The World Trade Organization is an organisation for the liberalisation of
international trade, where trade agreements are negotiated and trade disputes
are solved. This international organisation, once a club called the General
Agreement on Tariffs and Trade (GATT), was created by the post World War II
planners in 1947-1948. Now it is called the World Trade Organization. Trade has
grown dramatically under the aegis of the GATT/WTO, and thus the organisation
has played an important role in global economic growth and development. Yet many
people do not see the WTO as acting in their interest. Perhaps the most stinging
criticism of the WTO relates to human rights.
In recent years, the linkage of human rights standards and trade measures has
become a much discussed topic in international relations. Examples of human
rights issues interfering with WTO principles and obligations are numerous. For
instance, the right to health was encroached upon by the Thai Cigarettes case,
the Hormone Beef case and the Asbestos case, as well as by the TRIPS agreement
which impedes poor people from access to affordable medicine, namely generic
drugs, which are produced, imported or sold without respecting existing
intellectual property rights as protected under the TRIPS agreement.
Furthermore, human rights policies of WTO members are also impaired by WTO
principles and obligations. Some observers have argued that the WTO system of
rules undermines human rights delineated under the Universal Declaration of
Human Rights. Trade policies and agreements can undermine some rights and
enhance others. In fact, the WTO is agnostic on human rights; but its rules
constrain the ability of national policymakers to use trade-distorting policies
to advance human rights or to achieve other policy goals.
The most controversial question is, whether trade-related measures are a
feasible instrument to improve the human rights situation in the target country.
From an ethical point of view, trade measures, e.g. the prohibition of the
import of goods produced with child labour, seem to be justified. Whereas from
an economic standpoint, the effect of such trade sanctions often harms the
people in the target country more than it actually helps improve the human
rights situation. In the WTO, the issue reflects a conflict of interests between
industrialized and developing countries.
While industrialized countries claim a need for a social clause in order to
protect human rights and social standards, and avoid social dumping, developing
countries fear that such demands are merely an excuse for industrialized
countries to take measures to protect their national job market. From a legal
point of view, discussion on the possibility of adopting trade-related human
rights measures under the current WTO legal framework, or on necessary and
feasible amendments, is again overshadowed by the underlying conflict of
interests between industrialized and developing countries.
If policymakers from member states want to use trade policies to protect
particular human rights at home or advance human rights abroad, they must do so
without violating GATT/WTO norms of the most favoured nation (MFN), national
treatment and like product. MFN rules require member states not to discriminate
among other member states – thus, benefits granted to one member must
automatically be granted to another. National treatment rules require member
states to treat the products of foreign firms as those of local firms. And
policymakers cannot discriminate between products originating in different
countries nor between imported goods and like domestically produced goods. These
norms make it harder to limit imports from nations where citizens may be subject
to human rights abuses as they produce goods and services.
Where Human Rights May Enter The WTO System?
As civil society, we are taking the initial steps to identify the full impact of
the WTO, learn the workings of global trade, and identify opportunities to
intervene. The next critical move is to strategize as to what we can do to
analyse from where the violation of human rights seeps into the system.
- Accessions: Nations have not introduced human rights concerns per
se in accessions, but some members have become increasingly concerned about
human rights and in particular, the rule of law in acceding countries. In Chinas
accession, it was asked to enforce all of its laws in all of its territories
including export-processing zones.
- Non-application: When nations accede, WTO members may choose not to
extend trading rights and privileges.
- General exceptions: Article XX includes language allowing nations to
restrict trade when necessary to protect life, protect public morals, secure
compliance, or conserve natural resources. Article XXI allows member states to
restrict trade for reasons of national security.
- Waivers: The Kimberley waiver for conflict diamonds was the first
waiver approved for a human rights purpose. It was stimulated by UN
Security Council Resolution and broad member interest and support.
- Dispute settlement: There have been no disputes that centred directly
on human rights questions. The first dispute on public morals was in
2005. Food safety disputes to some degree centre on the right to health but
are not explicitly defended as human rights concerns.
- Trade policy reviews: The WTO Secretariat and member states jointly
review trade policies and practices of member states. Larger trading nations are
reviewed more frequently. Officials increasingly bring up human rights concerns
in these discussions.
- Amendments to existing agreements or clarification: WTO members
recognise there are times when they need to provide greater guidance to member
states. In amendments, members agree to alter existing agreements to stipulate
what member states can or cannot do, as in intellectual property rights and the
right to health. In addition, members have agreed to further discussions to
clarify the relationship between IPR and traditional knowledge.
