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The WTO and the rights of the individual

  • International Trade
  • Published:
Intereconomics

Abstract

The WTO agreements comprise a system of obligations and rights for member governments. None of these apply directly to individual actors. Nevertheless, the WTO does reach into the nation-state to guarantee rights to individuals. The following article explores this little-noted dimension of international economic law and proposes ways that a new WTO trade round could build on developments so far in order to strengthen private rights.

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References

  1. Marrakesh Agreement Establishing the World Trade Organization [hereinafter Marrakesh Agreement], in: World Trade Organization, The Legal Texts. The Results of the Uruguay Round of Multilateral Trade Negotiations. All WTO agreements discussed here are reprinted in this volume.

  2. Marrakesh Agreement, ibid., Establishing the World Trade Organization [hereinafter Marrakesh Agreement], in: World Trade Organization, The Legal Texts. The Results of the Uruguay Round of Multilateral Trade Negotiations. All WTO agreements discussed here are reprinted in this volume. Preamble.

  3. See. e.g., Ernst-Ulrich Petersmann: The WTO Constitution and Human Rights, in: Journal of International Economic Law, Vol. 3, No. 1, 2000, pp. 19–25; John O. McGinnis and Mark L. Movsesian: The World Trade Constitution, in: Harvard Law Review, Vol. 114, No. 2, 2000, pp. 511–605. In 1997, then WTO Director-General Renato Ruggiero was quoted as stating that “We are writing the constitution of a single global economy”. Kevin Danaher: Trade is a “we the people” decision not to be left to back-room, in: Christian Science Monitor, 19 September 1997, p. 18.

  4. Convention Concerning the Employment of Women Before and After Childbirth, No. 3, 1919, Article 3(b).

  5. Convention Concerning Sickness Insurance for Workers in Industry and Commerce and Domestic Servants, No. 24, 1927, Article 9.

  6. Convention Concerning Compulsory Old-Age Insurance for Persons Employed in Industrial or Commercial Undertakings, in the Liberal Professions, and for Outworkers and Domestic Servants, No. 35, 1933, Article 11. (This Convention has been shelved by the ILO.)

  7. WTO Agreement on Trade-Related Aspects of Intellectual Property Rights [hereinafter TRIPS], Articles 1.3, 2.1, 9.1, 9.2, 10.2, 11, 14.2, 16.1, 25.1, 27.1, 35. TRIPS also requires governments to treat foreigners no less favorably than nationals. Ibid. TRIPS, Article 3.1.

  8. Developing countries are given extra time to meet these requirements. TRIPS Articles 65.4, 66.1.

  9. TRIPS Article 33.

  10. TRIPS Article 7 (Objectives).

  11. General Agreement on Tariffs and Trade [hereinafter GATT], Articles I, III.

  12. Werner Zdouc: WTO Dispute Settlement Practice Relating to the GATS, in: Journal of International Economic Law, Vol. 2, No. 2 1999, pp. 295, 324–327.

  13. General Agreement on Trade in Services [hereinafter GATS], Article Il: 1. Service suppliers can be natural persons. GATS Articles 1:2(d), XXVIII(k).

  14. GATS Article XVII:1.

  15. European Communities—Regime for the Importation, Sale and Distribution of Bananas—Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, Report of the Arbitrators [hereinafter Ecuador Arbitration], 24 March 2000, WT/DS27/ARB/ECU, paragraphs 141, 144, 173(d). So far Ecuador has not exercised this retaliation authority.

  16. GATT Article X:3(b).

  17. GATT Article X:1. In theJapan Film case, the WTO panel held that this provision applied both to rulings of general application and rulings in individual cases. Japan—Measures Affecting Consumer Photographic Film and Paper, Report of the Panel, 31 March 1998. WT/DS44/R, paragraph 10.388.

  18. Several of these provisions were also in the Tokyo Round Antidumping Code. See Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, 30 June 1967, GATT, Basic Instruments and Selected Documents, Supplement Vol. 15, p. 24.

  19. WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 [hereinafter Antidumping Agreement]

  20. Antidumping Agreement, Articles 6.1, 12.1, 12.2 (Notice); 6.2, 6.9 (Defense), 8.3 (Undertakings), 13 (Judicial Review), 11.2 (Sunset Review).

  21. Antidumping Agreement, Article 6.11 In addition, the government must provide opportunities for industrial users of the product under investigation, and for representative consumer organizations, to provide information relevant to the investigation. Ibid., Article 6.12.

