Year: 2019
Type: article
Abstract: Mihir Kanade’s book is a refreshing addition to the voluminous literature on how to deal with two key phenomena in international law: fragmentation and the enhanced influence of developing countries. Its focus on the linkages between the World Trade Organization (WTO) and human rights is timely as both regimes face important questions concerning their legitimacy and universality. The WTO has become increasingly politicized in recent years and faces significant challenges regarding, inter alia, the conclusion of trade negotiations, the unilateral use of trade remedies and the functioning of the dispute settlement mechanism. Towards the end of his term as the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein described the situation of human rights in alarmingly negative terms, emphasizing factors such as zero-sum nationalism, short-term interests of individual leaders, the targeting of civilians in military operations, the use of chemical weapons, racism and xenophobia and the criminalization of human rights activism.1 One of the key contributions of Kanade’s book is its explanation of why the challenges faced by the two regimes cannot be seen in isolation. Kanade proposes a ‘governance space theory’ to explain challenges associated with the linkages between the WTO and human rights. He applies the theory to three distinct categories of linkages between the two regimes. The first concerns formal limitations following from WTO obligations on member states’ freedom to take measures to comply with their human rights obligations. The focus is on the extent to which WTO rules conflict with duties under human rights treaties and customary law. With respect to this linkage, Kanade addresses much-discussed issues, including whether there is a normative hierarchy between human rights and the WTO Agreement (Chapter 3), how the dispute settlement mechanism of the WTO can and should address human rights treaties and customary law in specific cases (Chapter 4) and to what extent Article XX of the General Agreement on Tariffs and Trade (GATT) provides adequate governance space to members seeking to comply with human rights obligations (Chapter 5).2 While these issues have been discussed before, Kanade contributes to the debate by approaching them from the perspective of the right to development. The second linkage category concerns another way in which the WTO can have adverse effects on members’ human rights performance. In Chapter 6, Kanade discusses how the WTO can create a ‘permissive environment to abuse governance space’. He identifies two reasons why such ‘abuse’ takes place. The first is that in order to benefit from the multilateral trade system, countries may be less willing to use governance tools to promote human rights. The second is that countries may lack the ability to use their governance space to protect human rights if they want to maintain their ability to compete on the global market. Kanade discusses this category of linkages by analysing the relationship between the WTO and labour standards and the division of responsibilities for improving labour standards between the WTO and the International Labour Organization (ILO). The linkages within this second category are indirect and sometimes weak. Kanade points out problems associated with a failure of taking them properly into account, in particular from the perspective of developing countries. The third category of linkages equally concerns the impact of the WTO on member countries’ ability to use their governance space to fulfil human rights obligations. In Chapter 7, Kanade asks whether the WTO creates a ‘limiting environment to use governance space’. The focus here is on the contribution of the WTO towards reducing members’ ability to fulfil human rights obligations. He argues that such effects follow from applying essentially the same rules to unequal political and economic entities. While developing countries have been allowed some flexibility when implementing obligations under the WTO, the same has been the case for developed countries. Kanade argues that, in sum, the WTO has resulted in more market access for developed countries than for developing countries. This linkage category is discussed based on a thoughtful and critical analysis of the ‘Aid for Trade’ initiative launched at the WTO Hong Kong Ministerial Conference in 2005. The main reason why Kanade distinguishes between the three linkage categories is that his governance space theory aims at identifying measures to maintain or enhance the governance space needed to comply with human rights obligations. The distinction between linkage categories reflects an assumption that the strategies to deal with the challenges differ. The book suggests that measures to deal with formal limitations of governance space would generally consist of regulatory initiatives in the WTO to safeguard or enhance members’ governance space. Human rights impact assessments are identified as an adequate means to deal with formal limitations on human rights policies (the first category) as well as with the creation of a limiting environment in which to deploy governance space (the third category). To deal with the abuse of governance space (the second category), the book suggests that solutions, in general, should be sought in specialized international institutions outside the WTO. In the following, I shall discuss in more depth three main aspects of the book: (i) Kanade’s discussion of legal issues regarding the relationships between the WTO Agreement and human rights; (ii) the book’s emphasis on developing country perspectives; and (iii) the extent to which Kanade’s theoretical framework of linkages is relevant for other ‘trade and …’ issues. A very significant part of Kanade’s book – three chapters, comprising his first linkage category – consists of a thorough and up-to-date analysis of rules and case law addressing the relationship