INTERNATIONAL TRADE LAW AND HUMAN RIGHTS

I. Introduction
[1] The term human rights covers a panoply of rights, ranging from the prohibition of → torture,
over other civil and political rights such as the → freedom of opinion and expression, to
economic, social, and cultural rights such as the → right to education. . Some human rights
are closely related to economic exchange, particularly social and labour rights, and especially
the so-called core labour standards and basic rights of workers (the prohibition of child work,
forced labour (→ slavery, servitude and forced labour, prohibition of) and discrimination in the
workplace, as well as the rights to unionization and to collective bargaining (→ trade union
rights)) (e.g., Compa and Diamond [2003]). The right to ownership (→ property, right to),
freedom of speech and access to independent tribunals are often seen as preconditions for
economic globalization (Shelton [2002] at 286; Petersmann [2002]).
[2] Trade and economic → globalization aim to enhance economic growth and the well-being
of states and their populations. Both trade and human rights law have traditionally been
concerned with restraining the power of the state (Charnovitz [1999]), and in 1945, have been
crucial to re-establishing and preserving world peace (Cottier [2002]. The interface between
international trade law and human rights is an important dimension of ‘trade and …’ linkages
(Steger [2002]; Trachtman [2002]), as is trade and the environment (see also → environment,
right to). Over the last two decades, global civil society has increasingly responded to economic
globalization by opposing liberalized trade and investment agreements without accountability
mechanisms for corporations and without respect for human rights.

II. Legal framework

1. Two distinct regimes
[3] Human rights and international trade law are two specific regimes of international law with
their own rights and obligations, causes of action, enforcement mechanisms and remedies. A
state becomes internationally responsible if it does not comply with its obligations under either
regime (→ state responsibility). The highly developed WTO dispute settlement system lacks
jurisdiction with respect to breaches of non-trade obligations (e.g., Marceau [2002]).
Accordingly, non-trade obligations such as human rights can only be considered through →
treaty interpretation. The result is that WTO remedies are not available to enforce human
rights. The WTO panels and the Appellate Body are not tribunals of general jurisdiction such
as the → International Court of Justice. Instead, the mandate of WTO dispute settlement is
limited by Article 3(2) of the Dispute Settlement Understanding. This provision prevents panels
and the WTO Appellate Body from adding or subtracting from the obligations of WTO
members, thus going beyond the obligations contained in the WTO agreements themselves.

2. The absence of a hierarchy between trade and human rights law

[4] In keeping with the general position in international law, there is no hierarchy between
human rights and trade law, except for peremptory norms (→ jus cogens). Compliance with
international trade law does not justify or excuse breaches of human rights. In case of conflict
between trade and human rights law, trade law does not take precedence over human rights
law, or vice versa. Claims that human rights law, as essential to the basic → human dignity to
which all people are entitled, always ‘trump’ the ‘general utilitarian’ requirements, the merely

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‘instrumental rights’ of trade law, are bound to fail (Moon [2011] at 591). That said, genuine
conflicts between the human rights and trade regimes are not very frequent in practice (Cottier
[2002]).

