From 'negative' to 'positive' integration in the WTO: Time for 'mainstreaming human rights' into WTO law?

Common Market Law Review

Volumn 37, Issue 6, 2000, Pages 1363-1382

  Petersmann, Ernst Ulrich ^a,b  

^a UNIVERSITY OF GENEVA   (Switzerland)

^b Rapporteur of the Committee on Arms Control and Disarmament Law   (Germany)

Author keywords

[No Author keywords available]

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EID: 23044521343     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: 10.54648/311764     Document Type: Article

References (37)

1. Cf. Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law (1991), chapt. VII.
2. Cf. Hudec, Essays on the Nature of International Trade Law (1999), at p. 215.
3. E.g. in Art. 27 of the 1948 Universal UN Declaration of Human Rights and in Art. 15 of the 1966 UN Covenant on Economic, Social and Cultural Rights.
4. Cf. Petersmann, The GATT/WTO Dispute Settlement System (1997), at pp. 18-22.
5. In the recent panel report on United States - Section 110(5) of the US Copyright Act (WT/DS160/R of 15 June 2000),
6. for instance, the Panel requested and received factual information from the WIPO Secretariat on the interpretation of various provisions of the Berne Convention for the Protection of Literary and Artistic Works (see WT/DS160/R, at 245-258).
7. Cf. Helfer, "Adjudicating copyright claims under the TRIPS Agreement: The case for a European human rights analogy", 39 Harvard International Law Journal (1998), 357-441.
8. Cf. WTO Annual Report 1998, at 37.
9. See e.g. Petersmann, "The WTO constitution and human rights", 3 Journal of International Economic Law (2000), 19-25.
10. On 29 July 2000, the International Law Association adopted a Declaration on the Rule of Law in International Trade which calls for various legal and institutional reforms of WTO law, such as improving the transparency of WTO rule-making processes and WTO dispute settlement proceedings and "increasing the participation of national representatives of the economic and social activities in the work of the WTO, for instance by creation of an Advisory Economic and Social Committee or an advisory parliamentary body of the WTO to be consulted regularly by the WTO organs."
11. Cf. e.g. Human Development Report 2000, UNDP 2000, at iii;
12. Sen, Development as Freedom (1999).
13. Cf. Petersmann, The Need for Integrating Trade and Competition Rules in the WTO World Trade and Legal System (1996).
14. E.g. liability rules, property rights, independent competition authorities, central banks and courts.
15. E.g. savings and investments in research and development.
16. See e.g. Subranmaniam, "TRIPS and the paradigm of the GATT", 13 World Economy (1990), 509-521, at 513.
17. Cf. Petersmann, "How to constitutionalize international law and foreign policy for the benefit of civil society? 20 Michigan Journal of International Law (1999), 1-30.
18. Cf. Petersmann, Michigan Journal of International Law op. cit. supra note 1, at 403-406.
19. Cf. e.g. Conybeare, "International organizations and the theory of property rights", 34 International Organization (1980), 307-334.
20. Cf. Petersmann, "Competition-oriented reforms of the WTO world trade system - proposals and policy options", in Zäch (Ed.), Towards WTO Competition Rules (1999), at pp. 43-71.
21. Cf. The United Nations and Human Rights 1945-1995, UN 1995, at 448-450.
22. See e.g. Bhagwati, "Trade linkage and human rights", in Bhagwati and Hirsch (Eds.), The Uruguay Round and Beyond (1998), at pp. 241-250.
23. See note 19, at 448.
24. Cf. Rosen, Kant's Theory of Justice (1993), at 218:
25. "For Kant, the state has three principal functions and obligations: a duty of justice to ensure a condition of maximum law-governed freedom; a duty of benevolence to provide for the needs of its subjects; and a teleological responsibility to create the framework within which all forms of human rationality can flourish." All these duties and separate functions "converge on the idea of freedom" (p. 219). Modern constitutional theories of social justice (e.g. by Rawls, A Theory of Justice (1971)) share the Kantian view of regarding maximum equal liberty as one of the foremost requirements of justice.
26. On private property as an indispensable ingredient not only of economic progress but also of individual liberty and rule of law, see Pipes, Property and Freedom (1999).
27. Cf. the Ninth Amendment to the US Constitution: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the People." The US Supreme Court has recognized certain unwritten rights (e.g. to privacy and to engage in political activity). But the Court has given clear preference to the judicial protection of civil and political over economic and social freedoms, and has never recognized individual freedoms of US citizens e.g. to import and export also across the US frontiers with third States.
28. Cf. Petersmann, "Limited government and unlimited trade policy powers? Why effective judicial review of foreign trade restrictions depends on individual rights", in Hilf and Petersmann (Eds.), National Constitutions and International Economic Law (1993), pp. 537-561, at 538.
29. E.g. among producers, traders and consumers pursuant to Arts. I, III and XIII GATT, Arts. II and XVII GATS, Arts. 3 and 4 TRIPS Agreement.
30. As provided for e.g. in Arts. X GATT, VI GATS, 42 et seq. TRIPS Agreement and Arts. 16-19 of the DSU. On these "constitutional functions" of WTO rules see Petersmann, National Constitutions and International Economic Law op. cit. supra note 1.
31. See e.g. Betten and Grief, EU Law and Human Rights (1998).
32. Cf. Weiler, The Constitution of Europe (Cambridge University press, 1999);
33. Alston (Ed.), The EU and Human Rights (Oxford University Press, 1999);
34. Lenaerts, Van Nuffel, Bray, Constitutional Law of the EU (Sweet & Maxwell, 1999);
35. Petersmann, "Proposals for a new constitution for the European Union: Building-blocks for a constitutional theory and constitutional law of the EU", 32 CML Rev. (1995), 1123-1175.
36. See e.g. Hilf, "Negotiating and implementing the Uruguay Round: The role of EC Member States - the case of Germany", in Jackson and Sykes (Eds.), Implementing the Uruguay Round (Oxford: Clarendon, 1997), 121-136.
37. See e.g. Petersmann, "The WTO Panel and Arbitration Reports on the EC Banana Regime", 3 Bridges Between Trade and Sustainable Development (April 1999), 3-4. The ECJ has rightly emphasized in numerous judgments that Art. 300(7) EC requires all EC institutions to exercise their powers in conformity with international law binding on the EC. Yet, with regard to GATT and WTO law, the Court continues its judicial self-restraint and ignores its mandate to "ensure that in the interpretation and application of this Treaty the law is observed" (Art. 220). Thus, in a judgment of 23 Nov. 1999 (Case C-149/96, Portugal v. Council, nyr), the EC Court misconstrued Art. 22 of the WTO's Dispute Settlement Understanding (which promotes voluntary compensation as a means of preventing countermeasures pending the continuation of WTO violations) to the effect that Art. 22 may justify violations of WTO law (- an interpretation never advanced by any WTO member which is clearly inconsistent with WTO law and no less arbitrary than earlier misinterpretations of GATT rules by the ECJ -) as well as of EC Treaty law (even though e.g. Arts. 220 and 300(7) EC clearly require compliance with international treaties ratified by all parliaments in the EC and in EC Member States). The fact that, over more than 45 years, there is only one single judgment by the EC Court finding an EC violation of international law (Case T-115/94, Opel Austria, ECR 1977 II-39) is characteristic of the ECJ's self-restraint concerning judicial review of the EC's - unfortunately frequent - violations of international law (notably in the area of the common agricultural and commercial policies).