Democratic Deficit and the WTO
Democratic Deficit and the WTO
Abstract and Keywords
This chapter analyses arguments that the WTO suffers from a ‘democratic deficit’, which would cast doubt on the legitimacy and perhaps the desirability of the WTO's rules. The first section outlines the claim that WTO internal processes, such as negotiation and dispute settlement, undermine the capacities of States to act in accordance with the wishes of their populations. A related argument is that those same processes act to the disadvantage of particular constituencies, namely developing States and social justice interests. The second section explains the relevance to these issues of international human rights law, particularly the right of political participation in Article 25 of the International Covenant on Civil and Political Rights 1966 (ICCPR). Many of the alleged democratic deficits of and within the WTO afflict other international regimes. In this regard, the third section compares the WTO regime and the international human rights regime in order to identify whether democratic deficiencies within the WTO are of greater concern than the general democratic deficiencies that exist at the international level of governance. The fourth section briefly addresses arguments regarding the effect on democratic practices of the WTO. It considers the substantive question of whether the WTO in fact helps to foster democracy in nations, regardless of any lack of internal democratic legitimacy. The fifth section addresses the proposition that the WTO enhances the power of developing States, regardless of internal procedural flaws, due to its multilateral nature, while the sixth section concludes.
This chapter will analyse arguments that the WTO suffers from a ‘democratic deficit’. Such a deficit would cast doubt on the legitimacy and perhaps the desirability of the WTO’s rules.1 This chapter first outlines the claim that WTO internal processes, such as negotiation and dispute settlement, undermine the capacities of States to act in accordance with the wishes of their populations. A related argument, which is the focus of the opening part of this chapter, is that those same processes act to the disadvantage of particular constituencies, namely developing States and social justice interests. Secondly, the relevance to these issues of international human rights law, particularly the right of political participation in Article 25 of the International Covenant on Civil and Political Rights 1966 (ICCPR), will be explained. Thirdly, many of the alleged democratic deficits of and within the WTO afflict other international regimes. In this regard, a comparison between the WTO regime and the international human rights regime is undertaken in order to identify whether democratic deficiencies within the WTO are of greater concern than the general democratic deficiencies that exist at the international level of governance. Fourthly, I briefly address arguments regarding the effect on democratic practices of the WTO. That section addresses the substantive question of whether the WTO in fact helps to foster democracy in nations, regardless of any lack of internal democratic legitimacy. The fifth section addresses the proposition that the WTO enhances the power of developing States, regardless of internal procedural flaws, due to its multilateral nature. The sixth section concludes the chapter.
A. The Two Components to the WTO/ Democratic Deficit Argument
There are two strands to the ‘democratic deficit’ arguments. First, there are arguments regarding the substance of WTO rules, the WTO’s ‘output’.2 A general contention of critics is that WTO rules unduly restrict the regulatory capacities of (p.57) States, which is problematic if WTO rules undermine the ability of States to enact laws that reflect the democratic will of their people.3 For example, in European Communities—Measures Concerning Meat and Meat Products (Hormones), the Panel and the Appellate Body decided that the ban on the import of hormone-treated meat by the European Communities was a breach of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS).4 The lifting of the ban would be likely to be against the wishes of the majority of European peoples and consumers, who fear that such hormones could be unsafe for their health. Hence, theEC has chosen to maintain the ban and suffer consequent trade sanctions in accordance with WTO rules.5 A similar issue could arise in the future regarding the EC’s restrictions on imports of genetically modified organisms (GMOs).6
The second and intrinsically related component to the ‘democratic deficit’ arguments concerns WTO internal processes,7 that is its ‘input’. If the WTO’s input legitimacy is lacking, that circumstance casts doubt on the legitimacy of the substantive rules, that is the output, generated by those processes.8
There is commonly little democratic input into a State’s decision to join the WTO, even though that decision generates binding WTO obligations which can have a profound impact on people’s lives and livelihoods. For example, ratification is often a function of the executive government, rather than the representative legislative arm of a national government. Even if WTO proposals are put before a State’s legislature, it is extremely difficult for certain States, especially those that lack economic power, to retreat and back away from a deal in the final stages. This is due to the consensus requirement in the WTO that all must adhere to all of the concluded treaties. It would be extremely difficult for a small State to ‘hold out’ against all other WTO members.9 (p.58)
In any case, people have historically not been well informed of the process of negotiating agreements, standards, or accession deals which, historically, have been negotiated by trade technocrats in secret. Negotiating teams have tended to represent a narrow range of interests, and are not necessarily skilled at anticipating or appreciating the ‘non-trade’ impacts of trade deals, for example in the fields of human rights, environment, and health. Indeed, the branches of government concerned with human rights generally have little input into trade negotiations.10 There is a need for governments to take a more holistic and ‘joined-up’ approach to their international obligations, so that their trade experts and human rights experts liaise.11 Indeed, former World Bank economist Joseph Stiglitz has suggested that trade negotiations are too important to be left to trade ministries.12 This commercial bias is exacerbated by the fact that the non-State actors directly involved in negotiations normally represent business interests rather than other elements of civil society.13 For example, the TRIPS agreement was a response to lobbying by a small number of business executives,14 while the Agreement on Agriculture was reportedly originally drafted by Dan Amstutz, a trade representative who was a former Vice-President of Cargill, one of the major global agribusiness firms.15 It is arguable that the WTO negotiation process is simply amplifying the lobbying power of actors who already have huge national influence, namely multinational corporations, the major engines of global trade.16
Given the dominant commercial ethos of WTO negotiators, the negotiated rules are naturally dominated by free trade and commercial values. Furthermore, such values are likely prioritized where they conflict with, or diverge from, other values.17 For example, food safety laws, which have a significant impact on the human rights to adequate standards of health care and food, are analysed in terms (p.59) of their scientific justifiability under the SPS, with a focus on their impact on trade flows rather than human health.18 Similarly, environmental measures are assessed according to their trade impact, rather than their environmental impact.19 As many regulations impact on trade (and conversely, trade impacts on many social issues), the foregrounding of trade impacts leads to a backgrounding of so-called non-trade concerns.20 If ‘trade’ and ‘non-trade’ values should clash or diverge from each other, the latter seem to be disadvantaged.
As non-trade interests, such as human rights and environmental lobbies, were not effectively represented in the negotiating phase of the Uruguay Round, it is arguably illegitimate for WTO institutions subsequently to make decisions based on the results of those negotiations that impact on those same non-trade interests.21 Yet the WTO Panels and the Appellate Bodies have made such decisions in areas regarding the environment and health.22 A related contention is that the priority given to trade values within the WTO undermines the ability of States to respect international obligations in the non-trade arena. For example, it has been argued that the Beef Hormone decision undermined the duty of the States in the European Union (EU) to respect the right to an adequate standard of health in the context of food safety.23 Indeed, a further advantage to trade interests is that the WTO provides for no process whereby the adverse affects of a trade liberalizing measure can be challenged. If, as a hypothetical example, illnesses and deaths had arisen from hormone-injected beef introduced into the European market pursuant to free trade rules, the WTO would have provided no platform for an affected person to challenge the measures that allowed the beef into the marketplace. Therefore, the WTO does not provide for a true balancing of trade and non-trade interests, as the latter only become relevant when States choose to invoke them as justifications to restrict trade (and thus risk non-compliance with the WTO), rather than when States might threaten non-trade interests by removing barriers to trade in, for example, a harmful product.24 (p.60)
Proposals for the inclusion of social justice and other non-governmental organizations (NGOs) within the negotiating process may be rebuffed on the basis that such organizations themselves lack democratic credentials.25 Nevertheless, as Steve Charnovitz has argued, input into negotiations by non-trade interest groups, as well as the non-trade areas of government, would ensure that alternative ideas and values are injected into the WTO decision and policy making process, improving its local ‘marketplace of ideas’. A broader spectrum of input will improve the legitimacy of the WTO’s output.26
Relations between the WTO and other organizations, whether intergovernmental or non-governmental, are governed by Article V of the Marrakesh Agreement. Article V provides briefly in paragraph 2 that the ‘General Council may make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO.’ Pursuant to this mandate, the WTO adopted the one-page ‘Guidelines for Arrangements with Non-Governmental Organizations’ in 1996.27 These guidelines recognize that NGOs are a ‘valuable resource’ that have a role ‘to increase the awareness of the public in respect of WTO activities’. However, the guidelines also clarified the limits of NGO involvement by confirming that, pursuant to a ‘broadly held view’ within the WTO, ‘it would not be possible for NGOs to be directly involved in the work of the WTO or its meetings’.