3. Consideration of human rights in trade law

[5] The WTO’s General Agreement on Tariffs and Trade (GATT), without explicitly referring to
the protection of human rights, provides a general link to human rights. States can justify their
failure to comply with their trade obligations to protect important non-trade values, including
human rights. While the General Agreement on Trade in Services (GATS) contains similar
general exceptions, the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) lacks general exceptions (see access to essential medicines below para 24). Article
XX(a) GATT allows member states to restrict trade when ‘necessary to public morals’. Article
XX(b) GATT enables WTO members to adopt measures ‘necessary to protect human, animal
or plant life or health’ (→ health, right to); and Article XX(e) GATT permits measures against
the importation of products related to prison labour (→ prisoners). The chapeau of Article XX
sets outs two important limitations for unilateral measures. Such measures cannot discriminate
among WTO members or be disguised restriction on international trade (Bartels [2002]).
Moreover, Article XX is an enabling provision. It does not require a WTO member to restrict
trade.
[6] In theory, these general exceptions can serve to protect human rights, but also may be
invoked to justify measures that also restrict the enjoyment of human rights . There are too few
instances where the Dispute Settlement Body has faced such questions for an overall
assessment. An example of the first category is the plain packaging dispute against Australia.
Australia invoked its right to require a specific form of cigarette packaging to protect public
health against the harmful effects of smoking (Australia—Certain Measures Concerning
Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to
Tobacco Products and Packaging [2018]; see already United States—Standards for
Reformulated and Conventional Gasoline [1996] and Brazil-Measures affecting imports of
retreaded tyres [2007]). An example of the second category is China – Publications and
Audiovisual Products [2012]. The United States challenged Chinese measures that required
that books, movies, and music produced outside China be imported through government-
authorized agents. China’s defence was premised on the protection of public morals. In
principle, the exception under Article XX(a) was available to exclude cultural content from
Chinese territory and to censure audio-visual material. However, the Chinese measure went
beyond what was necessary to achieve the regulatory aim of protecting public morals, and was
not accepted on that basis. Beyond the right of other WTO members to export cultural
products, this dispute also implicated the freedom of expression (namely the right to receive
content).
[7] Some trade agreements include human rights as a preambular assurance, often in
response to growing public expectations that trade agreements contribute to enhance
compliance with human rights (e.g., Preamble CARIFORUM-EC Economic Partnership
Agreement [2008]; Preamble KORUS Free Trade Agreement [2019]). Recent PTAs have
included labour and environmental standards in ‘sustainability’ provisions of various degrees
of enforceability, sometimes conditioning market access on compliance with such standards
(e.g., Bronckers and Gruni [2021]). However, preambular language about human rights has
little bite in practice (Moon, [2011] at 591), and the same has applied to sustainability standards
thus far (Bronckers and Gruni [2021]; EU-Korea FTA Panel Decision [2021]). Human rights
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have featured in some accession negotiations to the WTO (for a longer overview of the role of
human rights in the WTO see Aaronson and Zimmerman [2007]). See further → human rights
conditionality in trade agreements.

[8] For some, trade and human rights appear to be in tension. And yet, the relationship is not
as black and white as it might appear on the surface: ‘[t]rade has the power to create
opportunities and support livelihoods [as much as] it has the power to destroy them’ (Watkins,
Oxfam Poverty Report [1995] at 109). The following subsection first considers how trade can
positively affect human rights, before considering how international trade law can adversely
affect human rights.

III. Positive impact of trade (law) on human rights

[9] Trade and globalization, with the right parameters, can provide the material basis for states
to respect human rights and can thus contribute to greater respect for human rights (e.g.,
Dunoff [1999]). Economic growth may be correlated with greater compliance with human rights
(Sykes, [2006]). Economic growth, through trade or otherwise, may also create the conditions
for political freedoms and the → rule of law (Shelton [2002] at 292). Certain human rights –
including freedom of expression and respect for property rights – may be necessary, if not
sufficient, or at least conducive for economic growth to occur and for trade to take place.
Preferential trade agreements are not typical instruments of human rights promotion but may
lead to greater respect of human rights at least within their member states by virtue of coercion
within a bilateral or plurilateral setting (Hafner-Burton [2009] at 624).

IV. Negative impact of trade (law) on human rights

[10] A major concern is that international trade law may limit human rights’ regulatory capacity,
by prompting states to prioritize their trade obligations over their human rights obligations when
the two are in tension. There is a lively debate in the literature on the extent to which
international trade law limits the ability of states to comply with their human rights obligations
in practice (e.g., Bartels [2009]; Joseph [2011]; Moon [2011]). Much of the literature critical of
trade focuses on this aspect of whether international trade law constrains states from
complying with human rights law (Lang [2006]) – which is only one important dimension of the
relationship between trade and human rights.
[11] International trade and globalization can also boost transnational crimes that involve
human rights violations: the same technological advances that facilitate trade and globalization
(and can assist in promoting human rights) can also facilitate the trade in illegal drugs and
trafficking persons (→ human trafficking), and so on (→ organized crime). Local decision-
making and democratic participation may be undermined when corporations and international
institutions indirectly set national economic and social policies (Orford [2005]). Unrestricted
market forces in conjunction with reduced public expenditure on health and education can
threaten various human rights such as the right to health and the → right to education.

