Human Rights and Intellectual
Property: Statement by the Committee on Economic Social and Cultural Rights’, UN doc. E/
C.12/2001/15 (14 December 2001) para 12.
³7 Report of the Special Rapporteur on the right to health, above n 30, para 47.
³8 General Comment 14, above n 21, para 39 (emphasis added).
³9 See Human Rights Council, ‘Access to Medicine in the context of the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health’, UN doc. A/HRC/
RES/12/24 (12 October 2009).

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220

TRIPS and the Right to Health

are WTO Member States, recognized that access to medicines was a fundamental
element of the right to health, and called upon States to ensure that ‘the application
of international agreements’ was ‘supportive of public health policies that promote
broad access to safe, effective and affordable medicines’.40 While the Council recognized the importance of IP protection, it also expressed ‘concerns about its effect
on prices’.4¹ Finally, it called on all States to enforce IP rights in a manner which
did not restrict the ‘legitimate trade in medicines’ and which provided ‘safeguards
against the abuse’ of such rights.4²
It is also worth mentioning the right to life in Article 6 of the ICCPR. The HRC
stated in an early General Comment that States should take ‘all possible measures
to reduce infant mortality and to increase life expectancy, especially in adopting
measures to eliminate malnutrition and epidemics’.4³ The General Comment indicates measures that hamper access to life-saving drugs are probably in breach of
Article 6.

C. Arguments in Favour of Patents
IP protection restricts trade and competition, so IP clauses are somewhat anomalous in trade agreements, which are normally designed to decrease trade barriers.
What is the justification for IP protection?44 Due to their relevance to this chapter, I will concentrate on arguments in favour of patents.45 Patents reward people
for their inventions, thus encouraging creativity and innovation. Patents operate
on the assumption that people are not inherently altruistic, and expect rewards
for their endeavours, especially when those endeavours are risky as they may, and
often do, result in costly failure.46 Furthermore, the money raised from patent
protection is said to be necessary to fund the considerable costs of research and
development (R&D).47 Therefore, without patents, innovation in the pharmaceutical field (or any industrial field) might grind to a standstill. While it is true that
the high prices generated by patent protection may render access to drugs selective,
40 Ibid, para 3.
4¹ Ibid, para 5.
4² Ibid, para 6.
4³ Human Rights Committe, ‘General no. 6, The Right to life (art. 6)’, Sixteenth session 1982
(30 April 1982), para 5.
44 The following commentary is adapted from Sarah Joseph, ‘Pharmaceutical Corporations and
Access to Drugs: the “Fourth Wave” of Corporate Human Rights Scrutiny’ (2003) 25 Human Rights
Quarterly 425, 431–5.
45 It may be noted that many of the arguments in favour of patents apply analogously to other IP
rights such as copyright.
46 Apparently, ‘only one of 4000 new chemical compounds discovered in the laboratory is ever
marketed.’ See Shanker A Singham, ‘Competition Policy and the Stimulation of Innovation: TRIPS
and the Interface Between Competition and Patent Protection in the Pharmaceutical Industry’
(2000) 26 Brooklyn Journal of International Law 363, 373.
47 Ibid, 372–4; see also James Thou Gathii, ‘Construing Intellectual Property Rights and
Competition Policy Consistency with Facilitating Access to Affordable AIDS drugs to low-end
consumers’ (2001) 53 Florida Law Review 727, 771–83, commenting on the costs of R&D in the
US drug industry caused by the (perhaps overly) high standards of the Food and Drug Authority
(FDA).

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D. TRIPS Requirements for Pharmaceutical Patents

221

it is nevertheless better that a drug is available to some rather than non-existent and
available to no one.
The global extension of patent law mandated by TRIPS helps to ensure that patents are not undermined by the sale of competing pirated copies. Furthermore, global IP regimes should theoretically encourage greater technology transfer between
countries, greater foreign direct investment, and greater local innovation within
compliant states.48 All of these outcomes should accelerate the economic development of poor countries, with positive knock-on effects for human rights.
Thus, perhaps it is arguable that pharmaceutical patents are justifiable under
international human rights law, as they promote R&D which is essential for the
future enhancement of rights to life and health. Furthermore, to the extent that
they are held by natural persons, they are one way of protecting that person’s rights
under Article 15(1)(c) of the ICESCR.
The issue of justifications for patents is revisited below. Before doing so, it is
necessary to outline the effect of the TRIPS regime on pharmaceutical patents.

D. TRIPS Requirements for Pharmaceutical Patents
Article 33 of TRIPS requires Member States of the WTO to provide protection for
patent rights for 20 years. Developing States were given a period of time to comply,
but these timelines have now run out for all but LDCs. Does TRIPS provide for
any exceptions, which permit States to make medicines available at a cheaper price
than that prescribed by the patent-holder? If it does not, TRIPS may well prescribe
a collision course with Article 12 of the ICESCR, and even the right to life in
Article 6 of the ICCPR.
Article 27(2) of TRIPS allows States to prohibit the patentability of products,
‘the prevention within their territory of the commercial exploitation of which is
necessary to protect . . . human, animal or plant life or health’. Some have argued
that this provision permits States to deny patentability to medical products.49
However, Dr Adam McBeth’s rejection of that argument is persuasive: he argues
that the provision is more likely to be aimed at the rejection of patents for harmful
products such as inhumane weapons and dangerous narcotics.50 It seems unlikely
that a prohibition of any commercial exploitation of medicines could be deemed
necessary to protect health.
Article 30 contains another exception to TRIPS obligations regarding patents:
Members may provide limited exceptions to the exclusive rights conferred by a patent,
provided that such exceptions do not unreasonably conflict with a normal exploitation of
the patent and do not unreasonably prejudice the legitimate interests of the patent owner,
taking account of the legitimate interests of third parties.
48 Singham, above n 46, 375–85.
49 See, eg, Sara Ford, ‘Compulsory Licensing Provisions under the TRIPS Agreement: Balancing
Pills and Patents’ (2000) 15 American University International Law Review 941, 965.
50 Adam McBeth, International Economic Actors and Human Rights (Routledge, Oxford,
2009) 140.

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TRIPS and the Right to Health

The rights of impoverished sick people should be recognized as legitimate third
party interests for the purposes of Article 30. However, the setting aside of a patent in order to facilitate their access to drugs might be deemed by WTO panels or
its Appellate Body to unreasonably conflict with the rights of the patent owner.
Article 30 has rarely been interpreted, so its scope remains unclear. In Canada—
Patent Protection of Pharmaceutical Products,5¹ a WTO panel found that Canadian
laws, known as ‘Bolar provisions’, which permitted the testing of generic drugs
prior to the expiry of a patent in order to ensure that they could be marketed as
soon as the patent expired, were valid. The stockpiling of generic drugs by generic
manufacturers in anticipation of the expiry of a patent was not, however, permitted under Article 30. Testing and stockpiling are incidental measures which are
not comparable to a measure which might significantly reduce the price of patented drugs for poor people. It seems unlikely that the wholesale rejection of patent
rights for life-saving drugs is envisaged under Article 30. On the other hand, it
has been suggested that the shortening of a patent period for a life-saving product might be permitted under Article 30.5² Furthermore, Frederick M Abbott
and Jerome H Reichmann have suggested that the Canadian—Patent Protection
of Pharmaceutical Products case may not be followed by a future WTO panel,
given the developments (discussed below) regarding the application of TRIPS to
pharmaceutical products which arose after that case, such as the adoption of the
Declaration on the TRIPS Agreement and Public Health in 2001.5³
Under Article 6, TRIPS explicitly has no impact on the ‘exhaustion’ of IP rights.
Exhaustion rules regulate the control a patent-holder has over patented goods after
their original sale.54 Once IP rights have been exhausted, the patent-holder has no
control over subsequent sales. This means that TRIPS has no impact on parallel
importation, which involves the importation of patented goods by one State from
another State if the product was marketed in the latter State by the patent-holder.55
Parallel importation can bring down the price of a product if the product is marketed in another country at a cheaper price.56
Article 31 permits States to issue compulsory licences in respect of the generic
manufacture of patented goods for a particular purpose without the consent of the
patent-holder. Such purposes might include a State’s need to address a refusal by the
patent-holder to licence sale of the product or a need to combat anti-competitive
practices.57 Compulsory licences may also be issued to ensure that a patented drug
is made available at affordable prices in the case of a health emergency. The licence
may prescribe that the government itself manufactures the product, or that a third
party, such as a generic drugs manufacturer, is authorized to make and sell the
5¹ WTO doc. WT/DS114/R (17 March 2000) (Report of the Panel).
5² Robert Weissman, ‘A long strange TRIPS: the Pharmaceutical Industry drive to Harmonize
Global Intellectual Property, and the Remaining WTO Legal Alternatives Available to Th ird World
Countries’ (1996) 17 University of Pennsylvania Journal of International Economic Law 1069, 1111.
5³ Abbott and Reichmann, above n 20, 957–8, 986.
54 McBeth, above n 50, 145.
55 WTO, ‘TRIPS and Pharmaceutical Patents’ (WTO Fact Sheet, September 2006) 5.
56 McBeth, above n 50, 145.
57 Report of the Special Rapporteur on the Right to Health, above n 1, para 36.

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product.58 A State may only issue a compulsory licence when it has considered
the individual merits of issuing such a licence (paragraph (a)). Under paragraph
(b), the issuing of a compulsory licence must be preceded by genuine negotiations
with the patent-holder to seek a voluntary licence on reasonable commercial terms.
This condition is waived in times of ‘national emergency or other circumstances of
extreme urgency’ or in the case of government manufacture and use. The patentholder must nevertheless be notified as soon as possible in such circumstances. The
scope and duration of a compulsory licence is limited to the purpose for which
it is issued (paragraph (c)). Under paragraph (h), the patent-holder must receive
‘adequate remuneration in the circumstances . . . taking into account the economic
value of the authorization’. Finally, the decision to issue a compulsory licence, as
well as the determination of the amount of remuneration, must be subject to judicial or other independent review (paragraphs (i) and (j)). It is uncertain how the
‘adequacy’ of remuneration should be calculated. The reference to ‘economic value’
seems logically concerned with the economic value to the licencee: the purpose of
compulsory licensing would be defeated if adequate remuneration is based on the
economic value of the patent to the patentee.59
Disputes over the extent of a WTO Member’s compulsory licensing rights arose
in the late 1990s and into the new century. A 1999 presidential decree in Brazil
confirmed that compulsory licensing was a valid strategy for countering the high
prices of anti-AIDS drugs under Brazilian law. At that time, Brazil did not actually issue any compulsory licences but the ever-present threat of doing so enabled it
to negotiate deep price cuts with drug manufacturers60 and consequently provide
anti-retroviral treatment to all who needed it.6¹ The greater availability of such
drugs halved the number of deaths from HIV,6² and also reduced the rate of infection due to the lower viral load in infected persons.6³ The costs of the programme
were offset by savings in hospitalization rates, as well as incalculable savings to
Brazil’s society and economy.64 Nevertheless, the US initiated a complaint against
Brazil in the WTO, claiming that Brazil had breached TRIPS. This action was
fairly typical of US policy at the time: it had threatened unilateral action against

58 Ibid, para 37.
59 Weissman, above n 52, 1114.
60 Commission on Human Rights, ‘The impact of the Agreement on Trade-Related Aspects
of Intellectual Property Rights on human rights: Report of the High Commissioner’, UN doc. E/
CN.4/Sub.2/2001/13 (27 June 2001) (UNHCHR) paras 51–8. Note that Brazil did issue a compulsory licence in May 2007 after negotiations with the manufacturer Merck broke down in relation to
an AIDS drug. See <http://ictsd.org/i/news/bridges/11643/>.
6¹ Tina Rosenberg, ‘Look at Brazil’ New York Times Magazine, 28 January 2001; Gathii, above
n 47, 734–5.
6² Oxfam, ‘Patients versus Patents: Five years after the Doha Declaration’ (Oxfam Briefing
Paper 95, 2006) <http://www.oxfam.org/sites/www.oxfam.org/files/Patents%20vs.%20Patients.pdf>
accessed 27 October 2010.
6³ See Rosenberg, above n 61, 26; Consensus Statement of Members of the Faculty of Harvard
University, Antiretroviral Treatment for AIDS in Poor Countries, March 2001, 14, <http://www
.hsph.harvard.edu/hai/conferences_events/2001/consensus_aids_therapy.pdf> accessed 20 January
2003; Dirceu B Greco and Mariangela Samão, ‘Brazilian policy of universal access to AIDS treatment: sustainability challenges and perspectives’ (2007) 21 AIDS S37, S40.
64 Joseph, above n 44, 444.

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many States for seeking to use policies even though those policies were possibly
compliant with TRIPS.65
In March 2001, a group of 39 pharmaceutical companies challenged the constitutionality of South African legislation, which was designed to facilitate access
to cheaper drugs, in the High Court in Pretoria in March 2001, claiming that
it breached their rights to property, namely their IP. The companies feared that
the legislation expanded the government’s powers to issue compulsory licences
and import generic versions of patented goods. The companies urged the Court to
interpret the legislation in light of TRIPS.66 Notably, they did not urge the Court
to interpret the legislation in light of any human rights treaties. No decision was
ever made. The companies dropped the suit in April 2001 after a wave of global
outrage. The spectre of 39 companies, whose combined profits outweighed the
GDP of South Africa, moving to stop the provision of cheap drugs to a population
with an appalling rate of HIV/AIDS did immeasurable damage to the companies’
reputations.67
In 2001, developing States conducted a campaign within the WTO to clarify
the scope of the compulsory licensing provisions.68 Backtracking by opponents of
compulsory licensing on this issue became evident. As noted, the South African
pharmaceutical case collapsed. Furthermore, the US effectively backed away from
its case against Brazil in 2001.69 Indeed, the US’s position was completely undermined by its own actions in October 2001. A few weeks after the September 11
terrorist attacks, a number of anthrax cases appeared in the US. In late October,
the German company Bayer was forced to sell its anti-anthrax drug Cipro to both
the US and Canada at a heavily discounted price after both States had threatened
to issue compulsory licences. Such actions were astonishingly hypocritical: the US
had suffered three deaths and Canada none, which hardly compared to the various
medical emergencies, especially the alarming rates of HIV, being experienced in
developing States.70
The battle over TRIPS and pharmaceuticals in the WTO culminated with
the adoption of the Declaration on the TRIPS Agreement and Public Health7¹
in December 2001. This Declaration asserted that TRIPS did ‘not and should
65 Ken Shadlen, ‘Resources, Rules and international political economy: the politics of development in the WTO’ in Sarah Joseph, David Kinley, and Jeff Waincymer (eds), The World Trade
Organization and Human Rights: Interdisciplinary Perspectives (Edward Elgar, Cheltenham, 2009)
118–19. Eg, Shadlen notes at fn 22 that the US had withdrawn GSP preferences from States that
failed to comply with higher IP standards than were required under TRIPS. See also McBeth, above
n 50, 144.
66 It seems unlikely that the Act actually breached TRIPS.
67 Joseph, above n 44, 443–4.
68 Shadlen, above n 65, 119.
69 The complaint was settled on the basis that Brazil would consult with the US before issuing
a compulsory licence due to a patent-holder’s failure to work a patent locally: Duncan Matthews,
‘Intellectual Property Rights, Human Rights and the Right to Health’ in W Grosheide (ed),
Intellectual Property Rights and Human Rights: a Paradox (Edward Elgar, 2010, forthcoming).
70 Joseph, above n 44, 446–7; Joseph Stiglitz, Making Globalization Work (Penguin, London,
2007) 122. See also Abbott and Reichmann, above n 20, 939.
7¹ WTO doc. WT/MIN(01)/DEC/2 (adopted on 14 November 2001). The following commentary is adapted from Joseph, above n 17, 364.

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D. TRIPS Requirements for Pharmaceutical Patents

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not prevent members from taking measures to protect public health’. Therefore,
TRIPS ‘can and should be interpreted and implemented in a manner supportive
of WTO members’ right to public health and, in particular, promote access to
medicines for all’. In particular, the right of States to issue compulsory licences was
reaffirmed, and ‘public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics’ were recognized as national emergencies for
the purposes of issuing a TRIPS compliant compulsory licence. Finally, LDCs
were given until 2016 before they are required to respect pharmaceutical patents.
The Doha Declaration clarified that the compulsory licensing provisions
of TRIPS may be used to facilitate access to medicines to combat public health
emergencies.
By the end of 2007, 52 developing States had issued post-Doha Declaration
compulsory licences, indicating that the Declaration has had the desired effect
of prompting needy States to make use of the Article 31 exception.7² Most of
these States are LDCs that do not have to provide patents for pharmaceuticals
until 2016.7³ Use of compulsory licences has also been encouraged by some international donors, such as the Global Fund to Fight AIDS, TB and Malaria, the
World Bank, and UNITAID.74 The huge majority of these post-Doha compulsory
licences relate to AIDS drugs, with only Thailand and Taiwan issuing compulsory
licenses for drugs for other conditions.75
Another breakthrough arose within the WTO in 2003. One general restriction
in TRIPS on compulsory licences is that the licence, under Article 31(f), must be
issued ‘predominantly for the supply of the domestic market’. This provision was
problematic, as many developing States lack the capacity to manufacture generic
pharmaceutical products, and therefore must import generics from countries which
have such a capacity. Certainly, States may export compulsory licensed products
so long as such exports are ‘less than a predominant part of production’:76 India
has legislated to routinely allow for export in such circumstances.77 Nevertheless,
the ability of States to import compulsorily licensed products is limited under
Article 31(f) because other States are prohibited from producing such generic
goods primarily for export.78
In 2003, the WTO’s General Council waived the territorial restriction on compulsory licences for pharmaceutical products in certain circumstances.79 The waiver
7² ’t Hoen, above n 18, 44.
7³ Ibid, 60.
74 Ibid, 63–5. In contrast, the US President’s Emergency Plan for AIDS Relief (PEPFAR) does
not encourage implementation of the Doha Declaration.
75 Ibid, 61.
76 Abbott and Reichmann, above n 20, 958.
77 ’t Hoen, above n 18, 58–9.
78 Howse and Teitel believe that the export of generics to impoverished States that lacked appropriate manufacturing capacity would have been permissible under Article 30: Robert Howse and
Ruti Teitel, ‘Beyond the Divide: the International Covenant on Economic Social and Cultural
Rights and the World Trade Organization’ in Joseph, Kinley and Waincymer (eds), above n 65,
61–2. See, for a similar argument, Abbott and Reichmann, above n 18, 957 and 986. At 958, Abbott
and Reichmann also argue that generics can be exported to non-WTO members that lack capacity to
manufacture their own products under Article 30.
79 WTO, ‘Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement
and Public Health’ (Decision of the General Council of 30 August 2003), WTO doc. WT/L/540
(30 August 2003).

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TRIPS and the Right to Health

remains in place, pending ratification of a formal TRIPS amendment (proposed
Article 31bis) designed to enshrine the rules of the waiver.80 Under the waiver, the
territorial restrictions on compulsory licences may be lifted to facilitate the export
of generic drugs to LDCs, or other States that notify the TRIPS Council of a desire
to import due to a lack of manufacturing capacity, for the purposes of combating
public health emergencies as specified in the Declaration. There are extensive procedural prerequisites concerning notice by both exporter and importer to the WTO’s
TRIPS Council regarding use of the waiver. Safeguards must be implemented to
ensure that the compulsory licensed generics are not diverted to another market.
The waiver facilitates exports of generic drugs to LDCs and other vulnerable
developing States to allow them to benefit from the compulsory licensing provisions. By March 2010, only Rwanda had notified the WTO of an intention to use
the waiver as an importing State; Canada had agreed to export generic versions of
the relevant anti-HIV drug. There are a number of possible explanations for this
lack of use of the waiver.
First, some developing States with manufacturing capacity (as opposed to LDCs
who generally lack such capacity) only had to fully comply with TRIPS with regard
to pharmaceutical patents from 1 January 2005. Up until that time, such States
could authorize generic production of patented goods, and supply such generics to
other States: India in particular was a major supplier to the world of such generics.
Therefore, the 2005 deadline delayed the need for some States to use the waiver
provisions.8¹
Furthermore, the Doha Declaration and the waiver are likely to have prompted
some pharmaceutical corporations, who feel threatened by compulsory licensing
schemes, to make their products available to some developing States on a cheap or
even cost-free basis. Indeed, numerous corporations have adopted such a strategy,8²
though these efforts are generally confined to drugs for AIDS, malaria, and a few
other drugs, rather than the wide range of treatable killer diseases.8³
Finally, Howse and Teitel bemoan the excessive formalities, suggesting that the
requirements are too costly for generic manufacturers.84 These formalities are discussed further below.

Does TRIPS permit States to comply with human rights
duties regarding access to drugs?
In light of the flexibilities allowed under TRIPS, as well as the justification for
patents in promoting future R&D, this section examines whether States are able
80 WTO, ‘Amendment of the TRIPS Agreement’ (Decision of 6 December 2005), WTO doc. WT/
L/641.
8¹ Abbott and Reichmann, above n 20, 934, 949; ’t Hoen, above n 28, 37.
8² See, eg, <http://www.diflucanpartnership.org/en/welcome/Default.aspx> regarding Pfizer’s
initiatives. See also Abbott and Reichmann, above n 20, 948–9.
8³ Outterson, above n 18, 289–90.
84 Howse and Teitel, above n 78, 62–3. See also Adam McBeth, ‘When Nobody Comes to
the Party: Why Have No States Used the WTO Scheme for Compulsory Licensing of Essential
Medicines?’ (2006) 3 New Zealand Journal of International Law 1, 23–30.

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D. TRIPS Requirements for Pharmaceutical Patents

227

to simultaneously comply with TRIPS and their human rights duties regarding
access to drugs.
In a 2009 report to the Human Rights Council, the Special Rapporteur on
the Right to Health, Anand Grover, wrote extensively on TRIPS and the right
of access to medicines. He did not explicitly find that TRIPS conflicted with the
right. Instead he stressed that States had to take advantage of available TRIPS
flexibilities if they are unable to independently facilitate access to patented goods.
That is, States had to make full use of compulsory licensing, importation of generic
goods under the 2003 waiver, parallel importation, the limited exceptions permitted under Article 30 TRIPS, and remaining transition periods.85 States should
also properly exercise their discretion over the standards for patentability to allow
for opposition and revocation procedures and to combat anti-competitive practices. His comments on these issues are analysed below.
On timelines, Grover noted that many LDCs have already implemented TRIPS
despite the 2013 deadline for general TRIPS implementation and the 2016 deadline for implementation of pharmaceutical patents.86 This premature introduction
of patent regimes deprived them of the ability to continue using generics, and also
probably removed policy space that might have enabled the growth of local manufacturing capacity.87
Furthermore, while Article 27 of TRIPS provides that patents must be available
for new inventions capable of industrial application, it does not specify particular
criteria for patentability. Therefore, States are presumably able to apply strict criteria to prevent the ‘evergreening’ of patents. Evergreening ‘refers to the practice of
obtaining new patents on a patented medicine by making minor changes to it’.88
Evergreening delays the introduction of generic competition. For example, Grover
noted that India and the Philippines both refuse patents to ‘new forms of known
substances unless they [were] significantly more efficacious and new (or second)
uses and combinations of new substances’.89 India’s high standard is evident in its
refusal to patent new versions of Novartis’s cancer drug Glivec, which was unsuccessfully challenged in local court proceedings by Novartis.90
Grover also noted that TRIPS did not prohibit States from adopting laws which
allowed for the opposing and revocation of patents in appropriate circumstances.
‘Oppositions’ could help under-resourced patent offices make educated decisions
over whether a product or process was truly patentable. India and Thailand both
provide for oppositions, and civil society groups have been successful in both States
in staving off patents for certain anti-HIV drugs. The right of ‘opposition’ should
be extended to public interest groups and civil society organizations, rather than
being limited to business competitors and government bodies.9¹

85 Special Rapporteur on the Right to Health, above n 1, para 27.
86 Ibid, para 30.
87 Ibid, para 31.
88 Ibid, para 34.
89 Ibid, para 35.
90 Novartis v India W.P. Nos 24759 of 2006 and 24760 of 2006, High Court of Madras (India),
6 August 2007. See also Abbott and Reichmann, above n 20, 959.
9¹ Special Rapporteur on the Right to Health, above n 1, paras 50–2. On the provision for opposition in India, see ’t Hoen, above n 18, 77–8.

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228

TRIPS and the Right to Health

On compulsory licensing, the language of the Doha Declaration arguably
restricts compulsory licensing in respect of health crises beyond epidemics. Does its
wording recognize the right to issue compulsory licences to facilitate access to drugs
for sufferers of cancer, diabetes, heart disease, or other lethal non-communicable
diseases? The US, for example, has behaved as if it does not, by threatening trade
sanctions against Thailand in 2007 for its proposal to issue compulsory licences
for medication for heart disease and cancer.9² Canada, in enacting legislation to
permit exports of compulsorily licensed drugs under the waiver, restricted such
exports to AIDS drugs and off-patent medicines.9³
However, it seems clear that the Doha Declaration is meant to list examples of
relevant diseases, and is not an exhaustive list thereof: it does not limit its application to specific diseases.94 The Declaration therefore reflects the reality of the
global disease burden: ‘the number one cause of death’ in developing States is in
fact heart disease.95 In any case, the Doha Declaration did not change TRIPS law
(beyond extending the deadline for compliance by LDCs with respect to pharmaceutical patents): it essentially clarified one aspect of TRIPS in order to stave off
unwarranted pressure from pharmaceutical companies and developed States, particularly the US.96 There is no reason to assume that Article 31 itself does not permit licences for such diseases.97 However, many developing States may not wish to
risk litigation or other consequences to find out.
Furthermore, Grover calls upon States to streamline their domestic legal provisions regarding compulsory licensing, which are often cumbersome.98 In particular, the ‘complex administrative procedures’ entailed in the 2003 waiver have been
exacerbated by further requirements imposed by the domestic laws of potential
exporting States.99
Indeed, red tape requirements are probably a key reason for the lacklustre
response thus far to the 2003 waiver. The waiver stipulates that exporting and
importing States must notify the TRIPS council of the types and quantities of
drugs involved in use of its scheme. The notification requirements needlessly
expose vulnerable States to possible political pressure by alerting the world of
their intentions.¹00 Crucially, the requirements dictate that exporters can only
export on a ‘drug-by-drug, case-by-case, country-by-country’ basis.¹0¹ An
importing country may not be able to provide enough of a market to enable a
generics exporter to develop the economies of scale needed to make its venture
economically viable.¹0² In this respect, Abbott and Reichmann have suggested
that groups of developing countries act jointly to seek imported generics, so as

9² Outterson, above n 18, 282.
9³ Ibid, 281–2.
94 Abbott and Reichmann, above n 20, 937; ’t Hoen, above n 18, 32.
95 Outterson, above n 18, 283; see also ’t Hoen, above n 18, 86.
96 Shadlen, above n 65, 121; see also James Harrison, The Human Rights Impact of the World
Trade Organisation (Hart, Oxford, 2007) 165.
97 Grover confidently proclaims that Article 31 allows compulsory licensing of drugs to combat
such diseases at Special Rapporteur on the Right to Health, above n 1, para 37.
98 Ibid, para 39.
99 Ibid, para 41.
¹00 ’t Hoen, above n 18, 36–7.
¹0¹ Ibid, 36.
¹0² Ibid, xvii; Abbott and Reichmann, above n 20, 943.

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D. TRIPS Requirements for Pharmaceutical Patents

229

to provide a viable market for offshore generic suppliers.¹0³ Nevertheless, Ellen
’t Hoen, a former policy and advocacy director for Médecins sans Frontières and
now a senior policy adviser with UNITAID, has concluded that the system is
‘highly unlikely [to] provide sufficient economic incentive to keep the generic
medicines sector in business’.¹04
Grover recommends that States adopt laws which give them the greatest flexibility to use parallel importation as a mechanism to bring down prices. In particular, States should adopt the principle of ‘international exhaustion’, dictating
that IP rights are exhausted once a product is marketed anywhere in the world,
thus allowing for parallel importation. South Africa, Kenya, and Honduras are
examples of States which have adopted the principle of international exhaustion.
In contrast, a principle of ‘national exhaustion’, which is adopted for example by
Brazil and Morocco, only exhausts IP rights for the purposes of further sale inside a
country, and does not permit importation of a product without the patent-holder’s
consent.¹05
Article 40 of TRIPS recognizes that IP rights-holders can abuse their position
and unduly restrict competition by, for example, imposing unreasonable conditions of licence for use. Grover cites with approval the practice of the South African
Competition Commission, which has held that the failure by a pharmaceutical
company to grant a licence to a generics manufacturer was an abuse of its dominant position. Such measures could be repeated across the world to ease anticompetitive practices in the pharmaceutical industry.¹06
Finally, technical incapacities hamper the ability of some States, particularly
LDCs, to utilize TRIPS flexibilities.¹07 In this respect, they may receive technical
assistance under Article 67 of TRIPS. Unfortunately, such technical assistance has
often prompted developing States and LDCs to implement TRIPS before they
were required to, and indeed to adopt IP laws that extend protection beyond that
required under TRIPS.¹08
The implication from Grover’s report is that TRIPS obligations do not conflict
with the right of access to medicines, though he does conclude that TRIPS has
‘had an adverse impact on prices and availability of medicines’.¹09 It is up to States
to utilize all available flexibilities, as needed, in order to ensure access to medicines
domestically. The common failure to do so amounts to a violation of the right to
health by the States concerned.
Similarly, the placement of pressure on weaker States by stronger States to forego
such flexibilities constitutes an extraterritorial breach of human rights obligations
by the latter States.¹¹0 Despite the 2001 Doha Declaration and the 2003 waiver,
such pressure continues. Thailand has been pressured by both the US and the
¹0³ Abbott and Reichmann, above n 20, 943, 972–7.
¹04 ’t Hoen, above n 18, 39; see also 42.
¹05 Special Rapporteur on the Right to Health, above n 1, para 44.
¹06 Ibid, paras 53–5. See also European Union Directorate-General for Competition,
Pharmaceutical Sector Inquiry-Preliminary Report, 28 November 2008.
¹07 Special Rapporteur on the Right to Health, above n 1, para 65.
¹08 Ibid, para 63.
¹09 Ibid, para 94.
¹¹0 See Chapter 8 on extraterritorial obligations.

