16 Jan Why 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.