Social labelling and WTO law

Journal of International Economic Law

Volumn 5, Issue 3, 2002, Pages 719-746

  Lopez Hurtado, Carlos ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

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[No Author keywords available]

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EID: 0036386420     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/5.3.719     Document Type: Article

References (72)

1. See 'Overview of global developments and Office activities concerning codes of conduct social labelling and other private sector initiatives addressing labour issues'. International Labour Office, Governing Body 273rd session, Geneva, November 1998. GB.273/WP/SDL/I (Rev. 1) paras 68-81; 'Promoting a European framework for Corporate Social Responsibility, Green Paper of the Commission of the European Communities' COM(2001) 366 final, Brussels 18 July 2001; J. Diller, 'A social conscience in the global marketplace?: Labour dimensions of codes of conduct, social labelling and investors' initiatives' 138 International Labour Review 1999, pp 99-129; J. Hilowitz, 'Labelling child labour productsA preliminary study' ILO International Programme on the Elimination of Child Labour, 1997 (also available on www.ilo.org accessed on 1 November 2001).
2. See 'Overview of global developments and Office activities concerning codes of conduct social labelling and other private sector initiatives addressing labour issues'. International Labour Office, Governing Body 273rd session, Geneva, November 1998. GB.273/WP/SDL/I (Rev. 1) paras 68-81; 'Promoting a European framework for Corporate Social Responsibility, Green Paper of the Commission of the European Communities' COM(2001) 366 final, Brussels 18 July 2001; J. Diller, 'A social conscience in the global marketplace?: Labour dimensions of codes of conduct, social labelling and investors' initiatives' 138 International Labour Review 1999, pp 99-129; J. Hilowitz, 'Labelling child labour productsA preliminary study' ILO International Programme on the Elimination of Child Labour, 1997 (also available on www.ilo.org accessed on 1 November 2001).
3. See 'Overview of global developments and Office activities concerning codes of conduct social labelling and other private sector initiatives addressing labour issues'. International Labour Office, Governing Body 273rd session, Geneva, November 1998. GB.273/WP/SDL/I (Rev. 1) paras 68-81; 'Promoting a European framework for Corporate Social Responsibility, Green Paper of the Commission of the European Communities' COM(2001) 366 final, Brussels 18 July 2001; J. Diller, 'A social conscience in the global marketplace?: Labour dimensions of codes of conduct, social labelling and investors' initiatives' 138 International Labour Review 1999, pp 99-129; J. Hilowitz, 'Labelling child labour productsA preliminary study' ILO International Programme on the Elimination of Child Labour, 1997 (also available on www.ilo.org accessed on 1 November 2001).
4. See 'Overview of global developments and Office activities concerning codes of conduct social labelling and other private sector initiatives addressing labour issues'. International Labour Office, Governing Body 273rd session, Geneva, November 1998. GB.273/WP/SDL/I (Rev. 1) paras 68-81; 'Promoting a European framework for Corporate Social Responsibility, Green Paper of the Commission of the European Communities' COM(2001) 366 final, Brussels 18 July 2001; J. Diller, 'A social conscience in the global marketplace?: Labour dimensions of codes of conduct, social labelling and investors' initiatives' 138 International Labour Review 1999, pp 99-129; J. Hilowitz, 'Labelling child labour productsA preliminary study' ILO International Programme on the Elimination of Child Labour, 1997 (also available on www.ilo.org accessed on 1 November 2001).
5. Michael Urminsky (ed), 'Self-regulation in the workplace: Codes of conduct, social labelling and socially responsible investment', MCC working paper No. 1, Geneva: International Labour Office, 2000 p 38. Information about the general features of social labels has been taken from this report. See also 'Overview of global developments', above n 1.
6. Michael Urminsky (ed), 'Self-regulation in the workplace: Codes of conduct, social labelling and socially responsible investment', MCC working paper No. 1, Geneva: International Labour Office, 2000 p 38. Information about the general features of social labels has been taken from this report. See also 'Overview of global developments', above n 1.