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230

TRIPS and the Right to Health

European Commission for its issuance of compulsory licences in 2006–2007.¹¹¹
Thailand has however made clear that it will ‘bring a claim for WTO dispute settlement if trade sanctions are wrongfully imposed’ against it in respect of those
licenses, which are almost definitely TRIPS compliant.¹¹² Thailand’s calling of the
bluff of the North is an excellent development from a human rights point of view.
Pressure also comes from pharmaceutical companies: an example is Novartis’s
court challenge to India’s failure to patent new versions of Glivec. After Novartis
lost its case in the Madras High Court, it announced that it would ‘redirect its
research and development programs away from India to more receptive environments’.¹¹³ While India seems robust enough to resist pressure from Novartis, the
same is not necessarily true of more vulnerable developing States.
Therefore, despite the Doha Declaration and the waiver, pressure has been
applied by the North and pharmaceutical companies, somewhat unsuccessfully, to
attempt to dissuade States with emerging economies, such as Thailand, from making use of compulsory licensing. In contrast, such pressure has not been overtly
applied to LDCs, such as the many from sub-Saharan Africa which have issued
compulsory licences.¹¹4 LDC markets are possibly too small to mobilize a backlash from pro-IP States and lobbies. More importantly, LDCs lack the capacity
to manufacture their own generics so they must import them. If pressure is successfully applied to prevent States such as Thailand, India, and Brazil from manufacturing generics, import-dependent LDCs will lack suppliers outside the rubric
of the scheme outlined in the waiver. As discussed above, that scheme is highly
problematic.¹¹5
McBeth has also suggested that TRIPS does not directly conflict with the right
to health. Rather:
the greater impediment to the realisation of the right to health in the context of access to
essential medicines is not the framework of international trade law, but the conduct of
governments and pharmaceutical corporations under cover of the sympathetic or at least
ambiguous intellectual property provisions of the WTO system.¹¹6

At the least, however, TRIPS might be deemed to be an unfortunate development
for the protection of human rights. Even the World Bank has deemed it ‘inequitable’ with regard to its impact on the developing world.¹¹7

E. A Reconsideration of the Justification for Intellectual Property
The diluting of IP rights via the extensive use of flexibilities, as advocated by
Special Rapporteur Anand Grover, would presumably diminish the benefits of IP.
For example, incentives for future R&D and technology transfer to developing
¹¹¹ Abbott and Reichmann, above n 20, 953–6; ’t Hoen, above n 18, 49.
¹¹² Abbott and Reichmann, above n 20, 956.
¹¹³ Ibid, 959.
¹¹4 ’t Hoen, above n 18, 65.
¹¹5 Ibid, 66–7.
¹¹6 McBeth, above n 50, 150.
¹¹7 World Bank, World Development Report 2006: Equity and Development (World Bank,
Washington DC, 2006) 215.

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E. A Reconsideration of the Justification for Intellectual Property

231

States might be jeopardized. Therefore, it is now necessary to revisit the justifications for IP.
First, one may note that Grover’s recommendations are essentially aimed at
developing States. While patented goods are expensive in developed States, those
States generally have the capacity to provide many patented medicines to those
who need them. Therefore, the real question is whether the adoption of flexibilities
by developing States will have consequences for future innovation.
In response, one may note that the pharmaceutical industry reaped huge profits and engaged in significant levels of R&D long before TRIPS mandated the
global extension of its patents. Furthermore, the developing world component
of the patented pharmaceutical market is so small that it would make little difference to pharmaceutical profits, and therefore its well of R&D resources. For
example, Africa constituted only 1.3 per cent of the pharmaceutical market at the
turn of the century, prior to any possible impact of the Doha Declaration.¹¹8 In
2006, the World Bank cited a study indicating that the extension of patent protection for drugs in the developing world by 20 years would equate, for the purposes of calculating profits, to a two-week extension for patents in the North.¹¹9
Therefore, compulsory licensing or deep discounts per se in the developing world
do not threaten pharmaceutical R&D.¹²0 Indeed, pharmaceutical companies
could potentially benefit by basing their businesses on a ‘high volume-low margin’ basis in developing States, as opposed to virtually no profits due to a lack of
sales.¹²¹
However, there is the danger of low price drugs in the developing world being
re-imported back into Northern markets, which would undercut profits, and
therefore pose a danger to existing levels of R&D. In response, one may note that
parallel importation must have been a similar threat prior to TRIPS, yet the pharmaceutical industry managed to consistently reap exceptional profits. Secondly,
Northern States are free under TRIPS and should be encouraged to pass laws that
prevent parallel importation, if such measures are needed to preserve the feasibility
of low prices in the developing world.¹²²
Of course, Northern consumers might object to paying more than the developing world for the same pharmaceutical products. However, the level of need in the
developing world regarding access to essential drugs is so comparatively great as to
justify differential pricing or patent systems and the effective subsidization of third
world drug prices by Northern governments.¹²³ In any case, as noted above, the
third world market for pharmaceutical products is presently too small to greatly
impact on the industry’s pricing policies in the developed world. Insistence on
the payment of full price simply shrinks that market even more.¹²4 More radical
¹¹8 Rosenberg, above n 61.
¹¹9 World Development Report 2006, above n 117, 214, citing Jean O Lanjouw and William
Jack, ‘Trading Up: How Much Should Poor Countries Pay to Support Pharmaceutical Innovation?’
(2004) 4 CGD Brief 1, 6.
¹²0 World Development Report 2006, above n 117, 224.
¹²¹ Abbott and Reichmann, above n 20, 970–1.
¹²² UNHCHR, above n 60, para 47.
¹²³ See also Chapter 8; Stiglitz, above n 70, 120.
¹²4 See also World Development Report 2006, above n 117, 224–5.

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solutions will be needed to reduce the huge outlays paid by Northern consumers,
usually via their governments or insurers, to pharmaceutical companies.¹²5
As noted above, there is an economic argument that developing States ultimately
benefit from IP laws through increased domestic innovation and technology transfer. However, the evidence of technological transfer in the pharmaceutical sector is
‘not compelling’.¹²6 Abbott and Reichmann explain:
The major multinational pharmaceutical companies do not ‘out-license’ newer products
for manufacture and distribution in developing country enterprises; research and development is concentrated in the home countries of major producers; and manufacturing facilities are shuttered and relocated as a matter of economic convenience.
The evidence suggests that the wealthy OECD nations are little inclined to promote
the development of world-class pharmaceutical producers in poor countries, which might
eventually compete with the existing originators.¹²7

One may recall the argument from Chapter 5 that the now-developed States freely
used many policies, such as infant industry protection, to facilitate their own development, which are now denied to developing States. A similar argument may be
made regarding IP protection. Robert Wade notes that developed States did not face
global IP laws during their development processes: Japan, Taiwan, and South Korea
were all previously known as ‘counterfeit capitals’, while the US in the nineteenth
century was a ‘bold pirate of intellectual property’.¹²8 The economist Ha-Joon
Chang states that ‘even the most advanced countries were still routinely violating the [IP rights] of other countries’ citizens well into the twentieth century’.¹²9
Professor Daniel Gervais also notes that developed States ‘gradually increased their
level of [IP] protection over several decades’,¹³0 a far cry from the mere decade
in which most developing States were given to jump from minimal protection to
full TRIPS compliance. Finally, Chang has stated that economic development is
essentially about ‘absorbing advanced foreign technologies’, so ‘[a]nything that
makes it more difficult . . . is not good for economic development’.¹³¹ While TRIPS
might encourage greater technology transfer, it still restricts the ability of underdeveloped States to borrow (or steal) more advanced technologies, a tactic blatantly
used by the now developed States while they were developing.
Furthermore, Professor Drahos has noted that ‘the empirical evidence’ that
patents encourage innovation and invention is not ‘clear cut’.¹³² Strong IP rights
¹²5 See below, text at notes 173–8.
¹²6 Abbott and Reichmann, above n 20, 986.
¹²7 Ibid, 986.
¹²8 Robert Wade, ‘What Strategies are Viable for Developing Countries Today? The World Trade
Organization and the Shrinking of Policy Space’ (2003) 10 Review of International Political Economy
621, 626, citing, inter alia, the grievances of Charles Dickens. See also Yong-Shik Lee, Reclaiming
Development in the World Trading System (Cambridge University Press, Cambridge, 2006) 127.
¹²9 Ha-Joon Chang, Kicking Away the Ladder: Development Strategy in Historical Perspective
(Anthem Press, London, 2003) 57; see also 84–5.
¹³0 Daniel J Gervais, ‘Trips 3.0: Policy Calibration and Innovation Displacement’ in Chantal
Thomas and Joel P Trachtman (eds), Developing Countries in the WTO Legal System (Oxford
University Press, New York, 2009) 363, 391 (emphasis added).
¹³¹ Ha-Joon Chang, Bad Samaritans: the Myth of Free Trade and the Secret History of Capitalism
(Bloomsbury Press, New York, 2008) 127.
¹³² Peter Drahos, ‘The Rights to Food and Health and Intellectual Property in the Era of
“Biogopolies” ’ in Stephen Bottomley and David Kinley (eds), Commercial Law and Human Rights
(Aldershot, Ashgate, 2002) 227.
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E. A Reconsideration of the Justification for Intellectual Property

233

may restrict the use of innovations and ideas, either legally or practically via
the threat of expensive patent litigation.¹³³ Indeed, certain previously successful industries have been stunted by the introduction of patents. The granting of
drug patents in Italy, which began in 1978, has not reportedly generated any real
increase in R&D expenditure and drug innovation by Italian drug companies.
Rather, the most noticeable result has been a sharp drop in Italy’s drug export
market, which had relied on generic copies.¹³4 India made full use of its transition period under TRIPS (delaying implementation until 2005) and became
‘a global supplier of affordable generic medicines’.¹³5 Indeed, India’s abolition
of pharmaceutical patents in the 1970s catalysed its generic drug industry and
transformed it from a drug importing country into a major generic exporter.¹³6
The World Bank has cited a report indicating that the gain to the Indian economy was $450 million, with consumers benefiting from $400 million of that
gain, and drug producers sharing the rest. The loss to foreign producers was only
$53 million.¹³7
Gervais has suggested that the development rationale for TRIPS, that is that
it will prompt innovation in the developing world, was based more on belief
rather than actual data: ‘TRIPS put the policy cart before the empirical horse’.¹³8
Nevertheless, he finds that there is evidence of significant R&D underway in the
developing world, particularly India and China. However, Northern companies
might simply be using these countries as ‘new export markets and possibly lowercost production centers, while maintaining the technological superiority in the
West [or North], and hence, continued economic dominance’.¹³9
Then again, it is questionable the extent to which such companies can prevent
their technology from ultimately being exploited by these recipient countries for
their own benefit. For example, India’s computer and software industry has evolved
considerably from the basic coding and call centre functions initially transferred
to the country at the beginning of the century.¹40 However, as noted above, India’s
pharmaceutical industry flourished prior to implementation of TRIPS, largely
because of its abandonment of product patents 30 years earlier. Of course, India’s
pharmaceutical industry might now evolve to innovate and capture the massive
profits available from new technologies and patents. Unfortunately, that strategy
¹³³ Gathii, above n 47, 758–9; see also Tom G Palmer, ‘Are Patents and Copyrights Morally
Justified? The Philosophy of Property Rights and Ideal Objects’ (1990) 13 Harvard Journal of Law
and Public Policy 817, 849; Roger E Meiners and Robert J Staaf, ‘Patents, Copyright, and Trademarks:
Property or Monopoly’ (1990) 13 Harvard Journal of Law and Public Policy 911, 914; UNHCHR,
above n 60, para 40.
¹³4 FM Scherer, ‘The Pharmaceutical Industry and World Intellectual Property Standards’ (2000)
53Vanderbilt Law Review 2245; see also Drahos, above n 132, 192, at 230.
¹³5 Special Rapporteur on the Right to Health, above n 1, para 29.
¹³6 Ibid, para 29.
¹³7 World Development Report 2006, above n 117, 214, citing Chaudhuri, Shubham, Pinelopi K
Goldberg, and Panle Jia, ‘Estimating the Effects of Global Patent Protection in Pharmaceuticals: A
Case Study of Quinolones in India’ (World Bank: Washington, DC, 2004), <http://www.econ.yale
.edu/~pg87/TRIPS.pdf> accessed 20 June 2010.
¹³8 Gervais, above n 130, 370.
¹³9 Ibid, 382.
¹40 Much of the initial outsourcing of computer coding to India arose due to the Y2K bug crisis:
see Thomas Friedman, The World is Flat: the Globalized World in the Twenty-First Century (Penguin,
2005) 131–6.
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TRIPS and the Right to Health

would be bad news for its impoverished customers in the developing world who
have long relied on the ‘pharmacy of the developing world’.¹4¹ While India’s drug
companies might benefit from new business strategies catalysed by TRIPS, the
poor probably will not.
Of course, most developing States lack the capacities of India and China. They
have not yet reached a point where the increased costs generated by TRIPS and IP
protection in general are outweighed by innovation benefits.¹4² Such ‘graduation’
is not inevitable given that most States lack certain unique characteristics of India
and China, such as geopolitical importance and massive manpower.
At this point, it is worth noting briefly another human rights and development problem generated by IP laws. Copyright laws obstruct access to educational
materials by raising their price. The trade-focused NGO 3D has, for example,
documented the difficulties in primary education in the Philippines caused by
copyrights in textbooks, jeopardizing that State’s compliance with human rights
obligations regarding the right to education under the ICESCR and Article 28(1)
of the Convention on the Rights of the Child.¹4³ Robert Wade reports that research
libraries paid 66 per cent more for scientific monographs in 2001 than they did in
1986, yet they received 9 per cent fewer monographs for that money. They paid out
210 per cent more for 5 per cent fewer journals. He concludes that those ‘price escalations widen the North-South gap in access to scientific knowledge’.¹44 One can
imagine the price escalations have become worse since many States implemented
TRIPS after 2001. I will not embark upon a thorough examination of the potential
clash between the right to education and TRIPS.¹45 Suffice to note that any obstacles to basic education are completely counterproductive to a State’s aspirations for
economic, institutional and social development.
LDCs are a long way from achieving any benefits from IP. In 2005, the WTO
Council on TRIPS extended the transition period for full compliance with TRIPS
for LDCs to 2013.¹46 However, that extension forbids the roll-back of laws to make
them less TRIPS compliant, which renders the extension largely useless for many
LDCs. Furthermore, it seems doubtful that that extension of time will be enough
to permit LDCs to attain a position where IP laws are at all beneficial to them: further extensions will almost inevitably be needed. Nothing in these decisions affects
the right of LDCs to delay TRIPS implementation with regard to pharmaceutical
¹4¹ ’t Hoen, above n 18, 78. Also see Report of the Special Rapporteur on the Right to Health,
above n 1, para 30, n 34.
¹4² See also Gervais, above n 130, 390.
¹4³ 3D, ‘The Philippines: Impact of copyright rules on access to education’ (July 2009) <http://
www.3dthree.org/pdf_3D/3DCRC_PhilippinesJun09.pdf> accessed 20 September 2010.
¹44 Wade, above n 128, 624.
¹45 See, generally, Andrew Rens, Achal Prabhala, and Dick Kawooya, ‘Intellectual Property,
Education and Access to Knowledge in Southern Africa’ (2006) Trade Law Centre for Southern
Africa Working Paper No 13/2006 <http://www.tralac.org/unique/tralac/pdf/20061002_Rens_
IntellectualProperty.pdf> accessed 20 September 2010); Margaret Chon, ‘Intellectual Property from
Below: Copyright and Capability for Education’ (2006–2007) 40 UC Davis L Rev 803.
¹46 WTO Doc. IP/C/40, 30 November 2005.

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E. A Reconsideration of the Justification for Intellectual Property

235

products until 2016. However, even that deadline is beginning to loom large as one
which will need extending.

Problems regarding patents in the pharmaceutical industry
The most obvious argument against pharmaceutical patents is that they artificially
raise prices and therefore restrict access to a product, which can be crucial for the
enjoyment of rights to life and health. The following commentary focuses on other
arguments against current levels of patent protection in the pharmaceutical industry. First, it is arguable that the pharmaceutical industry is unduly exploiting its
patent monopolies, given the consistently massive level of profits in the industry.
Second, concerns may be raised about the type of innovation currently occurring
in the pharmaceutical industry.
The pharmaceutical industry has consistently, for many decades, been an
extraordinarily profitable sector.¹47 Furthermore, there is evidence that the amount
reinvested into R&D is small compared to certain non-R&D outlays. For example, pharmaceutical companies tend to spend much more on marketing than they
do on R&D.¹48 These large marketing budgets indicate that prices can be trimmed
without cutting R&D budgets.
Moreover, it has been suggested that pharmaceutical companies have routinely
overstated their R&D costs.¹49 For example, much of the R&D that contributes to
the creation of new drugs is undertaken at public expense in government or university laboratories.¹50 Indeed, public bodies may sometimes hold the initial patent on a
drug, and then assign that patent to a drug company.¹5¹ Publicly funded researchers
¹47 For an overview of recent revenues and profits enjoyed by the pharmaceutical industry (2009
figures), see <http://money.cnn.com/magazines/fortune/global500/2009/industries/21/index.html>.
See also Marcia Angell, ‘The Pharmaceutical Industry: To Whom is it Accountable?’ (2000) 342
New England Journal of Medicine 1902.
¹48 See, eg, the figures quoted in the respective annual reports of 2009 for Merck <http://
www.merck.com/finance/annualreport/ar2009/pdf/Merck_form_10-k.pdf> accessed 20 June
2010, 62 (US$8,543.2m for ‘marketing and administrative expenses’ and US$5,845m for R&D
in 2009); 2009 Annual Report (Form 10-K) of Pfizer, fi led 26 February 2010 for the fiscal year
ended 31 December 2009, <http://media.pfizer.com/fi les/annualreport/2009/form10k_2009.pdf>
accessed 20 June 2010, 46 (US$14,875m for ‘selling, informational and administrative expenses’
and US$7,845m for R&D in 2009. See also Harrison, above n 96, 152.
¹49 See generally, Bob Young et al, ‘Rx R&D Myths: The Case Against Drug Industry’s R&D
“Scare Card” ’ Public Citizen’s Congresswatch, July 2001, <http://www.citizen.org> accessed
20 January 2003.
¹50 Ibid, 7–10, App C thereto (National Institute of Health, NIH Contributions to
Pharmaceutical Development: Case Study Analysis of the Top Selling Drugs, February 2000).
See also James Packard Love, Affidavit (signed 9 April 2001) in the matter between Pharmaceutical
Manufacturers’ Association of South Africa and Others v The President of the Republic of South Africa
and Others (2000) (3) BCLR 241 (South Africa Constitutional Court) <http://www.cptech.org/ip/
health/sa/loveaffidavit/> accessed 21 September 2010. See also ’t Hoen, above n 18, 80; Stiglitz,
above n 70, 111, and Chang, above n 129, 31.
¹5¹ Assignment of patents arising out of publicly funded research is permitted in most countries.
In the US, under the Bayh-Dole Act of 1980, publicly funded researchers are required to keep their
patents, but may licence another to act as the exclusive marketer of a patented product; the rights
of an exclusive licencee in such situations generally mirror those of a patentee. Bayh-Dole Act of

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236

TRIPS and the Right to Health

may often perform the basic research into a drug, which is the most risky phase as
future marketability is at its least predictable.¹5² However, public funds are also
often used at the later stages of a drug’s development, such as in clinical trials.¹5³
Furthermore, reported R&D costs do not necessarily take into account the generous tax deductions available in many countries to the pharmaceutical industry.¹54
Finally, increasing funding for R&D is coming from philanthropic organizations
such as the Bill & Melinda Gates Foundation.¹55 The pharmaceutical industry
fought a nine-year battle in the US to prevent the disclosure of its R&D costs to
congressional investigators, culminating in victory in the Supreme Court in 1983 in
Bowsher v Merck.¹56 The questions raised regarding the ‘real’ cost of pharmaceutical
R&D suggest that prices could be lowered without sacrificing R&D outlays.
Finally, the differences in cost between patented drugs and generic competition
are enormous. Special Rapporteur Grover reported that first generation antiretrovirals for treating HIV dropped from $US10,000 per person per year to US$350
per person per year for the generic product.¹57 If pharmaceutical companies will
not freely release the figures on R&D costs, one is entitled to be sceptical of the
notion that R&D costs justify a 3,000 per cent markup.
Serious questions may also be raised regarding the current level of innovation in
the pharmaceutical industry. The pharmaceutical industry spends much of its R&D
money on ‘me-too’ or ‘copycat’ drugs, which are innovative enough to attract patent
protection in many States (via ‘evergreening’), but which in fact add little therapeutic value to existing medical treatments. These ‘me-too’ drugs are the fruits of ‘safe’
R&D, entailing only slight variations on themes already known to be profitable.¹58
Indeed, ‘me-toos and line extensions typically take up around 80 per cent of R&D
spending’,¹59 so there is arguably a ‘wasteful concentration of research on problems
whose solution in the near future can be foreseen’¹60 or has in fact already eventuated. One possible benefit of patented ‘me-toos’ is to provide price competition to the
original patented drug.¹6¹ However, the cost of patented drugs continues to escalate,
1980, Pub. L. No. 96-517, 94 Stat. 3015-28 (codified as amended at 35 U.S.C. §§ 200–11, 301–07
(1994)).
¹5² Young et al, above n 149, 10.
¹5³ Ibid, 10.
¹54 Ibid, 15–16.
¹55 Outterson, above n 18, 287.
¹56 460 US 824 (1983) (Supreme Court of the United States). Congress could subpoena the
documents (the power of subpoena was distinguished from the right of access in Inspector General v
Banner Plumbing Supply, 34 F. Supp. 2d 682 (N.D. Ill. 1998)), but has thus far chosen not to do so.
Note also that one of the reasons why a consortium of pharmaceuticals dropped action against the
South African government in respect of new proposed drug laws (see above, note 150) was possibly
because the relevant court may have ordered disclosure of R&D costs: see Nick Mathiason, ‘The
Pretoria Court Case: Drugs Round One to Africa’ Observer, 22 April 2001, Business, 3.
¹57 Special Rapporteur on the Right to Health, above n 1, para 20. Price drops of 99% have even
been reported.
¹58 ’t Hoen, above n 18, 81; Angell, above n 147, 1903; Young et al, above n 149, 13–14.
¹59 Jeff rey Robinson, Prescription Games (Simon & Schuster, London, 2001) 12. See also
UNHCHR, above n 60, para 39.
¹60 Friedrich A von Hayek, The Fatal Conceit: The Errors of Socialism (W.W. Bartley III edn, 1988)
(quoted in Gathii, above n 47, 135).
¹6¹ Singham, above n 46, 370–1; see also Edmund W Kitsch, ‘Elementary and Persistent Errors in
the Economic Analysis of Intellectual Property’ (2000) 53 Vanderbilt Law Review 1727, 1729–38.

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E. A Reconsideration of the Justification for Intellectual Property

237

unlike patented goods in other industries, such as information technology, where
computer products drop in price soon after their placement on the market.¹6²
Finally, the incentives prompted by patent protection can create problems
regarding the creation of needed drugs.¹6³ Lots of R&D is put into drugs which
deal with chronic, ongoing conditions, like heart disease or high cholesterol, as
opposed to cures and vaccines, which do not have the same ongoing market potential.¹64 Disproportionate research is put into drugs to combat lucrative problems
like obesity, cellulite, and impotence. These are distressing conditions but they
are rarely life-threatening.¹65 Comparatively little research is conducted into third
world killers like malaria, tuberculosis, or sleeping sickness.¹66 Perhaps it is arguable that the historically weak patent protection offered in the developing world
has caused the industry’s indifference to its diseases.¹67 However, it is extremely
doubtful that the pharmaceutical industry will significantly increase its R&D on
diseases in the poorest States which cannot pay big money, regardless of the relevant standard of patent protection.¹68
A ‘high volume, low margin’ marketing strategy, if adopted, might mean that a
company which successfully engages in such R&D could recoup significant economic returns with regard to new drugs for those neglected third world diseases
which afflict huge numbers like malaria. Such a company would also benefit from
the boost to its reputation.¹69 However, the present conservatism within the business models of pharmaceutical companies is sending them down the tried and true
route of R&D, including ‘me-too’ R&D, into diseases and conditions which afflict
the affluent.¹70 Nothing in the TRIPS model of global compulsory patents encourages pharmaceutical companies to diverge from that path.¹7¹ The World Health
Assembly, in adopting a ‘Global strategy and plan of action on public health, innovation and intellectual property’ in 2008, similarly concluded that IP rights alone
do not provide sufficient incentive for development of new products to ‘fight diseases where the potential paying market is small or uncertain’.¹7²

A radical proposal?
Given these issues of excessive profit and innovation deficit, perhaps all States,
including developed States, should control health budgets, and thus increase their
¹6² See Robinson, above n 159, 89. Singham concedes that the ‘key criterion [for price reduction
in the pharmaceutical sector] appears to be the number and weight of off-patent chemical entities’,
rather than competition from patented ‘me-toos’ at above n 46, 370.
¹6³ World Development Report 2006, above n 117, 224.
¹64 Anna-Marie Tabor, ‘Recent Developments: AIDS Crisis’ (2001) 38 Harvard Journal on
Legislation 514, 524.
¹65 Of course, morbid obesity is life-threatening, and obesity per se can lead to chronic health
problems.
¹66 See, generally, Médecins sans Frontières (MSF), Fatal Imbalance: The Crisis in Research and
Drugs for Neglected Diseases (Médecins Sans Frontières, Geneva, 2001); UNHCHR, above n 60,
para 38; Harrison, above n 96, 152.
¹67 Singham, above n 46, 392–3.
¹68 Drahos, above n 132, 229.
¹69 Abbott and Reichmann, above n 20, 982.
¹70 ’t Hoen, above n 18, 82–3.
¹7¹ Outterson, above n 18, 293.
¹7² WHO doc. WHA 61.21, 24 May 2008, para 7.

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TRIPS and the Right to Health

‘available resources’ for the purposes of ICESCR, by imposing price caps on the
pharmaceutical industry.¹7³
Reduction of patent rights or the imposition of price caps would of course
reduce profits. Despite high levels of profit in the pharmaceutical industry, any
reduction in profits will probably lead to a reduction in R&D expenditure, given
that it will be the corporations themselves that determine how to absorb the consequent revenue loss. Thus, any move to reduce prices could lead to a drop in R&D.
Notwithstanding the present ‘innovation’ flaws in pharmaceutical R&D, it is
still important not to jeopardize the possibility of breakthrough R&D, such as
that which has produced the new generation HIV-AIDS therapies. Perhaps therefore, current government action in developed States which facilitates patents and
high prices within their own territories is justifiable in international human rights
law as a necessary means of ensuring ongoing innovation in the pharmaceutical
industry.
In this regard however, it is worth noting that the biggest purchasers of
patented prescription drugs are government healthcare programmes in the
developed world.¹74 Indeed, the high percentage of government trade within the
total trade enjoyed by the pharmaceutical industry may not be comparable to
any other industry except the armaments sector. Therefore, taxpayers’ money
constitutes the majority of the patent-generated profits of the pharmaceutical
industry. While it may be reasonable for taxpayer money to largely subsidize
pharmaceutical R&D costs, it may not be reasonable for taxpayers to largely subsidize marketing costs, executive salaries, and very large profits. Given the high
percentage of government custom in the pharmaceutical industry, it seems that
there is scope for interventionist public sector solutions to the problem of high
pharmaceutical costs.
It must be noted that the predominance of government custom in pharmaceutical sales is not the case in the largest market, the US, where pharmaceutical benefits are largely funded by private rather than public health insurers.¹75 Nevertheless,
taxpayers in the US still largely subsidize pharmaceutical costs, as most taxpayers obtain health insurance, either personally or through their employer, to cover
their potential health costs. Prescription drugs in the US are subsidized by taxpayers in their guise as consumers of health insurance rather than as taxpayers
per se. Furthermore, tax subsidies are available for most private purchases of
medicines.¹76
If there were weaker patent rights, those taxpayer costs would be considerably
smaller. The consequent public savings could be redirected from the purchase of
drugs at inflated prices to government-funded R&D into pharmaceutical products
¹7³ See UNHCHR, above n 60, 64; see also General Comment 14, above n 21, para 51.
¹74 Outterson, above n 18, 285–6; S Jacobzone, ‘Pharmaceutical Policies in OECD Countries:
Reconciling Social and Industrial Goals’ OECD Labour Market and Social Policy Occasional Papers,
No 40, (OECD Publishing, Paris, 2000) 4, 9, 94.
¹75 US public funds do however make up a sizeable proportion of pharmaceutical purchasers, due
to safety net schemes for the poorest people.
¹76 Outterson, above n 18, 285–6.

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E. A Reconsideration of the Justification for Intellectual Property

239

in universities and government research bodies.¹77 Public savings on patent-inflated
prices could pick up the shortfall into R&D that might eventuate from any reduction in patent rights. Such a plan might not lead to more net R&D, but it may lead
to cheaper drugs for all without a diminution in R&D. Such a plan might also lead
to more consistently useful innovation, as publicly funded scientists are hopefully
more concerned with Nobel prizes than profits.¹78
This ‘public sector’ solution to the problem of access to drugs could well cause
a plunge in pharmaceutical profits to the detriment of its many shareholders.
Furthermore, sceptics would undoubtedly question the capacity of the public sector to be as innovative as the private sector. It is recognized that such a solution is
unlikely to presently garner much political support. I include it, however, to show
that IP regimes are challengeable as the preferable means of promoting innovation in certain industries. To that end, I turn to two other proposals regarding IP
alternatives.