between the WTO Agreement and human rights law. One essential conclusion is that scholarly debate on the relationship between the WTO Agreement and human rights treaties has focused too much on conflicts. Kanade himself offers a narrow definition of ‘conflict’ based on incompatibility from a legal perspective (at 56–59) and, thereby, leaves a relatively broad scope to the two other linkage categories. Against this background, one could have wished for a book that had paid more attention to the second and third linkage categories and less to the first. A narrow definition of conflict is appropriate when the focus is on the principles for solving norm conflicts – lex superior, lex posterior and lex specialis. Kanade convincingly argues that some human rights are lex superior to the WTO Agreement based on Articles 55, 56 and 103 of the UN Charter. However, he does not clearly define the scope of applicability of the Charter in this regard. One argument that could have been addressed is whether the starting point should have been the human rights listed in the human rights document that is most directly related to the Charter – the Universal Declaration on Human Rights – potentially as elaborated and interpreted in subsequent global human rights treaties.3 As pointed out by Kanade, the application of lex posterior and lex specialis to the relationship between the WTO Agreement and human rights law is much less clear-cut. Discussions of lex specialis run into problems of the normative status of the principle and of determining which rules are lex specialis – the applicable WTO rules, human rights or both (at 76–78). And discussions of lex posterior run into the problem that elements of the WTO Agreement – in particular, the GATT – are carried over from the original GATT, which predates global human rights treaties, while other elements of the WTO Agreement are much less clearly linked to previously existing rules (for example, the Subsidies Agreement and the Agreement on Technical Barriers to Trade).4 Kanade discusses various views on whether and how the WTO dispute settlement mechanism (DSM) could apply human rights. He agrees with the view that the WTO DSM cannot resort to human rights as a basis for rights or obligations or as justification for non-compliance with obligations under the WTO Agreement but, rather, that human rights may be relevant as interpretative arguments in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties.5 This is relevant, in particular, when interpreting the general exceptions of Article XX of the GATT and Article XIV of the General Agreement on Trade in Services (GATS).6 This part of Kanade’s book is relatively uncontroversial and based on broadly accepted views on the interpretation and application of the WTO Agreement. However, one may question Kanade’s arguments on a couple of specific points. One is his claim that it is much easier to justify measures under Article XX(g) than under Article XX(b) due to the strict requirement that a measure be ‘necessary’ to achieve its objective under the latter. On this basis, Kanade finds that ‘the governance space that States have with respect to designing and structuring measures for conservation goals is much broader as compared to those for protecting human health’. He argues that ‘there is no valid justification’ for such differences (at 125). Whether the difference between the two provisions is as important as Kanade claims can be disputed though. His view essentially depends on the interpretation and application of the requirement of Article XX(g) that measures be ‘made effective in conjunction with restrictions on domestic production or consumption’. The threshold for fulfilling this requirement remains unclear and is case dependent. Second, Kanade finds, based on the few cases in which Article XX has been successfully invoked, that it has ‘empirically proved to be extremely difficult for States to successfully demonstrate the requirements of [the Chapeau] of Article XX’ (at 127). However, this assumes that the real force of Article XX is revealed only in the WTO case law. This need not be correct; it may well be that, if defendants have strong claims under Article XX, potential claimants do not challenge trade-restrictive measures in the first place. Article XX might play a much more important role in practice than what is frequently assumed based on a study of WTO case law. All things considered, Kanade provides an up-to-date discussion of the interface between WTO law and human rights – the first of his three linkages. This is valuable, but it is only a first step in his attempt to set out a general theoretical framework for addressing the effects of international trade agreements outside WTO law. In relation to this theoretical ambition, the discussion of the first linkage can be regarded as introductory; it provides the background and justification for the book’s engagement with the more innovative second and third linkage categories. In light of Kanade’s background from India, his more than 10 years of affiliation with the United Nations (UN) University for Peace in Costa Rica and his work for the UN High Commissioner for Human Rights on the right to development, it is not surprising that developing country perspectives are in the foreground of his book. However, it is worth noting that Kanade chooses not to place his book within the literature classified as Third World Approaches to International Law (TWAIL). The parts of the book that study the indirect effects of the WTO through the second and third linkage categories are the ones that most clearly take a developing country perspective. The two case studies associated with these linkage categories are of great interest to those seeking literature that expands the perspectives of mainstream legal scholarship regarding the WTO Agreement. This is notably true for Kanade’s case study of the ‘Aid-for-Trade’ initiative, which he uses to discuss