7. Ulrike Grote, 'Impact of Trade Sanctions and Social Labelling on Labour Standards' Bridges, vol. 4:1, 2000 p. 11. Grote argues that child labour labels have the same negative impact as other economic sanctions.
8. M. Urminsky, above n 2 p. 45.
9. Information about the initiative and activities of the coalition can be found on the web site www.ethique-sur-etiquette.org.
10. Some of the towns that have signed up to one of these initiatives in the UK include Gloucester, Bristol and Chester. Information can be found in the web site www.fairtrade.org.
11. See European Parliament resolution of 13 January 1999, 'On the community norms applicable to European enterprises that operate in developing countries: towards a code of conduct', where the European Parliament advocates the adoption of a European model code of conduct. See also Communication of the Commission to the Council on Fair Trade, COM (1999) 619 final of 29 November 1999.
12. See European Parliament resolution of 13 January 1999, 'On the community norms applicable to European enterprises that operate in developing countries: towards a code of conduct', where the European Parliament advocates the adoption of a European model code of conduct. See also Communication of the Commission to the Council on Fair Trade, COM (1999) 619 final of 29 November 1999.
13. The draft law was notified to the WTO pursuant the provisions on transparency of the Agreement on Technical Barriers to Trade. Notification G/TBT/N/BEL/2 (16 January 2001).
14. Draft Act to promote socially responsible production: House of Representatives, Belgium, as amended by the Senate in May 2001 and returned to the House of Representatives. According to officials of the European Commission in Brussels, the draft act was passed in the Belgian Parliament early in the year 2002. It still awaits promulgation.
15. See Responsibility of States for Internationally Wrongful Acts, prepared by the International Law Commission, annexed to General Assembly resolution A/RES/56/83 28 January 2002 in Articles 4 and 5. See also the Agreement on Technical Barriers to Trade, Articles 3 and 4.
16. Article III:4 reads as follows: The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.'
17. Japan - Taxes on Alcoholic Beverages Report of the Appellate Body WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R adopted on 1 November 1996, in para F (hereafter Japan-Alcoholic Beverages).
18. R. Hudec 'GATT/WTO Constraints on National Regulation: Requiem for An Aims and Effects Test', 32 The International Lawyer 1998 p. 619 and ff, reprinted in R. Hudec (ed), Essays on the Nature of International Trade Law, p. 364.
19. R. Hudec 'GATT/WTO Constraints on National Regulation: Requiem for An Aims and Effects Test', 32 The International Lawyer 1998 p. 619 and ff, reprinted in R. Hudec (ed), Essays on the Nature of International Trade Law, p. 364.
20. Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Appellate Body WT/DS161/AB/R, WT/DS169/AB/R adopted on 10 January 2001 para 133 (hereafter Korea-Beef case).
21. Japan-Alcoholic Beverages case in para H.
22. European Communities - Measures Affecting Asbestos and Asbestos-containing Products, Report of the Appellate Body WT/DS135/AB/R 12 March 2001 (hereafter EC-Asbestos case).
23. Ibid para 88.
24. Ibid para 99.
25. Ibid para 101. These four criteria, the AB noted, are simply tools to assist in the task of sorting and examining the relevant evidence. 'They are neither a treaty-mandated nor a closed list of criteria that will determine the legal characterisation of products'. See para 102.
26. Ibid para 113.
27. Korea-Beef para 137.
28. Ibid para 149.
29. EC-Asbestos case para 100.
30. WTO jurisprudence seems to be reluctant to look into the intentions or motivations of states in adopting a given regulation. The panel or AB analysis of the effects of a measure on the competitive relationship between two products is thus confined to a sort of 'objective' assessment. However, some doubt that such assessment would be feasible without looking, explicitly or implicitly, at the regulatory purpose of the measure. Referring to the policy statement of Article III:1 that internal measures 'should not be applied . . . so as to afford protection to domestic production', the Appellate Body has stated that the protective application of a measure 'can most often be discerned from the design, the architecture, and the revealing structures of a measure': Japan-Alcoholic Beverages case para H. See generally, R. Hudec, above n 13.