  22. WTO Agreement on Subsidies and Countervailing Measures [hereinafter SCM], Articles 10–23.

  23. SCM Article 12.2.

  24. SCM Article 19.2.

  25. SCM Article 23.

  26. SCM Articles 11.1, 32.5.

  27. SCM Article 19.2.

  28. TRIPS Article 63.1.

  29. In theIndia Patent Protection case, the panel had held that “There must be a guarantee that the public—including interested nationals of other WTO Members—is adequately informed” about patent administration practices. India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, Report of the Panel, 5 September 1997, WT/DS50//4 para. 7.42.

  30. TRIPS Articles 22.2, 23.1, 26.1, 28.1, 31(i), 39.2, 41, 42, 46.

  31. TRIPS Article 51.

  32. TRIPS Articles 41.1, 67. Laurence R. Helfer: Adjudicating Copyright Claims Under the TRIPS Agreement: The Case for a European Human Rights Analogy, in: Harvard International Law Journal, Vol. 39, No. 2, 1998, pp. 357, 398.

  33. GATS Article VI:2(a).

  34. GATS Article VI:3.

  35. European Communities, Schedule, WTO Doc. GATS/SC/31/Suppl.3.

  36. GATS Article VII:5.

  37. WTO Agreement on Safeguards, Article 3.1.

  38. WTO Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, Articles 11.1, 11.2. Note that in 1947, GATT Article VII:5 provided that the methods for determining value should be “given sufficient publicity to enable traders to estimate, with a reasonable degree of certainty, the value for customs purposes”. This is a transparency provision.

  39. WTO Agreement on Rules of Origin, Articles 2(h), 3(f). This assessment is to be provided as soon as possible but no later than 150 days. Moreover, it must be reviewable by an independent tribunal.

  40. WTO Agreement on the Application of Sanitary and Phytosanitary Measures [hereinafter SPS], Article 7, Annex B, paragraph 2. An exception exists for urgent circumstances.

  41. WTO Agreement on Technical Barriers to Trade [hereinafter TBT]. Articles 2.9.1, 2.10, 2.12.

  42. The Code of Good Practice for the Preparation, Adoption and Application of Standards is Annex 3 of the TBT Agreement. TBT Article 4 makes the Code binding on central government standardizing bodies. In the TBT lexicon, “regulations” are mandatory, while “standards” are not mandatory. TBT Annex 1.

  43. TBT Code of Good Practice, paragraph L.

  44. Ibid. TBT Code of Good Practice, paragraph N.

  45. Agreement on Government Procurement, Article XX. WTO Members are not required to join this agreement. To increase adherence to transparency in procurement, a separate agreement could be negotiated. Sue Arrowsmith: Towards A Multilateral Agreement on Transparency in Government Procurement, in: International and Comparative Law Quarterly, Vol. 47, No. 4, 1998, pp. 793–816.

  46. WTO Agreement on Preshipment Inspection [hereinafter PSI Agreement], Article 2.21.

  47. PSI Agreement, Article 4.

  48. Operation of the Independent Entity Established under Article 4 of the Agreement on Preshipment Inspection, WTO Press Release, 9 February 1996.

  49. PSI Agreement, Article 4(h).

  50. PSI Agreement, Article 4(f).

  51. Sections 301–310 of the Trade Act of 1974, Report of the Panel, 22 December 1999, WT/DS152/R, paragraph 8.1 [hereinafter Section 301 Panel Report]. Section 301 authorizes the US Trade Representative to investigate foreign trade practices that burden US commerce and to retaliate against foreign countries.

  52. Section 301 Panel Report, paragraphs 7.96, 7.109, 7.125, 7.136. The members of the panel were David Hawes, Terje Johannessen, and Joseph Weiler.

  53. Ibid. Sections 301–310 of the Trade Act of 1974, Report of the Panel, 22 December 1999, WT/DS152/R, paragraph 7.72.

  54. Ibid. Sections 301–310 of the Trade Act of 1974, Report of the Panel, 22 December 1999, WT/DS152/R, paragraph 7.73.

  55. Ibid. Sections 301–310 of the Trade Act of 1974, Report of the Panel, 22 December 1999, WT/DS152/R, paragraph 7.76.

  56. Ibid. Sections 301–310 of the Trade Act of 1974, Report of the Panel, 22 December 1999, WT/DS152/R, paragraph 7.90, 7.94, 7.167.

  57. Ibid. Sections 301–310 of the Trade Act of 1974, Report of the Panel, 22 December 1999, WT/DS152/R, paragraph 7.91, 7.93, 7.94.