1. Trade and inequality

[12] Trade liberalization, and especially the accumulation of economic power in corporations
in oligopolistic markets, can have the effect of exacerbating inequalities within and across
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countries (e.g., Milanovic [2016]). Trade can also increase unemployment, → poverty, and the
marginalization of vulnerable groups. Representative of this view is the following extract from
a 1998 report: ‘[t]oday’s economic and financial systems are organized in such a way as to act
as pumps that suck up the output of the labour of the toiling masses and transfer it, in the form
of wealth and power, to a privileged minority.’ (The Realization of Economic, Social and
Cultural Rights: The Question of Transnational Corporations, U.N. ESCOR 1998,
E/CN.4/Sub.2/1998/6 at 1). Inequality has long been a blind spot of international trade law, as
well as of human rights law (Moyn [2014]; Ratner [2015]; Lang [2011]; Linarelli, Salomon and
Sornarajah [2019]) – and trade policymakers have only discovered it as a major concern in
recent years.

2. Breaches of human rights by corporations

[13] → Non-state actors that trade liberalization privileged and that became powerful through
economic globalization, such as → transnational corporations, can and do commit human
rights violations (Robinson [2004]; Ratner [2001]). For example, they may employ forced
labourers or be complicit in human rights violations committed by the state. However, corporate
actors breach human rights in ways that the drafters of existing human rights instruments did
not contemplate because their focus, and the traditional focus of human rights law, has been
on state action or inaction (Shelton [2002] at 279). This has led to a lively debate on the
‘horizontal’ application of human rights law (e.g., Knox [2008]; Crawford [2019] at 629) and
attempts at filling this gap for corporate accountability for human rights breaches through
corporate social responsibility instruments, including the Ruggie principles (2011) (see →
Guiding Principles on Business and Human Rights). Holding corporations accountable for
human rights breaches remains a major challenge while a binding business and human rights
treaty remains under discussion (Bernaz [2021], Weissbrodt and Kruger [2003] 921).

3. Conditioning market access on labour and social standards

[14] Trade law and policy has long been subject to the criticism that it ignores the needs of
workers (e.g., Türk [1992]; Sapir [1995]). The competitive pressures of trade and globalization
can lead states to lower social and labour standards to attract foreign investment (a possible
race to the bottom), in special economic zones and more generally (see also → international
investment law and human rights). Moreover, in recent years, companies have increasingly
shifted from long-term employment contracts to temporary workers to save labour and social
security costs, an issue that has become endemic as part of the ‘gig’ economy (Prassl [2018]).
This development has further weakened the position of many workers, particularly unskilled
workers and the unemployed.
[15] At the same time, the linkage between trade and human rights is sometimes seen as
protectionism through the backdoor, particularly by developing countries (Hoekman and
Kostecki [2009] at 625; Stern [2000]; De Wet [1995]; Alston [1982]). This concern is based on
the premise that differences in income levels, as well as differences in labour and social
policies, do not amount to barriers to trade, or lead to ‘unfair’ trade. During the Uruguay
negotiation round, some developed countries favoured a working group at the WTO to examine
the link between trade and labour. Yet there was significant opposition to even this basic step.
WTO members, in the Singapore Ministerial Declaration, underlined that the → International
Labour Organization (ILO) was the appropriate organization to establish and monitor labour
standards and rejected the use of labour standards for protectionist ends.