Other alternatives to IP
As noted above, a problem with the current structures and incentives (largely based
on IP) of the pharmaceutical industry is that they do not incentivize research in
drugs for neglected diseases, that is those that overwhelmingly afflict people in
the developing world but not people in the developed world. Furthermore, patents
incentivize research into symptom relief rather than cures and vaccines. In response,
Thomas Pogge has proposed an alternative scheme for incentivizing pharmaceutical research. He has proposed that States contribute to a Health Impact Fund from
which pharmaceutical innovators are paid according to the positive health impact
of their products. Such funding would incentivize products which cure diseases,
including those which exclusively afflict the poor, and would also encourage lower
prices so that the health impact of a drug is increased. The details of this proposal
are beyond the scope of this book.¹79 It is mentioned to demonstrate that there are
probably feasible alternatives to IP protection in order to incentivize much-needed
medical innovations.
The NGO, Knowledge Ecology International (KEI), has put forward a proposal
for a new treaty to be included under the rubric of WTO commitments, which
would contain binding commitments offered on a voluntary basis on the GATS
¹77 Due to the idiosyncratic public/private divide of pharmaceutical expenditure in the US, it is
likely that any plan to increase publicly funded R&D in the US would result in an increase rather
than a mere redirection of public expenditure. However, due to likely decreased costs of private
health insurance in the US, it might not lead to increased expenditure by actual taxpayers (who are
simultaneously consumers of health insurance).
¹78 Note that by July 2001, publicly funded scientists had won 90 Nobel Prizes compared to four
from private industry; see Young et al, above n 149, 8.
¹79 See Thomas Pogge, ‘Medicines for the World: Boosting innovation without obstructing free
access’ (2008) Revista Internacional de dereitos humanos 8, 5–6 <http://www.yale.edu/macmillan/
igh/fi les/SUR.pdf> accessed 17 April 2010, 11–14. For more details, see Aidan Hollis and Thomas
Pogge, The Health Impact Fund: Making New Medicines Accessible to all (Incentives for Global Health,
2008) <http://www.yale.edu/macmillan/igh/#> accessed 20 September 2010.

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model, by WTO Members to fund and support ‘the provision of global public
goods involving knowledge’.¹80 The KEI has chosen the WTO as an appropriate
domain for such a treaty due to its current existence¹8¹ and its strong enforcement
mechanisms.
A ‘public good’ is not a commodity as such. It is ‘non-rival’, in that one or more
people can use or consume it at the same time without diminishing its availability. For example, hammers and apples are ‘rival’ whereas a scenic view, clean air
and public safety are non-rival.¹8² Public goods are also non-excludable in that
no one can be excluded from using it. Examples of public goods include environmental preservation, security, and knowledge. A ‘global public good’ addresses
an issue of global importance which cannot be addressed adequately by one State
acting alone, and must therefore be addressed multilaterally.¹8³ The tackling of
climate change is an example of a global public good. There is a deficit in global public goods because States do not have sufficient incentives to contribute to
the global public good compared to their own national public good. At the same
time, there has been a growth of private sector interest in global public goods such
as Wikipedia and other knowledge based products available freely via the web.
Examples of knowledge-based global public goods which need greater resources
are: the funding of the development of an AIDS vaccine and drugs for neglected
diseases, patent or copyright buy-outs of products that are valuable for the enjoyment of human rights, the running of clinical trials, and digitization of publications in the public domain.
It is beyond the scope of this book to discuss the pros and cons of the KEI’s
proposal. At this stage, KEI states that a proposal will be made within the WTO
itself ‘in the not too distant future’. The KEI’s proposal is an interesting challenge
to the WTO’s paradigmatic approach of promoting private enterprise and private
ownership of knowledge under IP laws. There are clearly many goods and services which are best provided on a public and open access basis rather than on a
profit basis: surely not everything should be commodified, packaged, and sold. It
is also an interesting counterpoint to the IP regime promoted by TRIPS, recognizing that private ownership of certain desirable knowledge goods is problematic
because there are not enough incentives for the private sector (for example, in the
case of drugs for neglected diseases) or because private ownership restricts access
too much (for example, in the case of goods which are essential for the enjoyment
of human rights).
The WTO’s cart is currently hitched exclusively to the private sector horse, backed
by an assumption that private sector initiatives are more efficient and preferable.
Yet private markets do not and may not be able to address certain ‘public goods’
¹80 Knowledge Ecology International, ‘KEI Proposal: A WTO Agreement on the Supply
of Knowledge as a Global Public Good’ (June 2008) via <http://www.keionline.org/
wtoandpublicgoods> accessed 23 January 2010. The following commentary summarizes a presentation on the topic by James Love at the WTO Ministerial in Geneva on 1 December 2009.
¹8¹ It is easier to utilize an existing institution rather than create another international
institution.
¹8² See <http://en.wikipedia.org/wiki/Rivalry_(economics)> accessed 29 January 2010.
¹8³ Stiglitz, above n 70, 281.

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F. The IP Maximalist Trend

241

problems, such as the need for low-cost medicines for poor people.¹84 Furthermore,
there is no particular reason why the WTO should continue to ignore the need for
the facilitation of access to public goods. Indeed, such facilitation represents perhaps a fruitful new direction for its work, especially when one considers that it is
proving very difficult to reach agreement on the further liberalization of private
trade.
Certainly, initiatives that diverge from traditional IP protection are on the global
agenda. For example, the World Health Assembly, in its ‘Global strategy and plan
of action on public health, innovation and intellectual property’, has suggested
that, where appropriate, the costs of R&D and the price of health products should
be de-linked,¹85 which would ‘break the vicious cycle of financing R&D through
high drug prices’.¹86 The Strategy also calls for intergovernmental talks to explore
the utility of new instruments and mechanisms, including ‘an essential health
and biomedical R&D treaty’.¹87 The Strategy document clearly recognizes that
TRIPS, ‘today’s predominant global R&D treaty’,¹88 does not adequately address
global needs regarding rights to adequate standards of health.

F. The IP Maximalist Trend
Despite serious and justified misgivings about the desirability of global IP laws and
the promotion of a human rights approach of permitting States to utilize TRIPS
flexibilities as much as possible to facilitate access to medicines, an IP maximalist
approach is taking hold in global trade negotiations.
To be sure, there are no serious proposals to strengthen IP protection in the
WTO. However, as noted in Chapters 3 and 9, bilateral free trade agreements have
proliferated in the last decade while Doha round negotiations have stalled. ‘TRIPSplus’ provisions, which impose even stricter IP obligations than TRIPS on States,
have been included in numerous bilateral agreements, particularly those concluded
by the US. TRIPS-plus obligations have also been imposed as conditions on States
that have acceded to the WTO, such as China, Jordan, and Cambodia.¹89 Typical
‘TRIPS plus’ provisions include longer patent terms, a guarantee of patentability
for second uses, a guarantee of data exclusivity, further conditions on compulsory
licensing, bans on parallel imports, and stronger enforcement mechanisms.¹90
Under TRIPS, the 20 years of patent protection is deemed to run from the date
of filing for a patent. Thus, the term of effective protection is reduced if a State’s
determination of patentability takes a long time. Article 62(2) of TRIPS states,
¹84 Abbott and Reichmann, above n 20, 987.
¹85 WHO doc. WHA 61.21, 24 May 2008, para 4.
¹86 ’t Hoen, above n 18, 93.
¹87 WHO doc. WHA 61.21, 24 May 2008, para 30(2.3)(c).
¹88 ’t Hoen, above n 18, 93.
¹89 Eg, Cambodia’s WTO accession provides for data exclusivity: see United Nations Development
Program, Asia Pacific Human Development Report 2006: Trade on Human Terms (Colombo, UNDP,
2006) 133. On Jordan, see ’t Hoen, above n 18, 72.
¹90 Special Rapporteur on the Right to Health, above n 1, para 78; Jean-Frédéric Morin, ‘Tripping
up TRIPS debates IP and health in bilateral agreements’ (2006) 1 Journal of Intellectual Property
Management 37, 39.

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vaguely, that national procedures permit the granting or registration of patent
within a ‘reasonable’ time. US bilateral agreements now oblige parties to extend a
patent term in case of unreasonable curtailment of the patent period caused by the
marketing approval process.¹9¹
As noted above, Article 27 of TRIPS seems to leave significant room for States to
impose strict patentability standards, as has occurred in India. US bilateral agreements with a number of States, including Morocco, Bahrain, and Australia dictate
that patents must be available for ‘new uses and methods of using a known product’, thus narrowing State discretion with regard to patentability requirements.¹9²
Provisions mandating protection of data exclusivity are contained in US bilateral
agreements with Chile, Morocco, Bahrain, Australia, and Singapore.¹9³ Depending
on the term of such protection, data exclusivity may prevent a generic competitor
from relying on the clinical data gathered by a patent-holder in bringing the drug
to market: it must therefore conduct its own clinical trials. Data exclusivity delays
the introduction of generic competition and raises costs for generic competitors.
It also raises ethical concerns, as it prompts the conduct of unnecessary human
trials.¹94
Some US bilateral trade agreements contain restrictions on compulsory licensing beyond the restrictions imposed by Article 31 of TRIPS. First, data exclusivity may significantly delay the impact of a compulsory licence.¹95 Secondly,
provisions in US bilaterals concluded with Australia and Singapore might
restrict the ability of those States to sign up to the 2003 waiver as exporting
countries.¹96
Some US bilaterals also demand that the parties adopt the principle of national
exhaustion, thus effectively prohibiting parallel importation. So far, this provision
has only affected States that already follow that principle.¹97 Nevertheless, such
provisions prohibit such States from altering their law.
Finally, stronger enforcement mechanisms may provide greater obligations to
impose criminal sanctions for pirating, and mandatory expansions of powers of
subpoena in IP infringement cases. Stronger enforcement provisions could have a
greater ‘chilling impact’ on potential competitors.¹98 These provisions are troubling
as IP infringement cases are often lost, indicating that overambitious infringement
claims are often made. It is unfortunate if entities are discouraged from testing
where the limits of an IP right might lie due to the increased consequences of losing
an infringement case. Furthermore, stronger enforcement mechanisms may result
in seizures of suspect goods even in transit, as occurred when the Netherlands
seized generic drugs sent from India to Brazil, and returned them to India.¹99 Such
actions could frustrate use of the 2003 waiver.
¹9¹ Morin, above n 190, 43–4.
¹9² Ibid, 41.
¹9³ Ibid, 42.
¹94 Special Rapporteur on the Right to Health, above n 1, para 78.
¹95 Ibid, para 82; Morin, above n 190, 47.
¹96 Morin, above n 190, 47.
¹97 Ibid, 48.
¹98 Special Rapporteur on the Right to Health, above n 1, para 91.
¹99 Indeed, India and Brazil have now launched a WTO dispute against the EU in respect of that
seizure. See, eg, International Centre for Trade and Sustainable Development, ‘EU Challenged on
Generics Seizures”, Bridges, Vol 14, No 3, September 2010.

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F. The IP Maximalist Trend

243

The TRIPS plus provisions of the US bilateral agreements, which are negotiated under conditions of an asymmetric balance of power,²00 contravene the
spirit of cooperation engendered by the Doha Declaration and the waiver.²0¹ To
that end, the US has faced criticism, such as that from the (then) French President
Jacques Chirac who accused the US of ‘immoral blackmail’.²0² However, while
the EU has been less aggressive than the US in terms of raising IP standards
in bilateral trade agreements, it has pursued various TRIPS plus outcomes. For
example, under the European Partnership Agreements (EPAs) currently being
concluded or negotiated with African, Caribbean, and Pacific States, the EU
has pushed for TRIPS plus provisions. EPAs with Caribbean States mandate
stronger protection of digital content than is required under TRIPS, with likely
impacts for the right to education in those States.²0³ The EU is also pushing
for inclusion of a requirement that its EPA partners adopt the IP system developed by the International Union for the Protection of New Varieties of Plants
(UPOV)²04 as the standard for protecting IP in new plant varieties. The problems with the UPOV standard with regard to the right to food are discussed in
Chapter 6.²05
The sting in the tail of TRIPS plus provisions is that those bound by them may
have to offer those same TRIPS plus protections to all other States in the WTO.
While GATT and GATS contain exceptions permitting some departure from
MFN provisions for bilateral and regional free trade deals,²06 TRIPS contains no
such exception. Therefore, TRIPS plus protection might have to be offered to all
other States in the WTO on the basis of MFN obligations.²07
Despite some ‘wins’ for those who wish to alleviate the potential human rights
impacts of TRIPS in the form of the Doha Declaration and the 2003 waiver, IP
maximalists are successfully recasting and strengthening the global IP landscape
via the conclusion of WTO accessions, bilateral and regional agreements. In fact,
the Pharmaceutical Research and Manufacturers of America (PhRMA) has been
quite open about this strategy. In 2004, it stated:
PhRMA recognises that the current impasse in the Doha Development Round negotiations as well as in the deliberations in the TRIPS Council call into question the current
value of the WTO as a venue for improving the worldwide protection of intellectual property. Free Trade Agreements thus provide a logical approach to gaining improved intellectual property protection.²08
²00 World Development Report 2006, above n 117, 215. See Chapter 3, Part E.
²0¹ Morin, above n 190, 51.
²0² Ibid, 51, citing Jacques Chirac, Message à la Quinzième Conférence Internationale sur le Sida.
²0³ Oxfam, ‘Partnership or Power Play? How Europe should bring Development into its trade
deals with African, Caribbean, and Pacific countries’ (Oxfam Briefing Paper 110, 21 April 2008) 33.
²04 UNGA, ‘Report of the Special Rapporteur on the Right to Food, Olivier de Schutter: Seed
policies and the right to food: enhancing agrobiodiversity and encouraging innovation’, UN doc.
A/64/170 (23 July 2009) para 16.
²05 See Chapter 6, Part E, especially at notes 234–9.
²06 Article XXIV GATT and Article V GATS.
²07 Abbott and Reichmann, above n 20, 963–4.
²08 Pharmaceutical Research and Manufacturers of America (PhRMA), ‘Special 301 submission’,
12 February 2004, as cited in Morin, above n 190, at 40.

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244

TRIPS and the Right to Health

G. Conclusion
The TRIPS agreement has probably given rise to the most vociferous human rights
criticisms of the WTO, especially with regard to its impact on the right to food
(as discussed in Chapter 6) and the right to health. The above commentary has
largely focused on the impact of TRIPS on access to pharmaceuticals. It is possible
that TRIPS in fact allows sufficient flexibility to permit States to comply with their
obligations regarding the right to health, but it makes that task more difficult,
particularly for poorer States. Furthermore, the traditional justifications for global
patent protection are challengeable. The development rationale for global IP protection is highly suspect, especially given that Northern States did not respect such
rights during their own paths to development. Specific concerns beyond high prices
arise with regard to the pharmaceutical industry, such as an innovation deficit and
queries about the real cost to the private sector of pharmaceutical R&D. Despite
challenges to the desirability of global patent protection under TRIPS, explicit recognition of important TRIPS flexibilities in the Doha Declaration and the 2003
waiver, the trend in current regional and bilateral trade negotiations is, unfortunately, to drive up standards of IP protection. A rollback of TRIPS for many developing States (not only LDCs) would be a preferable policy trajectory.²09

²09 Stiglitz, above n 70, 119.

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8
Extraterritorial Human Rights Duties
In Chapters 5 to 7, serious iniquities within the WTO system for developing States
are identified. Some WTO rules are simply unsuitable for such States. That unsuitability can generate harm to human rights, as developing States are deprived of
their capacities to discharge their human rights obligations. An overhaul of the
WTO is recommended in order to better cater for the needs of developing States.
A lopsided Doha deal, shrinking protectionist opportunities for the North yet
increasing policy space for poorer States, is needed.
What, if any, are the duties of a State to the persons outside its own territory,
that is the people in other States? This question is very relevant in the context of the
WTO, given the arguments regarding unfair rules, and a need for a new bargain
which addresses that unfairness. Is there any relevant obligation owed under international human rights law by the Northern States to the people of the South to
‘even out’ the deal? Similarly, is there any obligation of Northern States to refrain
from concluding and/or enforcing rules which undermine a developing State’s
capacity to implement human rights?

A. Extraterritorial Obligations under International
Human Rights Law
Do States have ‘diagonal obligations’ to the people in other States under international human rights law?¹
Article 1(3) of the UN Charter specifies that one of the purposes of the UN is:
To achieve international co-operation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion . . .

Article 56 of the UN Charter obliges States to take ‘joint and separate action’
(emphasis added) to achieve the purposes set out in Article 55. Article 55 requires
¹ Vertical obligations refer to the obligations owed by a State to its population with regard to
its own conduct. Horizontal obligations refer to a State’s duty to apply human rights in the private
sphere (‘horizontally’) so as to protect people from harm to their rights from other people or other
non-State actors. Diagonal obligations refer to a State’s duty to the people of another State.

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246

Extraterritorial Human Rights Duties

the promotion of:
(a) higher standards of living; full employment, and conditions to enable social progress
and development;
(b) solutions of international, economic, social, health, and related problems, and international cultural and educational cooperation; and
(c) universal respect for, and observance of, human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion.

Furthermore, Articles 22 and 28 of the UDHR imply the existence of extraterritorial obligations. Article 22 focuses on the economic sphere:
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the
organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 28 states:
Everyone is entitled to a social and international order in which the rights and freedoms
set forth in this Declaration can be fully realized.

Furthermore, Articles 16 to 18 of the Articles on State Responsibility of the
International Law Commission² prescribe that State responsibility can rest with
a State in regard to the internationally wrongful actions of another State. Articles
16 to 18 clearly envisage instances of extraterritorial State responsibility.³ Such
responsibility arises if the former State aids and abets the latter in the commission of a wrongful act (Article 16), if the former State directs or controls the commission of the wrongful act by the latter State (Article 17), or if the former State
coerces the latter State to commit a wrongful act (Article 18). An example of such
coercion could be the pressure placed by States on LDCs not to take advantage
of TRIPS flexibilities in relation to pharmaceutical products, causing the latter
to breach their obligations regarding the right to health under Article 12 of the
ICESCR.
These provisions of the UN Charter, the UDHR, and the Articles of State
Responsibility, which are often accepted as part of customary international
law, lay a strong foundation from which one might identify relevant extraterritorial duties under customary international law.4 Furthermore, States must take
regard of the extraterritorial impacts of their activities under general international law.5
² Articles on Responsibility of States for Internationally Wrongful Acts (2001) UN doc. A/
Res/56/83.
³ See also Olivier De Schutter, ‘A Human Rights Approach to Trade and Investment Policies’
in FIAN and others, The Global Food Challenge: Towards a Human Rights Approach to Trade and
Investment Policies (FIAN, Germany, 2009) 18–19.
4 Margot Salomon, Global Responsibility for Human Rights (Oxford University Press, Oxford,
2007) 64–75.
5 Trail Smelter Case (US v Canada) (1941) 3 RIAA 1905 (International Arbitration), 1905, and
Corfu Channel Case (UK v Albania) (ICJ Judgment) (1949) ICJ Rep 1949, 4 at 18.

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A. Extraterritorial Obligations under International Human Rights Law 247

The Declaration on the Right to Development and
Millennium Development Goals
A duty to fulfil human rights in other States is evident in the words of the
Declaration on the Right to Development 1986 (DRD). Article 3 states:
States have the duty to co-operate with each other in ensuring development and eliminating obstacles to development. States should realize their rights and fulfil their duties
in such a manner as to promote a new international economic order based on sovereign
equality, interdependence, mutual interest and co-operation among all States, as well as to
encourage the observance and realization of human rights.

Article 4 states:
1. States have the duty to take steps, individually and collectively, to formulate international development policies with a view to facilitating the full realization of the right to
development.
2. Sustained action is required to promote more rapid development of developing countries. As a complement to the efforts of developing countries, effective international cooperation is essential in providing these countries with appropriate means and facilities
to foster their comprehensive development.

Of course, the legal status of the DRD is debatable given that it is not a treaty.
Its potential status as customary international law is supported by its mandatory language, its adoption with only one vote against (the US) and six abstentions in 1986, consensus support by 171 States (including the US) for the DRD in
Article 10 of the Vienna Declaration and Programme of Action of 1993, and the
existence of numerous procedures within the UN designed to advance the implementation of the right to development.6 On the other hand, there must be doubts
over whether sufficient State practice and opinio juris exist to bed down the customary status of the DRD. Nevertheless, its norms add to the long list of evidence of
extraterritorial duties to fulfil human rights.
Finally, the Millennium Development Goals (MDGs) set out a number of targets in the socio-economic field to be achieved by 2015, such as halving extreme
poverty and hunger. Goal 8 relates to the development of a ‘global partnership
for development’, including a target (Target 12) of developing further ‘an open,
rule-based predictable, non-discriminatory trading system’ and another target
(Target 13) of addressing the special needs of LDCs. The MDGs have been reiterated on numerous occasions,7 which lays the platform for ‘a strong argument that
some such obligation has crystallized into customary law’.8
6 Salomon, above n 4, 89.
7 See, eg, United Nations Millennium Declaration (2000) (Resolution Adopted by the General
Assembly) UN doc. A/RES/55/2 (Millennium Declaration), the Report of the Johannesburg World
Summit on Sustainable Development, UN doc. A/CONF.199/20, and the Monterrey Consensus,
The International Conference on Financing for Development, 18–22 March 2002, Monterrey,
Mexico (Monterrey Consensus).
8 Philip Alston, ‘Ships Passing in the Night: The Current State of the Human Rights and
Development Debate seen through the Lens of the Millennium Development Goals’ (2005) 27
Human Rights Quarterly 755, 778.

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248

Extraterritorial Human Rights Duties

B. Treaties
Numerous human rights bodies, as well as the International Court of Justice
(ICJ), have confirmed the existence of extraterritorial obligations under human
rights treaties. The analysis below will be largely confined to the legal situation
regarding extraterritoriality under the two International Covenants.9

ICCPR
Article 2(1) of the ICCPR requires States to respect and ensure ICCPR rights ‘to all
individuals within its territory and subject to its jurisdiction’. The Human Rights
Committee (HRC) has confirmed that the reference to ‘jurisdiction’ extends a
State’s ICCPR responsibilities beyond its own territory. For example, the HRC
(and other UN human rights treaty bodies) has confirmed that Israel has obligations with regard to human rights in the Occupied Territories,¹0 and the same for
the US regarding its military base in Guantanamo Bay in Cuba.¹¹ In numerous
cases, such as Montero v Uruguay, States have been held responsible for the actions
of their overseas consulates in unreasonably refusing to renew a citizen’s passport.¹² In Montero, the relevant refusal by the Uruguayan consulate in Germany
breached Montero’s rights under Article 12(2), the right to leave any country. In
Lopez Burgos v Uruguay, Uruguay was held responsible for the kidnap in Argentina
of a man by its agents.¹³ In General Comment 31, the HRC described the extraterritorial impact of the ICCPR as follows:
[A] State party must respect and ensure the rights laid down in the Covenant to anyone
within the power or eff ective control of that State Party, even if not situated within the territory of the State Party. . . . This principle also applies to those within the power or effective
control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained.¹4

Therefore, the HRC has taken the view that a State has human rights obligations to
a person overseas who is under the effective control of its agents even if the person
is outside its territory. The State’s extraterritorial responsibility is limited by the
9 Much of the following commentary is adapted from Sarah Joseph, ‘Scope of Application’ in
Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran (eds), International Human Rights Law
(Oxford University Press, Oxford, 2010) 150–70.
¹0 See, eg, HRC, ‘Concluding Observations of the Human Rights Committee: Israel’, UN
doc. CCPR/CO/78/ISR (21 August 2003). See also Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, 136.
¹¹ See, eg, HRC, ‘Concluding Observations of the Human Rights Committee: US’, UN
doc. CCPR/C/USA/CO/3 (15 September 2006).
¹² CCPR/C/18/D/106/1981 (31 March 1983) (HRC).
¹³ CCPR/C/13/D/52/1979 (29 July 1981) (HRC). See also Celiberti de Casariego v Uruguay, UN
doc. CCPR/C/13/D/56/1979 (29 July 1981) and Domukovsky et al v Georgia, UN docs. CCPR/
C/62/D/623, 624, 626 & 627/1995 (29 May 1998) (both HRC).
¹4 HRC, ‘General Comment 31: Nature of the General Legal Obligation Imposed on States
Parties to the Covenant’, UN doc. CCPR/C/21/Rev.1/Add.13 (26 May 2004), para 10 (emphasis
added).

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B. Treaties

249

extent to which that control impacts on the person’s enjoyment of a right under
the ICCPR. For example, the US is responsible for the full range of human rights
of the Guantanamo Bay detainees, given its total control over the lives of those
people. On the other hand, the consulate in Montero attracted Uruguayan responsibility over the relevant person’s right to freedom of movement under Article 12(2)
of the ICCPR; it seems, however, that that consulate had no control over Montero’s
other ICCPR rights so Uruguay, at the relevant time, had no responsibility with
regard to those other rights while Montero remained in Germany.¹5
The view of extraterritorial responsibility taken by the HRC is similar to that
taken by the organs of the Inter-American system of human rights.¹6 Its approach
was also endorsed by the ICJ in its advisory opinion on the Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory.¹7
The HRC’s approach to extraterritorial obligations seems broader than the view
of the European Court of Human Rights. The Grand Chamber of the European
Court in Bankovic et al v Belgium et al¹8 suggested that extraterritorial responsibility extended only to territories (rather than people) over which a State exercised
effective control.¹9 This approach is more conservative, and it seems to permit the
perpetration of human rights abuses abroad by an agent of a High Contracting
Party to the ECHR without recourse, so long as the High Contracting Party does
not control the territory in which the act arises.²0 The Bankovic interpretation
however has been subjected to numerous exceptions, and seems to have been contradicted in a later decision by a single chamber of the European Court in Issa v
Turkey.²¹

ICESCR
The ICESCR does not contain a provision relating to jurisdictional or territorial scope.²² Article 2(1) does however say that States must progressively realize ICESCR rights through steps taken individually ‘and through international
¹5 See also Munaf v Romania, UN doc. CCPR/C/96/D/1539/2006 (21 August 2009) (HRC).
¹6 See Coard et al v United States (1999) Inter-Am Comm HR, Case 10.951, Rep No 109/99;
Armando Alejandre Jr., Carlos Costa, Mario de la Pena y Pablo Morales v Republica de Cuba (1999)
Inter-Am Comm HR, Case 11.589, Report No 86/99; Victor Saldano v Argentina (1998) Inter-Am
Comm HR, Petition, Report No 38/99.
¹7 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) ICJ Rep 2004, 136, paras 104–14.
¹8 Bankovic et al v Belgium et al (2007) 44 EHRR SE5, para 59.
¹9 Bankovic was also decided on the basis that the ECHR did not extend beyond its ‘espace juridique’, that is the legal space of the Council of Europe. The case concerned alleged violations perpetrated by NATO troops in Serbia and Montenegro, which was outside the Council of Europe at that
time. The ‘espace juridique’ argument does not logically extend to the UN treaties, which have global
coverage. See also Damira Kamchibekova, ‘State Responsibility for Extraterritorial Human Rights
Violations’ (2007) 13 Buff alo Human Rights Law Review 87, 145–6.
²0 See also Ralph Wilde, ‘Legal “Black hole”? Extraterritorial State action and international treaty
law on civil and political rights’ (2005) 26 Michigan Journal of International Law 1, 25–8.
²¹ (2005) 41 EHRR 27.
²² The new Optional Protocol to the ICESCR states in Article 2 that communications may be
received on behalf of people ‘under the jurisdiction of a State party’.

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250

Extraterritorial Human Rights Duties

assistance and cooperation’.²³ Those words seem to imply that States should at least
refrain from actions which harm those rights abroad, as such measures are decidedly uncooperative.
The ICJ confirmed in its advisory opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory that States have duties
under the ICESCR to ‘territories over which a State party has sovereignty and
to those over which that State exercises territorial jurisdiction.’²4 Ultimately,
the Court found that Israel had violated a number of rights in the ICESCR by
building part of a security wall in the Occupied West Bank which, for example,
hindered access to educational facilities, places of employment, health services,
agricultural land, and sources of water. In Democratic Republic of Congo v Uganda
the ICJ found that States are responsible under international human rights treaties
for acts done in the exercise of jurisdiction outside their territory, especially (but
not necessarily exclusively) in occupied territories.²5 The Wall standard focused on
territorial control (which Israel exercised over the West Bank), at least in respect of
the ICESCR,²6 while the Congo standard seemed to focus on extraterritorial acts
with regard to all human rights treaties. Notions of territorial control were also
absent in Judge Weeramantry’s dissent in Legality of the Use by a State of Nuclear
Weapons in Armed Conflict, when he stated, in regard to Article 12 on the right to
health in the ICESCR, that ‘each state is under an obligation to respect the right to
health of all members of the international community’.²7
Given that premier international court, the ICJ, believes that some form of extraterritorial jurisdiction under the ICESCR exists, it is safe to assume that States are
required to respect ICESCR rights outside their borders, that is, to refrain from
harming such rights. The Committee on Economic, Social and Cultural Rights
has confirmed its belief in the existence of such duties on a number of occasions.
For example, regarding the right to water (an aspect of the right to an adequate
standard of living in Article 11 of the ICESCR), it has stated:
To comply with their international obligations in relation to the right to water, States parties have to respect the enjoyment of the right in other countries. International cooperation
requires States parties to refrain from actions that interfere, directly or indirectly, with the
enjoyment of the right to water in other countries. Any activities undertaken within the
²³ See also Convention on the Rights of the Child (adopted 20 November 1989, entered into
force 2 September 1990) 1577 UNTS 3 (CRC), Articles 4, 24, 28; Convention on the Rights of
Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) UN doc. A/
RES/61/106 (CPRD), Article 32.
²4 Wall, above n 17, paras 111–13.
²5 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)
(Judgment, Merits) ICJ Rep 2005, 168, para 216.
²6 As noted above, the ICJ endorsed the HRC’s approach with regard to the ICCPR, which
does not require control over territory. See John Cerone, ‘Human Dignity in the Line of Fire: The
Application of International Human Rights Law during Armed Conflict, Occupation, and Peace
Operations’ (2006) 39 Vanderbilt Journal of Transnational Law 1446, 1474–8, commenting on the
apparent different standard adopted by the ICJ in Wall regarding extraterritoriality under, respectively, the ICCPR and the ICESCR.
²7 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Dissenting Opinion, Judge
Weeramantry) (1996) ICJ Rep (1996), 66, 144.