- Negotiations: Some members sought to include labour rights in
negotiations, but failed. There are no direct human rights negotiations in Doha
Round, but many issues such as agriculture and services could affect the ability
of governments to advance human rights positively or negatively. As these
negotiations are in progress, they are not discussed herein.
Human rights issues have also been dribbling into WTO Trade Policy Reviews.
During Chinas 2006 review, members expressed concern about Chinas commitment to
access to information and public participation. Some nations, such as Ecuador,
used their review to discuss childrens and womens rights and to show the
efficacy of their court system. In its 2005 review, Egypts representative
stressed that Egypt had put in place new laws to foster political participation
and to strengthen civil society. During the US and EC reviews, other member
states challenged the two trade giants for their focus on linking trade and
The dispute settlement body has also dealt with some human rights issues. In
2005, the EC challenged Brazils ban on imports of rethreaded tires. Brazil
argued that it had banned these imports, because there is no safe way to dispose
of these tires and it had a constitutional duty to protect its citizens right to
health. Brazil was one of the first countries to argue that a trade ban is
necessary to protect the life and health of its people. It also argued that it
had no reasonable alternative to the trade ban to protect the right of health.
The Dispute Settlement Panel and later the Appellate Body held that, although
the ban was necessary to protect health and the environment, it was applied in a WTO-inconsistent manner. The panel went on to say that Brazils ban on imports
could be justified as an exception to WTO rules based on public health concerns
if the Brazilian government applied the ban without distorting trade. For an
overview of this history, see Susan Aaronson and Jamie Zimmerman (2007).
Finally, human rights issues have also seeped into negotiations. During the
Uruguay Round of the GATT (1986-1993), members agreed to discuss non-trade
concerns such as food security – the ability of member states to ensure that
their people had access to affordable safe food. But they couldnt agree which
countries should be allowed to subsidise the production of food to ensure food
security. The WTO does not prevent members from protecting human rights, but its
rules do constrain them. They require that member states do not distort trade
when they try to advance human rights at home or abroad. Moreover, as members
have become more aware of the potential for conflict at the intersection of
trade and human rights, they have worked at the WTO to find solutions such as
waivers or even amending the WTO that are both trade-expanding and provide
incentives to policymakers to respect human rights.
Specific Agreements Most Affecting Human Rights
The interactions between trade and human rights are complex: bidirectional,
direct and indirect, and positive and negative. One of the most controversial
issues is the use of trade measures to enforce human rights or social standards.
The following agreements under the specific regime, affects the human rights
from its initiation.
Intellectual property rules (TRIPS & TRIPS-plus) affect the right to
healthExperience has shown that the WTO agreement on Trade-Related Intellectual
Property Rights poses formidable obstacles to the fulfilment of the right to
health, particularly in terms of access to medicines. This was particularly true
before the Doha Declaration, when the TRIPS system of 20-year minimum patents
had a disastrous effect on developing countries like India and its ability to
deal with HIV/AIDS, malaria, and tuberculosis, among other diseases.
Agricultural rules affect the right to food & food workers rightsIt is unsurprising that trade in agriculture would have profound meaning for
human rights. After all, in many of the Southern countries that make up over
two-thirds of the WTO, agriculture is still the dominant source of livelihood,
as well as a basis of culture, community, and subsistence. Agriculture
involves the human rights of millions of workers, and food is obviously
fundamental to the right to life. The commitment recognizes the need of developing
countries to effectively take account of their development needs, including food
security and rural development.
Agreements on services (GATS & GATS-plus) affect basic, essential
servicesThe original logic of the pre-WTO GATT contemplated only trade in goods, not in
services. With the passage of the GATS agreement during the Uruguay Round,
however, trade in services and their related instrumentalities were brought
under the WTO logic of progressive liberalisation. Practically, the GATS
have enormous influence, potentially embracing everything from overseas workers,
tourism, and financial services, to water and education. At present, although
the special needs of developing countries are recognized in Doha Declaration,
the formally available flexibilities in GATS are often compromised in practice.