To be sure, WTO practices regarding participation and transparency are a great improvement upon those of the GATT. NGOs have run side events at Ministerial conferences since the WTO’s first Ministerial in Singapore in 1996, during which there are plenty of opportunities for interaction between State delegations, WTO personnel and NGOs. There are also regular briefings for NGOs by the Secretariat on the work of the various WTO governing bodies.28 NGO participation in Ministerial meetings has grown exponentially; 159 NGOs were registered to participate in Singapore in 1996 while 1,081 were registered to participate in Hong Kong in 2005.29
The WTO has also increased its engagement with non-trade groups, including NGOs and intergovernmental organizations such as the UN Food and Agriculture Organization.30 However, there remains much scope for enhanced cooperation (p.61) with such groups.31 Of particular note is that no human rights organization has observer status at the WTO. Indeed, despite the numerous intersections between trade and health issues,32 the Special Rapporteur on the Right to Health commented in 2004 that his mission to the WTO at that time was ‘one of the first occasions’ on which WTO members and observers had discussed the right to health.33 Four years later, the first (and so far only) mission by the Special Rapporteur on the Right to Food was conducted in 2008, many years after the WTO should have been aware of pervasive concerns regarding the effect of its rules on the right to food.34
Much WTO information, including policy documents and plain language explanations of its mandate and purpose, is readily available, particularly via its excellent website. Many nations now publish a substantial proportion, if not all, of their negotiating proposals, allowing time for significant outside input.35
Some States have included NGOs and other representatives with social interests beyond trade on their delegations, thus lending them a presence ‘at the table’,36 though such people ‘do not participate typically in all negotiating activities’.37 There is no doubt that NGOs, through general lobbying and also through bilateral engagements with separate country delegations,38 have significantly influenced a number of Doha round developments, such as the WTO’s initiatives on access to medicine, and the decision in the Hong Kong Ministerial to address protectionism in the cotton industry (which has devastating effects on the livelihoods of cotton farmers in some of the world’s poorest States in Western Africa) as an issue separated out from the broader rubric of agricultural negotiations.39 However, the impact of these initiatives must not be overstated. After all, the rules concluded after the Uruguay round, which was undoubtedly flawed in terms of participation by social justice bodies, are the same rules which essentially prevail today. The initiatives regarding access to medicines, discussed in detail in Chapter 6, are a rare instance of actual new rules concluded since 1995 (though most of those initiatives probably only clarify existing rules). In contrast, while significant progress on cotton arose before and during the Hong Kong Ministerial of 2005, little progress (p.62) on that issue has been made since, and the rules have not yet been amended to the satisfaction of NGOs and cotton farmers in the developing States.40
Just as there is a bias within the WTO against ‘non-trade’ interests, there is a bias in WTO processes against developing States (sometimes referred to in this book as ‘the South’) in favour of industrialized States (sometimes referred to in this book as ‘the North’). WTO Members are driven by domestic political agendas to attempt to carve a bargain that is most favourable to their own industries, rather than a fair bargain.41 A fair deal might still eventuate by default, as negotiators are forced to compromise if everyone has the same cut-throat attitude, but only if negotiating teams possess equal power. However, the strongest Members within the WTO, such as the US and the EC, have clearly exercised greater influence over the negotiations leading up to the WTO and Doha round negotiations than weaker countries, especially small developing countries. Even though the WTO treaties were adopted by consensus, and future negotiating outcomes must be approved by consensus, Professor Thomas Cottier has suggested that the WTO ‘in fact operates under a system of de facto preponderance, reflecting political clout and market size’.42 It is unrealistic to expect small states to hold up the entire WTO membership to seek a more appropriate deal, given the enormous political pressure that would be brought to bear on them.43
Furthermore, negotiators and other relevant personnel from developing States may lack the technical expertise to effectively represent their nations’ interests.44 Indeed, huge discrepancies may arise in the size of negotiating delegations. In the Hong Kong Ministerial meeting in 2005, the US had 356 delegates while Burundi had three.45 Given the intense ongoing nature of WTO negotiations one can surmise that the US delegates were far better informed (and slept!) than those from Burundi. The least developed WTO members are unable to maintain WTO (p.63) missions in Geneva, so they cannot participate in the numerous interim meetings at WTO headquarters.46
The negotiating culture of the GATT served to exclude numerous Members from important aspects of deal-brokering. Policies and treaties were negotiated in notorious ‘Green Room’ meetings to which only certain Members were invited, and in which discussions were secret. Green Room decisions were then presented to other Members as faits accomplis. Of course, this process not only generated substantively unfair outcomes (unsurprisingly, favouring the Green Room participants) but also feelings of marginalization and resentment amongst those excluded.47
Under-participation by developing States at various stages in WTO negotiating processes means that the negotiated outcomes of the Uruguay Round are less likely to be in their interests.48 Indeed, the current Director-General of the WTO, Pascal Lamy, has conceded that current WTO rules favour the rich and economically powerful States over the poor and comparatively powerless States.49 This imbalance is explored in Chapters 5 and 6.
Other examples of participation difficulties by developing States arise from the SPS and TBT Agreements. These two agreements regulate the use of certain non-tariff barriers, namely sanitary and phytosanitary measures and technical standards. Implementation of these agreements relies heavily on recognized international standards and standard setting bodies.50 Relevant organizations for the SPS Agreement are the so-called ‘three sisters’:51 the International Plant Protection Convention (regarding plant health), the World Organisation for Animal Health (regarding animal health), and the Codex Alimentarius Commission (regarding food safety). Relevant bodies for the TBT include the International Standards Organization (ISO).
Jürgen Kurtz has pointed out the inadequate level of developing country participation in some of these organizations. Codex, for example, often bases its risk assessments on ‘data from only 20 of its 170 members’.52 A Codex standard is often adopted while many developing State members are not present. Kurtz reports that Codex nearly adopted a couscous standard defining it as a wheat product even though couscous is made from non-wheat crops in Sub-Saharan Africa. The definition was changed only at a late stage due to the timely intervention of a single (p.64) representative from Sub-Saharan Africa.53 Similar imbalances in participation rates are evident in the ISO.54
There have been improvements in WTO processes designed to facilitate greater participation by all Members. The Green Room has been significantly reformed, with more invitees and a more transparent process. The focus in these smaller group discussions is on consensus building rather than on decision making, so Members not involved in the particular discussions are not presented with ‘take it or leave it’ propositions.55 The WTO is also attempting to provide greater technical support to improve the negotiating and technical capacities of developing countries through, for example, the Integrated Framework for Trade-Related Technical Assistance to Least Developed Countries,56 which coordinates policy efforts in this regard between the WTO and other international financial and development agencies, and identifies technical assistance needs in relevant States. Since 2001, the WTO has adopted annual Technical Assistance and Training Plans designed to provide training and information to improve the capacities of the poorest States, including their capacities to participate in negotiations.
Furthermore, in the current Doha round of WTO negotiations, developing States have formed stronger coalitions to counterbalance the traditional power of the US and the EC.57 The negotiating clout of big developing States with huge markets such as India, Brazil, and China cannot be doubted. However, this balancing of power within WTO negotiations has helped to stall the current negotiations, so the unfair 1995 rules largely prevail. Furthermore, while strong developing States such as China, Brazil, and India have accrued greater negotiating muscle, the same cannot be said for the many States with small, vulnerable economies. The Pacific Island WTO members have pressed for the recognition of a new grouping within the WTO of ‘Small Vulnerable States’. Such a grouping has not been created, though there is a commitment to integrate such States more fully into the global trading system.58 Compliance with this vague promise, contained in the Doha Ministerial Declaration of 2001,59 is difficult to ascertain.
The disadvantages for acceding States in negotiating to join the WTO are worse than those experienced by developing States during the Uruguay Round. Acceding States have been required to accept more onerous undertakings than existing members without reciprocal guarantees.60 Existing WTO Members have a right of veto to hold as a bargaining chip, while an acceding member, particularly one with a weak economy, has few if any bargaining chips. An acceding State will also have comparatively little negotiating experience in the WTO milieu, and will find itself pitted against experienced trade negotiators from major economic powers, who are largely concerned with extracting the best deal possible for their own country (p.65) or with establishing favourable negotiating precedents for the future, rather than with the development needs of the acceding State.61
The WTO’s Dispute Settlement System is probably the most powerful international dispute system in the world.62 There is a high level of compliance with the findings of adopted Panel and Appellate Body reports,63 as non-compliance can result in the imposition of economic countermeasures on the recalcitrant Member by the victorious Member. Indeed, the dispute settlement bodies are arguably disproportionately powerful within the WTO.64 Their decisions can only be overruled by consensus, which is improbable given that a vindicated Member is unlikely to vote against its own victory. The ‘law-making’ role of the WTO’s ‘judiciary’ is presently more consequential than was possibly ever envisaged, as the legislative process has stalled during the Doha round.65
There are criticisms regarding the expertise, accountability and transparency of the WTO’s Panels and its Appellate Body. Decisions, especially at first instance, are made by trade experts, who may not be particularly conversant with non-trade issues such as human rights, which can again lead to an undue dominance of trade values over potentially competing values. Hearings are closed to the public unless all parties consent,66 though final decisions by Panels and Appellate Bodies are publicly available.
Even though the dispute settlement process is only open to States, private commercial interests have been effectively represented in that dispute settlement process.67 For example, some cases are colloquially known by the names of the private interests behind the litigation, rather than by the States who ‘fought’ the case: the ‘Kodak/Fuji’ case is one such example.68 The dispute between Antigua and (p.66) Barbuda and the US concerning the latter’s regulation of internet gambling was reported to be driven by a company, World Sports Exchange, incorporated by US citizens in Antigua and Barbuda. Pauwelyn claims that the company director shopped around for a forum to push his trade interests, hence the case concealed the fact that a US investor was in fact suing the US government.69 In contrast, civil society NGOs have participated on only an indirect basis by submitting amicus briefs. The panels can accept unsolicited briefs, but they do not have to.70 It is not clear whether such briefs have been significant in the making of any decisions.71 The unique level of participation by commercial bodies in WTO dispute settlement processes again prioritizes a trade focus to the possible detriment of non-trade interests.