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B. Treaties

251

State party’s jurisdiction should not deprive another country of the ability to realize the
right to water for persons in its jurisdiction. . . . ²8
. . . With regard to the conclusion and implementation of other international and
regional agreements, States parties should take steps to ensure that these instruments do
not adversely impact upon the right to water. Agreements concerning trade liberalization
should not curtail or inhibit a country’s capacity to ensure the full realization of the right
to water.²9

The most important aspects of a duty to respect economic, social, and cultural
rights may arise with regard to intra-territorial acts which have an extraterritorial effect, rather than with extraterritorial acts as such. For example, the adoption by a State of protectionist measures within its territory might cause harm
to the enjoyment of the right to work and to an adequate standard of living of
those in relevant export industries outside its territory. The comparable analysis
is arguably that of cases regarding refoulement rather than the cases concerning extraterritorial obligations as such. Under the ICCPR and the CAT, States
have duties not to deport a person to a State where he or she might face torture or other irreparable harm to his or her human rights (for example, arbitrary
execution) if such harm was foreseeable at the time of the deportation.³0 Those
cases do not concern extraterritorial actions by the sending State, but rather,
intra-territorial actions with extraterritorial consequences. By analogy, a State’s
intra-territorial decisions, actions and policies breach its ICESCR obligations
if they cause reasonably foreseeable harm to ICESCR rights outside its territory.³¹ However, the connection between the State and the expelled person is
clearer than in the case of an external person who suffers harm from economic
measures, as the impugned act of refoulement initially occurs while the person
is within the State’s territory, and the act is clearly aimed at that person such as
to cause harm to his or her rights. There will normally be a clearer causal link in
the case of refoulement. However, if a causal link can be established, the refoulement analysis is appropriate in analysing the human rights law implications of an
economic policy.
Indeed, it is arguable that certain trade policies of some Northern States foreseeably harm the enjoyment of economic, social, and cultural rights in the South.
Examples of such policies might be export subsidies, cotton subsidies, tariff escalation, and the enforcement of intellectual property rights over goods which are
essential to the enjoyment of human rights. All of these policies are allowed or
encouraged by WTO rules. Furthermore, a State should not seek to conclude trade
deals which, if implemented, would undermine another State’s capacity to fulfil its
²8 CESCR, ‘General Comment No. 15: The right to water (arts. 11 and 12 of the International
Covenant on Economic, Social and Cultural Rights)’ UN doc. E/C.12/2002/11 (20 January 2003)
para 31.
²9 Ibid, paras 34–5.
³0 See, eg, Agiza v Sweden, UN doc. CAT/C/34/D/233/2003 (24 May 2005) (Committee Against
Torture); Alzery v Sweden, UN doc. CCPR/C/88/D/1416/2005 (10 November 2006) (HRC); Judge v
Canada, UN doc. CCPR/C/78/D/829/1998 (5 August 2002) (HRC); HRC, General Comment 31,
above n 14, para 12; Soering v UK (1989) 11 EHRR 439.
³¹ See also Trail Smelter Case (US v Canada), above n 5, 1965.

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252

Extraterritorial Human Rights Duties

human rights duties.³² In this respect, the (then) Special Rapporteur on the Right
to Health, Paul Hunt, stated in 2004:
States should respect the enjoyment of the right to health in other jurisdictions, and ensure
that no international trade agreement or policy adversely impacts upon the right to health
in other countries.³³

A year later, the Special Rapporteur on the Right to Food, Jean Ziegler, stated:
States should also refrain from taking decisions within the WTO . . . that can lead to violations of the right to food in other countries. It is evident that decisions taken by a Ministry
of Agriculture or a Ministry of Finance within WTO . . . are acts of the authorities of a State
that can produce effects outside their own territory. If these effects lead to violations of the
right to food, then these decisions must be revised.³4

If the effects of a State’s trade policy are not so direct as to contravene an extraterritorial duty to respect human rights, or a causal link is impossible to prove, they
could come within an extraterritorial duty to fulfil human rights. The potential
existence and ramifications of such a duty are discussed below.
The Committee on Economic, Social and Cultural Rights has indicated that
States parties also have duties to protect ICESCR rights in other States.³5 For
example, it stated in General Comment 15 on the right to water that States should
take steps ‘to prevent their own citizens and companies from violating the right
to water of individuals and communities in other countries’.³6 On the other
hand, experts at a series of workshops convened in 2006 under the auspices of
the UN Special Representative on the issue of Human Rights and Transnational
Corporations concluded that the existence of such extraterritorial duties remained
an open question.³7
International trade law indirectly empowers private traders, particularly multinational corporations (who are the main engines of international trade), and yet
provides for no corresponding duties.³8 This is so even if the behaviour of multinational corporations might distort trade, as is the case with the monopolistic

³² See also De Schutter, above n 3, 20.
³³ Commission on Human Rights, ‘The right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Report of the Special Rapporteur on the Right to
Health, Paul Hunt: Mission to the World Trade Organization’, UN doc. E/CN.4/2004/49/Add.1
(1 March 2004).
³4 Commission on Human Rights, ‘Report of the Special Rapporteur on the right to food, Jean
Ziegler’, UN doc. E/CN.4/2005/47 (24 January 2005) para 52.
³5 Ibid, paras 53–5. See also Chapter 1, text between notes 61 and 65.
³6 CESCR, General Comment No 15, above n 28, para 33. See also CESCR, ‘General Comment
No. 19: The right to social security (art. 9)’, UN doc. E/C.12/GC/19 (4 February 2008) para 54.
³7 See Human Rights Council, ‘Report of the Special Representative of the Secretary-General on
the issue of human rights and transnational corporations and other business enterprises: Corporate
responsibility under international law and issues in extraterritorial regulation: summary of legal
workshops’, UN doc A/HRC/4/35/Add.2 (15 February 2007) 15.
³8 See, eg, Human Rights Council, ‘Report of the Special Rapporteur on the right to food, Olivier
De Schutter: Mission to the World Trade Organization’, UN doc. A/HRC/10/5/Add.2 (25 June
2008) para 46.

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B. Treaties

253

practices of agribusiness companies in the food industry.³9 In enhancing corporate
power, WTO law adds to a systemic human rights problem, in that the power
of many multinationals is enormous and perhaps on occasion greater than that
of some (particularly developing) States, rendering it difficult for those States to
appropriately regulate those entities.40 Given such circumstances, perhaps it is
desirable that home States, which are normally developed States, be required to
close accountability gaps by regulating the offshore activities of their companies
and protecting offshore people from corporate practices that harm human rights.4¹
In the trade context, implementation of such a duty could involve, for example,
constraining the global monopolistic behaviour of a company. It could also involve
negotiating WTO amendments which allow for the multilateral control of global monopoly and monopsony power.4² It could also involve prevention of export
dumping by private actors.4³
The most controversial aspect of potential extraterritorial duties under the
ICESCR relates to fulfilling ICESCR rights in other States, or, in the words of
Jean Ziegler, when he was the Special Rapporteur on the Right to Food, a duty to
‘support the fulfilment’ of ICESCR rights.44 Such a duty would imply that rich
States are obliged to provide aid to assist poorer countries. Rich States predictably
resist such a characterization of their ICESCR duties. However, numerous human
rights bodies have suggested otherwise. As noted in Chapter 1,45 the duty to fulfil
is split into three further duties: to ‘facilitate’ (for example, to ‘provide an enabling
environment’ for the fulfilment of ICESCR rights);46 to ‘promote’ (for example, to
disseminate information and raise awareness of a right); and to ‘provide’, namely to
furnish direct assistance to those people who need such assistance in order to enjoy
a particular right.47 While the greatest controversy concerns duties to ‘provide’,
Ziegler locates the formulation of ‘equitable trade rules’ within the duty to ‘facilitate’ ICESCR rights.48 Examples of a relevant duty to ‘provide’ might include the
provision of aid to industries and farmers in the poorest States to increase their
capacities to benefit from liberalized trade.49

³9 See Chapter 6, text at notes 116–44.
40 See the discussion of this point in David Kinley, Civilising Globalisation (Cambridge University
Press, Cambridge, 2009) 160–6. See also Caroline Dommen, ‘Raising Human Rights Concerns in
the World Trade Organization: Actors, Processes and Possible Strategies’ (2002) 24 Human Rights
Quarterly 1, 14.
4¹ See Report of the Special Rapporteur on the right to food, above n 34, para 54.
4² See also Olivier De Schutter, International Trade in Agriculture and the Right to Food (Dialogue
on Globalization Occasional Paper No 46 (Friedrich Ebert Stiftung, Geneva, 2009) 45–6.
4³ See Armin Paasch, ‘World Agricultural Trade and Human Rights: Case Studies on Violations
of the Right to Food of Small Farmers’ in FIAN and others, above n 3, 39, 46, discussing the dumping of poultry on Ghanaian markets by EU companies.
44 Report of the Special Rapporteur on the right to food, above n 34, para 57. Ziegler makes this
distinction in recognition of the fact that a duty to completely fulfi l the right could not realistically
be imposed on an extraterritorial basis, as such a duty might imply that the territorial State has no
such duties: para 47.
45 See Chapter 1, text at notes 62–3.
46 Report of the Special Rapporteur on the right to food, above n 34, para 57.
47 Ibid, paras 57–8.
48 Ibid, para 57.
49 De Schutter, above n 42, 20.

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254

Extraterritorial Human Rights Duties

The Committee has indicated that States have an extraterritorial duty to fulfil ICESCR rights when they are in a position to do so.50 The Committee, in its
General Comment 3, on ‘the nature of States parties’ obligations’ stated:
in the absence of an active programme of international assistance and cooperation on
the part of all those States that are in a position to undertake one, the full realization
of economic, social and cultural rights will remain an unfulfilled aspiration in many
countries.5¹

Regarding the right to health, it has stated:
[The] Committee [has drawn] attention to the obligation of all States parties to take
steps, individually and through international assistance and cooperation, especially
economic and technical, towards the full realization of the rights recognized in the
Covenant, such as the right to health. In the spirit of article 56 of the Charter of the
United Nations, the specific provisions of the Covenant (articles 12, 2(1), 22, and 23)
and the Alma-Ata Declaration on primary health care, States parties should recognize
the essential role of international cooperation and comply with their commitment to
take joint and separate action to achieve the full realization of the right to health.
In this regard, States parties are referred to the Alma-Ata Declaration which proclaims that the existing gross inequality in the health status of the people, particularly
between developed and developing countries, as well as within countries, is politically,
socially and economically unacceptable and is, therefore, of common concern to all
countries.5²

Regarding the right to water, the Committee has stated:
Depending on the availability of resources, States should facilitate realization of the right
to water in other countries, for example through provision of water resources, financial
and technical assistance, and provide the necessary aid when required. In disaster relief
and emergency assistance, including assistance to refugees and displaced persons, priority
should be given to Covenant rights, including the provision of adequate water. International
assistance should be provided in a manner that is consistent with the Covenant and other
human rights standards, and sustainable and culturally appropriate. The economically
developed States parties have a special responsibility and interest to assist the poorer developing States in this regard.
States parties should ensure that the right to water is given due attention in international agreements and, to that end, should consider the development of further legal
instruments.5³

50 See, eg, CESCR, ‘General Comment 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1,
of the Covenent)’, UN doc. E/1991/23 (14 December 1990) para 14; CESCR, ‘General Comment
12: Right to adequate food (Art. 11)’, UN doc. E/C.12/1999/5 (12 May 1999) para 35; CESCR
General Comment 15, above n 28, para 38.
5¹ CESCR, General Comment 3, above n 50, para 14.
5² CESCR, ‘General Comment 14: The right to the highest attainable standard of health (article 12
of the International Covenant on Economic, Social and Cultural Rights)’, UN doc. E/C.12/2000/4
(11 August 2000) paras 38–40.
5³ General Comment 15, above n 28, paras 34–5.

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C. Responsibility and Causation in a World of Inequality and Neediness 255
The Committee has expressed similar views regarding the right to food54 and the
right to work.55

C. Responsibility and Causation in a World of
Inequality and Neediness
In a world of global economic interdependence, where many States are incapable
of making serious progress towards the fulfilment of economic, social, and cultural
rights beyond minimalist protections without international assistance and cooperation of some sort, extraterritorial duties are arguably necessary to give such rights
meaning. The ICESCR recognizes rights for all, but clearly is most concerned
with the rights of the poorest and most marginalized. Yet a denial of extraterritorial duties would deprive such people of meaningful avenues to claim redress: the
‘have-nots’ in the developing world would have no claim upon the ‘haves’ of the
developed world, who are in the best position to provide assistance. The economic
incapacities of their own State might shield that State from ICESCR liability so
long as it is utilizing available resources in good faith, and the vast resources available outside the country would be irrelevant in the calculus of whether rights had
or had not been violated. There would be a ‘disjunction between the proclamation
of rights . . . and the contingent conditions for their fulfilment’.56
At this point it is necessary to remind the reader that we live in a world with an
astonishingly inequitable distribution of income, resources, and influence. Even
minor levels of redistribution would make an enormous difference to the extreme
poor, at very little cost to the comparatively wealthy.57 Using 2004 World Bank
figures, Professor Thomas Pogge calculated in 2005 that only 1.3 per cent of global
product was consumed by the bottom 44 per cent of the world’s population, with
the top 15 per cent consuming 81 per cent. He calculated that the transfer of just 1
per cent of global product from the top to the bottom would be enough to lift those
at the bottom out of extreme poverty. Pogge’s figures are older and slightly more
extreme than the poverty statistics from the World Bank cited in Chapter 5,58 but
the argument can still be made that the transfer of a tiny portion of Northern
wealth to the Southern poor could have a massive impact on poverty rates in the
latter at little cost to the former. Furthermore, the affordability of such an adjustment is evident in light of the massive bailouts of Northern financial institutions
that materialized in the wake of the global economic crisis of 2008–2009.59 The
54 General Comment 12, above n 50, para 36. See also Chapter 6, text after n 6.
55 CESCR, ‘General Comment 18: The right to work (art. 6),’ UN doc. E/C.12/GC/18
(6 February 2006) para 30.
56 Matthew Craven, ‘The Violence of Dispossession: Extraterritoriality and Economic, Social
and Cultural Rights’ in Mashood A Baderin and Robert McCorquodale (eds), Economic Social and
Cultural Rights in Action (Oxford University Press, Oxford, 2007), 83.
57 Thomas Pogge, ‘World Poverty and Human Rights’ (2005) 19 Ethics and International Affairs 1, 1.
58 See Chapter 5, text at notes 154–67.
59 Eg, during the Bush Administration, the Emergency Economic Stabilization Act of 2008
authorized the spending up to US$700 billion. Similarly, during the Obama Administration,

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256

Extraterritorial Human Rights Duties

equitable adjustment of WTO rules would go some of the way towards realizing
that redistribution. Other measures of assistance which would have an undoubted
impact, such as Northern States actually fulfilling their long-standing and repeated
commitment to devoting 0.7 per cent of Gross National Income in overseas development aid, are beyond the scope of this book.
As noted in Chapter 5, the causes of poverty and inequality are complex, and
it is difficult to isolate precise causes thereof. However, the global international
economic system developed over many years, preceding and including the WTO
system along with contemporaneous developments, has tolerated and probably
contributed to this system of radical inequality between haves and have-nots, with
the former disproportionately located in the North and the latter disproportionately located in the South.60 This radical inequality entails, for the many at the
bottom, real deprivation in terms of access to the necessities of human rights and
even death from poverty-related causes, while those at the top bask in comparatively absurd luxury.6¹
Pogge argues that any global order which tolerates, for as long as ours has, this
level of inequality and poverty is by definition unjust, and its perpetuation without
compensation or reform in fact harms human rights in the South, thus amounting
to a failure to respect their human rights.6² Pogge thus frames the extraterritorial
duties of North to South in the language of negative duties, rather than the more
controversial positive duties. He has gone further by outlining how the global order
has generated massive inequity, giving rise to a duty to reverse that trend:6³
There are at least three morally significant connections between us and the global poor.
First, their social starting positions and ours have emerged from a single historical process that was pervaded by massive grievous wrongs . . . including genocide, colonialism and
slavery, [which] play a role in explaining both their poverty and our affluence. Second,
they and we depend on a single natural resource base, from the benefits of which they
are largely, and without compensation, excluded. The affluent countries and the elites of
the developing world divide these resources on mutually agreeable terms without leaving
the American Recovery and Reinvestment Act of 2009 authorized the spending of up to US$787
billion.
60 Salomon, above n 4, 62.
6¹ Thomas Pogge, ‘Growth and Inequality: Understanding Recent Trends and Political Choices’
(2008) Dissent, 7–8 <http://www.dissentmagazine.org/article/?article=990> accessed 20 September
2010.
6² Pogge, above n 57, 5; see also Thomas Pogge, ‘Severe Poverty as a Violation of Negative Duties’
(2005) 19 Ethics and International Aff airs 55, 68.
6³ Even the renowned political philosopher John Rawls might agree with such an argument. John
Rawls, The Laws of Peoples (Harvard University Press, Cambridge, 2001) is often misinterpreted as
implying that the peoples of one State have no moral obligation to the peoples of another. Rawls does
countenance a ‘duty to assist’, which would presumably arise in cases of extreme poverty. See generally, Patrick Emerton, ‘International Economic Justice: is a Principled Liberalism Possible?’ in Sarah
Joseph, David Kinley, and Jeff Waincymer (eds), The World Trade Organization and Human Rights:
Interdisciplinary Perspectives (Edward Elgar, Cheltenham, 2009) 133–61. See also Frank J Garcia,
Trade, Inequality and Justice: Towards a Liberal Theory of Just Trade (Transnational Publishers,
Ardsley Park, 2003) Chapters 2 and 3, esp 137–44. Compare Joel Trachtman, ‘Legal Aspects of a
Poverty Agenda at the WTO: Trade Law and “Global Apartheid” ’ (2003) 6 Journal of International
Economic Law 3, 7.

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C. Responsibility and Causation in a World of Inequality and Neediness 257
‘enough and as good’ for the remaining majority of humankind. Third, they and we coexist within a single global economic order that has a strong tendency to perpetuate and even
to aggravate global economic equality.64

Harms have undoubtedly been inflicted on the South, which have generated
ongoing legacies with economic impact, such as colonialism as well as the design of
the current global order.65 However, Mathias Risse, in a direct response to Pogge,
points out that we cannot know what would have happened in the counterfactual
situation. For example, ex-colonies could conceivably be worse off now if they had
never been colonized.66 However, the reverse proposition—that colonialism has
indeed caused more harm than had it not happened—cannot be disproved either.
All we do know is that colonization caused harm and generated inequality, and
has a direct link to the identity and location today of those at the top and those at
the bottom.67 Furthermore, colonizers forced certain economic policies on colonies for many decades which hampered their industrial development,68 providing
strong evidence that colonization has played a major role in underdevelopment and
associated harms.69
Finally, colonialism is not the only relevant historical wrong inflicted by the
North upon the South, as noted in the above quote from Pogge. The slave trade,
for example, inflicted enormous economic harm (along with the obvious physical
and psychological harm) on the people of the African continent, by removing large
numbers of able-bodied people from societies.
Risse has also pointed out that current poverty rates are far lower than those in
previous centuries. ‘In 1820, 75% of the world population lived on less than $US1
a day, appropriately adjusted.’ Indeed, ‘almost everybody was poor’.70 There have
also been great improvements across the world in life expectancy and literacy.7¹
Therefore, perhaps one can argue that ‘[h]istorically speaking, the global order
seems to have greatly benefited the poor’.7² However, these historical aggregate figures neglect the fact that 25 per cent remain in extreme poverty today, millions die
from poverty-related causes, people go hungry when there is enough arable land to
feed us all,7³ and their misery could probably be cured by a small readjustment in
64 See T Pogge, ‘Priorities of Global Justice’ (2001) 32 Metaphilosophy 6, 14–15. See also J Hunter,
‘Broken Promises: Agriculture and Development in the WTO’ (2003) 4 Melbourne International
Law Journal 299, 301.
65 See also Garcia, above n 63, 210.
66 Matthias Risse, ‘Do we owe the global poor assistance or rectification?’ (2005) 19 Ethics and
International Aff airs 1, 12–14.
67 Thomas Pogge, above n 62, 56.
68 See Mehdi Shafaeddin, ‘Does Trade Openness Favour or Hinder Industrialization and
Development?’, Third World Network Trade & Development Series No. 31 (TWN, Malaysia, 2006),
24, for a case study on how colonial policies harmed the Indian textile industry throughout the
1800s.
69 See also Megan Davis, ‘International Trade, the World Trade Organisation, and the Human
Rights of Indigenous Peoples’ (2006) 8 Balayi 5, 7–9, discussing how the trading activities of indigenous peoples were disrupted by colonizers.
70 Risse, above n 66, 9.
7¹ See also Martin Wolf, Why Globalisation Works (Yale Nota Bene, London, 2005) 164–6.
7² Risse, above n 66, 12.
7³ See Chapter 6, text at notes 18–23.

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Extraterritorial Human Rights Duties

the sharing of global income. Risse’s historical statistics do not provide an acceptable answer to ‘the complaint of those who avoidably suffer and die against those
who confine them to a life of grinding poverty’.74 The historical decline in poverty
cannot justify the ‘continued imposition of global order that is designed so that it
foreseeably reproduces avoidable severe poverty on a massive scale’.75
As another response to Pogge, it may be argued that poverty is largely the result
of poor domestic policies. After all, many poor States have been plagued for decades by incompetent and predatory governments, as well as local armed conflict.
There is no doubt that local governance plays a major role in, respectively, generating, exacerbating or, alternatively, redressing poverty. On the other hand, Pogge
is correct to point out that that does not mean that global factors play no role.76
Such is particularly the case with the WTO, where the rules are almost universally
recognized as unfair to developing States,77 even by high level bureaucrats within
the WTO itself.78 Pogge also points out the connivance of the North with corrupt
governments in the South by way of the global resource privilege: Northern companies and governments have knowingly bought resource rights from corrupt and
illegitimate governments, knowing that that money will probably be squandered
with no benefit for the people of the relevant States.79 Due to the global borrowing
privilege, Northern banks and international institutions dominated by Northern
governments have lent money to such rulers, in circumstances where the lenders
know or should know that the money will be wasted on arms and palaces. Such
transactions foreseeably increase the wealth of the corrupt elites, with little benefit and indeed active harm for those that they govern (in the form of lost future
wealth and the repayment of squandered loans with interest), and the North has
been entirely complicit in them.80 Furthermore, Northern States have benefited
from arms sales to developed States, knowing that those arms will be used for the
purposes of human rights abuse, to fan the fires of civil or regional conflict, and/or
to deplete the already poor coffers of those client States.8¹ Local corruption is not a
purely local phenomenon divorced from the global economy which absolves global
economic arrangements from responsibility for ongoing poverty and inequality.
Trade liberalization and other measures which remove government control over
the economy are sometimes thought to reduce the scope for corruption in a State.
However, neo-liberal market reforms can on occasion increase corruption. The
loss of public resources might increase the temptation for corrupt practices in the
public sector. Public officials might be tempted to curry favour to increase future
private sector employment opportunities. Neoliberal reforms can be undertaken
in such a way as to favour the rich, as noted in Chapter 2 regarding the introduction of land titling in Cambodia.8² Another infamous example was the process of
74 Pogge, above n 62, 57.
75 Ibid, 58.
76 Pogge, above n 57, 6. See also Pogge, above n 62, 64–5.
77 World Bank, World Development Report 2006: Equity and Development (World Bank,
Washington DC, 2006) 210; Pogge, above n 57, 6.
78 See Chapter 5, text at notes 15 and 105.
79 See also Joseph Stiglitz, Making Globalization Work (Penguin, London, 2007) 138–44.
80 Pogge, above n 57, 7.
8¹ Stiglitz, above n 79, 286.
8² See Chapter 2, text at note 19.

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D. Practical Operation of Extraterritorial Duties

259

liberalization and privatization in 1990s Russia. In any case, private sector corruption clearly exists in the absence of public sector dishonesty, and can have devastating consequences, as evinced by episodes such as the demises of Enron and
Worldcom.8³
Finally, Ha-Joon Chang argues that the impact of corruption on underdevelopment is possibly overstated and is at the least not well understood. He points out
that Mobutu’s Zaire and Suharto’s Indonesia were both notoriously corrupt, yet
the latter fared quite creditably in the economic arena while the former languished
disastrously. While corruption cannot be good for the States in question, Chang
posits that corruption is used ‘as a convenient justification’ by the North, perhaps
to divert attention from other possible causes of poverty and underdevelopment,
such as iniquities in the global trading system.84 At the least, an emphasis on local
corruption is used to deflect awareness of the level of Northern responsibility for
Southern poverty.

D. Practical Operation of Extraterritorial Duties
How could extraterritorial duties, whether to respect or fulfil, be operationalized?
When, for example, would State X have a duty to a person in State Y to take positive actions to fulfil his or her rights? And when could that person’s socio-economic
deprivation be held to come within the responsibility of a particular external
State?
In this respect, Dr Margot Salomon has drawn attention to the distinction
between obligations of conduct and obligations of result in delineating extraterritorial duties.85 Whereas it is difficult to maintain that an external State has a duty
to ensure that a certain level of socio-economic prosperity is enjoyed in another
State, it is less difficult to argue that States should adhere to processes which are
likely or more likely to generate appropriate outcomes.86 In the context of the
WTO, developed States might be required to drop prohibitive barriers to goods
from developing States, which is likely to generate greater prosperity in the latter
States but cannot be guaranteed to do so, given that other factors may come into
play (for example, natural disasters, local corruption).87 It might also entail good
faith negotiation in the Doha round, with a view to redressing the inequities of the
Uruguay round.
Salomon has also drawn attention to the familiar human rights principle of due
diligence,88 which applies to determine a State’s responsibility in cases of human
rights harms perpetrated within its territory by non-State agents. The State’s
responsibility is engaged when it fails to take reasonable actions which would avert
foreseeable harm by a non-State actor. For example, States must take measures to
8³ See generally, Ha-Joon Chang, Bad Samaritans: the Myth of Free Trade and the Secret History of
Capitalism (Bloomsbury Press, New York, 2008) 168–71.
84 Ibid, 160–1.
85 Salomon, above n 4, 184–9.
86 Ibid, 102–3, 133–9, 143.
87 Pogge, above n 62, 77.
88 Salomon, above n 4, 184–9.

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260

Extraterritorial Human Rights Duties

protect persons, most often women, from domestic violence.89 Similarly, a State’s
failure to adopt reasonable actions within the context of the WTO foreseeably
perpetuates ongoing poverty, and thus constitutes a breach of its extraterritorial
human rights obligations.
Finally, Salomon has devised criteria for allocating global responsibilities to
States in creating a just institutional economic order.90 Her four indicators for
determining responsibility are: (1) the contribution a State has made to the emergence of a problem (for example, poverty exacerbated by resource depletion under
colonization); (2) the relative power wielded by a State at the international level
(for example, its influence within the WTO); (3) whether it is in a position to assist
(for example, its levels of wealth); and (4) the extent to which that State benefits
from the distribution of global wealth and resources (for example, the extent to
which the State has benefited from WTO rules, and other relevant rules of the global economy).9¹ Such criteria do not confine responsibilities to developed States,
though they would bear the most extensive responsibilities under this framework.
Criteria 2 and 4 imply some responsibilities for the States with the most successful
emerging economies, such as China and Brazil.
The existence of extraterritorial duties to the people of other States must not
be seen to diminish the duties of those other States towards their own people.
Extraterritorial duties are complementary and supportive: the primary duty to
implement human rights rests with the territorial State. Its failure to implement
its obligations in good faith, for example by wasting resources through corrupt
or frivolous expenditure, or simple bad governance, will violate its human rights
duties, regardless of the fulfilment (or existence) of extraterritorial duties by other
States.
A difficult question arises, with regard to rights for people in the South for
assistance in poverty alleviation from the North, over whether the North can justifiably attach conditions to aid to guard against the squandering of redistributed
resources.9² Such issues are more relevant in a bilateral context rather than in the
global multilateral context which is the subject matter of this book. Conditionality
is not so relevant in the context of a duty to reform WTO rules and domestic
trade policies to more equitably accommodate the development needs of the South
by allowing greater policy space for developing States according to their level of
industrialization while permitting greater market access in the North.
Issues regarding conditionality are more relevant to the distribution of foreign aid and to debt forgiveness. Foreign aid will be needed to assist developing
States to bring their economies to a position where they can actually benefit from
89 See, eg, A.T. v Hungary, UN doc. CEDAW/A/61/38/2006 (26 January 2005) (CEDAW
Committee); Goekce v Austria, UN doc. CEDAW/C/39/D/5/2005 (6 August 2007); Yildirim v
Austria, UN doc. CEDAW/C/39/D/6/2005 (6 August 2007) (all CEDAW Committee).
90 Salomon’s arguments go beyond WTO reform into reform of global financial and economic
architecture beyond the field of trade.
9¹ Salomon, above n 4, 193.
9² See, in support of such conditionality, Trachtman, above n 63, 20–1.

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E. Balancing Human Rights in North and South

261

liberalization. Such aid would contrast with current trade aid commitments,
which are generally designed to alleviate the burden of liberalization; trade aid is
granted after rather than before extensive liberalization. Such aid also goes beyond
aid for trade in helping the poorest States develop essential institutional infrastructure, such as welfare safety nets for globalization losers, which should be in place
prior to major liberalization in order to preserve the human rights of those losers.
Discussion of the mechanics of such aid is beyond the scope of this book.
There are strong arguments in favour of both positive and negative duties for
richer States to assist poorer States in implementing human rights, including economic, social, and cultural rights. It may therefore be legitimately argued that the
Northern States have a duty under international human rights law to agree to a
new WTO deal which addresses the unfairness of the Uruguay deal and facilitates
economic development in the South.9³

E. Balancing Human Rights in North and South
A new lopsided deal which allows greater market access for the South, yet allows
the South to retain or even be restored certain policy space, would clearly impact
on traders in the North, including their enjoyment of human rights.94 For example, the main political justification for continued agricultural protection in the
North is to protect livelihoods in the Northern farming sector. Northern farmers,
like their Southern counterparts, also wish to protect their livelihoods and communities.95 They would (and do) question why their rights to work or rights to
enjoy their own culture should be sacrificed to help out people in the South.96
The losers from liberalization in the North are more likely than those in the
South to receive compensation from the winners through, for example, social security payments and public health care funded by tax revenues. Indeed, taxpayers
in many Northern States are currently subsidizing the farming sector, so it arguably makes sense to transform those subsidies into welfare payments or retraining
schemes, while simultaneously allowing agricultural competition which benefits
not only Southern farmers but also Northern consumers.97
However, political imperatives encourage States to shift losses offshore rather
than contain them within their own populations. For example, it is more politically palatable for EU governments to subsidize their farmers and hurt the poor
in developing countries, rather than provide social welfare to their farmers and to
adopt policies that might destroy local rural communities.98
9³ See also, generally, Garcia, above n 63.
94 See also Trachtman, above n 63, 13.
95 Christine Breining-Kaufman, ‘The Right to Food and Trade in Agriculture’ in Thomas
Cottier, Joost Pauwelyn, and Elizabeth Bürgi (eds), Human Rights and International Trade (Oxford
University Press, Oxford, 2005) 370.
96 See also Hunter, above n 64, 320–1.
97 Ibid, 321; Trachtman, above n 63, 13.
98 Joel R Paul, ‘Do International Trade Institutions Contribute to Economic Growth and
Development?’ (2003) 44 Virginia Journal of International Law 285, 303.

