27 Jun Human Rights and the WTO
It seems that in the first dozen years of the WTO there has been a tremendous amount of litigation about environmental protection and health measures. The key question in these cases often has been whether government action to advance such health and environmental concerns is consistent with WTO obligations. But what has been surprisingly absent from the WTO docket is the issue of human rights. I cannot help but think that that will change in the very near future. Eventually the issue of human rights will have to be addressed in litigation before the WTO, simply because more and more countries find the issue of global human rights to be a concern requiring concrete and serious government action.
Most trade experts seem to think that the best basis for a human rights exception is to argue that a WTO-inconsistent measure is authorized because it is “necessary to protect human … life or health” within the meaning of Article XX(b). I have no doubt that will be a central argument in future WTO human rights litigation. But I seriously doubt that this is the only or perhaps even the best argument to base a human rights exception. The WTO has narrowly construed what constitutes a “necessary” measure, suggesting that Member States must choose less trade restrictive measures whenever possible.
So what are the other arguments for a human rights exception under the WTO? I can think of five other arguments.
First, it is possible to argue that a human rights exception falls within the exception for government measures “necessary to protect public morals” under Article XX(a). The advantage of this approach is that what constitutes public morals for one state may not be the same for another, which inherently gives Member States a wider degree of discretion of what constitutes a necessary trade restriction. Who is to say, for example, whether the importation of blood diamonds does not offend the public morals of a State? If Muslim states can restrict the importation of alcohol, why can’t other countries restrict products harvested using child labor?
Second, at least some government measures to restrict trade may “relate to the products of prison labour” within the meaning of Article XX(e). Do products produced from slave labor, forced labor, or bonded labor potentially fall within the definition of “prison labour.” If house arrest is prison, then is economic bondage perhaps also a type of prison labour? Is Burmese oil subject to an import ban because it flows through pipelines constructed from slave labor? Of course, it really depends on whether the WTO is willing to adopt an evolving and expansive definition of the term “prison labour.” But I would think that at least some human rights violations could fall within this definition.
Third, at least some trade restrictions aimed at gross human rights violations may “relate to the conservation of exhaustible natural resources” within the meaning of Article XX(g). The WTO has ruled that Article XX(g) should be interpreted in light of contemporary concerns for sustainable development, such that endangered species are an exhaustible natural resource. If animal extinction falls within Article XX(g), then why not genocide? Raphael Lemkin coined the term “genocide” because of concern that a “clan or religious group” would be “killed.” Doesn’t the systematic attempt to exterminate a racial, religious, cultural or national group likewise constitute a threat to an exhaustible natural resource? If Article XX(g) protects sea turtles, then why not Armenians?
Fourth, Article XXI(b)(iii) authorizes a Member State to take “any action which it considers necessary for the protection of its essential security interests … taken in … [an] emergency in international relations.” Exactly what is an “emergency in international relations.” Who knows, but under Article XXI it appears each Member State can decide for itself what is an international emergency that threatens its security. At least some human rights violations may give rise to such international emergencies. Preferential trade treatment given to countries struggling with a disease pandemic like AIDs? Trade restrictions on countries engaging in conduct that results in refugees flooding into neighboring countries? Trade responses to massive and wholesale expropriation of oil concessions in OPEC countries?
Fifth and finally, the Universal Declaration of Human Rights declares that recognition of “the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of … peace in the world.” If so, then is compliance with core human rights norms not integral to peace and security? And if so, then can a Member State rely on Article XXI(c) and argue that it is “taking action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.” The broader the mandate for countries to help maintain international peace and security through the protection of human rights, the broader the exceptions permitted under Article XXI(c). Apartheid threatens international peace and security (so says the Security Council). If so, then presumably any action in response to apartheid would potentially fall within this exception.
Of course, I am not suggesting that all of these arguments are winners. But they are at least colorable arguments that eventually can and should be litigated before the WTO. I have no doubt that at least some of these arguments will be raised in the coming years. Who knows, the WTO may surprise us and conclude that obscure exceptions actually embody rules for the protection of human rights norms.