A related bias was manifested in India-Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products.72 The case concerned the WTO legality of a quota placed by India on the imports of certain products. India claimed that its measures complied with Article XII of GATT, which allows quantitative restrictions in order to safeguard balance of payments, and Article XVIIIB, which allows developing States to adopt quotas to safeguard their external financial positions, and to maintain ‘reserves adequate for the implementation of its programme of economic development’. The Appellate Body found that the measures did not fulfil the requirements of Articles XII or XVIIIB, so they breached the prohibition on quantitative restrictions in Article XI of GATT. In order to reach this decision, the Appellate body disagreed with India on the amount necessary to constitute ‘adequate’ monetary reserves for the purposes of balance of payments, and also disagreed with India that a finding against it would force it to change its development policy, contrary to its rights under Article XVIIIB. In making these decisions, the Appellate Body relied entirely on the opinion of the IMF. While Article XV dictates that the WTO should consult the IMF on such matters, it was possible for it to investigate the opinions of other development agencies in making decisions on India’s development policy. Robert Howse has cogently argued that the Appellate Body’s approach of relying on the IMF, which adopts a very narrow monetarist approach to the meaning of a ‘development policy’, blinded the Appellate Body to broader human rights based notions of development, which may have been evident had it consulted other bodies such as the UN Conference on Trade and (p.67) Development (UNCTAD) and the UN Development Program (UNDP).73 For example, the IMF starkly distinguished between macroeconomic policies and development policies. Howse retorts:
The case may also manifest an inclination within the WTO dispute settlement system to defer to the technocrats of international financial institutions when their judgements are relevant, but to ignore the equally relevant expertise of international institutions concerned with social justice.75
Under a right-to-development approach, it would be obvious that macroeconomic policies, which affect revenues available for government programmes to fulfil social and economic rights, as well as the cost of imported goods and services needed to fulfil such rights and the reserves of currency with which to pay for them, are ‘development policies’.74
Developed states again have the advantage regarding the initiation of challenges and the enforcement of decisions. The initiation of a WTO challenge is an expensive business which requires considerable technical skills.76 More fundamentally, retaliatory trade sanctions imposed by a rich industrialized nation on a poor nation will be likely to have a much greater impact than countermeasures in the reciprocal situation.77 When a policy of great domestic political value to a Northern State is successfully challenged, the outcome can be years of further disputes over the correction of those measures. For example, Brazil’s successful litigation against US cotton subsidies has dragged on (thus far) for eight years, concluding (perhaps) with the authorization of substantial countermeasures by Brazil against the US in 2009.78 While Brazil might be able to inflict considerable economic harm on the US, the same probably cannot be said for the ‘Cotton-4’ (C4) countries of Western Africa (Benin, Burkina Faso, Chad, and Mali), which are suffering grave economic harm from US cotton subsidies.79
It is often suggested that the WTO secretariat is largely powerless, with the WTO being an organization driven by its Member States.80 However, the WTO secretariat still has considerable influence in WTO processes. For example, the secretariat often drafts the ‘chairman’s text’ during negotiations, the text that is presented to Members as a starting point for negotiations on a particular topic.81 While such texts do not necessarily reflect outcomes, they can certainly shape debate. (p.68)
The secretariat also provides technical assistance to developing States to build their capacities for negotiation and implementation of trade policies. Furthermore, the secretariat prepares reports on each member for the Trade Policy Review Mechanism, where the trade policies of each member are assessed in light of their impact on the multilateral system of trade. There is no clear avenue for civil society participation in this review. In 2004, Robert Howse suggested that the reviews have manifested a pro-liberalization bias without any attempt to assess the viability of alternative policy avenues, or the social impact of free trade measures.82
Despite their limited powers, WTO personnel should guard against an automatic bias towards neo-liberal policies as the unquestioned recipe for trade policies in the performance of their duties. Yet Yi-Chong and Weller concluded: ‘[i]f there is a bias, it is … towards the objectives of the organization: a multilateral and reciprocal approach leading to a greater liberalization of trade’.83 On engagement between the secretariat and NGOs, the authors stated:
This conclusion was reached by the authors on the basis of interviews with the secretariat in 2002 and 2003.85 At that time, it seems the secretariat was operating under the misapprehension that trade issues can be neatly segmented from other issues. On the contrary, as pointed out by Frank Garcia, ‘there is no such thing as a pure trade issue’.86 Writing from the perspective of 2010, it seems likely that the secretariat has a greater understanding of NGO agendas and their relevance to global trade, given that there has been another seven years’ experience of engagement with such bodies. However, it seems unlikely that there has been a radical shift within the secretariat towards active support for those agendas if they are seen to conflict with broader free trade objectives.
Officials in the Secretariat are sceptical about what they regard as a Utopian view that NGOs have of direct democracy. They see the WTO as an arena for the negotiation for trade and do not know what the NGOs’ demands have to do with trade or what they can bring to the negotiating table.84
Conclusion on WTO processes
WTO procedures and processes are currently biased in favour of commercial trade interests and developed States. This systemic bias is likely to generate outcomes that favour such interests and act to the detriment of other interests, such as those of developing States or non-trade (for example, human rights, environmental) interests, if the respective sets of interests should conflict.
It must be noted that the two identified disadvantaged constituencies (non-trade interests and developing States) may be in conflict with each other. Indeed, developing States have traditionally been against the greater involvement of NGOs (p.69) in the WTO negotiation or interpretation process, and have generally been suspicious of ‘human rights talk’ in the WTO.87 For example, developing States were initially vigorous critics, on both legal and political grounds, of the practice of the Appellate Body and Panels accepting amicus briefs from NGOs.88 Developing States feared that NGO involvement would exacerbate the dominance of industrialized States within the WTO, as ‘Northern’ NGOs are more vocal and experienced advocates than their ‘Southern’ counterparts.89
Such concerns assume dissonance between the goals of Northern and Southern NGOs.90 However, strong NGOs do exist in the South and there are vibrant North/South NGO partnerships.91 Furthermore, the existence of conflict between Northern and Southern NGOs over trade issues has been exaggerated. For example, there is evidence from a 2002 study that trade unions from both North and South favour explicit linkage of labour and trade in the WTO, contrary to common assertions that Southern trade unions fear protectionist abuse of such a clause to the detriment of their members.92
Much of the opposition in the developing world to greater NGO involvement comes from autocratic governments with no democratic credentials, such as those in China and Burma. Such governments are hostile to the overt promotion of social justice interests by non-governmental groups in any forum, whether at the national or international levels. Their opposition is based on ideological opposition to the promotion of human rights beyond those tolerated by the State and to vibrant debate by civil society. Such concerns do not legitimate the continued exclusion of such interests from the WTO.
The misgivings of developing States over the infiltration of human rights arguments and actors into the WTO was prompted by the fact that the dominant human rights/trade discourse in the early years of the WTO concerned the impact of WTO law on the ability of States to impose human rights-based trade sanctions against other States.93 This issue is discussed in Chapter 4. Trade sanctions are a weapon used far more often and with greater impact by developed States than developing States, so it is hardly surprising that developing States are hostile to any suggestion that the rights of States to impose such sanctions be expanded.94 (p.70)
However, as explored in Chapters 5 to 7, there are numerous human rights issues of relevance to the WTO beyond the issue of trade sanctions, including areas where the promotion of human rights and the interests of developing States clearly coincide.95 Accordingly, there has been significant convergence in the positions of some Northern NGOs and the positions of developing States during the Doha round.96 For example, some NGOs, such as Oxfam and the Catholic Agency for Overseas Development (CAFOD), have advised developing States on their negotiating positions in the Doha round.97 Numerous NGOs supported developing States in their attack on the effect of TRIPS on access to medicines, which helped to produce the Doha Declaration on TRIPS and Public Health in 2001 and subsequent related developments.98 NGOs were also instrumental in assisting West African nations to put cotton on the Hong Kong agenda as a separate item, as discussed above, and to establish cotton negotiations as a litmus test for the success of the Doha round.99 Brazil defended a ban on the import of retreaded tyres on environmental and health grounds,100 and its case was supported by numerous amicus briefs from NGOs.101 In mid-2008, Doha round talks collapsed (again), partly over the extent of demands by India and China for special safeguard measures to protect the livelihoods of poor farmers,102 a concern echoed by numerous NGOs.
A 2006 empirical study on the role of NGOs in cotton negotiations concluded that there had been a major role reversal within the WTO regarding perceptions of NGOs during the Doha negotiations:
[T]here is a difference between the ways in which Southern countries relate to NGOs (reliance on their expertise for text writing and strategy setting) and how Northern countries relate to them (suspicion, and ‘management’).103
(p.71) Continued favouring of commercial interests over social justice interests (whether from North or South) will continue to skew WTO outputs in favour of trade and commercial interests to the potential detriment of social justice and other non-trade interests. A continued trade bias within the WTO, while its output continues to impact on non-trade areas, is no more legitimate than a continued bias in favour of developed States.105 Both biases must be redressed, or else the WTO’s legitimacy will continue to be disputed with good cause. In any case, the ‘myth that developing countries are opposed to non-state actor participation should be debunked”.106
the extent of [NGO] participation in northern countries decision-making [sic] was definitely seen as less than in developing countries which has [sic] included multiple NGO representatives in their delegations and gave them visible but influential roles.104
B. The Relevance of International Human Rights Law
What human rights are engaged by this issue of democratic deficit in an international organization such as the WTO? The removal of autonomous regulatory power from the State over important issues, such as food safety and intellectual property protection, could breach the right of peoples to self determination, protected under Article 1 of both the ICCPR and the ICESCR. Article 1(1) of each Covenant guarantees the right of peoples to ‘freely pursue their economic, social and cultural development’. Furthermore, all States parties to both Covenants have duties under common article 1(3) to respect and promote the right of self determination of others, so they should avoid actions, such as enforcement of WTO rights, if such action might prejudice enjoyment of the right in another State.
The supervision of national regulatory power under international law cannot per se constitute a breach of Article 1 lest nearly all international regimes prejudice that right. The question of breach must therefore depend on the degree and nature of the removal of regulatory power. It is difficult to characterize the WTO regime as constituting a greater interference with State power than other regimes in terms of subject matter. It is not, for example, ‘broader’ in substantive terms than human rights or environmental treaties. As noted below, however, the intensity of the interference by the WTO in those areas in which it impacts is probably stronger than most other international regimes, and its enforcement mechanisms are stronger. Regarding processes, it has already been noted that ‘the peoples’ of State members have generally had very little input into the process by which their State becomes bound, and the process by which the relevant obligations are formulated. As noted below, the deficiencies of the WTO are probably worse and more consequential in this regard than other international bodies. Therefore, it is possible that the adoption by States of WTO obligations can be characterized as breaching the right of self determination. (p.72)
A group must have a long-standing relationship with a territory before they are classified as a ‘peoples’ entitled to self determination.107 Many ‘peoples’ entitled to self determination are effectively represented by the State to which they belong. In such a situation, it is difficult to argue that the right to self determination has been breached, as the State has consented to the measures by joining the WTO in the first place. Therefore, common Article 1 is more relevant in the context of those groups who have a right of self determination but are not effectively represented by their States. Such groups include the indigenous peoples of certain States as well as peoples in occupied territories.108
A common misunderstanding is that a right of self determination equates with a right of secession. In fact, there are degrees of the right, ranging from external self determination (where ‘peoples have the right to determine freely their political status and their place in the international community’),109 including a right of secession for those peoples who are wrongly denied statehood, to various forms of internal self determination, which entails the right of a people to choose its political status within an existing State’s boundaries or to exercise meaningful political participation.110 The inernal aspect of the right thus overlaps considerably with the right of political participation (Article 25 ICCPR) and minority rights (Article 27 ICCPR). Therefore, it seems likely that any breaches of Article 1 entailed in inadequate participatory mechanisms within the WTO would coincide with breaches of those other rights, which are discussed below.