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262

Extraterritorial Human Rights Duties

Subsidies are more justifiable from a human rights point of view if they help to
underpin the livelihoods and cultures of individual farmers, particularly those in
financial need. To be sure, the elimination of certain protections in the developed
world will have to be graduated, in order to allow for adjustment by the former
beneficiaries of those protections, especially when those beneficiaries are not
wealthy, such as unskilled workers in the developed world who will lose from the
reduction of tariff peaks.99 However, the fact is that most Northern agricultural
subsidies go to large agribusiness farmers rather than individual farmers in
need.¹00
There is no doubt that Northern States that are party to the ICESCR have a
duty to promote the economic, social, and cultural rights of people within their
territories, and that these duties must somewhat offset any duties they have to
people outside their borders in the South. However, the extraordinary inequitable
distribution of wealth in the world signals that these local duties cannot entirely
offset extraterritorial duties. At some point, the right of a person in the North to
a subsidized job instead of a welfare payment (or another job) cannot override the
right of a person in the South to an adequate standard of living which could be
earned in the absence of distorting trade measures.¹0¹ The balance between local
and extraterritorial duties could be determined by a standard of reasonableness
or proportionality.¹0² While such tests might be imprecise, there are some clear
instances of unreasonable promotion of local interests at the expense of extraterritorial interests: some Northern trade measures are completely unjustifiable in
terms of protecting local people, given the level of intrusion into the rights of those
offshore.¹0³ An example is the overproduction of sugar by the EU, which protects
local markets for local producers, but also distorts offshore markets to the detriment of sugar producers in their home markets.¹04 Indeed, the scale and distorting
effects of EU farm subsidies is illustrated by the fact that in 2003, each EU cow
was said to be worth a net subsidy of $2.50 a day, an amount that would double, at least, the average daily income of half the world’s population!¹05 Germany’s
(then) Minister for Development Cooperation, Heidemarie Wieczorek-Zeul, conceded in 2008 that export subsidies breach the right to food if they cause hunger
in the developing world.¹06 Another example could be protectionism in the textiles
industry, whereby each job saved in the North in 2002 costs 35 jobs in low-income
States.¹07 That job lost is unfortunate, but the relevant person is more likely than
99 Joseph E Stiglitz and Andrew Charlton, Fair Trade for All (Oxford University Press, New
York, 2005) 122–3.
¹00 See Chapter 6, text at notes 242–51. See also Yong-Shik Lee, Reclaiming Development in
the World Trading System (Cambridge University Press, Cambridge, 2006) 113.
¹0¹ See also Pogge, above n 62, 72.
¹0² Wouter Vandenhole, ‘Third states obligations under the ICESCR: a case study of EU sugar
policy’ (2007) 76 Nordic Journal of International Law 73, 93–4.
¹0³ Olivier De Schutter, above n 42, 45.
¹04 Vandenhole, above n 102, 93.
¹05 See also Wolf, above n 71, 215; Stiglitz, above n 79, 85.
¹06 As quoted in Paasch, above n 43, 41.
¹07 These figures come from remarks made by World Bank Chief Economist, Nicholas Stern,
in a speech in 2002: a report of the speech is available at <http://web.worldbank.org/WBSITE/
E X TER NA L/NEWS/0,contentMDK:20076497~menuPK:34457~pagePK:34370~piPK

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E. Balancing Human Rights in North and South

263

the 35 to have access to social security (which might be more remunerative if public
funds lost through protectionism were recouped) to tide him or her over until he or
she found another job. Cotton subsidies in the US and EU are totally undermining
the economic capacities of some of the world’s poorest people in the C4 countries
of Western Africa in order to benefit comparatively few farmers in the North:¹08
that balance seems highly disproportionate when less money might suffice to shift
those farmers to more efficient industries. As a final example, the need to protect
the interests of innovators via the enforcement of lucrative patent rights is probably
outweighed by the need to permit access to a life-saving invention by poor people
who otherwise cannot afford it.
The ‘balancing’ of the rights of Northern and Southern traders may sound suspiciously like a utilitarian analysis, a theory which underpins free trade but not
human rights.¹09 However, the proposed balancing takes into account notions of
global justice rather than mere economic efficiency. Furthermore, while arguments
that the North should drop trade barriers (such as agricultural subsidies) might
align with free trade arguments, the argument that developing States should retain
policy space does not.
There are also undoubted benefits for the North in helping the South, beyond
lower prices for their consumers. Magnanimity (or rather, fairness) in the Doha
round by the North may inject life into the present moribund state of multilateralism, which is largely caused by intractable North/South divisions, and has
impacted detrimentally not only the Doha round but also negotiations on tackling
climate change.¹¹0 Furthermore, the alleviation of poverty has a positive economic
impact,¹¹¹ by helping to transform the poor into viable consumers, opening up
marketing possibilities for both Southern and Northern markets.¹¹²
Certain rights for people in the North should however be preserved or even
enhanced, despite opposition from the South. There are, in particular, legitimate
concerns about advantages flowing to Southern industries due to severely inadequate regulations, such as poor or non-existent environmental and labour standards.¹¹³ At some point, those standards can be so low as to be genuinely trade
distorting. The labour rights debate is examined in Chapter 4.
:34424~theSitePK:4607,00.html> accessed 20 September 2010. Since 2002, quantitative restrictions in the textiles sector have been phased out in accordance with WTO timetables under the
WTO Agreement on Textiles and Clothing.
¹08 See also Chapter 5, text at note 117.
¹09 See also Chapter 1, text at notes 65–9.
¹¹0 See, eg, Saliem Fakir, ‘Was Copenhagen the Death of Multilateral Environmental Agreements?’
(12 January 2010) The South African Civil Society Information Service <http://www.sacsis.org
.za/site/article/408.1> accessed 20 September 2010. See also International Centre for Trade and
Sustainable Development, ‘Trade and Climate: Joined at the Hip?’ (2010) 14 Bridges Monthly Digest.
¹¹¹ Dani Rodrik, The Global Governance of Trade: As if Development Really Mattered (UNDP,
New York, 2001) 12.
¹¹² See generally, CK Pralahad and Stuart L Hart, ‘The Fortune at the Bottom of the Pyramid’
(2002) 26 Strategy + Competition Magazine. See also World Development Report 2006, above n 77,
206. See also Chang, above n 83, 220.
¹¹³ Robert Wai, ‘Countering, Branding and Dealing: Using Economic and Social Rights in
and Around the International Trade Regime’ (2003) 14 European Journal of International Law 35,
49–50.

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264

Extraterritorial Human Rights Duties

F. Conclusion
There are sound legal and moral arguments in favour of the recognition of extraterritorial human rights duties. Of relevance to the WTO/human rights debate
is the notion that richer States have human rights duties to help alleviate poverty
in poorer States. Such duties help to underpin arguments that WTO obligations
should be recast so as to be fairer to developing States, and to boost their capacity
to abide by their human rights obligations to their own populations.

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9
WTO Reform, the Doha Round, and
Other Free Trade Initiatives
In this chapter I summarize potential WTO reforms in light of the human rights
deficiencies within, or that are likely to be prompted by, WTO rules and processes,
which are identified in Chapters 3 to 7. These proposals are evaluated, and then
compared with current proposals on the table during the Doha round. Finally,
the phenomenon of bilateral and other free trade agreements outside the auspices
of the WTO, focusing on the example of European Partnership Agreements, is
discussed.

Chapter 3 and democratic deficit
Chapter 3 identifies processes within the WTO which inherently favour certain
constituencies over others. Those disadvantaged constituencies are social justice
advocates and interest groups, and developing States. Chapter 4 examines the
extent of substantive disadvantages which accrue for social justice interest groups,
while Chapters 5 to 7 examine substantive disadvantages for developing States
which impact on human rights.
One solution to the democratic deficiencies identified in Chapter 3 is that
WTO processes be amended to permit greater participation by those disadvantaged constituencies, which would improve the legitimacy and perhaps the
quality of its input. Social justice NGOs are exercising greater indirect power
over the Doha round processes compared to the Uruguay round processes, but
those efforts are yet to translate generally into identifiable concrete outcomes.¹
Furthermore, greater direct inputs by NGOs would complicate an already complex and gridlocked negotiation process. That fact does not mean that major
input reform is a bad idea, but it means that it is unlikely to happen in the foreseeable future.
Regarding developing States, it is unquestionable that such States are exercising
greater negotiation muscle in the current round. Future WTO rounds will not
come to a close without satisfying key developing States such as India, China, and
Brazil. This does not mean however that final agreements will be in the interests of
¹ Some exceptions arise, such as with respect to the important initiatives on TRIPS and access to
medicines, on which see Chapter 7.

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266

WTO Reform, the Doha Round, and Other Free Trade Initiatives

all developing States, as the interests of such States are not uniform. Furthermore,
the tougher negotiation stance by the South, coupled with intransigence from the
North, means that the Doha round is currently stalled, and the unfair Uruguay
round rules prevails. Again, this is not an argument for the South to give in: a bad
Doha deal is not necessarily better than no deal.
Another response to democratic deficit is for the powers of the WTO to be
diminished, or the rules diluted. If the consequences of its outputs are defused,
there will not be such a discrepancy between its output power and its input legitimacy. Therefore, many of the reform options discussed below focus on limiting the
WTO’s mandate to override national decision-making power.

Chapter 4 and human rights trade measures
Chapter 4 addresses the human rights issues that have traditionally dominated
the discourse of trade and human rights,² that is the extent to which WTO rules
limit the capacity of States to impose trade measures, including trade sanctions, for
human rights purposes.
Early debates on the linkage between trade and human rights focused on ‘outward measures’, the extent to which a State can express disapproval, or attempt
to coerce human rights change in an abusive State, by way of trade sanctions. It
is submitted that this issue is in fact one of the least important within the WTO/
human rights debate due to the questionable desirability and efficacy of such sanctions from a human rights point of view, and the fact that States are rarely required
under international human rights law to implement outward measures.³ It was
concluded that outward measures will rarely be permissible under WTO law,
except to the extent they are justified under Article XXI GATT (and Article XIV
bis GATS) or are allowed under a waiver, as is the case with regard to the global
bans on trade in conflict diamonds.4
Trade measures can also constitute ‘inward measures’, whereby trade is restricted
for the purpose of protecting the human rights of a State’s own population, such
as perhaps the ban on asbestos building products by the EC in Asbestos, the ban
on retreaded tyres in Brazil—Tyres, or the ban on hormone-treated beef in Beef
Hormone. Some inward measures are undoubtedly required under international
human rights law. Given the dearth and varying approaches of relevant WTO
cases, it is uncertain the extent to which such measures are accommodated under
WTO law. There remains the real possibility of direct conflicts between WTO
² James Harrison, The Human Rights Impact of the World Trade Organisation (Hart, Oxford,
2007) 126 and 176.
³ Furthermore, the Security Council and some States seems more intent these days on imposing
‘smarter’, targeted sanctions on States, rather than comprehensive economic embargoes: many smart
sanctions regimes do not raise WTO issues.
4 As noted at Chapter 4, text at note 29, the contribution of the trade in conflict diamonds to
breaches of human rights and humanitarian law in Western African civil wars was so direct and serious that it was possibly a situation where outward measures were in fact mandated by international
human rights obligations.

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WTO Reform, the Doha Round, and Other Free Trade Initiatives

267

law and human rights law in this respect. Certainly, the broad interpretation given
to WTO obligations (for example, regarding ‘like goods’, ‘discrimination’, and
quota/market access obligations in Article XI GATT and Article XVI GATS)
coupled with strict interpretation of relevant exceptions in Article XX GATT and
Article XIV GATS may overly restrict the scope for States to enact appropriate
inward measures.

Chapters 5 and 6: developing States and the WTO
In Chapter 5, the inherent bias within the Uruguay round bargain, whereby the
greatest winners are developed States and the greatest losers are some of the world’s
poorest States, is discussed. Furthermore, the downside of free trade in economic
terms, which impacts on the capacities of a State to implement human rights obligations, is discussed. In Chapter 6, the flaws in the Agreement on Agriculture
are analysed. Furthermore, the merits of free trade in the agricultural arena are
questioned, given unique problems in agricultural markets, and the coincidence
between hungry people and vulnerable smallhold farmers, who are disadvantaged
within the global trade arena.
In both chapters, it is suggested that the Doha round should yield a lopsided
bargain which benefits developing States more than developed States. While the
latter should be required to further open up their markets and eliminate destructive protectionism such as certain agricultural subsidies (for example, regarding
cotton in the US and sugar in the EU), the former should preserve and even regain
policy space in order to pursue more tailored development policies. Such a lopsided
agreement would accord with the notion of the North having extraterritorial obligations to take measure to facilitate the right to development and the alleviation of
poverty in the South, as discussed in Chapter 8. The extent to which Doha proposals reflect these recommendations is discussed below.

Chapters 6 and 7: TRIPS and human rights
The impact of TRIPS on the human rights to food and health is discussed, respectively, in Chapter 6 and Chapter 7. It is possible that TRIPS provides sufficient
room for States to discharge their human rights obligations, so long as TRIPS
flexibilities and exceptions are interpreted broadly. Nevertheless, TRIPS shrinks a
State’s options and also constrains development policy in ways that were not experienced by the richest States during their own transformations into industrialized
countries. Furthermore, the benefits of intellectual property protection in terms
of the promotion of creative endeavour, research, and development are possibly
overstated. Even if those benefits are accepted, TRIPS probably grants overly generous rights to intellectual property rights holders at the expense of the enjoyment
of countervailing human rights. It is submitted therefore that a rollback of TRIPS,
for example in the form of the granting of greater flexibility in implementation for
developing States, is desirable.

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A. Potential Reforms in Light of the Issues
Raised in Chapters 3 to 75
Deferential doctrines
Perhaps the WTO dispute settlement bodies should make greater use of deferential
doctrines like the margin of appreciation. For example, Winickoff et al argue that
States should be given significant leeway under the SPS agreement, perhaps akin to
a margin of appreciation, when they are applying standards in areas where there is
low certainty regarding potential risks, and low consensus on those risks (such as
in the case of GMOs).6
The interpretation of limitations to WTO obligations could be loosened: for
example the intense scrutiny of Article XX exceptions could be replaced by applying
a more lenient standard of reasonableness.7 Only the most unreasonable trade restrictions would be clearly disallowed, whereas ‘borderline’ restrictions would generally
be acceptable. More decision-making power would be restored to national levels. Of
course, more trade restrictions would inevitably be allowed under such a system.
Perhaps greater deference should be given to national decisions when the WTO
deals with inward measures, those designed to protect national populations, compared to outward measures, those aimed at protecting other people or somehow
changing behaviour overseas. States should have more discretion regarding the
imposition of inward measures, as they have considerable international obligations
to protect their own people and comparatively few if any obligations to impose
trade sanctions in order to protect people in other States.8 Examples of relevant
types of inward measures could be measures to protect health by limiting imports
of goods that are harmful, or, more controversially, those which might be harmful
to health. Indeed, States are already likely to have greater scope under WTO law to
impose inward measures compared to outward measures.

Obligations of non-discrimination rather than minimum standards
Perhaps the WTO should return to its humbler GATT roots, and only target discriminatory protectionism, rather than branching out into the realm of minimum
standards as in the TRIPS, the SPS, and TBT agreements.9 Furthermore, the
5 The following commentary is adapted from Sarah Joseph, ‘Democratic deficit, Participation and
the WTO’ in Sarah Joseph, David Kinley, and Jeff Waincymer (eds), The World Trade Organization
and Human Rights: Interdisciplinary Perspectives (Edward Elgar, Cheltenham, 2009) 313–43.
6 David Winickoff, Shiela Jasanoff, Lawrence Busch, and Robin Grove-White, ‘Adjudicating
the GM Food Wars: Science, Risk, and Democracy in World Trade Law’ (2005) 81 Yale Journal of
International Law 81, 86, 107–8.
7 See Chapter 3, text prior to and at note 160; and Chapter 4, text between notes 148 and 149.
8 United Nations High Commissioner for Human Rights, Human Rights and World Trade
Agreements: Using General Exception Clauses to Protect Human Rights (OHCHR, New York and
Geneva, 2005) 16–17. See also generally, Harrison, above n 2, Chapters 5–8 and 212.
9 See David M Driesen, ‘What is Free Trade? The Real Issue Lurking behind the Trade and
Environment Debate’ (2001) 41 Virginia Journal of International Law 279, 327–9. See also Deborah

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A. Potential Reforms in Light of the Issues Raised in Chapters 3 to 7

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interpretation of ‘quota’ or ‘market access’ provisions could be rolled back so as to
clearly cover only discriminatory provisions.¹0
Ultimately, as Professor Robert Hudec stated, the removal of ‘minimum standards’ requirements and a retreat to non-discrimination involves a value judgement
that the danger of excessive protectionism is not as bad as the danger of inadequate
or inappropriate minimum standards in the relevant areas.¹¹ From the point of
view of economic efficiency, the former danger is probably more concerning than
the latter. However, from the point of view of many non-trade lobbies and possibly
consumers, that equation is probably reversed.

Respecting consumer choice
Given that free trade is partly designed to enhance consumer choice, perhaps consumer choices should be respected, at least with regard to their perceptions of their
own welfare. For example, if Europeans do not want hormone-treated meat to be
imported into Europe, why force it on them? Why insist that consumer choice
be ‘rational’, or, as required under the SPS, based on science?¹² As consumers are
effectively the people of a State in a commercial guise, the respecting of consumer
choices arguably equates with respecting the democratic choices of a State, thus
enhancing participatory rights.¹³
Such a proposal assumes that consumer choice can actually be established.
Dr Caroline Foster has concluded that while such evidence would be difficult to
ascertain, it would still be possible to do so.¹4 She notes, for example, that States
are already required to seek the views of interested parties prior to imposing antidumping measures or countermeasures against subsidies. She concludes:
Further thought should be given to whether the practical difficulties associated with consulting the public constitute a good reason to hold back from pursuing such a development
[that is, the explicit conferral of greater weight on national public opinion in WTO dispute
resolution] if it is otherwise sound in principle.¹5

Of course, the forced import of goods under WTO rules does not force a consumer
to actually consume those goods. The GMO example, however, demonstrates that
Z Cass, The Constitutionalization of the World Trade Organization (Oxford University Press, New
York, 2005) 213–16; Harrison, above n 2, 248.
¹0 See Chapter 4, text at notes 59–68.
¹¹ Robert Hudec, ‘ “Circumventing” Democracy: the Political Morality of Trade Negotiations’
(1993) 25 NYU Journal of International Law and Politics 311, 321.
¹² See also Driesen, above n 9, 319. See generally, Caroline E Foster, ‘Public Opinion and the interpretation of the World Trade Organisation’s Agreement on Sanitary and Phytosanitary Measures’ in
Joseph, Kinley, and Waincymer (eds), above n 5, 285–311.
¹³ Indeed, consumer choice has been relevant in some aspects under WTO law. Eg, it was relevant
in the determination of ‘like products’ by the Appellate Body in European Communities—Measures
Affecting Asbestos and Asbestos-Containing Products, WTO doc. WT/DS135/AB/R (00-1157) AB-200011 (5 April 2001) (Report of the Appellate Body) paras 130 and 139. See Chapter 4, text at notes 34–43.
¹4 Foster, above n 12, 302–3.
¹5 Ibid, 303. Foster does not advocate that consumer choice be decisive, unlike the proposal discussed here.

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consumer choice is not necessarily easy to exercise. Concerns have been raised,
regarding GMOs, of uncontrolled cross-contamination, meaning that it might
become impossible to guarantee that a certain type of food is in fact GM-free.
Furthermore unsuspecting consumers may not be aware of GMOs in meals that
are not home-cooked, or of what their children might consume outside the home.
In this regard, it is reiterated that mandatory labelling requirements should
be allowed to ensure that consumers are able to make an informed choice about
whether they wish to consume certain goods.¹6 Full disclosure would let market forces ‘decide’ if it is acceptable for goods to have certain characteristics (for
example, contain GM ingredients) or be manufactured by an undesirable process (which, for example, hurts labourers or the environment). At the moment, the
compatibility of labelling systems with the TBT cannot be presumed.¹7

A caveat regarding the first three reform proposals
These first three reform proposals involve weakening the impact of WTO rules, so
as to allow more policy space for Member States, thus enhancing their capacities to
implement their human rights obligations, particularly regarding economic, social,
and cultural rights. It has been argued in this book that developing States need the
restoration of such policy space. However, a dilution of the impact of WTO rules
would also restore policy space to the North. In that case, the ability of Northern
States to abuse protectionist measures in the agricultural field which, as discussed
in Chapter 6, can detrimentally impact on the right to food by devastating the livelihoods of Southern farmers, would be enhanced. Even non-discriminatory SPS or
TBT requirements (including, perhaps, even some types of labelling requirements)
could impose intolerable burden on exporters from developing States lacking relevant technical capacities. Consumer choice might be manipulated for protectionist or nationalistic ends: for example it may not be so difficult to whip up consumer
hysteria over a very minor or virtually non-existent health threat, which may be an
apt description of the EU’s concern over aflatoxins.¹8
Therefore, there are dangers in implementing any of the above three mooted
reforms. The interests of developing States have to be secured by a new lopsided
deal, rather than by the dilution of WTO rules alone. The negative impact of such
dilution on developing States (by weakening constraints on Northern trade policies) should then be more than offset by the restoration of their own policy space
(through dilution and a favourably assymetric Doha deal), and the imposition
¹6 See Chapter 4, text at notes 212–14.
¹7 In European Communities—Measures aff ecting the approval and marketing of biotech products,
WTO docs. WT/DS291/R, WT/DS292/R and WT/DS293/R (29 September 2006) (Report of
the Panel) (‘EC—Biotech’), the Panel alluded to the possibility that EC regulations on the labelling of GMOs breached the SPS agreement at [7.392]. See also, eg, Carlos Lopez-Hurtado, ‘Social
Labelling and the WTO’ (2002) 5 Journal of International Economic Law 719; Nick Covelli and
Viktor Hohots, ‘The Health Regulation of Biotech Foods under the WTO Agreements’ (2003) 6
Journal of International Economic Law 773.
¹8 See Chapter 4, text at notes 192–3. Note that Foster, above n 12, has suggested methods of
constraining the abuse of any justification of trade measures by reference to consumer choice: see
Chapter 4, text at notes 183–4.

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A. Potential Reforms in Light of the Issues Raised in Chapters 3 to 7

271

of more obligations through a new deal on the North. Furthermore, it must be
remembered that the restoration of some policy space for developed States will
also give the North greater scope to implement justifiable trade measures which
implement their own human rights obligations, a desirable outcome from a human
rights point of view.

A human rights exception and a social clause
The merits of a labour rights or social clause are discussed in Chapter 4. Such measures could have both an outward purpose (that is, to induce labour rights compliance in delinquent States) and an inward purpose (protection of local workers from
unfair competition from States ‘benefiting’ from poor labour rights standards).
It was concluded that there is merit in reviving the discussion of such a clause.
However, there are no current proposals within the WTO in this respect.
An alternative mechanism is for a human rights clause, such as a new Article XX
exception allowing for trade measures which protect human rights, to be incorporated into WTO agreements. While some have argued that the public morals
exceptions can effectively operate as human rights clauses, it is far from certain that
such an interpretation will be adopted by the dispute settlement bodies.¹9 A human
rights clause would remove ambiguity in this respect. However, the introduction of
such an exception has not been formally discussed within the Doha round.
In any case, it is not satisfactory, from a human rights point of view, for human
rights to operate as a mere exception within the WTO. As noted in Chapter 4, the
prohibitions on trade measures under WTO law are very broad. Once a prima
facie breach is established, the burden of proving the applicability of an exception
lies with the State relying on that exception. Therefore, once a prima facie breach
of WTO law is established, the burden of proving the permissibility of a human
rights trade measure would always lie with the State imposing that measure.²0
Hence, in any process of balancing trade impact versus human rights impact, the
human rights side of the equation is disadvantaged. Under international human
rights law, adverse trade impacts per se are not recognized as a qualification to
human rights. The balancing of human rights considerations against trade impacts
is not countenanced, let alone the outweighing of human rights considerations by
trade considerations.
An alternative is for a treaty mandating the positive protection of human rights to
be passed as a part of the WTO package. Such a treaty would be a human rights
version of TRIPS. This reform might sound very attractive from a human rights
point of view. After all, the sharp ‘teeth’ of the WTO would become available to
enforce human rights obligations. However, there are numerous obstacles to and
issues with such a proposal. Most obviously, political will for such a development
¹9 See Chapter 4, text at notes 97–100.
²0 See WTO, Dispute Settlement System Training Module, Chapter 10.6, ‘Legal Issues arising in
WTO dispute settlement’ <http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/
c10s6p1_e.htm> accessed 19 October 2010; Harrison, above n 2, 215–16.

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WTO Reform, the Doha Round, and Other Free Trade Initiatives

is completely lacking: such a treaty would massively stretch the mandate of the
WTO far beyond the field of trade. Such a development would essentially render
the WTO a type of world governing body, with significant enforcement power in
both the commercial and the social justice realms. Unless there is a radical change
in the internal culture of the WTO, which is dominated by commercial and trade
values, such a pre-eminent role for the WTO would be highly unsatisfactory for
human rights advocates. There would be a serious danger of the WTO entrenching
the subordination of human rights values to trade values rather than improving
human rights protection.²¹ A far preferable measure would be the strengthening
of human rights norms through existing or new improved human rights bodies,
rather than through a trade organization, while simultaneously enhancing the
likelihood of rights-sensitive interpretations of existing WTO provisions through
deferential doctrines and approaches such as those discussed above.

Human rights impact assessments
Presently, ‘there is no effective monitoring of the human rights implications of the
Marrakesh decision’.²² Perhaps the impact of WTO rules, as well as new WTO
proposals, should be subjected to human rights impact assessments. The NGO 3D
has defined human rights impact assessments (HRIAs) as tools which:
measure the gap between legal human rights standards and a current or proposed action,
with the objective to enhance the knowledge of decision makers and stakeholders and to
limit the adverse effects of governmental and corporate activities.²³

Ideally, such assessments should take place in advance of the implementation of
trade agreements so as to influence modification before human rights damage is
done. Indeed, States undoubtedly have duties under human rights treaties to take
their human rights obligations into account while negotiating trade treaties, and
not to undertake trade obligations which undermine their ability to fulfil their
human rights obligations.²4 Ex ante HRIAs would assist States to fulfil due diligence obligations in that respect.
Realistically however, certain human rights impacts may be unforeseen, or
their magnitude may be underestimated (or overestimated). Therefore, there
will be an inevitable need for ex post facto assessments. In this regard, the Special
Rapporteur on the Right to Food has recommended that trade agreements be
adopted provisionally with sunset clauses so as to allow for modification in case
²¹ See, generally, Philip Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade
Law: A Reply to Petersmann’ (2002) 13 European Journal of International Law 815, esp at 836. See
also Harrison, above n 2, 218–19, discussing the problems of subjecting human rights arguments
to the WTO legal system. Indeed, the same problem would probably arise if human rights were
included as a new express exception to WTO obligations, as suggested in the previous paragraph.
²² Harrison, above n 2, 228.
²³ 3D, ‘Insights on Human Rights Impact Assessments of Trade Policies and Agreements’ (3D,
Geneva, undated) 2 <http://www.3dthree.org/pdf_3D/HRIAsbackgroundinformation.pdf> accessed
20 September 2010.
²4 See, eg, Chapter 2, text at notes 137–9. See also Chapter 8, text at notes 29–34.

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A. Potential Reforms in Light of the Issues Raised in Chapters 3 to 7

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their implementation is found by independent assessments to be generating human
rights violations.²5
HRIAs as applied to the trade area are in their relative infancy. In late 2009, 3D
reported that only three such assessments, formally focusing on human rights, had
been undertaken of trade agreements.²6 Unsurprisingly, such a small sampling has
not generated an ‘overall approved methodology’,²7 despite the extensive additional
scholarship, NGO, and public examination of the specific impacts of various trade
agreements. Indeed, although good practices and templates are increasingly being
identified, it is not possible to outline a single, fi xed model or methodological
framework given the range of circumstances which might give rise to HRIAs: ‘[n]o
methodology will fit every situation without some modification’.²8
Only the European Union carries out systematic Sustainability Impact
Assessments (SIAs) on WTO proposals, which examine social and environmental
impacts.²9 Unfortunately, as outlined by Dr James Harrison, they currently suffer
from a number of deficiencies. For example, the EU’s SIAs do not presently refer
explicitly to human rights, though they do address indicators which are within
the realm of economic social and cultural rights.³0 The analysis of the impact on
potential losers from the proposals is underwhelming. For example, one analysis
of WTO agricultural proposals acknowledged the adjustment costs for smallhold
farmers, but noted that the same adjustment costs might also fall on large farmers. There was no appreciation of the more devastating impact those costs would
have on the smaller farmers, due to their lesser capacity to adjust as needed.³¹
Furthermore, echoing the common or even dominant response to complaints
about the adverse impact of trade law and policy on human rights, the solution
advocated to any problems tends to be the adoption of mitigating measures, often
SDT type measures such as the granting of aid, rather than reconsideration of the
overall policy.³² Finally, governments often fail to respond adequately to SIAs.³³
Despite these considerable flaws, one must acknowledge that the EU’s SIAs are
only about a decade old, and could still represent a ‘laudable first step’ towards systemic human rights impact assessments.³4
The methodological parameters for HRIAs can be expected to concretize as
they become more common. HRIAs will also be assisted by the ongoing work
²5 Human Rights Council, ‘Report of the Special Rapporteur on the Right to Food, Olivier De
Schutter: Mission to the World Trade Organization’, UN doc. A/HRC/10/5/Add.2 (25 June 2008)
para 37.
²6 3D, above n 23, 3, reporting on HRIAs on the likely future impacts of the Thailand-US Free
Trade Agreement, and assessments of the past human rights impacts on particular rights by international trade and financial agreements on Ghana, Honduras, and Indonesia; and on the right to
health of the US-Dominican Republic- Central American Free Trade Agreement.
²7 Ibid, 3
²8 Ibid, 4.
²9 Harrison, above n 2, 229.
³0 Ibid, 229.
³¹ Ibid, 231, citing Overseas Development Institute, Sustainability Impact Assessment of
Proposed WTO Negotiations, Final report of the Agricultural Sector Study, 22 April 2005, 33.
³² Ibid, 231.
³³ Ibid, 233. See, eg, the EU’s continuing pursuit of MFN clauses in European Partnership
Agreements, despite the fact that such a clause will undermine regional unity in relevant regions,
contrary to the advice in an SIA. See below, text at notes 80–2.
³4 Ibid, 229 and 232.