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[16] One common response by developed countries to address continuing concerns about low
labour and social standards, as well as other human rights, has been to make market access
conditional on human rights compliance. Even though there has been intensive disagreement
on linking international labour standards to market access within the WTO, trade-linked labour
standards increasingly feature in preferential trade and investment agreements (Brown,
Deardorff and Stern [2011]; Lechner [2016]). For example, under the 1999 U.S.-Cambodia
Bilateral Textile Trade Agreement, the United States provided Cambodia access to US
markets by giving expanded apparel and textile quotas conditional on improved working
conditions in the garment sector. However, such conditioning can breach the sanctioning
state’s obligations under international trade law. Similarly, under newer agreements, labour
standards are enforced through the prospective loss of preferential tariff concessions and
market access.
[17] WTO law permits states to unilaterally offer preferential trade terms to developing
countries under the Enabling Clause of 1979 that governs special and differential treatment for
developing country exports. Developing countries offer such preferential terms through general
systems of preferences (Bartels [2007]). Both the → European Union’s and the United States’
general preference schemes require developing countries to adhere to certain labour and
human rights standards. In EC—Tariff Preferences (2005), India challenged the EU’s tariff
preferences that the EU used as unlawfully restricting the market access of India exporters to
the EU. The EU maintained that these conditions were necessary to combat drug trafficking
and to ensure the right to adequate conditions of work (→ work, right to just and favourable
conditions of). The WTO Appellate Body indicated that developed countries could attach such
conditions to general systems of preferences, if they offer and apply these conditions in a non-
discriminatory manner. This is because compliance with these standards remained voluntary,
and developing countries were not forced to adhere to these standards.
[18] There has long been a mismatch between the labour standards found in preferential trade
agreements and the compliance mechanisms for these standards (Claussen [2020]).Two side
agreements to the North American Free Trade Agreement (NAFTA) on labour and the
environment were a turning point, because they required that labour and environmental
provisions be subject to the same enforcement disciplines as other commercial provisions
(Claussen [2020] at 28ff). By contrast, USMCA Chapter 31 rules out the jurisdiction of panels
to decide non-violation claims under USMCA’s chapters on trade and the environment.
[18] The outcome of the first case under a labour provision in a preferential trade agreement
sheds doubt on the enforceability of labour chapters in preferential trade agreements. This was
the dispute settlement panel constituted under the Dominican Republic—Central America—
United States free trade agreement (CAFTA-DR) in a dispute between Guatemala and the
United States. The panel concluded that Guatemala did not breach the provisions of the
CAFTA-DR labour chapter even though it failed to effectively enforce its labour laws as the
labour chapter required. This was because it was not shown to be ‘in a manner affecting trade’
which the panel interpreted to require ‘confer[ring] some competitive advantage on an
employer or employers engaged in trade between the [p]arties’ (Guatemala–Issues Relating
to the Obligations Under Article 16.2.1(a) of the CAFTA-DR [2017] at 190). Another first ruling,
under the sustainability chapter of an EU PTA with South Korea) equally underscores the
challenge of enforcement. It dealt with the inconsistency of Korea’s domestic labour legislation
with the PTA and its failure to ratify certain ILO labour conventions. While the panel followed
the EU’s argument on the first issue, the relevant PTA provisions lack corresponding sanctions

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and the ruling was a mere recommendation (EU-Korea FTA Panel Decision [2021] at 78;
Bronckers and Gruni [2021]) .

4. Public health and intellectual property rights

[19] With the HIV/AIDS epidemic, access to medicines for developing countries became a
major point of contention in the world trading system (Helfer [2003]; Anderson and Wager
[2006]; Hestermeyer [2007]). This controversy arose because of the obligation to provide
patent protection for inventions, including medicines, under the TRIPS Agreement and
because of the human rights implications, particularly the right to health, if countries struggled
to obtain access to essential medicines (→ intellectual property rights). In August 2003, WTO
members adopted a waiver. This waiver limited the effect of Article 31(f) TRIPS and enabled
countries to produce essential medicines under a compulsory license for export to countries
with no or insufficient manufacturing capacities. WTO members subsequently transformed this
waiver into a formal amendment to the TRIPS Agreement (Art 31bis TRIPS). In Seizure of
Generic Drugs in transit (2010), the Dutch authorities seized generic pharmaceuticals
produced in India while in transit in the Netherlands. India invoked the human right to public
health in Article 12 ICESCR. The parties settled the dispute. More recently, the production of
Covid-19 vaccines and a possible waiver proved to be a major challenge for the TRIPS
Agreement.