31. WTO jurisprudence seems to be reluctant to look into the intentions or motivations of states in adopting a given regulation. The panel or AB analysis of the effects of a measure on the competitive relationship between two products is thus confined to a sort of 'objective' assessment. However, some doubt that such assessment would be feasible without looking, explicitly or implicitly, at the regulatory purpose of the measure. Referring to the policy statement of Article III:1 that internal measures 'should not be applied . . . so as to afford protection to domestic production', the Appellate Body has stated that the protective application of a measure 'can most often be discerned from the design, the architecture, and the revealing structures of a measure': Japan-Alcoholic Beverages case para H. See generally, R. Hudec, above n 13.
32. United States - Standards for Reformulated and Conventional Gasoline. Appellate Body Report and Panel report, WT/DS2/9 adopted on 20 May 1996 (hereafter US-Gasoline case) para 22.
33. I b i d
34. United States - Import Prohibition of Certain Shrimp and Shrimp Products. Report of the Appellate Body, WT/DS58/AB/R adopted on 6 November 1998, (hereafter US-Shrimp case), para 121. In the US-Shrimp review case, the AB emphasized: 'Contrary to what Malaysia suggests, this statement is not "dicta". As we said before, it appears to us 'that conditioning access to a Member's domestic market on whether exporting Members comply with, or adopt, a policy or policies unilaterally prescribed by the importing Member may, to some degree, be a common aspect of measures falling within the scope of one or another of the exceptions (a) to (j) of Article XX. This statement expresses a principle that was central to our ruling in United States-Shrimp'. US-Import Prohibition of Certain Shrimp and Shrimp products (Recourse to Article 21.5 of the DSU by Malaysia) WT/DS58/AB/ RW 22 October 2001 para 138 (hereafter US-Shrimp review case).
35. US-Shrimp case para 150.
36. Ibid para 177.
37. Ibid para 171.
38. US-Shrimp Review case, para 134.
39. Ibid para. 144
40. See Doaa A. Motaal, 'The Agreement on Technical Barriers to Trade, the Committee on Trade and Environment, and Eco-labelling', in Gary P. Sampson and W. Bradnee Chambers (eds), Trade, Environment and the Millennium (United Nations University Press: Tokyo 2000) 225-6.
41. Annex 1 to the TBT Agreement defines 'international body or system' as a 'body whose membership is open to the relevant bodies of at least all members' of the WTO. The International Standardization Organization (ISO) Directory of International Standardizing Bodies, 7th edn (1995), lists the ILO as a body that deals with standardization and labour standards as technical standards.
42. 'United States - Restrictions on Imports of Tuna". Report of the GATT panel (unadopted), 31 ILM 1991, pp 1598-623 (hereafter Tuna I case) para 5.11.
43. Tuna I case, para. 5.15.
44. 'United States - Restrictions on Imports of Tuna'. Report of the GATT panel (unadopted), 33 ILM 1994, pp 839-99 (hereafter Tuna II case) para 5.8.
45. 'India - Measures Affecting the Automotive Sector', Report of the panel, WT/DS146/R WT/DS175/R adopted on 5 April 2002 paras 7.223 and 7.224.
46. Robert Howse and Donald Regan, 'The product/process distinction: An illusory basis for disciplining "unilateralism" in trade policy' European Journal of International Law, vol. 11:2 (2000), 249-89 at 256.
47. I b i d.
48. Appleton, Arthur 'Environmental Labelling Schemes: WTO law and developing Country Implications' in Gary P. Sampson and W. Bradnee Chambers (eds), Trade, Environment, and the Millennium (United Nations University Press: Tokyo 2000) 208-9: see also John H. Jackson, 'Comments on the Shrimp/Turtle and the Product/Process Distinction' European Journal of International Law, vol. 11:2 (2000), 303-7.
49. Appleton, Arthur 'Environmental Labelling Schemes: WTO law and developing Country Implications' in Gary P. Sampson and W. Bradnee Chambers (eds), Trade, Environment, and the Millennium (United Nations University Press: Tokyo 2000) 208-9: see also John H. Jackson, 'Comments on the Shrimp/Turtle and the Product/Process Distinction' European Journal of International Law, vol. 11:2 (2000), 303-7.
50. G/TBT/W/11 29 August 1995 para 3(c).