the third linkage category – the WTO as creating a limiting environment to the use of governance space. Here, Kanade comes the closest to applying TWAIL (at 190–191). This part of the book is highly critical and refreshing. Informed and well-researched contributions by legal scholars regarding international aid are rare. Kanade’s study is based on a thorough review of literature from several fields of research. To the extent that the Aid-for-Trade initiative was aimed at improving developing and least developed countries’ ability to benefit from their WTO membership, Kanade’s conclusions are scathing. He finds that the initiative creates ‘a structure where the unfair norms are no more questioned. They are rather internalized as the indisputable norms’ (at 191), and ‘there are enough reasons to believe that the principal beneficiaries’ of the initiative are developed countries (at 193). The case study on core labour standards, which Kanade uses to illustrate the second linkage category – the WTO’s contribution in enabling an environment prone to the abuse of governance space – is equally instructive. Kanade draws on studies of the relationship between trade liberalization and the level of labour standards. Arguably, by lowering trade barriers, the WTO provides incentives to members to lower labour standards in order to maintain or increase their competitiveness. This poses a challenge to least developed countries that may not have adequate opportunities to increase productivity through technological improvements. The dilemma between improving competitiveness and raising labour standards is not easy to resolve and will for the Kanade’s discussion is based on a of He points out that issues, such as to a to labour have developing countries to to place labour issues on the of the WTO. In they the to the General address the at the WTO Ministerial Conference in (at countries’ to a have been by the that to place labour standards on the of the WTO would the to trade by developed countries – a that has the of such In recent it that at with labour standards in international economic law have been more in international agreements than in agreements regarding trade in and This might be a that the interests and of developing countries are more and that on trade and labour issues may more at least at a or level than within the WTO and the the of his case it is worth noting that Kanade on the right to when seeking to resolve challenges associated with the second and third linkage categories. His discussion of the legal status of this right some important questions – in particular, his claim that it has the status of generally applicable customary international law and can be as an human right (at the focus on core labour standards, Kanade no attention to specific human rights or of human rights. A discussion of the linkage categories based on human rights could potentially have Arguably, strategies to deal with challenges within the three linkage categories would to human for example, based on the of of human rights. The book does not reason for between human rights. However, its emphasis on the between categories of human rights and the role of the right to as a for other human rights (at a for addressing human rights issues from a and developing country rather than from a particular and developed country perspective. The right to is a to the focus on in the WTO Agreement. Kanade offers a argument that the of to – as an of developing country perspectives in the of human rights – and – as an of broader of the multilateral – what could ‘a normative between the multilateral trade and international human rights. This does at least to some extent justify Kanade’s of not human rights in more that the of Kanade is to a general theoretical framework for addressing the effects of international trade agreements on human a key question is whether the framework is relevant and for challenges by other ‘trade and …’ issues. I shall discuss this question from a trade and environment perspective. This a perspective and law have been at the of the debate ‘trade and …’ issues. to address trade and environment issues and associated at least to the United Nations Conference on the Human in in and they have resulted in the of on Trade and under the GATT and the have been significant and in the WTO on the in which the ‘governance is by the WTO Agreement. has been the of the dispute settlement mechanism to concerns and focus on international trade and institutions In particular, to the WTO in order to members’ governance space have been the of the in Article of the Subsidies Agreement and the failure to on the of a to Article XX(g) of the GATT in Article XIV of the the on trade and environment issues have the existing governance space through and interpretation existing WTO The lack of in the WTO as well as the extent to which issues have in the WTO dispute settlement mechanism demonstrate the need for identifying to issues of of governance space. at related issues from the perspective of Kanade’s his argument is based on and the right to functioning as a normative between the WTO and human rights. In his he that, has most been as a normative between trade and issues. In with conclusions from the trade and environment Kanade finds to be the key objective of the WTO Agreement and argues that the agreements be interpreted and in with this He that trade and economic are not in but are to be means to achieve development. And cannot be if human rights are it is for WTO to human rights (at he argues that the right to is human and that it be as a which in other human (at emphasizing the economic and human rights aspects of as well as the economic and developing country aspects of the right to development, he provides a relatively strong argument that countries have legal and political obligations to take measures to address three categories of linkages issues. As the measures to be the three categories. the trade and