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being done, for example within the UN’s Office of the High Commissioner for
Human Rights, on delineating human rights indicators which aid in the measurement and assessment of human rights impacts and levels of compliance.³5 There
is also great potential for relevant lessons to be learnt from the increased attention given to HRIAs in the corporate sector as an element of the due diligence
required under the framework for business and human rights promulgated by the
UN Special Representative on Business and Human Rights.³6 HRIAs represent
a route for providing for greater legitimacy for trade policies, greater consistency
between human rights and trade policies, and greater human rights accountability
in the implementation of trade policies.³7

A Human Rights Declaration
James Harrison has also suggested that the WTO might adopt a Declaration, like
the Doha Declaration on TRIPS and Public Health, which signals the Members’
intention that WTO obligations not be interpreted, implemented, or enforced in
a way that undermines their abilities to comply with their human rights obligations.³8 Such a Declaration could act as a green light to the dispute settlement bodies to adopt, as far as possible, a human rights compliant interpretation of WTO
measures. Alternatively, and perhaps more importantly, the existence of such a
Declaration, adopted by a consensus of WTO members, would act as a political
and moral barrier for States that might otherwise seek to challenge measures that
can be reasonably justified on a human rights basis.

Deferring to expert opinion
WTO bodies could regularly defer to other experts when an issue concerns serious non-trade issues, such as the Office of the High Commissioner for Human
Rights or the human rights treaty bodies if human rights issues should arise, or the
International Labour Organization (ILO) in respect of labour issues.³9 The WTO’s
current mandate could be maintained, but other international expert bodies could
³5 See, eg, Office of the High Commissioner for Human Rights, ‘Report on Indicators for
Promoting and Monitoring the Implementation of Human Rights’, UN doc. HRI/MC/2008/3
(6 June 2008).
³6 See, eg, Human Rights Council, Report of the Special Representative of the Secretary-General
on the issue of human rights and transnational corporations and other business enterprises, John
Ruggie, ‘Business and Human Rights: further steps toward the operationalization of the “protect,
respect and remedy” framework’, UN doc. A/HRC/14/27, paras 79–86.
³7 3D, above n 23, 5. See also generally James Harrison and Alessa Goller, ‘Trade and Human Rights:
What does “Impact Assessment” have to offer?’ (2008) 8 Human Rights Law Review 587 and ‘Human
Rights Assessments for Trade and Investment Agreements’, Report of the Expert Seminar, 23–24 June
2010, at <http://www.srfood.org/images/stories/pdf/otherdocuments/report_hria-seminar_2010_eng
.pdf> accessed 19 December 2010.
³8 Harrison, above n 2, 240–1. Therefore, such a Declaration would not apply to most outward
measures. See Chapter 4, text at notes 25–30.
³9 See Daniel C Esty, ‘The World Trade Organization’s legitimacy crisis’ (2002) 1 World Trade
Review 7, 17–18; Harrison, above n 2, 219–21.

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A. Potential Reforms in Light of the Issues Raised in Chapters 3 to 7

275

be integrated into WTO processes regarding issues that clearly straddle the trade
and non-trade divide. In extreme cases, the resolution of relevant disputes could
effectively be ceded to that other body. This suggestion was raised with regard to a
labour rights clause and the ILO in Chapter 4.

Conclusion
None of the above proposals are the subject of serious negotiation within the WTO at
the moment. However, some of the above proposals, in particular those regarding
interpretation of WTO obligations, could be independently implemented by WTO
dispute settlement bodies.40 Indeed, WTO dispute settlement bodies could consistently utilize human rights obligations to interpret WTO obligations, minimizing
inconsistency to the extent possible within the words of the text of WTO treaties.
As noted in Chapter 2, the Appellate Body used environmental treaties to interpret
Article XX(g) in Shrimp I even though not all parties to that case were parties to the
relevant environmental treaties.4¹ Such interpretations could arise with regard to
the WTO exceptions and also with regard to the interpretation of concepts such as
non-discrimination, ‘like goods’, ‘public morals’, and ‘public order’.
To be sure, the use of such interpretative techniques would be controversial, and
would seem to depart from the strict letter of the text of WTO treaties.4² At least
two conflicting values are at play here: the protection and promotion of human
rights and strict legalism. From a human rights point of view, the former value is
more important.4³
History indicates that developing States would be unhappy with such interpretations.44 However, as noted in Chapter 3, the divergence between the interests of
developing States and the goal of human rights promotion in a WTO context has
been overstated, and overly influenced by the early focus of WTO/human rights
debate on the issue of trade sanctions. In fact, it is submitted that the most important human rights issues within the WTO concern the extent to which WTO obligations work against the interests of the people of developing States. Developing
States would probably not be unhappy, for example, if their own WTO obligations, such as those under TRIPS, were interpreted in light of the ICESCR.
40 Harrison, above n 2, 242.
4¹ See Chapter 2, text at notes 123–35.
4² Jagdish Bhagwati, ‘Afterword: the Question of Linkage’ (2002) 96 American Journal of
International Law 126, esp at 131–4.
4³ The dispute between ‘certainty’ and strict legalism in legal interpretation, and dynamic interpretation in light, eg, of social justice considerations is hardly unique to the discussion of WTO
law. This debate routinely arises in the context of both domestic law and international law, and will
not be extensively examined here. As an example in the Australian context, compare the differing
interpretative philosophies adopted by the two respective judges in M Kirby, ‘The Australian Use
of International Human Rights Norms: Form Bangalore to Balliol—A View from the Antipodes’
(1993) 16 University of New South Wales Law Review 363 and D Heydon, ‘Judicial Activism and the
Death of the Rule of Law’ (2003) 47(1) Quadrant 363. Both authors were appointed to the High
Court of Australia after they had written their respective pieces.
44 See, eg, Eric Neumayer, ‘The WTO and the Environment: Its Past Record is Better than Critics
Believe, But the Future Outlook is Bleak’ (2004) 4 Global Environmental Politics 1 <http://ideas
.repec.org/a/tpr/glenvp/v4y2004i3p1-8.html> accessed 21 September 2010.

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WTO Reform, the Doha Round, and Other Free Trade Initiatives

In any case, interpretative innovation by dispute settlement bodies can only go
so far in redressing human rights concerns regarding the WTO. Such innovation
would have to be well entrenched before it could remove any chilling impact of
WTO rules, which may be largely driven by apprehension over the meaning of
the rules rather than actual WTO interpretations. The ability of WTO panels and
(to a lesser extent) its Appellate Body to adopt such interpretative techniques in a
satisfactory manner is doubtful, given that their personnel are trade experts, not
human rights experts. Furthermore, no amount of sympathetic interpretation,
other than a blatant abandonment of the current WTO text, would permit some
of the policies advocated in this book, such as the permissibility of adequate infant
industry protection for developing States.

B. The Doha Development Round: The Story So Far
The first post-Uruguay round of negotiations got off to a false start in Seattle in
1999, where the Ministerial Conference collapsed amid protests in the streets
and major splits inside the WTO between North and South. The ball got rolling
in Doha in 2001 with the launch of the Doha Development round. The round’s
name firmly points to a focus on Southern issues. However, progress in the Doha
round has been very disappointing. Talks collapsed again in Cancún in 2003. The
Ministerial Conference in December 2005 in Hong Kong yielded only modest
progress. Expectations were so low by the time of the Ministerial Conference in
Geneva in late 2009 that the Ministerial was not designed to be a meeting for
negotiation. While most States expressed a commitment to try to bring the Doha
round to a successful conclusion, serious doubts remain at the time of writing as to
whether that will be possible in the short term.
The title of the Doha Development round seems to promise that the promotion
of ‘development’ is the main goal of the Doha round of negotiations. However,
development has, disappointingly, taken a back seat to a Uruguay-like focus on
opening up markets across the world on a ‘give and take’ basis.45 Alternatively, it
has simply been assumed by certain powerbrokers within the WTO, wrongly, that
trade liberalization is somehow synonymous with development.
Developing States are generally most interested in rectifying the imbalances in
the AoA, as that agreement was an important part of the Northern side of the
Uruguay bargain, and yet it has not yielded outcomes which justify the concessions
made by the South in the Uruguay round. However, agricultural negotiations will
not be concluded unless negotiations on non-agricultural market access (NAMA)
are also concluded: the two sets of negotiations are now coupled. As the promise
of further agricultural negotiation is mandated in Article 20 of the AoA, developing States view the coupling of NAMA negotiations with AoA negotiations as a

45 Joy Kategekwa, ‘Empty Promises: What happened to “development” in the WTO’s Doha
round?’ (Oxfam International Briefing Paper 131, 16 July 2009).

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B. The Doha Development Round: The Story So Far

277

concession on their part.46 The adding of NAMA to the mix of negotiations has
contributed to the delay in the round’s conclusion.

Agricultural negotiations
As discussed in Chapter 6, world agricultural trade is severely distorted by continuing subsidies. Unfortunately, Doha round proposals do not go very far in eliminating those subsidies. In Hong Kong, Northern States proposed to phase out export
subsidies by 2013.47 ‘Amber box’ subsidies will also be cut. However, these cuts
will be undermined by continued use of the ‘blue’ and ‘green’ boxes, which will not
apparently be disciplined in the Doha round. Retention of these loopholes in the
same form will essentially allow developed States to maintain their trade distorting
spending levels.48
Tariffs across the board will be significantly reduced though States will be permitted to maintain very high tariffs (of over 100 per cent) on certain ‘sensitive products’.49
While the tariff cuts from developed States would be welcome, the cuts for developing States, and the limitation of the notion of sensitive products, limits the policy
space which is probably needed to protect food security and vulnerable farmers.
Cotton has been described as the litmus test for the bona fides of the North
in the Doha Round.50 At Hong Kong, Northern government had promised to
eliminate export subsidies in cotton by 2006.5¹ Of course, that deadline has
long passed, as it was dependent on the conclusion of the Doha round. In any
case, Oxfam has argued that the US agreed to do no more than had been mandated under the dispute settlement system in United States—Subsidies on Upland
Cotton, and probably ‘fell short’ of those findings in delaying implementation.5²
At Hong Kong, it was also agreed that cotton subsidies would be reduced by a
greater level than for other agricultural goods.5³ However, since Hong Kong, little headway in cotton negotiations has been made, so the devastating impacts of
subsidies continue.54

46 Muchkund Dubey, ‘An Appraisal of the WTO’s Hong Kong Ministerial Outcome’ (Third
World Network Briefing Paper 31, February 2006).
47 WTO, ‘Ministerial Declaration’ (Adopted on 18 December 2005, Hong Kong) WTO doc. WT/
MIN(05)DEC (22 December 2005) para 6.
48 Kategekwa, above n 45.
49 Martin Khor, ‘Analysis of the new WTO Agricultural and NAMA texts of 6 December 2008’
Third World Network Trade & Development Series 37 (TWN, Malaysia, 2009) 11.
50 Joel P Trachtman, ‘Developing Countries, the Doha round, Preferences, and the Right to
Regulate’ in Chantal Thomas and Joel P Trachtman (eds), Developing Countries in the WTO Legal
System (Oxford University Press, New York, 2009) 111, 124.
5¹ Hong Kong Ministerial Declaration, above n 47, para 11.
5² Oxfam, ‘What happened in Hong Kong? Initial Analysis of the WTO Ministerial’ (Oxfam
Briefing Paper 85, December 2005), 12 <http://www.oxfam.org/en/policy/bp85-hongkong>
accessed 19 September 2010.
5³ Trachtman, above n 50, 125. See also Hong Kong Ministerial Declaration, above n 47, 11–12.
54 ‘Cotton- 4 (C4) countries to intensify campaign against US, EU’, StockMarketsReview.com, 27 July
2009 at <http://www.stockmarketsreview.com/commodities/cotton_4_countries_to_intensify_
campaign_against_us_eu_20090727/> (16 January 2010).

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WTO Reform, the Doha Round, and Other Free Trade Initiatives

Negotiations in July 2008 broke down largely due to disagreements over a new
‘Special Safeguard Mechanism’ to protect the livelihoods of farmers in developing
States. This issue is discussed in Chapter 6.
Overall, current agricultural proposals indicate that Northern protectionism
might be reduced, but will not be adequately restrained after the new Doha round.
It seems likely that Northern subsidies, protected by arbitrary designations under
the blue and green boxes, will continue to harm agricultural industries in the
South. At the same time, adequate policy space will not be preserved or restored to
the South. While much of the current policy constraints have been largely caused
by factors outside the WTO, such as IFI conditionality and bilateral or other free
trade agreements, Doha proposals would shrink the flexibility officially available
for such States within the WTO.

Non-Agricultural Market Access (NAMA)
NAMA negotiations are aimed at increasing liberalization in non-agricultural
trade. One battle between North and South concerned the formula under which
cuts would be made. The South favoured a linear cut, which would mean that
States basically cut tariffs by the same amount. However, the North favoured the
Swiss formula, under which higher tariffs are cut by higher rates. As the highest tariffs are generally in the South, that formula leads to deeper cuts from the
South than the North. The Swiss formula was endorsed at Hong Kong, representing a ‘win’ for the North. The adoption of the Swiss formula breaks the promise
of the Doha Ministerial Declaration, whereby ‘less than full reciprocity’ would be
demanded from developing States.55
The exact rates of application of the Swiss formula remain under negotiation.
Current proposals would reduce most tariffs for developing States to around 11–12
per cent, with very few tariff lines exceeding 15 per cent.56 SVEs would be permitted greater flexibility, but would still be required to cut tariffs as dramatically
as they did in the Uruguay round. LDCs would not be required to cut tariffs.57
Developed States under Doha proposals would have much lower average tariff
rates (around 2 per cent on average or less). However, given their tariffs are currently around 3 per cent on average, the cut, whilst big in percentage terms, is small
in quantitative terms. Such cuts will not affect Northern industries as much as the
proposed cuts for developing States and SVEs.58
An ‘anti-concentration’ clause is contained in current draft proposals, whereby
higher tariffs cannot be concentrated in a particular sector. This clause, if adopted,
would limit the possibilities for selective infant industry protection.59

55 WTO, ‘Ministerial Declaration’ (Adopted on 14 November 2001, Doha) WTO doc. WT/
MIN(01)/DEC/1 (20 November 2001) para 16.
56 Khor, above n 49, 6.
57 Ibid, 4.
58 Ha-Joon Chang, ‘Developing Countries need to wake up to the Realities of the NAMA negotiations’ (Third World Network Briefing Paper 26, June 2005) 2.
59 Khor, above n 49, 2.

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B. The Doha Development Round: The Story So Far

279

Certainly, the policy space for LDCs will not be shrunk under current proposals.
Furthermore, developed countries have agreed to permit duty-free and quota-free
(DFQF) market access to the LDCs of 97 per cent of ‘products originating from
LDCs, defined at the tariff line level’.60 The exemption from this commitment of
3 per cent of tariff lines allows developed countries to exclude the most important
sectors. An ActionAid spokesperson has wryly observed that ‘Bangladesh will be
able to export all its non-existent nuclear submarines to the US, but not the textiles
that make up 80% of what it sells overseas’.6¹ This decision is a departure from the
100 per cent DFQF target flagged in the Doha Ministerial Declaration in 2001.6²
As an historical comparison, the economist Ha-Joon Chang has referred to the
average tariff rates for manufactured goods in developed States throughout the first
half of the twentieth century, at a time when they probably had stronger economies
than many developing States today. The average tariff rate in 1950 was 23 per cent
in the UK and 14 per cent in the US.6³ Those rates are significantly higher than the
average rates proposed for most developing States under current Doha proposals.
Furthermore, he argues that the productivity gap between developed and developing States these days is so great that higher tariffs are needed by the latter in order
to provide equivalent protection for industries.64
Overall, NAMA proposals preserve policy space only for LDCs, and no policy space is restored. Other developing States will lose significant policy space.
Developed States will, however, reduce their tariff peaks, which will have beneficial
effects for Southern exports. The conferral of 97 per cent DFQF status on LDCs
sounds generous, but is in fact an unfortunate retreat from original Doha proposals. Current NAMA proposals are not generally geared towards optimal outcomes
for development in the South.

Other
Further Southern concessions were made regarding GATS at the Hong Kong
Ministerial. WTO Members must consider taking part in plurilateral negotiations on services liberalization if requested to do so,65 which may open the way
for greater political pressure to be placed on weaker countries to prise open their
services markets. There are certainly no proposals for the introduction of greater
safeguards into GATS to alleviate its potential impact on the enjoyment of essential services which are necessary for the enjoyment of human rights.66
60 Hong Kong Ministerial Declaration, above n 46, Annex F, Decision 36.
6¹ Larry Elliott, ‘WTO summit: No easy way out as an encore looms: After a week of trench
warfare, the idea of a spring trade pact looks far-fetched’ The Guardian, 19 December 2005. See also
Sukarmar Muralidharan, ‘Pitfalls on the Road from Hong Kong’ All Africa, 21 December 2005.
6² See Doha Ministerial Declaration, above n 55, para 42, which mentions no limit to DFQF
commitments for the least developed countries. See also UN World Summit 2005 Outcome, UN
doc. A/Res/60/1, 24 October 2005, para 29.
6³ Chang, above n 58.
64 Ha-Joon Chang, Kicking Away the Ladder: Development Strategy in Historical Perspective
(Anthem Press, London, 2005, first published 2003) 67.
65 Hong Kong Ministerial Declaration, above n 47, Annex C, para 7.
66 See Chapter 5, text at notes 45–57.

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WTO Reform, the Doha Round, and Other Free Trade Initiatives

Regarding TRIPS, there are no serious proposals to reduce commitments
despite its deleterious impact on developing States. Negotiations are underway
regarding the relationship between indigenous knowledge, the Convention on
Biological Diversity, and TRIPS, as mentioned in Chapter 6. Those negotiations
seem unlikely to be resolved in the near future.67 The resolution of that issue is not
a prerequisite for conclusion of the Doha round. In effect, that issue is on the backburner, so TRIPS will continue to pose an apprehended obstacle to the enjoyment
of relevant cultural rights.
Increased commitments regarding ‘trade aid’ are on the table. However, there
is little sign that the delivery of increased aid will be an enforceable duty under a
Doha deal, thus continuing the trend of SDT consisting of voluntary rather than
obligatory provisions.68 The aid will also be contingent upon States committing to
further open their economies, which could generate premature liberalization, the
dangers of which were discussed in Chapter 5.69
The Doha round was also intended to address issues related to investment and
competition. However, developing States, which have signalled their opposition
to the extension of the WTO into these areas since the Singapore Ministerial of
1997, successfully killed these issues with their refusal to negotiate on them at
the Cancún Ministerial. Global investment rules would have been of the greatest
benefit to the major foreign investors, namely Northern multinationals.70 While a
global competition policy to curb cartel behaviour by major multinationals would
be beneficial for all States, particularly in the agricultural arena, the (now aborted)
competition proposals were mainly aimed at breaking up local monopolies to
ensure access for foreign competitors.7¹ Again, the biggest beneficiaries would have
been Northern multinationals.
Current Doha proposals would dictate a mix of trade policies which are far from
optimal in assisting development and poverty alleviation in developing States, and
could well be counterproductive. They will not improve the capacities of developing States to discharge their human rights obligations and could harm them. They
do not represent a bona fide attempt by the North to fulfil relevant extraterritorial
obligations to the people of the South.
Most States at the Geneva Ministerial called for a swift end to the Doha round.
At the time of writing, nearly a year after that meeting, such sentiments seem to be
wishful thinking or empty rhetoric.
67 Martin Khor, ‘Behind the July failure of the WTO’s Doha talks’ (Th ird World Network
Briefing Paper 50, September 2008) 8.
68 Hong Kong Ministerial Declaration, above n 47, para 57.
69 See also Valentine Sendanyoye-Rugwabiza, ‘Is the DDA a Development Round’ (Address
at the London School of Economics, 31 March 2006) 6 <http://www2.lse.ac.uk/PublicEvents/
pdf/20060331-WTO.pdf> accessed 20 September 2010. See also Frank J Garcia, Trade, Inequality
and Justice: Towards a Liberal Theory of Just Trade (Transnational Publishers, Ardsley Park,
2003) 188.
70 See Ken Shadlen, ‘Resources, Rules and international political economy: the politics of development in the WTO’ in Joseph, Kinley, and Waincymer (eds), above n 5, 119, 127–9 on the shortlived Doha investment negotiations.
7¹ See Chapter 6, text at note 141.

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B. The Doha Development Round: The Story So Far

281

Other free trade agreements
The moribund Doha round has coincided with an explosion in bilateral and
regional free trade agreements (FTAs) concluded outside the WTO structure.
Such agreements are a permitted departure from MFN provisions under Article
XXIV GATT and Article V GATS, so long as certain conditions are followed.
Notably, such agreements must provide for the elimination of ‘duties and other
restrictive regulations of commerce’ on ‘substantially all’ trade between the parties to the agreement. Therefore, an FTA will only comply with Article XXIV if
it provides for extensive liberalization in respect of most of the parties’ economies
with regard to each other. Necessarily, FTAs provide for a much higher level of liberalization than is required under WTO rules and under Doha proposals. FTAs
therefore shrink the economic policy space of their parties with respect to each
other more than WTO rules. Furthermore, they are often concluded between parties with a greater power imbalance than arises within the multilateral context of
the WTO.7²
At the time of writing, extensive negotiations on FTAs known as European
Partnership Agreements (EPAs) were being conducted between the EU and States
in Africa, the Caribbean, and the Pacific (ACP countries). Current draft EPAs,
if adopted, will radically alter economic relations between Europe and the ACP.
The EU historically offered preferential treatment to certain ACP countries, but
those preferences did not comply with GSP requirements as they were not offered
on the same terms to all similarly situated developing States. The WTO waived
MFN requirements in respect of these preferences until 31 December 2007, by
which time new trading arrangements should have been concluded.7³ The EU
had three options in order to comply with WTO rules. It could extend its GSP
preferences to all like developing States, it could drop its ACP preferences, or it
could conclude FTAs with the ACP countries. The EU chose to pursue the latter
strategy.
EPAs are based on reciprocity, so ACP countries are required to open up their
economies to EU exports under EPA provisions. The EU has interpreted the
Article XXIV requirement that ‘substantially all trade’ be liberalized under an
FTA to mean that at least 80 per cent of trade between itself and ACP countries
should be tariff free within 15 years.74 The EU itself would open up all of its sectors. However, the impact on the ACP would nevertheless be more dramatic, given
average EU tariffs are already very low, and ACP tariffs are comparatively high.
Furthermore, the EPAs will permit the continuation of European agricultural

7² See Chapter, Part E.
7³ See WTO, ‘European Communities—the ACP/EC Partnership Agreement’ (Decision of
14 November 2001), WTO doc. WT/MIN(01)/15 (14 November 2001).
74 Tobias Reichert, ‘A Human Rights Approach to Trade and Investment Policies’ in FIAN
and others, The Global Food Challenge: Towards a Human Rights Approach to Trade and Investment
Policies (FIAN, Germany, 2009) 29, 37; Stephen JJ Dearden, ‘A review of EU Development Policy’
(Manchester Metropolitan University 2006) 5 <http://e-space.mmu.ac.uk/e-space/bitstream/2173/
13642/2/dearden%20EUSAnl1.pdf> accessed 20 September 2010.

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282

WTO Reform, the Doha Round, and Other Free Trade Initiatives

subsidies. Subsidies would be allowed for ACP countries too, but they cannot
afford them.75
The EU apparently believes that such reciprocity is needed in order to integrate ACP countries into the global economy:76 the arguments against such
thinking, in respect of developing and vulnerable economies are outlined in
Chapter 5. A 2007 study on EPAs for the UN Human Rights Council concluded that the treaties would ‘result, at least in the short run, in huge losses
in revenue and restricted access to the EU market making it highly likely that
the social and economic human rights of millions will be adversely affected’.77
The European Commission’s own sustainability impact assessments of EPAs by
PricewaterCoopers (PwC) have warned of the consequences for ACP countries
from lost tariff revenue and increased competition from EU exports. Without
adequate safeguards and some continued asymmetry, PwC warn that the
resultant ‘[d]amage to local production could disproportionately threaten the
livelihoods and food security of rural populations’.78 Oxfam also reports that
‘[e]conomic models showed that Europe would be the real winner, with most
ACP countries . . . left worse off ’.79 At the end of 2007, ACP Ministers expressed
‘serious concern’ over the EPA process, claiming that European ‘mercantilist
interests have taken precedence over the ACP’s developmental and regional integration interests’.80
Regarding those regional interests, the EU is insisting on inclusion of an
MFN provision in EPAs. Such a clause would hinder possibilities for regional
integration and South-South cooperation, as any liberalization within ACP
regions must be accompanied by similar concessions to the comparatively gargantuan EU market. After all, the EU comprises 25 per cent of the ACP export
market, but the ACP constitutes only 2 per cent of the EU’s import markets.8¹
Indeed, PwC stressed the importance of regional integration within ACP regions
as an essential means for ACP countries to develop ‘more integrated and competitive markets’ and to enable them to take greater advantage of EPA benefits.8²
75 Oxfam, ‘Partnership or Power Play? How Europe should bring Development into its trade
deals with African, Caribbean, and Pacific countries’ (Oxfam Briefing Paper 110, 21 April 2008) 17.
76 Human Rights Council, ‘The Cotonou Partnership Agreement between the European Union
(EU) and the African, Caribbean and Pacific Countries (ACP countries) (Report by Dr Maria van
Reisen, High Level Task Force on the Right to Development)’, UN doc. A/HRC/12/Wg.2/TF/
CRP.3/Rev.1 (5 May 2009) para 31; Dearden, above n 74, 6–7.
77 Human Rights Council, ‘Application of the criteria for periodic evaluation of global development partnerships—as defined in Millennium Development Goal 8—from the right to development
perspective: the Cotonou Partnership Agreement between the European Union and ACP Countries
(Report by Prof James Thuo Gathii), UN doc. A/HRC/8/WG.2/TF/CRP.6 (21 December 2007) 2.
78 PricewaterhouseCoopers, ‘Sustainability Impact Assessment of the EU-ACP Economic
Partnership Agreements’ (2007) 10.
79 Oxfam, above n 75, 6.
80 ACP Council of Ministers, ‘Declaration of the ACP Council of Ministers at its 86th Session
Expressing Serious Concern on the Status of the Negotiation of the Economic Partnership
Agreements’, Brussels, 13 December 2007, ACP/25/013/07.
8¹ Oxfam, above n 75, 5.
8² PwC, above n 78, 7. For a contrary view on the wisdom of regional trade agreements for poor
States, see Paul Collier, The Bottom Billion (Oxford University Press, New York, 2008) 164–6.

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C. Conclusion

283

Economic integration between reasonably ‘like’ economies does not pose the
same danger of the large-scale destruction of industries by new competition.
Rather, such integration offers opportunities for larger markets and greater efficiency. The MFN requirement would severely limit the abilities of ACP countries to negotiate beneficial arrangements with similarly sized markets, or with
the stronger developing countries, such as China and India, ‘where their exports
are growing most rapidly’.8³ The conclusion of bilateral EPAs with different
terms with ACP countries in a particular region in fact promotes regional fragmentation: in Africa only the East African Community contains States which
have the same interim EPA commitments.84 The MFN provision may instead
reinforce the ‘historical dependence’ of former colonies on the EU,85 which has
been based on a ‘vicious cycle’ of the ACP exporting primary low-cost goods and
importing high-value goods.86
Oxfam has argued that the EU used the expiry of the waiver in 2007 to pressure
ACP countries to conclude EPAs.87 Nevertheless, at the time of writing, most ACP
States were resisting pressure to ratify EPAs. For example, LDCs feel they have little incentive to ratify such agreements as they already benefit from extensive market access to the EU under the Everything but Arms scheme.88 Instead, numerous
interim EPAs were initiated in order to cater for the expiry of the waiver.89 To date,
only one EPA has been finalized, between the EU and the Forum of Caribbean
States.
Despite the potential detrimental impacts of EPAs, Tobias Reichert, an economist specializing in agricultural trade, has described EPAs as the ‘softest’ form of
FTAs: other FTA negotiations are flagging greater restrictions on policy space. For
example, the EU is striving for greater reciprocal market access in its FTA negotiations with India, China, and ASEAN, while the US commonly requires greater
market access commitments in its bilateral negotiations.90 The growth of FTAs is
depriving developing States of needed policy space, with potentially catastrophic
impacts on their capacity to combat poverty, to fulfil the right to development, and
to generally discharge their human rights obligations. It will also hinder their capacity to retain bargaining power in the Doha round, which is crucial if the flawed
Uruguay bargain is to be fi xed.

C. Conclusion
The reforms suggested from the analysis in Chapters 3 to 7 are not reflected in the
Doha round proposals. Indeed, despite its designation as a development round,
it seems that the Doha round will turn out to be a pale successor to the Uruguay
round, when (and if) it is concluded. The focus of negotiations is on ‘business
as usual’ bargaining, rather than on development as such. Certainly, the right
8³ Oxfam, above n 75, 9.
84 Ibid, 17.
85 Ibid, 9.
86 Ibid, 5.
87 Ibid, 7.
88 Dearden, above n 74, 4. See Chapter 5, text at notes 26–7.
90
Reichert, above n 74, 37.
89 Van Reisen, above n 76, para 31.

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284

WTO Reform, the Doha Round, and Other Free Trade Initiatives

to development, and human rights in general, are absent from serious Doha
proposals.
Meanwhile, the ‘action’ in the free trade arena is taking place in bilateral and
regional contexts. These agreements have served to exacerbate problems of democratic deficit,9¹ and to impose more inappropriately onerous obligations on developing States than are likely to arise from the Doha round.9²

9¹ See Chapter 3, Part E.
9² See also Chapter 7, Part F.