51. See for instance, the position of the US in the Committee on TBT meeting of 1 March 1996 G/ TBT/M/4 para 93.
52. 'First Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade', G/TBT/5 (19 November 1998).
53. G/TBT/M/4 op cit, para 82.
54. 'Marking and labelling requirements') Submission from Switzerland. Committee on Trade and Environment and Committee on Technical Barriers to Trade. G/TBT/W/162 WT/CTE/W/192 19 June 2001.
55. 'Second Triennial Review of the Operation and Implementation of the Agreement on TBT', Committee on Technical Barriers to Trade, G/TBT/9 13 November 2000. See para 48.
56. Tuna I case, para 5.6.
57. I b i d.
58. Ibid para 3.3.
59. Ibid para 5.42.
60. Ibid para 5.43.
61. See above for a description of social labelling initiatives that are - or want to be - sponsored by local governments in France, the UK and other countries.
62. See 'Committee on Technical Barriers to Trade. Minutes of the Meeting held on 30 March 2001' G/TBT/M/23 8 May 2001, and 'Minutes of the Meeting held on June 2000' G/TBT/M/24. Interested governments have sent comments and questions to the EC regarding the draft law to which the EC has replied. At the internal level, the EU Commission has made observations to the Belgian authorities.
63. See 'Committee on Technical Barriers to Trade. Minutes of the Meeting held on 30 March 2001' G/TBT/M/23 8 May 2001, and 'Minutes of the Meeting held on June 2000' G/TBT/M/24. Interested governments have sent comments and questions to the EC regarding the draft law to which the EC has replied. At the internal level, the EU Commission has made observations to the Belgian authorities.
64. Argentina pointed out that the Belgian draft had been notified under article 2.9.2, a provision for technical mandatory regulations, while it was a voluntary measure. See 'Minutes of the March meeting', G/TBT/M/23 para 14.
65. See 'Minutes of March meeting', paras 12, 15, and 16; and 'Minutes of June meeting', above n 54.
66. See 'Minutes of March meeting', paras 12, 15, and 16; and 'Minutes of June meeting', above n 54.
67. In WTO law the TBT agreement enjoys priority over the GATT in the event of conflict between the two for being the most specific agreement, but the dispute settlement bodies have applied the GATT primarily whenever a measure is challenged and assessed under both agreements.
68. See Korea-Beef case para 162; and EC-Asbestos case para 172.
69. See Korea-Beef case para 162; and EC-Asbestos case para 172.
70. See Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, International Court of Justice, ICJ Reports 1970. In this case; the ICJ drew a distinction between obligations owed to particular states and 'obligations owed towards the international community as a whole'. With regard to the latter the Court stated that '[I]n view of the importance of the rights involved) all States can be held to have a legal interest in their protection; they are obligations erga omnes' at para. 33. The International Law Commission has incorporated this distinction and the legal interest of all States in the protection of obligations erga omnes - and human rights obligations are erga omnes obligations - in its Articles on Responsibility of States for Internationally Wrongful Acts, Article 48 on 'Invocation of responsibility by a State other than an injured State'. See UN General Assembly Resolution A/RES/56/83; also Report of the International Law Commission to the General Assembly 2001, UN Doc. A/56/10 28 January 2002.
71. See Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, International Court of Justice, ICJ Reports 1970. In this case; the ICJ drew a distinction between obligations owed to particular states and 'obligations owed towards the international community as a whole'. With regard to the latter the Court stated that '[I]n view of the importance of the rights involved) all States can be held to have a legal interest in their protection; they are obligations erga omnes' at para. 33. The International Law Commission has incorporated this distinction and the legal interest of all States in the protection of obligations erga omnes - and human rights obligations are erga omnes obligations - in its Articles on Responsibility of States for Internationally Wrongful Acts, Article 48 on 'Invocation of responsibility by a State other than an injured State'. See UN General Assembly Resolution A/RES/56/83; also Report of the International Law Commission to the General Assembly 2001, UN Doc. A/56/10 28 January 2002.
72. US-Gasoline case p. 17.