Article 25 of the ICCPR recognizes an individual right to participate in political processes and public affairs. It states:
Democratic rights are not only about elections and the free choice of government by the majority; they entail individual rights to have a meaningful opportunity to take part in the political process. Of course, no individual has a right of veto, such that his or her political choices must be satisfied, nor do majority preferences always have to be satisfied. Article 25 does not dictate that there be plebiscites on (p.73) all major issues. However, the routine flouting by a State of majority preferences would generally signal inadequate protection of this right. The right has been interpreted broadly by the Human Rights Committee (HRC), the monitoring body established under the ICCPR, to encompass rights to participate in ‘all aspects of public administration, and the formulation of policy at the international, national, regional and local levels’.111
Every citizen shall have the right and the opportunity, without [discrimination] and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
The Declaration on the Right to Development describes the right to development in its Article 1 as:
It is often argued that WTO rules and policies, which largely promote freer trade, are compatible with the right to development, specifically the economic aspects thereof.112 It is arguable, however, that the participatory aspects of the right have been neglected by States when acting within and through the WTO. The human right to development entails a process which helps to ensure what the WTO notably does not ensure: equitable and fair distribution of the benefits of development via the opportunity for participation of all individuals concerned.113 Arjun Sengupta, the (now former) UN Independent Expert on the Right to Development, has emphasized that the right entails more than economic growth per se, and has stated that:
[A]n inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized [emphasis added].
Participation and inclusivity have been recognized as cross-cutting human rights norms in the sense that they are elements of many substantive human rights.115 Indeed, participatory rights are now routinely built into interpretations of economic, social, and cultural rights. For example, the Committee on Economic, Social and Cultural Rights has said, regarding the right to health in Article 12 of the ICESCR, that a crucial aspect of that right ‘is the participation of the population in all health-related decision-making at the community, national and international levels’.116 (p.74) Therefore, from a human rights point of view, the strong European public opinion against the import of hormone-injected beef should have been taken into account in the Beef-Hormone case.117
It is not just achieving the objectives of development, but also the way they are achieved that becomes essential to the process. The objective is fulfilling human rights and the process of achieving this is also a human right. That process must possess the features of all human rights, namely respecting the notions of equity and participation…114
As conceded by the United Nations High Commissioner for Human Rights, the exact parameters of participatory rights at the global level are unclear.118 What is clear is that participatory rights are not confined within national borders, so the inherently limited participation within WTO processes, whether they be negotiation, treaty-making, or dispute resolution, risks classification as a breach of human rights by its Member States, especially given the significant outcomes of those processes.119
That said, rights of participation are not absolute. Article 25 of the ICCPR anticipates ‘reasonable’ restrictions. Most relevantly, the right of direct participation in public affairs is possibly limited to the rights outlined in Articles 25(b) (right to vote and stand for elections) and 25(c) (equal access to a State’s public service).120 This issue arose under the ICCPR in Mikmaq Tribal Society v Canada,121 which concerned a complaint by an indigenous tribe regarding Canada’s failure to invite it to a constitutional conference on indigenous rights to which other indigenous tribes had been invited. In its decision, the HRC indicated that rights of direct participation in Article 25 are quite narrow. It stated at paragraph 5.4:
At paragraph 5.5, it added:
Surely, it cannot be the meaning of article 25(a) … that every citizen may determine either to take part directly in the conduct of public affairs or to leave it to freely chosen representatives. It is for the legal and constitutional system of the State party to provide for the modalities of such participation.
In Beydon v France,122 the complainants were members of an NGO, the DIH, which campaigned for France’s full participation in and cooperation with the International Criminal Court (ICC). It did not approve of France’s decision, upon its ratification of the Statute of the ICC, to make a declaration which limited ICC jurisdiction over war crimes. The complainants alleged a violation of Article 25 entailed in the French government’s failure to take into account ‘the widespread public opposition expressed both directly and through their elected representatives (p.75) to the French declaration under Article 124’.123 The HRC found the complaint inadmissible, and noted at paragraph 4.5:
[A]rticle 25(a) of the Covenant cannot be understood as meaning that any directly affected group, large or small, has the unconditional right to choose the modalities of participation in the conduct of public affairs.
Thus, the limited participation of the complainants in France’s decisions regarding negotiation and ratification of the Rome Statute did not breach Article 25.
The Committee has … noted the [complainants’] claim under article 25 (a), that they were deprived, by the State party, of their right and opportunity to take part in the conduct of public affairs relating to the negotiations, and subsequent adhesion of France to the ICC Statute with a declaration …, the Committee recalls that citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves. In the present case, the [complainants] have participated in the public debate in France on the issue of its adhesion to the ICC and on the issue of [A]rticle 124 declaration; they acted through elected representatives and through their association’s actions. In the circumstances, the Committee considers that the [complainants] have failed to substantiate … that their right to take part in the conduct of public affairs has been violated [emphasis added].
In Brun v France,124 an environmental protester claimed that France had breached Article 25 in allowing the planting of GMO crops on a trial basis without adequate public consultation. The claim was found to be inadmissible, as Brun had participated in that process through his elected representative, and through his activities as an activist in an association opposed to GMOs.
Beydon and Brun indicate that citizens, at least those in democratic States, are indirectly participating in the political process through the agency of government representatives, and that such indirect participation satisfies the requirements of Article 25. WTO power is arguably legitimized as the organization is merely exercising the authority delegated to it under treaties negotiated by and assented to by those representatives.
However, the right to political participation in developing States regarding their adherence to WTO treaties is undermined by the way in which the interests of those States were marginalized in the Uruguay round. Moreover, the exclusion of certain groups from WTO processes, either at the national or international level, raises concerns regarding discrimination in conjunction with the right of political participation. The HRC stated in General Comment 25 on Article 25 at paragraph 6:
The historic narrowness of interests represented by WTO negotiators, the greater input into WTO processes by business compared to other civic groups, the general (p.76) lack of input by historically marginalized groups such as the poor, women126 and indigenous peoples,127 all raise legitimate queries regarding the adequacy of the level of participation in WTO negotiations and decision-making. For example, women comprised only 9 per cent of the country representatives at the Doha Ministerial meeting, and top positions within the WTO bureaucracy and in the Appellate body are dominated by men.128
Where a mode of direct participation by citizens is established, no distinctions should be made between citizens as regards their participation on the grounds mentioned in article 2, paragraph 1,125 and no unreasonable restrictions should be imposed.
Indeed, participatory rights in the context of non-discrimination are also recognized in Articles 7, 8 and 14(2) of CEDAW, as well as Article 5 of CERD. In General Recommendation 23, the CEDAW Committee elaborated on the requirements of CEDAW with regard to participation of women in international bodies and decision-making:
Therefore, women must be given equal opportunities to ‘represent their governments at the international level and to participate in the work of international organizations’, such as the WTO.130 Such levels of representation have not arisen in most international organizations, and certainly not the WTO.
The globalization of the contemporary world makes the inclusion of women and their participation in international organizations, on equal terms with men, increasingly important. The integration of a gender perspective and women’s human rights into the agenda of all international bodies is a government imperative. Many crucial decisions on global issues, such as … economic restructuring … are taken with limited participation of women.129
Furthermore, democratic deficits within WTO procedures may threaten minority rights in Article 27 of the ICCPR and the right of non-discrimination in Article 26 of the ICCPR. Regarding Article 27, the HRC has clearly stated that minority groups have rights of direct participation (for example, consultation with governments) in decisions that impact their interests.131 Indeed, the HRC recently gave its strongest statement to date on the relevant participatory rights of indigenous peoples in Poma Poma v Peru:132
The implementation of WTO commitments has clearly impacted on the traditional lifestyles of minorities, particularly in the agricultural arena.133 Many of these impacts have been generated by liberalization policies to which indigenous peoples have had very little input.
In the Committee’s view, the admissibility of measures which substantially compromise or interfere with the culturally significant economic activities of a minority or indigenous community depends on whether the members of the community in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy. The Committee considers that participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the (p.77) community. In addition, the measures must respect the principle of proportionality so as not to endanger the very survival of the community and its members.
Writing in 2002, Esty argued:
However, during the Doha round, civil society groups beyond business lobbies have become more aware of the importance and impacts of trade policies. They have therefore made a greater effort to influence domestic policies, which should influence a State’s negotiating stance within the WTO. The success of NGOs in mobilizing domestic public opinion on certain issues has undoubtedly forced some States to pay some attention to their views.135 As noted above, this bilateral engagement (between NGOs and individual States) has occasionally translated into inclusion of NGOs in a State’s negotiating team, particularly in some developing States. Nevertheless, while social justice NGOs may be exercising greater influence over the negotiating stances and domestic policies of WTO Member States, the concrete impact of that influence at the international level is extremely difficult to assess, especially as the Doha round has yet to produce many concrete outcomes.136 It also seems unlikely this greater influence reflects evenly across relevant sectors, for example taking appropriate account of disparate groups such as women and indigenous peoples, or that it remotely matches the influence of traditional players such as business lobbies.