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10
Conclusion
Despite idealistic proclamations by free trade enthusiasts which equate the promotion
of free trade with the promotion of human rights,¹ the goals of the WTO regime and
the international human rights regimes are very different, as outlined in Chapter 2.
The WTO regime is geared towards the promotion of free trade in goods and services, along with the protection of intellectual property rights (perhaps anomalously,
given the constraints they place on free trade). Only a narrow range of freedoms is
promoted by the WTO, and those freedoms, such as freedom of contract or right to
trade, are not recognized in the formal legal pantheon of international human rights.
An exception may arise in the case of the right to intellectual property, which may
partially correlate with an international human right (for example, Article 15(1)(c)
of the ICESR), though the scope of intellectual property protection in TRIPS is far
broader than that demanded by any human right regarding intellectual property.
Though WTO rights belong to and are enforced by States, the rights essentially serve
their private export interests, most obviously multinational corporations. Of course,
protection of the commercial interests of foreign corporations can have beneficial
effects on the enjoyment of human rights, for example by corporate employees and
consumers with access to cheaper and better services or goods. However, the elevation
of the interests of foreign traders over countervailing interests, such as those of local
traders, entailed in WTO rules does not gel well with international human rights
law, where no such priority is afforded. Similarly, the non-discrimination provisions
of the WTO are designed to ensure non-discrimination between foreign traders, and
to prohibit discrimination against foreign traders. Discrimination against local traders is allowed, and arguably encouraged by certain WTO decisions.² The human
rights principle which allows and occasionally mandates the unequal treatment of
unequals in the form of positive discrimination in favour of disadvantaged persons is
not recognized under the WTO. Non-discrimination obligations under WTO law
can therefore serve to entrench rather than address inequality. Finally, the rationale
for the WTO is premised on utilitarian principles of economic efficiency. In contrast,
human rights principles are essentially deontological; the rights of each human being
regardless of his or her economic or other utility are cherished. Furthermore, as noted
in Chapters 5 and 6, and also below, the utilitarian economic benefits of WTO rules
are challengeable.

¹ See Introduction, text at notes 1–4.

² See Chapter 4, text at notes 141–3.

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286

Conclusion

It has not been established in this book that human rights law prevails over
WTO law as a matter of international law in the case of conflict, though it is more
likely that human rights law prevails over trade law than vice versa.³ In any case,
any conflict is clearly undesirable and damages both regimes, the rule of law in
the broadest sense, as well as the States that are subjected to divergent obligations. From a human rights point of view, any conflict is particularly debilitating
as the stronger enforcement mechanisms within the WTO, compared to the global human rights regime, may lead to the de facto prioritization by States of their
WTO obligations over their human rights obligations.
A number of human rights deficiencies within WTO rules and processes are
identified in this book. There are inadequate avenues for participation in the rule
making and rule enforcement processes, as outlined in Chapter 3. Those inadequacies disadvantage two particular constituencies: social justice (including human
rights) interests and the people of developing States. Those processes, which undermine participatory rights (such as those in Article 25 of the ICCPR), help to generate unsatisfactory substantive outcomes, which again work to the disadvantage of
those two constituencies. Democratic deficit is arguably a problem which arises
with regard to all international organizations, given the remoteness of such organizations from individuals, and the fact that avenues for political participation are
largely local and national rather than global. However, the power of, and lack of
inclusiveness within, the WTO, as well as certain unique features of the regime
such as the single undertaking, lead to the conclusion that its democratic deficit
is more problematic than that which pervades international institutions in other
areas, such as those within the international human rights framework.
So-called ‘non-trade interests’, such as labour rights interests or public health
interests, are disadvantaged under WTO rules when they clash, or potentially
clash, with free trade rules, despite the existence of exceptions to WTO rules, such
as those in Article XX GATT. The ambit of WTO rules is very broad, as explained
in Chapter 4, while the ambit of the exceptions is narrow and is subjected to a very
high degree of scrutiny. The ‘promotion of countervailing free trade interests’ is not
a recognized qualification to human rights. Yet a human rights measure, whether
inward or outward, which is inconsistent with such interests will often be illegal
under WTO rules, and thus expose a State to economic punishment. Indeed, a
perceived conflict with WTO rules may well discourage States from enacting relevant human rights measures in the first place.4
It is true that some constraint on protectionist measures is welcome from a
human rights point of view, notably where protectionist measures cause harms
to the enjoyment of human rights by people in offshore industries. This scenario
is most likely to arise where a developed State is protecting its industries from
competitors in developing States, as explained in Chapter 4. Another area where
WTO law might promote human rights concerns the extent to which it compels
the import of good or services that facilitate the enjoyment of human rights, as discussed in Chapter 4 in the context of internet censorship. However, the detrimental
³ See Chapter 2, text at notes 107–9.

4

See Chapter 4, text at notes 219–20.

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Conclusion

287

‘human rights’ impact of a protectionist measure, or a measure which obstructs
foreign trade, is not a yardstick against which WTO compliance of that measure
is assessed.5
WTO rules are unfair to developing States, as detailed in Chapters 5 to 7. In this
respect, the political philosopher Thomas Pogge has issued a scathing critique of
WTO rules:
The reality is that WTO globalization is opening markets where this serves important
corporate interests in powerful countries, is preserving barriers to free exchange where this
serves important corporate interests in powerful countries, and is shutting down free and
open markets where this serves important corporate interests in powerful countries. The
third type is exemplified by the [fact that] large pharmaceutical corporations have won the
right to use monopoly patents to block free trade in vital medicines worldwide. The second
case is exemplified by the uneven fortunes of protectionism: while poor WTO members
are forced to open their markets, wealthier members maintain their tariffs and antidumping duties as well as their huge export credits and subsidies to domestic producers. To
be sure, these protectionist measures are often theoretically illegal under WTO rules. But
less developed countries usually lack the resources to bring and win cases against the US or
EU. Moreover, such a country has little to gain from winning as affluent members typically
continue their Treaty contraventions even in the face of clear-cut WTO rulings, confident
that the weaker member will prudently refrain from imposing the retaliatory measures
such rulings may entitle them to and that these retaliatory measures would, in any case,
not seriously hurt them.6

Ha-Joon Chang echoes Pogge’s sentiments by stating that WTO trading rules
‘favour free trade in areas where the rich countries are stronger but not where they
are weak’.7
Furthermore, WTO rules probably obstruct the capacities of developing States
to implement their human rights obligations by closing off legitimate and wellestablished avenues of development and economic growth. Indeed, observance of
WTO rules could on occasion generate human rights abuses. For example, TRIPS
rules may compel States to adopt retrogressive measures with regard to the right
to health. While arguments may be made to reconcile TRIPS and the right to
health, as outlined in Chapter 7, the fact remains that the scope and therefore
the constraints imposed upon States by TRIPS are uncertain due to the lack of
authoritative interpretation of its terms. Moreover, enforcement of certain unfair
WTO rules by States against other States, particularly by the North against the
South, could constitute breaches of extraterritorial human rights obligations.
Extraterritorial breaches may also be manifested in the maintenance of certain
protectionist measures, which are allowed under WTO rules, particularly in the
agricultural field.
5 See Chapter 4, text between notes 153–5.
6 Thomas Pogge, ‘Medicines for the World: Boosting Innovation without Obstructing Free
Access’ (2008) Revista Internacional de dereitos humanos 8, 15–16 <http://www.yale.edu/macmillan/
igh/fi les/SUR.pdf> accessed 17 April 2010.
7 Ha-Joon Chang, Bad Samaritans: The Myth of Free Trade and the Secret History of Capitalism
(Bloomsbury Press, New York, 2008) 13.

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288

Conclusion

A. Free Trade Fundamentalism
The WTO prescribes free trade rules as a means to desirable ends, as is made clear
in the preamble to the Marrakesh Agreement. Free trade is not an end in itself. If
WTO rules do not in fact lead to those ends, any negative impact of WTO rules on
human rights is unjustifiable from any point of view. In fact, one of the key reasons
for the WTO’s mission is undermined. And yet there are plausible arguments that
WTO rules hamper economic growth and development in developing States, as
outlined in Chapter 5.
The fervour with which free trade advocates continue to promote their cause
is astonishing. Joseph Stiglitz and Andrew Charlton have stated that it ‘is difficult to identify the evidentiary source of the bullishness for unqualified trade
liberalization’.8 Mehdi Shafaeddin gives an example of slavish adherence to
free trade theory from the World Bank in 2005.9 In that year, the World Bank
published a mea culpa of sorts,¹0 and conceded that free trade policies had not
produced the expected economic outcomes in developing States. Shafaeddin highlights some of the extraordinary admissions in the report, including that means
(free trade reforms) were mistaken for ends (economic growth) and that the ‘one
size fits all’ policies dictated by global trade rules were ill conceived and inappropriate.¹¹ Despite those concessions, the World Bank report nevertheless concluded
that protectionism was ‘not good for economic growth’, while ‘trade openness’ was
described as ‘a key element of a successful strategy’.¹²
Similarly, Armin Paasch, a senior adviser on agriculture and trade for the
German NGO, FIAN, has noted how the possible negative links between trade
rules and food security were ignored during major intergovernmental meetings
convened in the wake of the World Food Crisis of 2007–2008, including those
of the Food and Agricultural Organization (FAO) and the G8.¹³ Indeed, all of
the cited meetings called for a quick conclusion to the Doha round including
major agricultural liberalization.¹4 As noted in Chapter 6, liberalization from

8 Joseph E Stiglitz and Andrew Charlton, Fair Trade for All (Oxford University Press, New York,
2005) 34.
9 Mehdi Shafaeddin, ‘Does Trade Openness Favour or Hinder Industrialization and Development?’
Third World Network Trade & Development Series No. 31 (TWN, Malaysia, 2006) 16–17.
¹0 World Bank, Economic Growth in the 1990s: Learning from a Decade of Reform (World Bank,
Washington DC, 2005) <http://www1.worldbank.org/prem/lessons1990s/> accessed 19 September
2010; see also Dani Rodrik, ‘How to Save Globalisation from its Cheerleaders’ (2007) 1 The Journal
of International Trade and Diplomacy 1 <http://dev.wcfia.harvard.edu/sites/default/fi les/Rodrick_
HowToSave.pdf> accessed 20 September 2010.
¹¹ Shafaeddin, above n 9, 17, quoting World Bank, above n 10, at 11–12.
¹² Shafaeddin, above n 9, 17, quoting World Bank, above n 10, at 137 and 18, respectively.
¹³ Armin Paasch, ‘World Agricultural Trade and Human Rights: Case Studies on Violations of
the Right to Food of Small Farmers’ in FIAN and others (eds), The Global Food Challenge: Towards a
Human Rights Approach to Trade and Investment Policies (FIAN, Germany, 2009) 41.
¹4 Ibid, 41.

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A. Free Trade Fundamentalism

289

the North is desirable but must be undertaken with care to avoid consequences
for the right to food: further liberalization by much of the South is likely to
harm smallholders, who make up about half of the global population of hungry
people, and thus exacerbate problems regarding the right to food. The conclusion of the Doha round cannot be treated as an end in itself which will magically improve enjoyment of the right to food. While States within the Human
Rights Council have acknowledged that trade agreements must be scrutinized
and their implementation monitored to ensure that they do not jeopardize the
right to food,¹5 those same States seem blind to the potential failings of free
trade agreements with regard to the right to food when acting in other forums, such as other UN organizations, the WTO, and international fi nancial
institutions.¹6
Professor Robert Driskill has also commented on the overwhelming tendency of
economists to support free trade as a policy:
Unfortunately, most economic writing on the welfare implications of trade are not a balanced weighing of the evidence or a critical evaluation of the pros and cons of arguments,
but rather are more akin to a zealous prosecutor’s advocacy of a point of view.¹7

The economist Ha Joon Chang, a strident critic of WTO rules and current global
free trade rules, argues that the institution is essentially supported by an ‘army of
ideologues’.¹8 However, in his view, free trade advocates are not consciously promoting policies which harm developing States. The problem is more entrenched
than that: they truly believe what they are saying. As Chang states:
But what is more worrying is that many of today’s Bad Samaritans [promoters of global
free trade] do not even realize that they are hurting the development countries with their
policies.¹9
Unfortunately, self-righteous zeal is more stubborn, and harder to budge, than self
interest.²0

Of course, the above arguments are not meant to deny the need for rules for the
global governance of trade. Otherwise ‘the law of the jungle’ and ‘the survival of
the fittest’ would prevail. As noted in Chapter 3, the WTO serves the important
purpose of putting some constraints on the economically powerful States which
would otherwise not exist.²¹ The ‘peace dividend’ from globally accepted trade
rules enforced by peaceful means is also important. Explicit published rules of
course are more transparent and predictable than ‘no rules’. However, we should
not accept rules that are not good, or which could be much better.

¹5 Ibid, citing UN Human Rights Council, ‘The right to food (revised draft resolution)’, UN
doc. A/HR C/7/L.6/Rev.1 (26 March 2008) para 17.
¹6 Ibid, 42.
¹7 Robert Driskill, ‘Deconstructing the Argument for Free Trade’ (First draft, February 2007) 2, available at <http://www.vanderbilt.edu/econ/faculty/Driskill/Deconstructing2008Feb09.pdf> accessed
20 September 2010.
¹8 Chang, above n 7, 13.
¹9 Ibid, 16.
²0 Ibid, 17.
²¹ See Chapter 3, Part E.

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290

Conclusion

B. The Purported ‘Neatness’ of Free Trade Rules
The WTO has a reputation for being an efficient international organization which
‘works’. Unlike many other international organizations, its enforcement procedures have real teeth. The human rights system is, in contrast, quite cumbersome
and messy.²² Trade practitioners are keen to shield their ‘comparatively functional
legal system’ from ‘what seems to be a far more politicized and legally uncertain
system’.²³ However, while the politicization within the human rights regime is
undeniable,²4 it is a fallacy to suggest that free trade is not itself an equally politicized issue. The stalemate within the Doha round, largely on North/South lines,
bears witness to that fact.
From a legal point of view, it is true that human rights are vague at their margins, where judgements must be made as to whether a particular interference with
a right is proportionate or reasonable, or whether a State is fulfilling its progressive obligations under ICESCR. However, the vagueness of human rights can be
overstated. Often it is quite clear that a human rights abuse has taken place: not all
human rights cases concern issues at the margins of rights. Furthermore, a wealth
of domestic and international case law, as well as other instruments such as General
Comments, aids in clarifying the meaning of rights.
Trade law is itself beset with uncertainties. The boundaries of ‘discrimination’ for
the purposes of the chapeaus in Article XX GATT or Article XIV GATS, the scope
of GATS and the TBT, the legal ramifications of the removal of the peace clause in
the AoA, and the boundaries of the compulsory licensing exception in TRIPS are
just a few examples of important unresolved issues of WTO law. Furthermore, it is
likely that the uncertainties in WTO law have a more debilitating impact on government capacities than uncertainties in human rights law. While governments
commonly test the boundaries of human rights law, governments are probably less
willing to test the boundaries of WTO law and risk economic repercussions.
To reiterate an apt quote from Frank Garcia, ‘there is no such thing as a pure
trade issue’.²5 Given that trade law spills over into other areas of law, a desire for
certainty per se cannot legitimately quarantine trade rules from supposed nontrade considerations such as human rights. Certainty in the law does not justify
injustice or unfairness in the law. Certainty in the law is a virtue, but it does not
justify bad rules.
²² See, eg, Carlos Manuel Vázquez, ‘Trade sanctions and human rights—past, present, and
future’ (2003) 6 Journal of International Economic Law 797, 803–7.
²³ James Harrison, The Human Rights Impact of the World Trade Organisation (Hart, Oxford,
2007) 35; see also Joseph Weiler, ‘The Role of Lawyers and the Ethos of Diplomats: Reflections on
the Internal and External Legitimacy of Dispute Settlement’ in R Porter and others (eds), Efficiency,
Equity and Legitimacy: The Multilateral Trade System for the Millennium (Brookings Institute Press,
Washington DC, 2001) 337.
²4 See, eg, Yvonne Terlingen, ‘The Human Rights Council: A New Era in UN Human Rights
Work?’ (2007) 21 Ethics and International Aff airs 167.
²5 Frank Garcia, ‘The Global Market and Human Rights: Trading away the Human Rights
Principle’ (1999) 7 Brooklyn Journal of International Law 51, 65.

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C. Global Free Trade: Efficiency and Distribution

291

C. Global Free Trade: Efficiency and Distribution
WTO rules compel States to liberalize their trade regimes. Trade liberalization
undoubtedly creates winners and losers. WTO rules do not demand that States
take measures to compensate the losers, nor do they require States to ensure that
the gains from free trade are equitably distributed. Those matters are left to the
discretion of Member States. Therefore, the WTO is mandating that States adopt
policies that harm certain people, and does nothing to ensure recompense for those
who are harmed. Yet the treatment of losers from trade liberalization is crucial
from a human rights point of view. This does not mean that there can be no losers.
Rather, it means that appropriate measures must be taken to alleviate the detrimental human impact of free trade reforms.²6
Why are obligations regarding the dismantling of free trade obstacles felt to be
worthy of explicit internationalization within the free trade agenda, while measures
regarding redistribution and other social welfare issues associated with trade, such as
labour protections and fair distribution of the gains of trade, are omitted? As noted by
Andrew Lang, ‘what we currently think of as “trade issues” and “trade values” are not
predetermined but are in part a matter of choice’.²7 The very meaning of ‘free trade’,
and therefore what ‘should be’ within and what ‘should be’ outside the mandate of
a global trade organization, has changed over time.²8 James Gathii has stated that
‘social issues are congealed into the very essence of the trade regime’s history as well
as its rules and praxises’.²9 The exclusion of the ‘welfare’ side of the ‘embedded liberal’
bargain from the WTO³0 is a political choice, rather than an incontestable given.
Margot Salomon explains that ‘the dominant view remains that economics
should focus on efficiency and growth alone and that distribution should be left to
actors within the political domain’.³¹ While confidently proclaiming the utilitarian benefits of free trade, which are challenged in Chapter 5, economists generally
fail to ‘stress the income distribution effects of trade’.³² The absence of the latter
within the WTO reflects a tendency in the economic realm to ‘overstate the benefits of the rules [of the international trading framework] for economic progress’
and to ‘understate the distributional outcomes of the rules’.³³ Indeed, Driskill has
²6 See Chapter 2, text at notes 49–56.
²7 Andrew TF Lang, ‘Reflecting on ‘Linkage’: Cognitive and Institutional Change in the
International Trading System’ (2007) Modern Law Review 523, 545.
²8 Ibid, 525–30. See also Robert Howse, ‘From Politics to Technocracy-and back again: the Fate
of the Multilateral Trading Regime’ (2002) 96 American Journal of International Law 94, 104–6,
and 112.
²9 James Thuo Gathii, ‘Re- Characterizing the Social in the Constitutionalization of the WTO: A
Preliminary Analysis’ (2001) 7 Widener Law Symposium Journal 137, 173.
³0 See Chapter 2, text at notes 60–1.
³¹ Margot Salomon, ‘Global Economic Policy and Human Rights: Three Sites of Disconnection’
(25 March 2010) Carnegie Ethics Online <http://www.cceia.org/resources/ethics_online/0043
.html> accessed 20 September 2010.
³² P Krugman and M Obstfeld, International Economics, 7th edn (Addison-Wesley, Boston,
2006) 70, quoted by Driskill, above n 17, at 20.
³³ Gathii, above n 29, 142.

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292

Conclusion

criticized the economics profession for failing to identify the ‘implicit criterion’
that is being applied in concluding that free trade is good for a nation if it is known
that it is not good for some people within the nation.³4 After all, people can reasonably disagree on whether a GDP figure, which lacks any information on the economic situation of actual human beings within a State, is the appropriate measure
of the welfare of the nation.³5
The inevitable consequence of the current structure of WTO rules is that the
losers from free trade will often, if not always, be left behind. As explained by
Gathii:
[W]hen a rule of international trade operates to liberalize trade, it operates simultaneously
to create advantages and vulnerabilities not only in the states involved, but to companies,
labour, consumers and individuals as well. In essence, the pursuit of freer trade has a corresponding distributional impact on stakeholders in international society, which the rules
of the international trading regime do not capture.³6

WTO rules are thus imbalanced because the ‘costs of shifting production are
assumed away rather than conceptualized as intrinsic to the working of the trading
regime’.³7 As noted in Chapter 2, the WTO Director-General Pascal Lamy has
conceded that many States currently lack the capacity to respond to these adjustment costs.³8
The problem is exacerbated by the adoption of prevailing WTO rules in an era
where neo-liberal economic theories predominated.³9 Neo-liberalism has also
influenced the contemporaneous policies of other key economic bodies such as the
IMF and World Bank.40 Neoliberalism upholds the invisible hand of the market
as the appropriate guiding force for economies with minimal State intervention.
Given that redistribution and compensation for ‘the losers from trade’ normally
requires State intervention, neoliberalism does not ideologically support the capacities of States to unilaterally assist those losers. Indeed, some relevant measures may
well breach WTO rules, such as certain measures which would facilitate access by
the poor to water.4¹ Neoliberalism, whilst perhaps adorned with the recognition of
some need for government regulation in discrete areas, may continue to dominate
economic thinking, though, at the time of writing, the world is still working out its
response to the Great Financial Crisis of 2008–2009.4²
Neoliberal thinking dictates that the market should be cordoned off from politics and be left to its own devices. ‘[D]emocracy is acceptable to neo-liberals only in
so far as it does not contradict the free market.’4³ However, such a demarcation of
³4 Driskill, above n 17, 6.
³5 Ibid, 15.
³6 Gathii, above n 29, 147.
³7 Ibid, 148.
³8 See Chapter 2, text at note 57.
³9 See Chapter 2, text at notes 62–4.
40 See, eg, Gathii, above n 29, 152–3; Joseph Stiglitz, Freefall: Free Markets and the Sinking of the
Global Economy (Allen Lane, London, 2010) 220.
4¹ See Chapter 5, text at notes 52–7.
4² The death of the neoliberal ‘Washington consensus’ has been proclaimed by many since the
advent of the Global Financial Crisis in late 2008. Eg, the (then) UK Prime Minister Gordon Brown
declared the ‘old Washington consensus over’ on 2 April 2009 at the conclusion of the G20 summit:
see <http://www.number10.gov.uk/Page18934> accessed 22 April 2009. Of course, it remains to be
seen whether such proclamations are premature.
4³ Chang, above n 7, 176; Gathii, above n 29, 169.

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D. Equalizing the Regimes

293

economics and politics is a political position: state abstention has consequences just
like state intervention.44 There is no natural division between politics and economics, just as there is no natural pre-ordained division between ‘trade’ and so-called
‘non-trade’ issues. As colourfully stated by Garcia, the ‘efficiency model’ promoted
by the WTO and most economists needs to be ‘flushed . . . out of its assumed neutrality and into the mud pit of normative brawling, where it belongs’.45 If the market
is left unregulated by public power, market forces may be distorted by imbalances
of private power.46 The ‘market’ does not form a neutral baseline. Rather, nonintervention ‘assumes that the existing distribution of wealth and entitlements is
legitimate’.47 Furthermore, intervention can be necessary to generate greater market efficiency. For example, as noted in Chapter 6, global agricultural markets
are plagued by cartelization, which is anathema to a competitive market: further
deregulation will only add to the power of monopolistic agribusinesses if it is not
accompanied by measures to combat their concentrated power.
Furthermore, the inclusion of TRIPS within the WTO exposes neoliberals to
charges of hypocrisy. TRIPS of course mandates considerable State intervention
in the economy in one particular area. It seems to be no coincidence that this area
happens to be one which generates huge benefits for corporate interests.
A final argument may be put against the current separation of efficiency and
distribution within the global trading regime. The global trading system is not
distributing gains equally or fairly between States, let alone between people. While
free trade has probably been good for the aggregate welfare of richer States, it does
not seem that it is presently serving the interests of poorer States. Distributional
fairness between States, which is instrumentally related to distributional fairness
between individuals within States, and is directly related to extraterritorial obligations regarding human rights, cannot be generated unilaterally at the national
level.48

D. Equalizing the Regimes
A key problem with current international governance is its imbalance. Economic
governance via institutions such as the WTO, the IMF, and the World Bank, is
strong. Social justice governance, via bodies such as the international human rights
institutions and the ILO, is weak. Furthermore, there is little coordination between
the two sets of institutions.49 The inevitable consequence is that States tend to
take their global economic responsibilities more seriously than those concerning
44 Gathii, above n 29, 168–9.
45 Frank Garcia, Trade, Inequality, and Justice: Toward a Liberal Theory of Just Trade (Transnational
Publishers, New York, 2003) 17.
46 As Gathii, above n 29, notes at 168, enormous power is de facto delegated to multinational
corporations in the absence of State intervention.
47 Ibid, 168.
48 See also Garcia, above n 45, 212.
49 See also World Commission on the Social Dimension of Globalisation, A Fair Globalization:
Promoting Opportunities for all (ILO, Geneva, 2004) para 607.

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294

Conclusion

social justice. Indeed, this ‘consequence’ may in part be the ‘cause’ rather than the
‘effect’ of the lopsidedness in international governance. Governments perceive less
self interest in fulfilling their human rights obligations compared to their trade
obligations.50 Similarly, they perceive less self interest in demanding compliance
by other States with their human rights obligations compared to their reciprocal
trade obligations.
In contrast, at the regional level, significant progress has been made in moving forward on both human rights and free trade. The most outstanding example
of this phenomenon is in Europe, where the ECHR exerts significant influence
alongside the most advanced free trade regime, the EU. Of course, the EU has now
evolved far beyond its free trade origins into other areas of integration, including
foreign policy and immigration. The organs of the EU have also begun to develop
their own human rights competencies.5¹ Indeed, at the time of writing, the EU was
on the cusp of becoming a party to the ECHR in its own right.5² In the Americas,
the human rights regime actually predates significant regional trade liberalization
in the form of MERCOSUR, NAFTA, and CAFTA. Similarly, regional courts
in Africa, which began as trade courts, have begun to exercise human rights jurisdiction.5³ Furthermore, some new regional and bilateral trade treaties are paying
more attention to human rights issues, such as labour rights and corporate social
responsibility, unlike the WTO treaties.54
It is not proposed that the WTO play a major role in enforcing human rights,
as has occurred with trade courts at the regional level.55 Rather, the WTO should
ensure that its rules and initiatives are compatible with the need for significant
progress on and the strengthening of global governance regarding social justice concerns. To that end, it would be highly desirable for it to work with other
organizations, such as the ILO, the World Health Organisation (WHO), the
UN Development Program, the UN Conference on Trade and Development and
human rights bodies to ensure coordination of policies, and to avoid incompatibility of rules and goals. Such cooperation should be substantive rather than token.56
Given that trade affects on so many other areas of international concern, and on
the work of so many other international organizations, the WTO must be open to
cooperation and collaboration with such bodies.
50 Vázquez, above n 22, 807–8.
5¹ See, eg, Chapter 2, text at notes 20 and 96.
5² Such accession is a requirement under Article 6(2) of the Treaty of Lisbon.
5³ See, eg, Solomon T Ebobrah, A Critical Analysis of the Human Rights Mandate of the ECOWAS
Community Court of Justice, Research Partnership 1/2008: Danish Institute for Human Rights
(Danish Institute for Human Rights, Copenhagen, 2009).
54 See, eg, Michael Kerr, Richard Janda, and Chip Pitts in Chip Pitts (ed), Corporate Social
Responsibility: A Legal Analysis (Lexis-Nexis, Markham, Ontario, 2009) at, eg, 317–18.
55 See Chapter 1, text at notes 44–45.
56 See also Robert O Keohane and Joseph S Nye, Jr, ‘The Club Model of Multilateral Cooperation
and Problems of Democratic Legitimacy: Problems of Democratic Legitimacy’ (Working Paper No 4,
John F. Kennedy School of Government, undated) 25–8 <http://www.ksg.harvard.edu/visions/publication/keohane_nye.pdf> accessed 19 September 2010. While a report by the Consultative Board to the
Director General, The Future of the WTO (WTO, 2005), endorsed in Chapter IV ‘coherence and coordination with intergovernmental organizations’, it makes no mention of how cooperation with intergovernmental social institutions might influence WTO policies. At para 168, the report states bluntly that ‘the
WTO legal system . . . cannot be changed from the outside by other international organizations’.

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D. Equalizing the Regimes

295

An example of this approach not being advocated arose in discussions within
the WHO concerning the facilitation of global access to drugs. The US and the
European Commission argued (unsuccessfully) that it was inappropriate for the
WHO to consider matters related to intellectual property as they claimed that
the proper forums for such debate were the WTO and the World Intellectual
Property Organization (WIPO).57 Yet it is absurd to argue that such matters
should be excluded from WHO discussions, given the impact of intellectual property rights on the abilities of States to maintain adequate supplies of necessary
medicines.58 It is difficult to avoid the conclusion that the US and the EC were
‘trying to prevent discussion [of such matters] in a forum that might actually give
some weight to global health’ over the countervailing interests of intellectual property rights holders.59 The WHO carried on with its work in that area, concluding
with the adoption by the World Health Assembly of a Global Strategy and Plan of
Action on Public Health, Innovation and Intellectual Property in May 2008.60 A
promising sign for this author, in light of the recommendation for greater cooperation between the WTO and relevant ‘non-trade’ bodies above, was the convening
of a technical symposium on pricing and procurement practices regarding access
to medicines in July 2010 under the joint auspices of the WHO, the WTO, and
WIPO.6¹
The relative strengths of the respective global trade and social justice systems
should be evened out. The diversity of the economic needs and capacities of States
indicates that the ‘one size fits all’ ethos of the WTO should be abandoned, and
more flexibility built into the system. For example, as argued in previous chapters,
certain policy space should be restored to developing States. New flexibilities should
clearly account for human rights obligations, including labour rights, though it is
not proposed that the WTO become a human rights body. In regard to the actual
enforcement of human rights, the ideal reform is for the international human rights
regime to be strengthened.6² It is beyond the scope of this book to discuss proposals
for the strengthening of the human rights regime. Suffice to reiterate that the international legal order should be reformed so as to reflect at least an equal commitment
to human rights as to economic matters. Such a change would require States to take
their own human rights obligations, as well as the enforcement of the obligations of
other States, far more seriously than they currently do. Unfortunately, political will
57 See Frederick M Abbott and Jerome H Reichmann, ‘The Doha Round’s Public Health Legacy:
Strategies for the Production and Diff usion of Patented Medicines under the Amended TRIPS
Provisions’ (2007) 10 Journal of International Economic Law 921, 968, and Kevin Outterson, ‘Should
access to medicines and TRIPS flexibilities be limited to specific diseases?’ (2008) 34 American
Journal of Law and Medicine 279, 297–9.
58 Abbott and Reichmann, above n 57, 968.
59 Outterson, above n 57, 298.
60 WHO doc. WHA 61.21, 24 May 2008.
6¹ See ‘Joint WHO, WIPO, WTO Technical Symposium on Access to Medicines: Pricing and
Procurement Practices’, Geneva, 16 July 2010, at <http://www.who.int/phi/phi_symposium/en/
index.html>, accessed 27 October 2010. As another example of collaboration between the WTO
and a relevant ‘non-trade’ body, see WTO and ILO, Trade and Employment: Challenges for Policy
Research (WTO secretariat, Geneva, 2007), a collaboration between the WTO and the ILO on the
trade/labour relationship.
6² See also Harrison, above n 23, 250.