  58. Victoria Curzon Price: New Institutional Developments in GATT, in: Minnesota Journal of Global Trade, Vol. 1, No. 1, 1992, pp. 87, 109–110.

  59. United States—Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, 29 April 1996, WT/DS2/AB/R, p. 28.

  60. India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, Report of the Appellate Body, 19 December 1997, WT/DS50/AB/R, para. 48.

  61. WTO Understanding on Rules and Procedures Governing the Settlement of Disputes [hereinafter DSU], Article 22.

  62. Ecuador Arbitration, paragraph 152.

  63. SCM Articles 12.1, 12.1.13, 22.1, 22.2. (Notice of Investigation); 12.1, 12.10 (Evidence); 12.3 (Docket); 12.8 (Defend Interest); 19.2 (Representation); 22.3 (Notice of Determinations); 23 (Judicial Review).

  64. SCM Article 21.4.

  65. James Cameron and Karen Campbell: Challenging the Boundaries of the DSU Through Trade and Environment Disputes, in: J. Cameron and K. Campbell (eds.), Dispute Resolution in the World Trade Organisation, London 1998, pp. 204, 227. For a good analysis of notice-and-comment from a comparativist perspective, see Francesca Bignami: The Democratic Deficit in European Community Rulemaking: A Call for Notice and Comment in Comitology, in: Harvard International Law Journal, Vol. 40, No. 2, 1999, pp. 451–515.

  66. As Friedl Weiss has noted, the Charter for the International Trade Organization (1948) called on governments to provide suitable facilities for traders directly affected by trade laws, regulations, and rulings “to consult” with government authorities. This provision was in Article 38.3(a). The Charter never went into force. Friedl Weiss: From Havana to Marrakesh: Treaty Making for Trade, in: J. Klabbers and R. Lefeber (eds.): Essays on the Law of Treaties, The Hague 1998, pp. 155, 163.

  67. Switzerland, Draft Proposal on GATT Obligations with Respect to Rules and Procedural Rights in Domestic Law, MTN.GNG/NG14/W/43, 9 July 1990. This proposal was not adopted.

  68. Jonas Ebbesson: The Notion of Public Participation in International Environmental Law, in: Yearbook of International Environmental Law, Vol. 8, 1997, pp. 51–97.

  69. Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 1998, Articles 6–8.

  70. Convention concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibility, No. 156, 1981, Article 11.

  71. Robert O. Keohane, Andrew Moravcsik, and Anne-Marie Slaughter: Legalized Dispute Resolution: Interstate and Transnational, in: International Organization, Vol. 54, No. 3, 2000, pp. 457, 462–66.

  72. Australia—Subsidies Provided to Producers and Exporters of Automotive Leather, Report of the Panel, 25 May 1999 WT/DS126/R.

  73. Australia—Subsidies Provided to Producers and Exporters of Automotive Leather, Recourse to Article 21.5 of the DSU by the United States, Report of the Panel, 21 January 2000, WT/DS126/RW, paragraph 6.48.

  74. Ibid. Australia—Subsidies Provided to Producers and Exporters of Automotive Leather, Recourse to Article 21.5 of the DSU by the United States, Report of the Panel, 21 January 2000, WT/DS126/RW, paragraph 6.23.

  75. DSU Article 13.1.

  76. Agreement Respecting Normal Competitive Conditions in the Commercial Shipbuilding and Repair Industry, 1994 (not in force), Articles 8.1, 8.3, 8.5, Annex IV.

  77. For example, see Antidumping Agreement Articles 2.5, 4.2, 6.11; TBT Articles 2.12, 5.9; SCM Articles 15.2, 18.5, 27.10.

  78. Jürgen Habermas: Between Facts and Norms, Cambridge, Massachusetts 1996 (translated by William Rehg), pp. 440–41.

  79. See Marrakesh Agreement Preamble.

  80. Cf. Peter L. Lindseth: Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community, in: Columbia Law Review, Vol. 99, No. 3, 1999, pp. 628–738.

  81. Raj Bhala: International Trade Law: Theory and Practice, New York, 2nd edition, 2001, p. 610.

  82. Ernst-Ulrich Petersmann: From “Negative” to “Positive” Integration in the WTO: Time for “Mainstreaming Human Rights” into WTO Law?”, in Common Market Law Review, Vol. 37, No. 6, 2000, pp. 1363, 1375.

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    Steve Charnovitz

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Charnovitz, S. The WTO and the rights of the individual. Intereconomics 36, 98–108 (2001). https://doi.org/10.1007/BF02973775

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