[T]o limit their participation in global politics to electing national representatives who will designate trade ministry officials to represent the nation in a narrowly confined intergovernmental dialogue produces a terribly thin reed of popular sovereignty on which to build the legitimacy of the WTO.134
The exercise of greater rights of participation by constituencies not traditionally involved in WTO processes at the national and international levels serves a normative function in helping to ensure against breaches arising from participation deficit, such as breaches of Articles 25 and 27 of the ICCPR and non-discrimination obligations, and perhaps rights of self determination for some groups. They also serve an instrumental function in helping to ensure that the substantive outcomes of negotiations conform to other human rights. For example, attentive consideration by WTO dispute resolution bodies of amicus curiae briefs from a variety of groups would help to ensure that they are aware of the range of non-trade interests that may be impacted by their decision. As another example, the lobbying by civil society at national and international levels, along with developing States, led to the adoption by the WTO of the Doha Declaration on TRIPS and Public Health in 2001 and a subsequent waiver of (p.78) certain TRIPS requirements, which brought TRIPS into greater conformity with the right to health in Article 12 of the ICESCR.137
C. Democratic Deficit, the WTO, and the International Human Rights Law Regime: A Comparison
WTO membership removes certain policy choices from Member States under international law, as is the case with most international law regimes. Furthermore, other international regimes also allocate power and decision-making ‘upwards’ to international bodies, which are more remote from people than their own national bodies. Therefore, it is arguable that most if not all international legal regimes impact negatively on the participatory rights of national populations. The United Nations has noted the paradox that the substance of politics has internationalized (for example, in the areas of trade, human rights, and the environment), while political processes and institutions have remained largely national.138
Is the democratic deficit within the WTO a ‘worse’ threat to democratic rights than democratic deficit in other international bodies? Is the allocation of power to the WTO as an international institution more or less appropriate than comparable allocations of power to other international bodies? I will make some observations on this issue by comparing the WTO with international human rights regimes.
Democratic deficit and the international human rights regimes
Like the WTO, international human rights regimes have also been portrayed as threats to the legitimate regulatory power of States and the democratic choices of a State’s population. For example, there has been outrage in the UK regarding certain decisions of the European Court of Human Rights, which have found British counterterrorism measures (in the context of Northern Ireland) to breach international human rights standards.139 In Australia, the government has commonly impugned findings of violation against Australia by the HRC and other human rights bodies on the basis that those decisions lacked legitimacy and undermined policies and laws adopted via Australian democratic processes.140 Furthermore, the claims by certain States, such as China, Malaysia, and Singapore, that human rights are sovereign domestic matters, are well known and persistent, even if legally incorrect. (p.79)
The purpose of international human rights law is in many ways counter-majoritarian. Though all people have human rights, they are probably most important for vulnerable minorities. In democracies, majorities are generally able to take care of themselves.141 Minorities, however, are in greater need of the support of international human rights regimes to guard against the arbitrary exercise of power by majorities. Majority rule per se is unlikely to cater for the human rights of unpopular minorities such as new refugee arrivals, suspected (and actual) criminals, or vulnerable minorities whose interests do not coincide with those of the majority or whose interests do not attract majority attention.142 The notion of individual human rights would be considerably undermined if their extent was ultimately determined merely by the exercise of majority choices. Indeed, a key limit to the right of political participation is that majorities cannot compel government policies that breach other human rights. Therefore, there is significant justification for the removal of regulatory power from States under international human rights law (that is, its output) despite claims that such removal undermines majority rights.
In any case, the extent of the interference by international human rights law with State regulatory power is quite weak. The findings of the human rights bodies at the global level are not legally binding, though they have persuasive value. Numerous States have impugned the findings of these bodies on the basis of their non-legal status.143 Indeed, it is arguable that enforcement under the global human rights treaties has been delegated ‘almost exclusively’144 to the municipal systems of States given the lack of strong international enforcement.
The negotiation of global human rights treaties is an open process, with significant NGO participation in bodies such as the Human Rights Council and its predecessor, the Commission on Human Rights. There is also ongoing civil society involvement in global human rights bodies. NGOs are permitted to participate in debates within the Human Rights Council. NGOs also commonly brief and submit information to the human rights treaty bodies.
Though commercial bodies have generally not been so involved, they have participated in the areas of greatest interest to them. Corporations, for example, have been heavily involved in consultations with the UN’s Special Representative on Business and Human Rights since that mandate was created in 2005, and have been generally supportive of his reports. Similarly, the Special Rapporteur on the (p.80) Right to Health consulted extensively with pharmaceutical companies before devising guidelines for such companies with respect to access to medicines.145
Despite arguments that human rights are imbued with ‘Western’ concepts, developing States have played a significant role in drafting human rights treaties.146 They have more seats on the Human Rights Council than developed States. In any case, no State has to ratify a human rights treaty even if it agrees to the texts thereof, and it can normally enter reservations thereto.
Most UN intergovernmental human rights activity takes place in Geneva during meetings of the Human Rights Council, so the problem regarding the absence of certain permanent State missions, noted above regarding the WTO, is replicated. However, the General Assembly, which sits annually in New York, is able to reopen Council debates. Furthermore, treaties might be drafted by the Council, but are ultimately adopted by the General Assembly. All UN Members have permanent missions in New York.
States have considerable discretionary room for manoeuvre with respect to the implementation and enforcement of most internationally recognized human rights. Economic, social, and cultural rights are inherently flexible, as a State’s obligations under the ICESCR are constrained by a State’s ‘maximum available resources’ and by the progressive nature of most aspects of those rights. Most civil and political rights are constrained by concepts such as proportionality and reasonableness.147 For example, the right to freedom of expression in Article 19 ICCPR may be limited by measures that are ‘provided by law and are necessary’ to protect national security, public order, public health, public morals, and/or the rights of others. As another example, certain limited impacts on cultural practices entailed in the implementation of economic development programmes are permitted under Article 27 of the ICCPR.148
Individuals can access grievance procedures under some human rights treaties, such as the Optional Protocol to the ICCPR. Hearings in regional courts are public, but deliberations over individual complaints at the global level are not. All final decisions are publicly available. A human rights complaint will often already have been litigated at the national level, where there may be an opportunity for interested parties to submit amicus briefs to national courts. Material from those national decisions is made available to the international body. There is considerable deference to national authorities in international human rights decision-making, (p.81) with the utilization of doctrines such as the margin of appreciation,149 the need for complainants to exhaust domestic remedies before seeking international remedies, and the fact that the international bodies will normally defer to local findings of fact and evidence.150
It is concluded that it is appropriate to delegate certain decision-making powers ‘upwards’ to international human rights bodies. A balance is maintained between national decision-making powers and the competence of international bodies. Furthermore, the outputs of human rights bodies are justified by the extent of the inputs. In fact, a common criticism of human rights is that the enforcement powers of international bodies are too weak rather than too strong.
Comparison with the WTO
Let us compare that short overview of human rights systems with the WTO. Trade law does not have the same counter-majoritarian purpose as human rights law.151 One argument in favour of an international trade organization is to prevent capture of the State by protectionist producer interests that seek to undermine the utilitarian benefits of a liberalized economy for all.152 Protectionist producer interests are often concentrated and politically mobilized, and are therefore able to manipulate the domestic political process.153 The WTO is said to help States to reinforce rational majority interests by protecting consumers (a disparate group who often lack a coherent political voice), who benefit from access to cheaper goods, and, according to the theory of comparative advantage, the economic interests of the importing State as a whole as its industries become more competitive and efficient.154 However, as seen in Chapter 5, the argument that free trade and WTO rules benefit majorities by promoting economic growth is in fact contestable with respect to some developing States.
The WTO also helps to protect the interests of overseas traders from State B who might otherwise be at the mercy of populist decision-making by State A. The WTO enhances the participatory rights of those traders, who are particularly vulnerable to being abused as political pawns as they are excluded from State A’s political community.155 Under international human rights law, only citizens have rights of political participation in a particular State. However, modern global economic interdependence dictates that the right may be permissibly limited in order to prevent undue harm to the interests, including human rights, of non-citizens, (p.82) such as foreign exporters whose livelihoods might depend on access to State A’s markets.156
However, there are fears that the WTO itself has been captured by special interests. The domestic power of protectionist interests in the developed world shrunk with each round of GATT talks, with a corresponding increase in the influence and power of their exporter competitors.157 It is arguable that the WTO serves to reinforce the power of multinational corporations, who are the major direct beneficiaries of world trade.158 It does not enhance participatory rights if the WTO is effectively promoting the interests of the already powerful. For example, the Special Rapporteur on the Right to Food has reported on a particular power imbalance, which has had consequences for the structure of trade rules regarding agriculture, with knock-on effects for the right to food:
So too, of course, do large agribusiness firms.
It is well known that, in developing countries, small-scale farmers form a large but geographically dispersed group, with little or no access to resources for political lobbying, and face prohibitive transaction costs in the organization of collective action. Urban groups, in contrast, find it easier to mobilize through public protests; so do farmers in industrialised economies.159
The WTO Panels and its Appellate Body do not defer to national regimes in the way that international human rights institutions do. For example, there is no requirement to exhaust domestic remedies or explicit use of any doctrine of a margin of appreciation. Furthermore, WTO norms are less flexible than most human rights norms. Most human rights norms can be limited in proportionate or reasonable circumstances to achieve a number of broad objectives, including protection of ‘the rights of others’. In contrast, WTO exceptions, such as those listed in Article XX of the GATT, seem to cover a narrower range of objectives. The Panels and the Appellate Body have arguably been stricter in interpreting and applying limitations to WTO norms than have human rights bodies in interpreting and applying limitations to human rights norms. As discussed in Chapter 4, an exception must overcome two hurdles before it will be acceptable under WTO law: it must satisfy a test of ‘necessity’ in achieving the desired objective and it must satisfy a second strict test of non-discrimination imposed under the chapeau of Article XX. The single hurdle human rights test of ‘proportionality’ is a less onerous barrier for the (p.83) application of exceptions or qualifications than the double-barrelled test applied by the Appellate Body and Panels.160
The process of negotiating WTO treaties and human rights treaties is not comparable. WTO negotiations are conducted in secret. A State’s negotiating stance can change markedly in the closed environs of the negotiating rooms. Trade negotiations are characterized by trade-offs of interests: one WTO member might for example trade off its domestic sugar interests in order to gain advantages for its domestic cotton interests. WTO Members do not wish to visibly ‘sell out’ a domestic industry.161 In contrast, human rights treaties are negotiated in open meetings, often with NGO participation.162 There is no comparable ‘give and take’: a State does not for example trade children’s rights for the rights of political prisoners. Furthermore, less is at stake when negotiating a human rights treaty. A State can vote to adopt a treaty yet never ratify it, or, in most cases, ratify it with reservations. In the WTO, negotiations yield ‘all or nothing’ propositions. States negotiate treaties and then must sign up to the ‘single undertaking’, that is the entire package deal, generally without reservation.163
Finally, the WTO is a stronger regime than most international human rights regimes in terms of enforcement. Breach of WTO obligations can expose a State to economic countermeasures from an aggrieved State. In contrast, if a State is found in violation of a UN human rights treaty and fails to take remedial action, it will rarely suffer consequences beyond condemnation and shame, if that. Such consequences simply do not compare to the effects of punishment within the WTO system.