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296

Conclusion

in that regard is currently missing. Equalization between regimes is therefore more
likely in the short term to entail weakening of the WTO rather than significant
strengthening of the human rights system.6³

E. Final Thoughts
From a human rights point of view, there are problems with both the WTO’s processes and some of its substantive rules. Regarding the latter, problems arise with
regard to their interpretation and their chilling effect in the absence of authoritative interpretation. The WTO’s mission of promoting free trade and intellectual
property rights should take more account of countervailing rights beyond those
of foreign traders and intellectual property rights holders, the marked differences
between States, and problems within the agricultural arena. Clearly, this book
ultimately calls for major changes to the thinking which currently dominates the
WTO. It is recognized that such changes are unlikely to occur in the short term, not
least because the promotion of free trade (at least in certain areas) is being driven by
more powerful actors than those promoting human rights.64 However, the ‘contemporary ascendancy of the pro-trade position’ is not inevitable or unassailable.65
It is hoped that this book achieves its purpose of explaining why there are criticisms of the WTO from a human rights point of view, and that many if not all of
those complaints are in fact valid. The WTO is not the demon organization it is
portrayed to be by some of its most vociferous critics.66 In some areas, such as agricultural protection in the North, the WTO is perhaps less culpable than the international financial institutions in promoting unfair rules,67 though it may be fairly
criticized for doing little to redress that unfairness. Some of its rules may on occasion assist in the enjoyment of human rights.68 Finally, some trade issues give rise
to complex human rights issues which, it must be conceded, are not easily resolved.
For example, strict interpretation of the SPS agreement has been criticized for hindering the ability of States to protect the health of their populations, as evidenced
in the Beef Hormone dispute. However, overly strict SPS standards, epitomized
perhaps by the EU standard on aflatoxins in nuts and grains, can have devastating
impacts on the livelihoods of some of the world’s poorest people.69
For too long it has been assumed by dominant global policy-makers that progress on free trade per se will inevitably result in progress in other areas such as
poverty alleviation and development. There has been a tendency to treat free trade
as inherently beneficial or as a hermetically-sealed issue that has only benign or
neutral effects. There is insufficient acknowledgment of the bad consequences of
6³ See also Sarah Joseph, ‘Democratic Deficit, Participation and the WTO’ in S Joseph, D Kinley,
and J Waincymer (eds), The World Trade Organization and Human Rights: Interdisciplinary Perspectives
(Edward Elgar, Cheltenham, 2009) 342–3.
64 See also Ha-Joon Chang, Kicking Away the Ladder: Development Strategy in Historical
Perspective (Anthem Press, London, 2003) 136.
65 Gathii, above n 29, 152.
66 See eg, Introduction, text at notes 5–6.
67 See, eg, Chapter 6, text at notes 44–7 and 77.
68 See, eg, Chapter 4, Part G. See also Chapter 4, text between notes 153–5.
69 See Chapter 4, text at notes 192–3.
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E. Final Thoughts

297

WTO rules, such as unwarranted constraints on the development policies of developing States; the chilling impact of WTO rules on the adoption of trade measures
designed to enhance human rights; rising pharmaceutical and educational costs
for poor people; social dislocation caused by jobs wiped out in ‘inefficient’ industries and the consequent generation of social inequality, exclusion, and resentment;
and an increased if misguided desire amongst governments to ratchet down labour
standards.70 The WTO has a way to go before it can be deemed to be a true ‘friend’
of human rights.

70 See also Joost Pauwelyn, ‘The Sutherland Report: A Missed Opportunity for Genuine Debate
on Trade, Globalization and Reforming the WTO’ (2005) 8 Journal of International Economic Law
329, 335.
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Index
Accession to World Trade Organization
(WTO) 64‒5, 156–8
Africa
agricultural subsidies 159–60
democratic deficit in dispute settlement 67
effect of free trade on poverty 166
empowerment of smallholder farmers 205
regional system of human rights 16–7
significant human rights progress 294
African, Caribbean and Pacific countries
(ACP)
negotiations on FTAs 281‒3
Aggregate Measures of Support (AMS) 186
Agreement on Textiles and Clothing (ATC)
overview 158–9
origins and development of international
framework 9
Agreement on Trade Related Aspects of
Intellectual Property (TRIPS)
democratic deficit of developing states 88
discouragement of agrobiodiversity 209
Doha Round 280
impact on developing countries 152–4
inherent bias towards Northern States 208–9
need to find balance between North and
South 267
normative relationship between WTO and
IHR law
human rights bodies 55
WTO dispute settlement bodies 49
origins and development of international
framework 10
right to food
adoption of sui generis regime 209–10
‘plant varieties’ 207–8
right to health
access to drugs 226–30
arguments in favour of patents 220–1
maximalist approach to global
negotiations 241–3
recognition by ICESR 217–20
requirements for pharmaceutical
patents 221–6
significant human rights criticism 244
threat to human rights 214–17
waivers 129
Agriculture and farming
balancing human rights between North and
South 261–2
comparisons of democratic deficit 82–3
Doha Round 277–8
effects of liberalization
cartelization 197–200

Doha Round 192–3
effects of export orientation 200–2
emphasis on specialization 202–3
environmental damage 203
need for sustainable focus 204
subsidized imports and food aid 193–4
trade efficiency 194–6
volatile markets 196–7
empowerment of smallholder farmers 204–7
restricting effect of SPS standards 120–6
WTO rules
AoA 186–8
exclusion from GATT 185
non-tariff barriers 191–2
SCM 188–90
SSM 190–1
Aid
effects of agricultural liberalization for
developing countries 193–4
‘trade aid’ 280
Bilateral investment treaties (BITs)
and democratic deficit 87–8
explosion of free trade agreements 281–2
intellectual property 241–3
labour rights 135
Cartelization 197–200, 293
Central product classification (CPC) 100
China
absence of human rights reform 85
democratic deficit 69
effect of free trade on poverty 167
emancipatory effect of ‘good’ trade 138–40
failure to ratify ICCPR 30
general exceptions under GATT/GATS 105
internet restrictions 138–140
labour rights 132, 134
‘necessity’ test 109–10, 117
need for reform of democratic deficit 265
negotiating powers 64
opposition to NGO involvement 69
public morals and public order 109–10
raison d’ être of WTO 11
trade sanctions 94
underlying values 45
Civil and political rights
see also International Covenant on Civil and
Political Rights 1966 (ICCPR)
cultural and economic relativism 44–5
origins and development of standards 14
regional systems 16
theoretical background 32–3

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320

Index

Comparative advantage
efficiency and welfare 40–1
explanation of 161‒2
raison d’ être of WTO 12
static and dynamic 171‒2
theory and practice 161–4
Compulsory licences
human rights obligations 228
requirements for pharmaceutical
patents 222–6
Consumer choice 269–70
Corruption 44‒5, 258–9
Cultural rights
permitted restrictions under
GATT/GATS 105
Customary international law 29–31
De-industrialization 85
Deferential doctrines 268
Democracy
promotion by the WTO 84–7
Democratic deficit
bases of arguments
substance of WTO rules 56–7
WTO internal processes 57
characterization of most international
organizations 88–90
comparisons between WTO and IHLR
regimes 81–4
developing states 62–5, 87–8
dispute settlement 65–7
IHR regimes 78–81
‘non-trade’ interests 58–62
reform proposals 265–6
relevance of IHR law
participation rights 72–6
threats to self-determination 71–2
State decisions to join WTO 57–8
WTO processes 68–71
WTO secretariat 67–8
Developed States
balancing human rights with the
South 261–3
bias in WTO processes 62
biopiracy 208–9
human rights effect of WTO rules 178–9
power to impose constraints 87, 92–4, 96
social justice interests 70–1
Uruguay Round commitments 158–60
Developing States
balancing human rights between North and
South 261–3
concerns over premature liberalization
comparative advantage 171–2
infant industry protection 173–5
loss of tariff revenue 170
need for institutional reform 170–1
need for sequenced approach 175–8
UNDP 169
concessions regarding GATS 279

conflicts with social justice
constituencies 68‒71
cost of non-tariff barriers 155–6
dangers from weakening WTO
rules 270–1
democratic deficit 62‒5, 87‒8
differentiation within WTO 145
disadvantage of changing IPR regime 230–5
Doha Development Round 276–7
effect of trade restrictions 91
effects of agricultural liberalization
cartelization 197–200
Doha Round 192–3
effects of export orientation 200–2
emphasis on specialization 202–3
environmental damage 203
need for sustainable focus 204
subsidized imports and food aid 193–4
trade efficiency 194–6
volatile markets 196–7
empowerment of smallholder
farmers 204–7
extension of GATT regime 149
GATS 150–1
human rights arguments raised against
WTO 5
impact of TRIPS 152–4
justiciability of ICCPR rights 28–9
‘labour rights’ clauses 133–4
need for reform of democratic deficit 265–6
restricting effect of SPS standards 124–6
right to development
current WTO rules 144–5
enshrined in DRD 143
special and differential treatment 146–9
TRIMS 154
unfairness of accession rules 156–8
WTO bias against 145–6
Dispute settlement
democratic deficit 65–7
independent implementation of
reforms 275–6
normative relationship between WTO and
IHR law 50–3
origins and development of international
framework 10
permitted restrictions under GATT/
GATS 118
SPS standards 123
Doha Round
absence of reform proposals 283–4
agricultural liberalization 192–3
agricultural negotiations 277–8
attempts to conclude 11
benefits of balance between North and
South 263
breakdown over farmers 207
compulsory drug licences 228
current mix of policies 280
democratic deficit of developing states 64

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Index
Development Round 276–7
investment and competition 280
minority rights 76–7
NAMA 278–9
need for reform of democratic deficit 265–6
need to find balance between North and
South 267
southern concessions regarding GATS 279
‘trade aid’280
TRIPS 280
Drug patents
alternative approaches 235–7
arguments in favour of patents 220–1
incentivization of research 239–41
need for openness and collaboration 295
requirements for pharmaceutical
patents 221–6
State control of health budgets 237–9
State duties regarding access to
drugs 226–30
WHO definition of essential drugs 218
Duty-free and quota free (DFQF) 279
Economic growth
comparative advantage 161–4
effect of liberalization 160–1
unequal distribution of wealth 165
Economic, social and cultural rights
see also International Covenant on
Economic, Social and Cultural Rights
(ICESCR)
disadvantages compared to civil and political
rights 19‒21
importance of extraterritorial obligations 255
progressive obligations 23–5
Efficiency
comparative advantage 163
effects of agricultural liberalization 194–6
relationship with distribution 291–3
WTO rules 40–3
Enforcement
comparisons of democratic deficit 83–4
labour standards 135–6
regional human rights 294
UN human rights machinery 14–16
WTO dispute settlement 10, 65
Environmental protection
effects of agricultural liberalization 203
permitted restrictions under GATT/
GATS 114–15
European Union
agricultural subsidies 158–9
biofuels policy 202
freedom of contract 35–6
hormone ban 122‒3, 125‒6
human rights impact assessments 273
negotiations with African, Caribbean and
Pacific countries (ACP) 281–3
‘non-trade’ interests 59
normative relationship with WTO 54‒5

321

regional system of human rights 16–17
restricting effect of SPS standards 124–5
significant human rights progress 294
unilateral sanctions 94
Exhaustion of IP rights 222, 242
Extraterritoriality
balancing human rights between North and
South 261–3
DRD 247
ICCPR 248–9
ICESCR 249–55
importance for fulfi lment of rights
corruption 258–9
ICESR recognition 255
liberalization 258–9
non-discrimination 255–6
poverty 256–8
Millennium Development Goals 247
moral arguments in favour 256‒7
permitted restrictions under
GATT/GATS 106–7
practical operation of duties 259–61
product-based trade measures 96–7
State obligations 245–6
Farming see Agriculture and farming
Food see Right to food
Free trade
comparative advantage 161–4
concerns over premature liberalization
comparative advantage 171–2
infant industry protection 173–5
loss of tariff revenue 170
need for institutional reform 170–1
need for sequenced approach 175–8
current ascendancy of pro-trade
position 296–7
divergence between WTO goals and human
rights 285
effect of liberalization 160–1
effect on poverty 165–9
effects of agricultural liberalization
cartelization 197–200
Doha Round 192–3
effects of export orientation 200–2
emphasis on specialization 202–3
environmental damage 203
need for sustainable focus 204
subsidized imports and food aid 193–4
trade efficiency 194–6
volatile markets 196–7
efficiency and distribution 291–3
efficiency and welfare 40–1, 42
FTAs 281–3
explosion of agreements 281
fundamentalist approach 288–9
human rights arguments raised against
WTO 4‒5
impact of GATT and WTO 164–5
importance of extraterritoriality 258–9

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322

Index

Free trade (cont.)
need to find balance between North and
South 267
raison d’ être of WTO 11–12
reform proposals
deference 268
non-discrimination rather than minimum
standards 268–9
respect for consumer choice 269–70
uncertainty and politicization of rules 290
WTO emphasis on freedom 37–8
‘Freedoms’
of contract 35–6
divergence of WTO and IHR values 36–7
exclusively economic sphere 34
intellectual property 37
movement of goods and services 36
promotion by WTO at national level 85
right to property 34–5
unbalanced in WTO context 38
General Agreement on Tariffs and Trade 1947
(GATT)
anti-dumping measures 156
embedded liberalism 42
exceptions
chapeau elements 115–17
environmental protection 114–15
extraterritoriality 106–7
health protection 110–11
impact generally 140–1
jurisprudence 117–20
meaning and scope 104–6
‘necessity’ test 111–14
process of interpretation 107
public morals and public order 108–10
exclusion of agriculture 185
need for reform 266–7
origins and development of international
framework 8–11
prima facie breaches
discrimination against ‘like’ goods 101–2
‘like’ goods and services 98–100
quantitive restrictions 102–4
threshold question 97–8
General Agreement on Trade in Services (GATS)
exceptions
chapeau elements 115–17
environmental protection 114–15
extraterritoriality 106–7
health protection 110–11
impact generally 140–1
jurisprudence 117–20
meaning and scope 104–6
‘necessity’ test 111–14
process of interpretation 107
public morals and public order 108–10
general economic sanctions for human rights
reasons 92–3
need for reform 266–7
overview 150–2

prima facie breaches
discrimination against ‘like’ goods 101–2
‘like’ goods and services 98–100
quantitive restrictions 102–4
threshold question 97–8
southern concessions 279
water 151‒2
General system of preferences (GSP) 135, 147–8
Genetically modified organisms (GMOs)
deferential doctrines 268
EU restrictions 122
labelling 128
participation rights 75
respect for consumer choice 270
restricting effect of SPS standards 122
Global Exchange 1–2
‘Good’ trade 137–40
Health see Right to health
Human rights
see also International human rights regime
freedom from want 143
normative relationship between WTO and
IHR law 53
poverty as human rights abuse 143
relationship with customary international
law 30
right to property 34
underlying values 33
Human rights impact assessments 272–4
India
negotiating powers 64
pharmaceutical patents 226, 227, 230,
233, 234
poverty 167
Indigenous peoples 14
intellectual property 208‒9, 210
participation 72, 74, 76‒7
Infant industry protection 173–5, 177
Intellectual property rights
see also Agreement on Trade Related Aspects
of Intellectual Property (TRIPS);
TRIPS
alternative approaches 237–41
biopiracy 208–9
copyright 234
food 207‒9
as a human right 37, 153, 214‒17
human rights arguments raised against
WTO 4
maximalist trend 241‒3
rationale 152‒3, 220‒1
International Bank for Reconstruction and
Development (IBRD) 7–11
International Covenant on Civil and Political
Rights 1996 (ICCPR)
democratic principles 124
establishment 14
extraterritoriality 248–9
HRC 15

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Index
ICESR compared 19–21
indivisibility 27–9
key instrument 17
participation rights 74
positive and negative rights compared 21–2
protection of civil and political rights 18
right to life 220, 221
self-determination 71
tripartite nature of all rights 22
International Covenant on Economic, Social
and Cultural Rights (ICESCR)
disadvantages compared to civil and political
rights
immediate obligations under
ICESR 26–7
justiciability under ICESR 27–9
maximum available resources 25–6
progressive obligations 23–5
efficiency and welfare 40–1
establishment 14
extraterritoriality 249–55, 255
ICCPR compared 19–21
key instruments 17
normative relationship between WTO and
IHR law
human rights bodies 54
WTO dispute settlement bodies 49, 53
participation rights 73–4
positive and negative rights compared 21–2
protection of economic, social and cultural
rights 18–9
recognition of IPR 153
relief of poverty 143
right to food 181–3
right to health 217‒20
self-determination 71
tripartite nature of all rights 22
International human rights regime
balancing rights between North and
South 261–3
comparisons of democratic deficit with
WTO 81–4
current ascendancy of pro-trade
position 296
current imbalance with WTO 293–6
customary international law 29–31
deficiencies in WTO rules 286–7
disadvantages of economic, social and
cultural rights
immediate obligations under
ICESR 26–7
justiciability under ICESR 27–9
maximum available resources 25–6
progressive obligations 23–5
effect of WTO rules favouring developed
States 178–9
extraterritoriality
DRD 247
ICCPR 248–9
ICESCR 249–55
Millennium Development Goals 247

323

practical operation of duties 259–61
State obligations 245–6
general economic sanctions for human rights
reasons 92–6
Human Rights Council 14–5
ICCPR and ICESR compared 19–21
intellectual property rights
access to drugs 226–30
significant criticisms 244
threat to human rights 214–17
key instruments 17–9
need to find balance between North and
South
democratic deficit 265–6
intellectual property rights 267
poverty and food 267
trade measures 266–7
normative relationship with WTO
absence of tools for conflict resolution 49
applicable hierarchy of rights 47
customary international law 46–7
EU law 48
jus cogens 47–8
State declarations of primacy 49–50
treaty provisions 48–9
positive and negative rights compared 21–2
poverty as human rights abuse 143–4
product-based trade measures 96–7
reform proposals
adoption of a Declaration 274
human rights impact assessments 272–4
labour rights 132, 136‒7, 271–2
regional systems 16–17
rejection of relativism 46
relationship with WTO goals 285
relevance to democratic deficit
minority rights 76–7
participation rights 72–6
self determination 71–2
threats to legitimate regulatory power 78–81
tripartite nature of all rights 22–3
underlying values
cultural and economic relativism 44–6
efficiency and welfare 40–3
freedoms and rights 34–8
history and development 32–4
non-discrimination 38–9
rule of law 39–40
United Nations
institutions and enforcement
machinery 14–16
origins and development of
standards 13–14
International Monetary Fund (IMF)
bias against developing States 146
current imbalance with human rights 293
neo-liberal agenda 42–3, 292
onerous loan conditions 2
origins and development of WTO 7
role in WTO dispute settlement 66
Investment measures 87, 154

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324
Jurisprudence
normative relationship between WTO and
IHR law
human rights bodies 54–5
WTO dispute settlement bodies 50–3
permitted restrictions under GATT/
GATS 117–20
Justiciability of rights 27–9
Labelling requirements 128, 270
Labour rights
alternative to sanctions 137
emerging pattern in developing
States 133–4
enforcement 135–6
human rights imperative 134–5
meaning and scope 130–1
origins and development of standards 14
protection in trade agreements 135‒6
‘race to the bottom’ 131–3
reform proposals 271–2
treaty recognition 130
Least developed countries (LDCs)
definition 152
impact of TRIPS 152
NAMA 279
special and differential treatment 148
unfairness of accession rules 158
Liberalization
concerns over premature liberalization
comparative advantage 171–2
infant industry protection 173–5
loss of tariff revenue 170
need for institutional reform 170–1
need for sequenced approach 175–8
UNDP 169
effects 160–1
‘Like’ goods and services
discrimination against 101–2
meaning and scope 98–100
Maximum available resources 25–6
Migrant workers 14
Millennium Development Goals
extraterritoriality 247
protection under customary international
law 31
relief of poverty 142
underambitious 184
world hunger statistics 183
Minority rights 76–7, 86
Most favoured nation (MFN)
FTA negotiations 282–3
‘like’ goods 101–2
non-discrimination 38
obligations under GATS 150
origins and development of international
framework 9
special and differential treatment 147
Multinational corporations 2–3, 252‒3

Index
National security 92–3
‘Necessity’ test
general 117‒18
health 112–13
public morals and public order 111–12
Negative rights
ICCPR and ICESR compared 20–1
tripartite nature of all rights 22–3
Non-agricultural market access
(NAMA) 278–9
Non-discrimination
CEDAW
origins and development of standards 14
participation rights for women 76
CERD
origins and development of standards 14
participation rights 76
chapeau 115‒18
compared to laissez-faire 103, 268‒9
immediate obligations under ICESR 26–7
inequality 165‒9, 255‒9
‘like’ goods and services
meaning and scope 98–100
test of discrimination 98–100
participation rights 76
UN standards 14
WTO and IHR provisions
compared 38–9, 285
Non-governmental organizations (NGOs)
criticisms of WTO 1–2
Doha round involvement 70, 77
human rights impact assessments 272
ICCPR and ICESR compared 19–20
marginalization of interests 60–2
need for reform of democratic deficit 71,
265–6
relationship with developing
States 68‒71
relationship with WTO 60
role in dispute settlement 66
role in human rights processes 79
Non-tariff barriers
Uruguay Round 155–6
WTO agricultural rules 191–2
‘Non-trade’ objectives
democratic deficit 58‒61, 265‒6
general economic sanctions for human rights
reasons 92–6
permitted exceptions under GATT/GATS
environmental protection 114–15
health protection 110–11
jurisprudence 117–20
meaning and scope 104–6
‘necessity’ test 111–14
process of interpretation 107
public morals and public order 108–10
Participation rights
democratic deficit 72–6
SPS 124

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Index
Patents
alternative approaches 235–7
arguments in favour 220–1
incentivization of research 239–41
requirements for pharmaceutical
patents 221–6
simultaneous compliance with human rights
obligations 226–30
State control of health budgets 237–9
Positive rights and obligations
ICCPR and ICESR compared 20–1
tripartite nature of all rights 22–3
Poverty
effect of free trade 165–9
effect of liberalization 160–1
as human rights abuse 143–4
importance of extraterritoriality 256–8
major cause of misery 142
need for reform 267
special and differential treatment 146–9
world hunger statistics 183
Product-based trade measures
inward measures 96, 118, 266, 268
‘like’ goods and services
discrimination against 101–2
meaning and scope 98–100
outward measures 96‒7, 118, 266‒8
Progressive obligations 23–5
Public morals and public order
‘necessity’ test 111–12
permitted restrictions under GATT/
GATS 108–10
Quantitive restrictions 102–4
Racial discrimination
origins and development of standards 14
participation rights 76
Reform proposals
absence in Doha Round 283–4
dangers from weakening WTO rules 270–1
deferential doctrines 268
democratic deficit 265–6
human rights Declaration 274
human rights impact assessments 272‒4
implementation by WTO settlement
bodies 275–6
intellectual property rights
disadvantage to developing States 230–5
incentivization of research 239–41
pharmaceutical patents 235–7
State control of health budgets 237–9
labour rights 130‒7, 271–2
non-discrimination rather than minimum
standards 268–9
‘Regulatory chill’ 4, 152
Relativism 44‒6
Right to development
current WTO rules 144–5
DRD 14, 143

325

effect of liberalization 160–1
extraterritoriality 247
participation 73
Right to food
cash crop markets 212–13
Doha Round 192–3
effects of agricultural liberalization
cartelization 197–200
effects of export orientation 200–2
emphasis on specialization 202–3
environmental damage 203
need for sustainable focus 204
subsidized imports and food aid 193–4
trade efficiency 194–6
volatile markets 196–7
empowerment of smallholder farmers 204–7
human rights arguments raised against
WTO 5
human rights more important than
efficiency 213
intellectual property rights
adoption of sui generis regime 209–10
biopiracy 208–9
discouragement of agrobiodiversity 209
plant varieties 207–8
need for reform 267
need to reduce protectionist barriers 211
recognition in ICESR 181–3
removal of subsidies 212
world hunger statistics 183–5
WTO agricultural rules
AoA 186–8
exclusion from GATT 185
non-tariff barriers 191–2
SCM 188–90
SSM 190–1
Right to health
compatibility with TRIPS 226‒30
recognition by ICESR 217–20
requirements for pharmaceutical
patents 221–6
Right to life
ICCPR 220, 221
permitted restrictions under GATT/
GATS 110
SPS standards 125–6
Right to property 34–5
Rule of law 39–40
Sanitary and phytosanitary measures (SPS)
democratic deficit of developing states 63
interpretation 120–6
origins and development of international
framework 9
Secretariat
democratic deficit 67–8
role 11
Self-determination 71–2
Services see General Agreement on Trade in
Services (GATS)

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326

Index

Sex discrimination
origins and development of standards 14
participation rights for women 76
Social clauses see Labour rights
Social justice interests
bias in favour of commercial interests 68–71
current imbalance within WTO 293–6
democratic deficit 60–2
South America
MERCOSUR 116, 294
regional system of human rights 16–17
significant regional human rights
progress 294
Special and differential treatment 146–9
Special safeguard mechanism (SSM) 190–1,
278
Specialization 202–3
State obligations
access to drugs 226–30
deferential doctrines 268
extraterritoriality 245–6, 259–61
ICCPR and ICESR compared 20–1
immediate obligations under ICESR 26–7
maximum available resources 25–6
progressive obligations 23–4
right to food 181–3
right to health 217–20
waiver under Marrakesh Agreement 129–30
Tariffs see General Agreement on Tariffs and
Trade 1947 (GATT)
Technical barriers to trade (TBT)
democratic deficit of developing states 63
labelling 128
origins and development of international
framework 9
restricting effect on trade 126–8
‘The North’ see Developed States
‘The South’ see Developing States
Trade policy review mechanism (TPRM) 10,
68
Trade restrictions
see also Free trade
divide between Northern and Southern
States 91
effect of SPS measures 120–6
effect of TBT measures 126–8
emancipatory effect of ‘good’ trade 137–40
general economic sanctions for human rights
reasons 92–6
general exceptions under GATT/GATS
chapeau elements 115–17
environmental protection 114–15
extraterritoriality 106–7
health protection 110–11
impact generally 140–1
jurisprudence 117–20
meaning and scope 104–6
‘necessity’ test 111–14

process of interpretation 107
public morals and public order 108–10
human rights arguments against trade
restrictions 119, 141, 270
human rights arguments raised against
WTO 4
‘labour rights’ clauses 130–7
prima facie breaches of GATT/GATS
discrimination against ‘like’
goods 101–2
‘like’ goods and services 98–100
quantitive restrictions 102–4
threshold question 97–8
product-based trade measures 96–7
waiver of obligations under Marrakesh
Agreement 129–30
Treaty negotiation 83
United Nations 92–3
commitment to equality of rights 19
human rights sanctions 92‒3
institutions and enforcement
machinery 14–16
origins and development of standards 13–14
relief of poverty 142
United States
agricultural subsidies 158–60
bilateral negotiations 241‒3, 283
disputes over compulsory drug
licences 223–4
freedom of contract 35–6
unilateral sanctions 94
waivers 129
Universal Declaration of Human Rights
(UDHR)
adoption 13
key instrument 17
normative relationship between WTO and
IHR law 53
relationship with customary international
law 30
right to property 34
underlying values 33
Uruguay Round
accession to WTO 156–8
AoA 185‒8
democratic deficit of developing states 64–5
extension of GATT regime 149
GATS 150–2
need to find balance between North and
South 267
non-tariff barriers 155–6
Northern side of bargain 158–60, 191
origins and development of international
framework 8–11
TRIMS 154
TRIPS 152–4
Volatile markets 196–7

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Index
Waivers 129–30
Welfare
comparative advantage 161–2
WTO rules 40–3
World Bank
bias against developing States 146
current imbalance with human rights 293
ill-conceived projects 2
neoliberal agenda 42‒3, 292
World Trade Organization (WTO)
agricultural rules
AoA 186–8
exclusion from GATT 185
non-tariff barriers 191–2
SCM 188–90
SSM 190–1
criticisms from human rights advocates 1–2
current ascendancy of pro-trade
position 296
current imbalance with human rights 293–6
and democracy 84‒7
democratic deficit
comparisons with IHR regimes 81–4
effects of membership 78
matter for concern 88–90
human rights arguments against 4‒5
human rights deficiencies 286–7
impact on free trade 164–5
need for openness and collaboration 294–5

327
neoliberal agenda 42‒3, 292
normative relationship with international
human rights law
absence of tools for conflict resolution 49
applicable hierarchy of rights 47
customary international law 46–7
EU law 48
jus cogens 47–8
treaty provisions 48–9
origins and development 7–11
raison d’ être 11–2
relationship with human rights 285
relief of poverty
bias against developing States 145–6
current rules 144–5
effect of rules favouring developed
States 178–9
special and differential treatment 146–9
unfairness of accession rules 156–8
role within global economy 2–4
types of human rights arguments raised 4–5
underlying values
cultural and economic relativism 44–6
efficiency and welfare 40–3
‘freedom’ 34–8
history and development 32–4
non-discrimination 38–9
rule of law 39–40
waivers 129–30

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