- Rules governing negotiations in industrial goods (viz. NAMA) will affect the
global competitiveness of developing country exports and have an impact on
At the start of this year, Non-Agricultural Market Access (NAMA) rules took full
effect, bringing industrial goods ranging from fisheries to textiles and
clothing under the WTOs liberalized regime. Formerly, industrial goods, as
opposed to agricultural and manufactured goods, existed at the fringes of GATT
and were therefore progressively phased into the WTO system. Fully integrating
industrial products will have an enormous effect on developing and least
Debating the social clauseGiven that States members of the WTO often neglect their human rights
commitments when negotiating trade agreements, would it be better for human
rights concerns to be explicitly, systemically built-in to the WTO? In the
lead up to the Singapore Ministerial of 1996, some unions and labour NGOs
pursued the so-called social clause, which would force WTO members to consider
labour rights (freedom to unionize and engage in collective bargaining, minimum
working age, prohibition of forced labour, non-discriminatory hiring, and equal
remuneration) in their trade negotiations.
Ways To Improve The Trade And Human Rights Relationship
While the WTO has so far not been very receptive to the discussions on the trade
and human rights relationship, UN human rights bodies, under the auspices of the
Economic and Social Council, have been very active in researching the topic.
Numerous studies focus on the relationship between trade liberalization and
human rights and analyze the impact of trade liberalization on the human right
Human rights impact assessment at the negotiating and the
implementing stageOne way to avoid negative impacts of trade regulation on the human rights
situation in the Member States is through a human rights impact assessment of
WTO decisions and rules. This should already be done at the negotiating
stage, as well as the implementing stage. Human rights impact assessment
considers the likely impacts of trade rules on the enjoyment of human rights.
The criteria have to be established for all human rights separately. For the
right to health, criteria such as the availability, accessibility and quality of
health goods, services and facilities, could be considered when new regulations
Interpreting trade rules in conformity with human rights obligationsIn order to avoid a conflicting situation in exceptional circumstances, it is
possible to interpret WTO rules in conformity with Member States human rights
obligations. This interpretation would enable the Dispute Settlement
institutions to allow trade measures, which avoid, or minimize human rights
violations. An example where such a non-economic concern was accepted without
much discussion was the EC - Asbestos case, where the import prohibition of
asbestos-containing substances for public health reasons was accepted by the
Panel without thoroughly examining whether the restriction would be justified
under Art. XX. Seen from a human rights angle, this decision favours a Member
States implementation of the right to health, i.e. to protect its inhabitants
from dangers to their health.
Trade incentivesAnother way to promote human rights is through trade incentives. This method has
been pursued for years by the EU and the US. The EU has a long tradition of
adding human rights clauses to cooperation agreements with third countries.120
Trade preferences are offered to countries for the promotion of human rights
generally, or for programs directed at a specific aspect of human rights.
Technical assistance for the implementation of trade rules and
policiesAn additional approach to improving the human rights situation in Member States
is to incorporate human rights aspects in the technical assistance programs.
Such programs are an important feature of the WTO work, namely for developing
countries, which get support in implementing the trade rules required to comply
with the WTO regime, and creating the necessary national institutions to
administer those rules. These technical assistance programs could integrate
human rights considerations into the process of drafting trade policies and
Cooperation with other International Organizations
The proposed activities of the WTO to mainstream human rights in its work will
need the strong support of human rights organizations. Standard setting and
monitoring of implementation is the main task of UN human rights bodies and the
International Labor Organization. Nevertheless, the elaboration of standards to
implement the right to health or the right to food, for instance, will be
difficult, as these human rights issues are heavily disputed among Member States
of the relevant organizations, as well as parties to the relevant agreements.
Although some human rights could be enforced under the current legal system, if
in compliance with the requirements contained in the general exception clauses,
it would be impossible to protect all human rights under the current legal
framework of the WTO.  From a human rights perspective, it is disputable
whether the partial protection of only some rights is desirable, as generally
all human rights are indivisible and equal, therefore, the enforcement of only
some rights would contradict this concept.
An amendment of the WTO Agreements would be necessary to reach full coverage of
basic human rights through trade-related measures. Although an amendment is
factually more than unlikely, the question is whether a broader legal framework
is desirable. This is doubtful, since other problems arise if WTO members
were allowed to enforce human rights through trade measures. For instance, the
applicable human rights standard is difficult to determine, and the exact scope
of states human rights obligations is unclear; moreover, it cannot be the task
of the WTO to multiply the efforts of the existing human rights organization to
determine the meaning of human rights obligations. This would not only be a
waste of resources, but also lead to a double standard, unless it works in
cooperation with the UN human rights organizations.