It must be noted that the decisions of regional human rights courts are binding. Europe, through the mechanisms developed under the ECHR, has the most developed regional system. Execution of judgments is supervised by the Committee of Ministers within the Council of Europe, which can exert heavy political pressure in the case of non-compliance. In general, the Committee has been able to secure execution of judgments through ‘constructive and cooperative dialogue’ with States.164 In this regard, one may note that the European human rights system stands alongside a very strong regional free trade system, the EU, which also incorporates some coordination and harmonization on economic and social rights.165 Human rights agendas have not been marginalized during the process of European economic integration. Indeed, EU members are (p.84) now bound by a new Charter of Fundamental Rights of the European Union and the EU is, at the time of writing, on the verge of becoming a party to the ECHR.166 In comparison, the WTO is not counterbalanced by a comparably strong global human rights body. The coordinated progress of free trade and human rights commitments in Europe contrasts starkly with the uncoordinated progress at the global level.167
Democratic deficit is a criticism that can probably be levelled at all international bodies, as there is little popular grassroots input into their processes compared to national political processes. However, democratic deficit in the context of the WTO deservedly generates a greater level of concern than democratic deficit in many other contexts, due to a number of characteristics of that system that are highlighted in the above comparison between the WTO and international human rights regimes.
D. Does the WTO Promote Democracy?
Thus far, this chapter has discussed democratic deficit in the processes of the WTO, which casts doubt on the legitimacy of its exercise of substantive power. This section briefly addresses a related but different issue: do the WTO and the free trade agenda promote democratic governance at national levels? That is, do WTO rules help create the conditions for democracy?
WTO Director-General Pascal Lamy has stated that global trade rules, along with international human rights law, are ‘a rampart against totalitarianism’.168 Indeed, it is commonly argued that economic openness promotes political openness169 in the following ways. Economic openness promotes economic growth,170 which helps to create new economic elites, who can challenge the authority of dictatorial government power, creating further space for civil society. It leads to the creation of a middle class, which is more educated and which eventually demands (p.85) greater political and social freedom.171 Finally, foreign investors demand adherence to the rule of law, as arbitrary decision-making intolerably threatens their investments.172 These theories are backed up by evidence: democracy, and civil and political freedoms tend to flourish in richer developed States, which generally have more liberal trade regimes, than poorer developing countries, which generally have more restrictive regimes.173
Martin Wolf has posited that economic freedoms and the promotion of a flourishing private sector help to ensure the separation of wealth and power. If the public political sector dominates economic decisions, they dominate economic power. ‘Power becomes the only route to wealth.’174 Furthermore, political elites are inevitably tempted to utilize oppressive means to maintain their power as ‘loss of power threatens a loss of livelihood’.175 Growing economies are also important for the maintenance of democracy and human rights. Not only do they provide governments with the resources to provide for positive rights, but it prevents ‘zero sum’ societies, where one person’s gain necessarily results in another person’s loss, which can help to foster authoritarian governments.176
However, the above arguments are contestable. As discussed in Chapter 5, some developing States have experienced de-industrialization and poor economic performance rather than growth. The link between free trade and economic growth is not clear-cut. In any case, WTO policies do not dictate domestic wealth distribution, so few may benefit from resultant economic growth. The benefits of economic growth might flow only to a small elite, and there may be corrupt connivance between these elites and the government. Furthermore, foreign investment is attracted to the ‘rule of law’ in certain areas such as security of contract and property rights; it is generally indifferent to the rule of law in the area of civil, political or social freedoms, such as rights of free expression or freedom to join trade unions. Singapore has long had an open economy, yet has a poor record on civil and political freedoms. Similarly, economic reforms in China have not been matched by significant political and social reform.177
In this respect, it may be noted that the spread of marketization across the world has accompanied greater global inequality.178 When gaps between the elites and the poor grow, there is a more pronounced divergence in their interests, leading (p.86) to the likely generation of rules and institutions which favour the latter over the former.179 Greater inequality may lead to greater marginalization and intolerance of the poor.
Professor Amy Chua has questioned the assumption that the twin trajectories of free trade and democracy in the developed world recur in the developing world. First, she notes that the development of democracy and free trade regimes in industrialized States was a slow process; universal suffrage and economic liberalization evolved over centuries. In contrast, the comparable transitions in many developing States have been remarkably swift, and have not allowed time for the development of appropriate economic safety nets for losers from economic liberalization, constitutional guarantees or other domestic laws that protect minorities, or the development of aspirational pro-market ideologies amongst a population, including those not currently benefiting from free markets.180 In such circumstances, the impoverished majority may be very hostile to the inequalities created by free markets, at least until a substantial middle class emerges, so democratization and marketization may pull in different directions unless redistribution measures are put in place.
More disturbingly, Chua notes that many developing States have market-dominant ethnic minorities, who seem to have benefited disproportionately from economic globalization, which in turn has generated hostility and conflict. Examples of this phenomenon include Chinese minorities in South East Asia, Indians in Fiji and Africa, whites in South Africa and Zimbabwe, and foreign investors all over the world. Marketization in such circumstances can generate a majoritarian backlash against the relevant minority (as in Zimbabwe with land seizures from white farmers, anti-Chinese riots in Indonesia in 1998, and measures to penalize foreign investors in Bolivia), a backlash against democracy by a government elite in cahoots with the economic elite (such as the pro-Chinese dictatorship of Suharto in Indonesia or pro-Indian government of Moi in Kenya), or, worst of all, majoritarian ethnic violence, including genocide, against the relevant minority (for example, Hutu against Tutsi in Rwanda, Serbs against Croats in the former Yugoslavia).181 Chua concedes that ethnic conflict is caused by many factors, but posits that the tension caused by the coincidence of racial divides with economic divides is a dangerous brew.182
In order to stave off internal hostility in such situations, States must ensure that domestic inequality is contained and that appropriate redistributive measures are (p.87) in place.183 Therefore, Chua’s contentions do not indicate that States should eschew marketization and free trade. They indicate that the process should be managed and properly sequenced, as is argued in Chapter 5.
E. The Paradox of Power Politics and Participation Rights in the WTO
This chapter has largely focused on institutional problems within the WTO which work to the disadvantage of certain constituencies, including developing States. Essentially, these points relate to discrepancies in the amount of influence and power exercised by certain actors compared to other actors within the WTO. However, an inherent paradox arises in this assertion. That is, despite the flaws and biases in its processes, perhaps it is arguable that the WTO enhances the power of developing States.
Developed States are clearly more powerful than developing States in the context of shaping international economic law and policy. Nevertheless, the WTO helps to regulate and control the behaviour of developed States, which would otherwise be legally unconstrained. For example, while the rules regarding agriculture do not go far enough in abolishing Northern protectionism, at least they impose some constraints on those unfair practices, which did not exist prior to the advent of the WTO.184 Even if the rules generated under the WTO are ultimately unfavourable to developing States, political scientist Dr Ken Shadlen has explained:
Shadlen goes on to outline how developing States have in fact exercised greater power within the WTO than might be expected, given the power differential between them and the developed States. For example, in the Doha round developed States have managed to stave off the imposition of a tougher intellectual property regime via the WTO and stronger investment measures: neither outcome is likely to eventuate from a concluded Doha deal.186 However, that power must not be overstated. While developing States have managed to block certain developed country initiatives, they have not generally succeeded in promoting their own agendas.
under conditions of marked power asymmetries no rules are bad rules—they are simply less predictable, changing with the whims of the more powerful actors, and they do not promise reciprocal constraints.185
The deadlock in the WTO has probably contributed to the proliferation of bilateral and regional free trade deals in the last decade.187 Such agreements are allowed under WTO rules so long as they comply with the requirements of Article XXIV of GATT. This development is not good news for developing States. The (p.88) power differential in some bilateral contexts is much worse than in the WTO, in which the power of developing States is enhanced by the consensus rule.188 For example, the US clearly had the upper hand in concluding deals with Morocco, Jordan and even Australia. The EU has superior power in its current negotiations over European Partnership Agreements with countries in Asia and the Pacific.189 It is therefore not surprising that bilateral agreements tend to impose more onerous requirements compared to WTO obligations, which favour the interests of developed States, such as so-called ‘TRIPS plus’ provisions regarding intellectual property.190
The above observations do not mean that developed States should simply accept bad rules and not seek better rules within the WTO. Developing States (and civil society organizations) should seek to amend imperfect world trade laws in the face of the realities of power imbalances. The ‘realist’ nature of power politics cannot preclude the validity of identifying flaws in the political and other processes of an international organization. It is not acceptable to simply throw up one’s hands and lament that such flaws are inevitable and better than some worse alternative.
