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Print This PageWhy Is the Environment More Important than Human Rights?
It’s an absurd question, of course, to ask why the environment is more important than human rights. But it’s actually true: protecting, say, endangered sea turtles is far more important than protecting against cruel, inhuman and degrading treatment of individuals. At least that is the conclusion if one is examining the question from an international trade perspective.
The general exceptions of the WTO provide for various exceptions to the core rules against non-discrimination, quotas, import bans and the like. But not all the exceptions are the same, and WTO jurisprudence has devolved to the absurd point that the environment is more important than human rights.
One of the exceptions, Article XX(g), provides that nothing in the WTO obligations shall prevent Member States from adopting or enforcing measures “relating to the conservation of exhaustible natural resources….” This means that any measure that relates to a legitimate policy of conserving natural resources can invoke Article XX(g) and be exempt from WTO obligations. Thus, the United States could restrict the importation of products that cause air pollution, threaten global warming, or diminish the population of endangered species. Of course, it must implement these measures in a non-discriminatory manner and must impose similar obligations on domestic products. But subject to these limitations, any measure that relates to conservation of exhaustible natural resources is acceptable.
Not so with human rights. Article XX(b) provides that nothing in the WTO obligations shall prevent Member States from adopting or enforcing measures “necessary to protect human … life or health….” The requirement that the measure be “necessary” rather than “relate to” has been interpreted to impose an extremely high hurdle for Member States seeking to promote concerns such as human rights. Essentially, for a measure to be “necessary” a Member State must show that (1) no measures consistent with the WTO could have been employed; and (2) no less trade restrictive measures inconsistent with the WTO could have been employed. In other words, when it comes to human rights, alternative measures that are not trade distorting must first be employed.
So you can ban the importation of tuna if it harms dolphins, but not because the fishermen who caught the tuna were employed in a manner inconsistent with core ILO labor standards. As a policy matter it doesn’t make any sense, but that’s the rule.
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I agree. One of the reasons perhaps for the comparative weakness of the Article XX(b) has to do with the pernicious influence of economists on the WTO for, as Sean Turnell reminds us in his paper, “Core Labour Standards and the WTO,” “Using the WTO as the body to police core labour standards is generally opposed by economists.” In this case, it might be fair to say criteria derived from the neo-classical conception of welfare economics trumps fairness criteria generally (as in Kaplow and Shavell’s Fairness versus Welfare, 2002; see Kimberly Ferzan’s excellent review of their book here).
One of several reasons the failure to meaningfully implement core ILO standards is disturbing is because it is this ”selective regulation of trade and labour that opens the theoretical door to a prisoners’ dilemma in labour standards and the potential for a ‘race to the bottom.’” Turnell notes that in their book, The International Regulation of Trade (1999 ed.), Trebilcock and Howse argued for a “‘dynamic’ interpretation of Article XX that recognises ‘the evolution of human rights as a core element in public morality [XX(a)] in many post-war societies and at the international level.’ Accordingly, in their analysis, ‘public morals’ in the context of Article XX, ‘should extend to universal human rights, including labour rights.’ Under Article XX, enforcement of core labour standards could operate through a number of measures, including (at last resort) the withdrawal of WTO right and obligations.” Ironically, it was a ruling concerning environmental issues, namely the “Turtles Case,” that may serve as precedent for the incorporation of core labor standards, for when the US lost WTO ruling on appeal, it was held that
The appeal was lost on the basis that the US had used restrictive measures that constituted ‘arbitrary and unjustifiable discrimination between members of the WTO, contrary to the requirements of the chapeau of Article XX’ (emphasis added). Significantly, however, the Appellate Body of the WTO found that the environmental objective of the US was legitimate under Article XX. In short, the problem in this case was unjustifiable discrimination, not the use of Article XX in protecting objectives that the WTO allowed as exceptions to its agreements. If an obvious precedent for the core labour standards campaign is created in the ‘Turtles Case,’ so too is the potential role of the ILO in ensuring justifiable discrimination.
Yet it seems you’ve offered us sufficient reason for why the Turtles Case cannot serve as ample precedent in the manner envisaged by Turnell. But we also learn from Turnell that according due recognition to core ILO labour standards makes good economic sense, in addition to its principled rationale. For another economic argument on behalf of the significance of such standards, although it does not focus on the role of the WTO, is James Heintz’s article, “Global Labour Standards: their impact and implementation.”
Several other papers I’ve found helpful on this subject: Robert Howse and Ruti G. Teitel’s “Beyond the Divide: The Covenant onf Economic, Social and Economic Rights and the World Trade Organization” (2007), and (arguably the best of the lot) Christian Barry and Sanjay Reddy’s “Just Linkage: International Trade and Labor Standards.” Not directly on point, but also important are a number of papers and a book, Trade, Inequality and Justice: Toward a Liberal Theory of Just Trade (2003), by Frank J. Garcia that enable us to see these issues within a Rawlsian inspired model (or ‘Liberal theory’) of justice (see here).
at 2:16 am EST Patrick S. O'Donnell
Several items, some or all of which I may have mentioned at this blog before, are also relevant to the question of linkage (I’m assuming my previous post will appear: it seems if you have a few links, there’s quite a delay in its being posted, leaving you without the usual and quite helpful edit opportunity). First, Bob Hepple’s Labour Laws and Global Trade (2005), in particular the Ch. 6, “The WTO and Social Clauses,” 129-150. Hepple’s discussion doesn’t leave one with much hope for a concrete linkage between WTO and core ILO labour standards. Secondly, there’s the important yet disappointing volume edited by Philip Alston, Labour Rights as Human Rights (2005). Disappointing if only because none of the essays address the WTO in particular in any systematic or thorough fashion. Finally, there’s Ernst-Ulrich Petersmann’s “Bridging Foundations: Human Rights and International Trade Law,” in Thomas Cottier, Joost Pauwelyn and Elisabeth Burgi, eds., Human Rights and International Trade (2005): 29-94. See too his recent essay in the European Journal of International Law, (2008) Vol. 19, No. 4: 769-798, as well as his response to what seem (to me at any rate) to be rather uncharitable if not churlish critics. I’m quite intrigued by Petersmann’s work and a bit mystified as to why some otherwise very intelligent scholars in the field seem unable to comprehend it within the letter if not the spirit of the Principle of Charity. Perhaps there’s some sub-textual or background academic squabble I’m not privy to.
at 4:00 am EST Patrick S. O'Donnell
Patrick O’Donnell has further interesting thoughts on the subject of the WTO, human rights and the environment over at Ratio Juris. Check it out.
at 7:16 pm EST Roger Alford