In addition, it is problematic from a political point of view to allow a state
to unilaterally determine, which states violate human rights and for which
states it enforces human rights through trade sanctions. To use the WTO
legal system for such a politicized action would not only endanger its
credibility, but also the international human rights concept.
Conclusion And Way Forward
Trade and human rights linkages are manifold, and there are numerous policy
proposals to avoid the negative impacts of trade liberalization on the human
rights situation in the WTO Member States. Even so, not all approaches to
address the existing conflicts of interest and improve the trade and human
rights relationship are feasible. One of the main points of criticism of anti-globalists
is that WTO rules prohibit the enforcement of human rights or social standards
through trade sanctions. Apart from the legal constraints of the WTO agreements,
it is however doubtful whether trade related human rights measures are a viable
instrument to promote human rights in the target country.
A more effective way to address negative impacts of trading rules on the human
rights situation is to incorporate human rights considerations into the work of
the WTO. The UN human rights bodies have identified a number of measures that
can improve the human rights records of the WTO and promote higher standard of
living and sustainable development in its Member States. One possibility to
incorporate human rights considerations in the work of the WTO is through a
human rights impact assessment of trade rules at the negotiation stage, or
during the examination of TPRM reports. Technical assistance can also play an
There are however limits to the WTO facilities that can only be overcome through
cooperation with other International Organizations. The WTO needs know-how from
the relevant UN institutions, like the UN human rights bodies or the ILO, not
only in determining the applicable human rights standard, but also for
monitoring human rights obligations and mainstreaming human rights into its
work. In addition, it is important that those institutions specialized in labour,
human rights or social issues supplement the WTO efforts to address human rights
concerns through technical assistance and training programs for the improvement
of the human rights situation in the countries concerned.
Under the current WTO legal framework there is only a very limited possibility
to apply trade-related measures to enforce human rights standards. Due to the
concept of like products, discriminatory treatment due to the human rights
conditions in the exporting country or the production and process methods is not
possible. The extraterritorial application of national standards does not only
constitute a problem under the current WTO legal system, but also in general
international law, as it interferes with the sovereignty of other states.
Although the WTO cannot mutate into a human rights organization, in order to
maintain credibility, it must take steps to acknowledge the human rights effects
of its work. It is the responsibility of the Member States of the WTO to ensure
that human rights considerations are incorporated in the work of the WTO
Councils and Working Groups. Disregarding all political disputes, namely between
industrialized and developing countries, the reluctance towards human rights is
difficult to grasp.
The creation of an acceptable human rights framework is
often perceived as a cumbersome and expensive duty, yet it actually improves the
economic situation and attractiveness of a state. If the population is provided
with basic labour standards, education or health care facilities, the political
climate in a country will stabilize and the productivity of the work force will
improve. If a state respects the rule of law, and provides for fair and
non-discriminatory administrative and court procedures without corruption, this
will lead to a more attractive business environment. Hence, the respect and
promotion of human rights and economic development are not contradictory, but
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9/10–14/2003, available at http://www.tradeobservatory.org.
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(2017), Freedom of Association and Protection of the Right to Organise
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Brazil, Addendum WT/DS332/19/Add.6 | 15 September 2009.
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available at www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm
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 Guide to the WTO for Human Rights Advocates (2004).
 Cf. EC Council Regulation 2501/2001, 10 December 2001, Official Journal of
the European Union 2001 L 346/1.
 Cf. European Communities - Measures Affecting the Prohibition of Asbestos
and Asbestos Products (WT/DS135), Panel Report, circulated on 18 September 2000.
 Cf. for an example UN, Economic, Social and Cultural Rights: Mainstreaming
the Right to Development into International Trade Law and Policy at the World
Trade Organization , 9 June 2004, E/CN.4/Sub.2/2004/17.
 Understanding Global Trade & Human Rights;, Report & Resource Guide for
National Human Rights NGOs in View of the 2005 WTO Ministerial Conference, Hong
Kong (MC6), International Federation for Human Rights, July 2006.
 Cf. C. M. Vászquez, Trade Sanctions and Human Rights - Past, Present, and
Future, 6 Journal of International Economic Law (2003) 797 – 839.
 Cf. J. H. Jackson, The World Trading System: Law and Policy of
International Economic Relations, Cambridge (1997), pp. 139; A. F. Lowenfeld,
International Economic Law, Oxford; New York (2002).