Democratic deficit probably characterizes most international organizations, including the WTO. However, the unusual power of WTO rules, as well as particular characteristics of its internal processes (for example, secrecy within negotiations, the single compulsory undertaking), generate more acute anxieties about its democratic deficit. The WTO’s internal processes and its inputs do not justify its output. Therefore, one strategy is to reform the WTO’s internal processes. Indeed, it is fair to point out that the constituencies identified as disadvantaged during the Uruguay round of negotiations, social justice interests and developing States, have exercised far more influence in the Doha round. Nevertheless, enormous challenges are entailed in reforming internal processes to allow for the proper consideration of the perspectives of these constituencies. For example, richer States will always have greater economic power than poorer States and will always be tempted to abuse their superior bargaining positions (though the identity of richer States may change). It may be impossible to accommodate all of the various agendas of trade and non-trade NGOs, not to mention the agendas of the various States, within the WTO negotiating framework.191 The stalling of the Doha round indicates that the increased negotiating clout of developing States and the increased participation and vigilance of NGOs have reduced the possibility of consensus agreement.
Nevertheless, given that the stakeholders in the WTO process extend far beyond the traditional GATT/WTO trade negotiators, continued exclusion or relegation (p.89) of non-trade interests from and continued negotiation disadvantage for poorer States within WTO internal processes is not justifiable. It may also be impossible to proceed with WTO negotiations without a significantly improved democratic pedigree.192 An increase in input legitimacy may be needed in order to justify the WTO’s output legitimacy. Paradoxically, more inclusive ‘input’ may inevitably reduce the strength of the WTO’s output.193 The stakes of the WTO’s output, in terms for example of a single undertaking and strong legal enforcement of obligations, may have to be lowered, allowing for example for more plurilateral agreements or ‘exit options’ for States.194 An easing of the ‘legal’ side of the WTO to accommodate its political side may be necessary.195 This may sound like a weak option, especially given that the strong judicialization of trade law has often been regarded as the jewel in the WTO’s crown. On the other hand, a better democratic pedigree would render the resultant agreements more legitimate and acceptable to the populations of Member States.196
Current WTO output probably exceeds its current input legitimacy, which justifies a dilution of its powers. In any case, increased input would be likely to lead to a dilution of WTO outputs. Deceleration in the global free trade project will be viewed by many as an unfortunate compromise that is a ‘second best’ option. That said, it may be the only option that is politically feasible in the short term. Specific proposals in this regard are discussed in Chapter 9.
Furthermore, it must be remembered that the supposed ‘depoliticization’ of free trade by the WTO, by removing domestic political choices in regard to trade liberalization, presumes that that particular demarcation between economics and politics is appropriate and even natural, given that free trade is presumed to be the way to achieve economic growth.197 As will be discussed in Chapter 5, this neoliberal presumption is challengeable.
An alternative strategy, discussed further in Chapter 10, is to boost the strength of non-economic areas of international governance in order to provide for a greater balance of interests and agendas at the international level. Such an option does not seem politically achievable in the short term, but must be a long term goal of the international community.198
The vacuum in global trade negotiations is currently being filled by proliferating bilateral and regional free trade agreements. This is an unfortunate development (p.90) in terms of redressing democratic deficits in trade negotiations and outcomes. Nevertheless, this development does not mean that disadvantaged constituencies should simply accept whatever unsatisfactory deal might be on the table in the Doha negotiations.
Finally, it is often postulated that free trade rules help to promote political openness in conjunction with economic openness. There are however legitimate arguments, including the thesis of Amy Chua, to indicate that a happy marriage between democracy and free markets cannot be presumed in the developing world.
(1) See also Sarah Joseph, ‘Democratic Deficit, Participation and the WTO’ in Sarah Joseph, David Kinley, and Jeff Waincymer (eds), The World Trade Organization and Human Rights: Interdisciplinary Perspectives (Edward Elgar, Cheltenham, 2009) 313–43.
(2) I have respectfully borrowed the terminology of ‘output’ and ‘input’ (below) from Robert O Keohane and Joseph S Nye Jr, ‘The Club Model of Multilateral Cooperation and the World Trade Organization: Problems of Democratic Legitimacy’ (Working Paper No 4, John F Kennedy School of Government, undated) 〈http://www.hks.harvard.edu/visions/publication/keohane_nye.pdf〉 accessed 24 October 2010.
(3) Jeffrey L Dunoff, ‘The Death of the Trade Regime’ (1999) 10 European Journal of International Law 733, 758.
(4) European Communities—Measures Affecting Meat and Meat Products, WTO doc. WT/DS26/AB/R, WT/DS48/AB/R, AB-1997-4 (16 January 1998) (Appellate Body Report) (‘EC—Hormones’).
(5) See Grace Skogstad, ‘International Institutions and Food Safety Regulation: Values in Conflict’ in Ian Holland and Jenny Flemings (eds), Government Reformed: Values and New Political Institutions (Ashgate, Dartmouth, 2003) 121. The dispute now seems to be resolved, though the resolution has not involved the lifting of the ban: see, eg, ‘For now, an end to the beef hormone dispute’, July 2009, at 〈http://www.thebeefsite.com/articles/2074/for-now-an-end-to-the-beef-hormone-dispute〉 accessed 26 April 2010.
(6) European Communities—Measures Affecting the Approval and Marketing of Biotech Products, WTO docs. WT/DS291/R, WT/DS292/R, WT/DS293/R (29 September 2006) (Report of the Panel) (‘EC—Biotech’) concerned a challenge to a de facto moratorium on the approval of GMOs by the EC, as well as bans on GMOs issued by certain individual EC States. The relevant moratorium and bans were found to breach the SPS on the basis that risk assessments on GMOs had not been carried out, or had been unduly delayed. Thus, the substantive issue of whether imports of GMO foods can be restricted or banned was not addressed.
(7) Thomas Cottier, ‘Preparing for Structural Reform of the WTO’ (2007) 10 Journal of International Economic Law 497, 499.
(8) Kal Raustiala, ‘Rethinking the sovereignty debate in international economic law’ (2003) 6 Journal of International Economic Law 841, 862; Daniel C Esty, ‘The World Trade Organization’s legitimacy crisis’ (2002) 1 World Trade Review 7, 15–16.
(9) Human Rights Council, ‘Report of the Special Rapporteur on the right to food, Olivier De Schutter: Mission to the World Trade Organization’, UN doc. A/HRC/10/5/Add.2 (25 June 2008) para 40.
(10) See, eg, Commission on Human Rights, ‘Report of the Special Rapporteur on the right to food, Jean Ziegler’, UN doc. E/CN.4/2005/47 (24 January 2005) para 40.
(11) Commission on Human Rights, ‘The Right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Report of the Special Rapporteur, Paul Hunt: Mission to the World Trade Organization’, UN doc. E/CN.4/2004/49/Add.1 (1 March 2004) paras 9–10, and 65.
(12) Joseph Stiglitz, ‘Social Justice and Global Trade’ (2006) 169 Far Eastern Economic Review 18, 22. See also World Bank, World Development Report 2006: Equity and Development (World Bank, Washington DC, 2006) 178.
(13) Ilan Kapoor, ‘Deliberative democracy and the WTO’ (2004) 11 Review of International Political Economy 522, 530.
(14) See, generally, Susan K Sell, Private Power, Public Law: the Globalization of Intellectual Property Rights (Cambridge University Press, Cambridge, 2003).
(15) Sophia Murphy, Concentrated Market Power and Agricultural Trade, August 2006 (Heinrich Boell Stiftung, Berlin, 2006) 30.
(16) See United Nations Conference on Trade and Development (UNCTAD), World Investment Report 2002, Transnational Corporations and Export Competitiveness, UN doc. UNCTAD/WIR/2002 (UN, Geneva, 2002) 153, stating that two thirds of world trade in the late 1990s was conducted by MNCs, including trade within MNCs. See also Keohane and Nye, above n 2, 17.
(18) See David M. Driesen, ‘What is Free Trade? The Real Issue Lurking behind the Trade and Environment Debate’ (2001) 41 Virginia Journal of International Law 279, 295–300. See also Frank Garcia, ‘The Global Market and Human Rights: Trading away the Human Rights Principle’ (1999) 7 Brooklyn Journal of International Law 51, 61.
(20) See, on this point generally, Andrew TF Lang, ‘Reflecting on “Linkage”: Cognitive and Institutional Change in the International Trading System’ (2007) 70 Modern Law Review 523; see also Sara Dillon, ‘A Farewell to “Linkage”: International Trade Law and Global Sustainability Indicators’ (2002) 51 Rutgers Law Review 87, 103, 114; Dunoff, above n 3, 746. I will not always precede the words ‘non-trade’ with the term ‘so-called’, but the term should be read in throughout this book, because the division between trade and non-trade issues is highly contestible: see generally, Lang.
(22) See, eg, Brazil—Measures Affecting Imports of Retreaded Tyres, WTO doc. WT/DS332/AB/R (3 December 2007) (Report of the Appellate Body).
(23) Caroline Dommen, ‘Raising Human Rights Concerns in the World Trade Organization: Actors, Processes and Possible Strategies’ (2002) 24 Human Rights Quarterly 1, 17–19. See Chapter 4 below for further discussion of this point.
(24) Anne Orford, ‘Beyond Harmonization: Trade, Human Rights and the Economy of Sacrifice’ (2005) 18 Leiden Journal of International Law 179, 195.
(25) This point was emphasized in WTO, The Future of the WTO: Addressing Institutional Challenges in the New Millennium (Report by the Consultative Board of the Director-General of the WTO to the former Director-General Supachai Panitchpakdi) (WTO, Geneva, 2004) 45–7 (Sutherland Report).
(26) Steve Charnovitz, ‘The WTO and Cosmopolitics’ (2004) 7 Journal of International Economic Law 675, 680.
(27) WTO, ‘Guidelines for arrangements on relations with Non-Governmental Organizations’, WTO doc. WT/L/162 (Decision adopted by the General Council on 18 July 1996) (23 July 1996).