V. Trade sanctions for breaches of human rights

[20] Trade sanctions can incentivize compliance with human rights (→ economic sanctions).
At the same time, the effectiveness of sanctions has long been disputed and on one view,
sanctions ought to be tailored in such a manner that the benefits of international trade are
affected as little as is practically possible (Sykes [2006] at 23; Charnovitz [2001]). Sanctions
raise particularly difficult questions with respect to conflict zones, such as the general
restrictions imposed on Burma/Myanmar in the 1990s (Aaronson and Abouharb [2013]). The
Kimberley Process on conflict diamonds, and the Kimberley Diamonds Waiver (2006) seek to
address the problem of trade in diamonds that contribute to → armed conflict where ‘gross
human rights violations […] have been perpetrated’, particularly in sub-Saharan Africa
(Pauwelyn [2003]; Vidal [2012]). However, its effect on human rights compliance is
questionable; these have played a minor role in the process (Munier [2020] at 164). A recent,
example is Regulation (EU) 2019/125 prohibiting or restricting trade in certain goods that can
be used for capital punishment, torture, or other cruel, inhuman or degrading treatment or
punishment (→ death penalty).
[21] Article XXI(c) GATT allows for multilateral, → United Nations-mandated sanctions, such
as the ones adopted against South Africa under apartheid. But unilateral trade sanctions, for
example against countries that fail to protect core labour standards, are controversial,
especially because such sanctions are in practice only available to economically powerful
states.
[22] Moreover, the legality of such measures is disputed (see also → unilateral coercive
measures). A significant part of literature examines the legality of trade measures to enforce
human rights (e.g., Cassimatis [2007]). According to some authors, the option of unilateral
trade responses to core human rights violations is crucial (e.g., Cleveland [2002] at 137), and
it is largely for the sanctioning states to decide whether specific breaches of human rights
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justify unilateral measures. Venezuela – Measures relating to trade in goods and services
(pending) concerns trade sanctions adopted by the United States against Venezuela,
pertaining to among others trade in gold. According to the United States, human rights
violations in Venezuela motivated these sanctions. According to Venezuela, these trade
sanctions breach the obligations of the United States under GATT and GATS.
[23] In EC – Seal Products (2014), the WTO Appellate Body found that while the EU’s trade
restrictive measures to protect seals was in principle covered by Article XX it breached the
chapeau. The EU adopted a ban on imports of seal products on the grounds of protecting
animals, with certain exceptions for indigenous populations. The Appellate Body found that the
discriminatory treatment of seals from commercial hunting versus hunting by indigenous
populations was at odds with the regulatory purpose of protecting animals, and thus the EU’s
invocation of the general exception failed.
[24] In Polisario v Council (2015), the General Court of the EU partially invalidated a trade
agreement between the EU and Morocco because of the EU’s failure to inquire into whether
exports to the EU breached the human rights of the population of the Western Sahara.
However, the → Court of Justice of the European Union vacated the General Court’s judgment
because the trade agreement did not apply to the Western Sahara (→ sovereignty) (see
Council v. Front Polisario [2016] at 94-97). This case raised two important issues: (i) whether
a state (or group of states) is obligated to respect human rights in other jurisdictions; and (ii)
whether a state may adopt WTO-incompatible measures in response to breaches of human
rights abroad (Ryngaert [2018]). The idiosyncrasy of Western Sahara’s position led to an
inconclusive answer.

VI. Conclusion
[25] International trade law and human rights law share a focus on the well-being of individuals,
but from different perspectives. While international trade can create favourable conditions for
greater respect for human rights law, international trade law, by promoting economic exchange
and wealth creation, can also be in tension, and genuine conflict, with human rights. When
such conflicts arise, trade law and human rights law must find ways to co-exist (e.g., Pauwelyn
[2003]; Pulkowski [2014)).
[26] A ‘clash of globalizations’ emerged in the form of the familiar theme of fragmentation in
international law: the partial separation of human rights from economic policy and regulation,
creating distinct institutions – such as the World Trade Organization (WTO) and the ILO, as
well as rules and values for each regime (Shelton [2002] at 279). An early example of the clash
between human values and trade was the slave trade – which provided a major impetus for
the emergence of contemporary human rights law (Martinez [2011]).
[26] A proactive way for human rights to influence international trade law may be through policy
learning and socialization (Lang [2006]). Human rights lawyers and advocates can reshape
the way in which trade policymakers and trade lawyers think and contribute new insights about
what trade policies are desirable. As Mary Robinson underscored ‘[t]he human rights
framework adds to trade and development policy the notion that education, food, adequate
housing, and health care are rights, not merely needs. This implies that the poor should not
simply benefit from the charity of more resources but must have legal and political space to
claim their rights and take part in decision-making’ ([2003] at 11).