environment debate into the relationship between trade and human as discussed by And the trade and environment debate benefit from the linkages by discussion of such potential has to and general, but three points can be from three of trade and environment issues, which in can be related to Kanade’s three linkages issues. The first is it draws on or impact assessments of trade that have been by countries the On the face of this a in the trade and human rights there is some and a relatively significant literature human rights impact assessments of trade rules and Kanade discusses human rights impact assessments towards the end of the book as a key means to address challenges associated with the first and third linkage categories (at He that such assessments to be at least at of the WTO and trade review and by (at the with and impact assessments may surprising the focus on regulatory issues generally in human right impact assessments have been more associated with the negative and of trade agreements and the need to measures to enhance and negative on the with the of governance space for human rights through human rights impact assessments may The lack of the of trade and its as discussed by Kanade (at the lack of of developed countries to the WTO to the benefit of developing and least developed countries. Kanade’s analysis might be of use for those how to impact assessments in the it notably suggests that focus on regulatory effects could as a means to safeguard or potentially enhance governance space. Arguably, this could more successfully be in or trade However, as pointed out by Kanade, the of governance space under the WTO Agreement through or treaties would only be as as such initiatives are not in the WTO. The second of the trade and environment is more concerns the relationship between multilateral agreements and trade and it aspects of Kanade’s second linkage category – the potential of the WTO to ‘abuse’ of governance space. Kanade discusses these linkage issues in relation to labour rights and the of the and the WTO and that WTO law is not the appropriate to the challenges associated with labour standards (at from trade and environment that this conclusion may be to One is the need to deal with in when countries not to in from the of In countries may significant economic by that are and a that the of through provisions international but the treaties and the Convention on are not trade with The relationship between trade provisions in and the WTO has been disputed in and scholarly The extent to which trade measures to these treaties to and are allowed under the WTO remains All this is of to Kanade’s debate trade and labour standards. the trade and environment the trade and human rights debate to address problems of and Kanade how from developing countries has of labour issues in the WTO. have seen in the of issues within the WTO, which have very been on the of the WTO for One difference is that labour do not deal with trade issues in the way they are addressed in Kanade’s conclusion that labour issues should be addressed in the rather than in the WTO that the should be more in issues of labour by the of His analysis of the of trade treaties in the abuse of governance space is an important for to resolve key challenges – in particular, those on and The third of the trade and environment has been the and initiatives that trade liberalization in the WTO when this will benefit both the environment and development. to be no to this focus in Kanade’s his third linkage category remains on a negative whether WTO rules create a limiting environment for the use of governance space. to Kanade, these effects of trade agreements are ‘a of the between the economic and of under WTO rules, on the one and the of those States in from the on the other (at The book addressing such challenges by on a to (at While that right could as a normative human rights impact assessments might be a more means to address such challenges in However, with and impact assessments out the and in the effects of trade rules and most such assessments are by developed and the extent to which they address effects in other including developing and least developed assessments have frequently that negative effects from trade liberalization are too or to justify or in the trade and environment impact assessments have a framework for initiatives to potential negative and have become an important to member and the the of trade with assessments could the debate on how impact assessments can be to and conflicts between trade and human rights. are However, they that Kanade’s framework is relevant in an and that at least some elements of the framework perspectives to the trade and environment more the discussions that from trade and environment should be into to initiatives to and Kanade’s governance space In sum, Kanade’s book a thoughtful and innovative perspective on how to the and on ‘trade and …’ issues Its key contribution is the and discussion of the two indirect linkage categories – the of abuse of governance space and the creation of a limiting environment for the use of governance space. work remains to be in of these linkage categories and determining how they can and should be addressed when applying existing rules and As Kanade points the distinction between the linkage categories is not clear-cut. The discussion in this review not only that Kanade’s categories are relevant and ‘trade and …’ in the but suggests that and are Kanade’s discussion on how to achieve between the WTO and human on the right to and the objective of development, is very it into the to achieve goals by and the of a on the right to The of these two might well become a key to analysis and of of international law and
DOI: 10.1093/ejil/chz032
Author: Ole Kristian Fauchald
Institution: University of Oslo
Language: English
Topic: World Trade Organization Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: bronze
OpenAlex ID: W2964302997