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[27] Sanctions have been a particular flashpoint at the human rights-trade interface. A possible
solution to the issue of unilateral trade sanctions is the creation of an international body
responsible for assessing human rights violations in connection with trade sanctions with final
decision-making power over these far-reaching measures (Vázquez [2003] at 836). Alston
(1982) cautions against an overreliance on sanctions, and calls for a comprehensive,
preventive strategy to promote human rights (rather than a curative one in the form of
sanctions). Other alternatives to trade sanctions include using the accession process to the
WTO to address prior human rights breaches; non-application of the GATT under Article
XXXV; naming and shaming through the WTO’s policy review process; and human rights
capacity building.
MICHAEL W AIBEL

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Cases

United States—Standards for Reformulated and Conventional Gasoline DSR 1996:I, 29,
adopted 20 May 1996

EC- Tariff Preferences (2005), Case WT/DS246/16/Add.3

Brazil—Measures Affecting Imports of Retreaded Tyres (2007), DSR 2007:V, 1527, adopted
17 December 2007.

Australia-Certain Measures Concerning Trademarks, Geographical Indications and Other

Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS435,
WT/DS441, WT/DS458, WT/DS467, August 2018

Case T-512/12, Front Polisario vs. Council of the European Union (2015) EU:T:2015:953

Case C-104/16 P, Council of the European Union vs. Front Polisario (2016) EU:C:2016:973

EC – Seal Products (2014)

EU-Korea FTA Panel Decision (2021)

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China-Measures affecting trading rights and distribution services for certain publication and
audiovisual entertainment products (USA v China) WT/DS363/19, May 2012

India vs. EC and a MS – Seizure of Generic Drugs in transit (2010) (India v EC and a MS),
WT/DS363/19 (2010)

Final Panel Report in the Matter of Guatemala—Issues Relating to the Obligations Under
Article 16.2.1(a) of Final Panel Report, In the Matter of Guatemala—Issues Relating to the
Obligations Under Article 16.2.1(a) of the CAFTA-DR (14 June 2017)

Venezuela – Measures relating to trade in goods and services (Venezuela vs. USA)
WT/DS574/1 (pending)

Other documents

Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/W/2, 14 November

2001

Norms on the responsibilities of transnational corporations and other business enterprises with
regard to human rights [2003]

Amendment of the TRIPS Agreement, Article 31bis

Decision on Implementation-Related Issues and Concerns, WT/MIN(01)/17, Implementation

of Article 66.2 of the TRIPS Agreement; Decision of the Council for TRIPS, 19 February 2003

WTO Decision, Kimberley Process Certification Scheme for Rough Diamonds – Decision of
15 December 2006, WT/L/676, 19 December 2006

Economic Partnership Agreement between the CARIFORUM Countries and the European
Community (2008)

John Ruggie, Guiding Principles on Business and Human Rights: Implementing the United
Nations ‘Protect, Respect and Remedy (Ruggie Principles, United Nations, 2011)

Regulation (EU) 2019/125 of the European Parliament and of the Council of 16 January 2019
concerning trade in certain goods which could be used for capital punishment, torture or other
cruel, inhuman or degrading treatment or punishment

The Realization of Economic, Social and Cultural Rights: The Question of Transnational
Corporations, U.N. ESCOR 1998, E/CN.4/Sub.2/1998/6

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CARIFORUM-EC Economic Partnership Agreement [2008], Preamble

KORUS Free Trade Agreement [2019], Preamble

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