(28) See World Trade Organization, ‘Relations with Non-Governmental Organizations/Civil Society’, at 〈http://www.wto.org/english/forums_e/ngo_e/intro_e.htm〉 accessed 25 October 2010.
(29) Ciel Grossman, Amy Herrick, and Ting Shao, From Gas Masks to Chocolate Fountains: The Emerging Influence of NGOs in the WTO and the Implications for Global Trade Governance, February 2006 (prepared for Charles Leopold Foundation for the Progress of Humankind and the Institute for a New Reflection on Governance) 8.
(32) See, eg, Article XX(b) of GATT and the SPS.
(33) See Report of the Special Rapporteur on Right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, Mission to the World Trade Organization, above n 11, para 5.
(35) Commission on Human Rights, ‘Mainstreaming the right to development into international trade law and policy at the World Trade Organization (paper prepared by Prof. Robert Howse)’, UN doc. E/CN.4/Sub.2/2004/17 (9 June 2004) para 42. Of course, a State’s original negotiating position may transform considerably throughout a Ministerial meeting. Also compare Charnovitz, above n 26, 679.
(36) Seem Sapra, ‘The WTO System of Trade Governance: The Stale NGO Debate and the Appropriate Role for Non-State Actors’ (2009) 11 Oregon Review of International Law 71, 90.
(37) Howse, above n 35, para 42. See also Grossman, Herrick, and Shao, above n 29, at 12, and Carin Smaller and Sophia Murphy, Bridging the Divide: a human rights vision for global food trade (Institute of Agriculture and Trade Policy, Geneva, 2008) 11.
(40) See also Chapter 9, text at notes 50–4.
(41) See, generally, Gregory C Shaffer, Defending Interests: Public Private Partnerships in WTO Litigation (Brookings Institution Press, Washington DC, 2003) 137. See also Paul Collier, The Bottom Billion (Oxford University Press, New York, 2008) 171; Stiglitz, above n 21, 278.
(42) Cottier, above n 7, 502. See also Bhagirath Lal Das (former Indian Ambassador and Permanent Representative to the GATT), ‘Why the WTO decision-making system of “consensus” works against the South’ (undated) 〈 http://www.twnside.org.sg/title/bgl3-cn.htm〉 accessed 19 September 2010.
(43) See also Ha-Joon Chang, Bad Samaritans: the Myth of Free Trade and the Secret History of Capitalism (Bloomsbury Press, New York, 2008) 36–7.
(44) See generally, Commission on Human Rights, ‘Analytical Study of the High Commissioner for Human Rights on the fundamental principle of participation and its application in the context of globalization: Report of the High Commissioner’, UN doc. E/CN.4/2005/41 (23 December 2004) 13 [hereafter, UNHCHR].
(45) See Oxfam, ‘What Happened in Hong Kong? Initial Analysis of the WTO Ministerial (Oxfam Briefing Paper 85, December, 2005), 5 〈http://www.oxfam.org/en/files/bp85_hongkong〉 accessed 19 September 2010.
(47) Joseph E Stiglitz and Andrew Charlton, Fair Trade for All (Oxford University Press, New York, 2005) 82.
(49) Pascal Lamy, ‘It’s Time for a new “Geneva Consensus” on making trade work for development’ (Emile Noel Lecture New York University Law School, New York, 30 October 2006) 〈http://www.wto.org/english/news_e/sppl_e/sppl45_e.htm〉 accessed 19 September 2010.
(50) Jürgen Kurtz, ‘A Look Behind the Mirror: Standardization, Institutions and the WTO SPS and TBT Agreements’ (2007) 30 University of New South Wales 504, 517.
(51) AusAID, ‘The WTO Sanitary and Phytosanitary (SPS) Agreement’ (Department of Agriculture, Fisheries and Forestry, Canberra, undated) 9.
(55) Amrita Narlikar, The World Trade Organization: A Very Short Introduction (Oxford University Press, New York, 2005) 146.
(56) WTO doc. WT/MIN (96)/14 (7 January 1997).
(58) See Hong Kong Declaration, WT/MIN(05)/W/3/Rev.2, 18 December 2005, para 21.
(59) Doha Ministerial Declaration, WT/MIN(01)/DEC/1, 20 November 2001, para 35.
(61) See Oxfam, ‘Submission by Oxfam New Zealand to Ministry of Foreign Affairs on the WTO accession negotiations of Samoa’ (September 2005) 5–6, noting the disparity of power between the Samoan negotiators and those from New Zealand 〈http://www.oxfam.org.nz/imgs/whatwedo/mtf/onz%20on%20samoa%20wto%20accession.pdf〉 accessed 20 September 2010.
(62) This observation was made by Professor John Jackson, a WTO expert, in a public talk at the Lauterpacht Centre for International Law, Cambridge University, on 2 March 2006. See also Carlos Manuel Vázquez, ‘Trade Sanctions and Human Rights—Past, Present and Future’ (2003) 6 Journal of International Economic Law 797, 803 and 807.
(63) Sharyn O’Halloran, ‘US Implementation of WTO Decisions’ (Address delivered at WTO at Ten: Dispute Settlement and Developing Countries, Columbia University, 6 April 2006).
(64) Jeffery Atik, ‘Democratizing the WTO’ (2000–2001) 33 George Washington International Law Review 451, 455.
(65) Joost Pauwelyn, ‘The Sutherland Report: A Missed Opportunity for Genuine Debate on Trade, Globalization and Reforming the WTO’ (2005) 8 Journal of International Economic Law 329, 336.
(66) See, eg, WTO, ‘WTO hearings on banana dispute opened to the public’ (News item, 29 October 2007) 〈http://www.wto.org/english/news_e/news07_e/dispu_banana_7nov07_e.htm〉 accessed 20 September 2010.
(68) See Jeffrey L Dunoff, ‘The misguided debate over NGO participation at the WTO’ (1998) 1 Journal of International Economic Law 433, 441–8. The official name of the case is Japan—Measures Affecting Consumer Photographic Film and Paper, WTO doc. WT/DS44/R (31 March 1998) (Report of the Panel).
(69) Joost Pauwelyn, ‘WTO Condemnation of US ban on internet gambling pits free trade against moral values’ (ASIL insight, November 2004) 〈http://www.asil.org/insights/2004/11/insight041117.html〉 accessed 20 September 2010. See also Dunoff, above n 68, 441–8 and generally Shaffer, above n 41.
(70) United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO doc. WT/DS58/AB/R (12 October 1998) (Report of the Appellate Body) (‘Shrimp Turtle Case’) para 110. See also Adam McBeth, International Economic Actors and Human Rights (Routledge, Oxford, 2010) 105–6.
(71) Nathalie Bernasconi-Osterwalder, ‘Democratizing international dispute settlement: the case of trade and investment disputes’ (Paper presented at the 6th International Conference of New or Restored Democracies, Doha, 29 October–1 November 2006) 3–4. See also Pauwelyn, above n 65, 346.
(72) India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WTO doc. WT/DS90/AB/R, AB-1999-3 (23 August 1999) (Report of the Appellate Body).
(75) See also Margot Salomon, Global Responsibility for Human Rights (Oxford University Press, Oxford, 2007) 152–3.
(78) United States—Subsidies on Upland Cotton—Recourse to Arbitration by the US under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, WTO docs WT/DS267/ARB/1 and WT/DS267/ARB/2 (31 August 2009) (Decisions by the Arbitrator).
(79) Note that US cotton subsidies outweigh Burkina Faso’s entire GDP.
(80) Xu Yi-Chong and Patrick Weller, The Governance of World Trade: International Civil Servants and the GATT/WTO (Edward Elgar, Cheltenham, 2004) 252.
(82) Howse, above n 35, paras 29 and 40. See also Report of the Special Rapporteur on Right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, Mission to the World Trade Organization, above n 11, para 64.
(88) C L Lim, ‘The Amicus Brief Issue at the WTO’ (2005) 4 Chinese Journal of International Law 85, 87.
(90) See, eg, Jagdish Bhagwati, ‘Afterword: the Question of Linkage’ (2002) 96 American Journal of International Law 126; Kathleen Newland, ‘Workers of the World, Now What?’ (1999) 114 Foreign Policy 52, 56–7.
(92) See Gerard Griffin, Chris Nyland, and Anne O’Rourke, ‘Trade Unions and the Social Clause: A North South Union Divide?’ (Working Paper No 81, National Key Centre in Industrial Relations, Monash University, 2002), 〈http://www.buseco.monash.edu.au/mgt/research/working-papers/nkcir-working-papers/nkcir-workingpaper-81.pdf〉 accessed 4 November 2007. See also Chapter 4.
(93) See James Harrison, The Human Rights Impact of the World Trade Organisation (Hart, Oxford, 2007) 126 and 176.
(96) See, generally, Oxfam, Rigged Rules and Double Standards: Trade, Globalisation and the Fight Against Poverty (Oxfam, London, 2002).
(98) Robert Wai, ‘Countering, Branding and Dealing: Using Economic and Social Rights in and Around the International Trade Regime’ (2003) 14 European Journal of International Law 35, 72, 79.
(100) Brazil—Measures Affecting Imports of Retreaded Tyres, WTO docs. WT/DS332/R (12 June 2007) (Report of the Panel) and WT/DS332/AB/R, AB-2007-4 (3 December 2007) (Report of the Appellate Body).
(101) See, eg, CIEL and others, ‘Amicus Curiae Brief’ (Amicus brief submitted by the Center for International Environmental Law (CIEL) (based in the US and Switzerland) and others in Brazil—Measures Affecting Imports of Retreaded Tyres (WT/DS332, 3 July 2006) 〈http://www.ciel.org/Publications/Brazil_Tires_Amicus_3Jul06.pdf〉 accessed 20 September 2010.
(105) See also Dillon, above n 20, 130–5; Robert Howse, ‘From Politics to Technocracy—and back again: the Fate of the Multilateral Trading Regime’ (2002) 96 American Journal of International Law 94, 115.
(107) Sarah Joseph, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 2nd edn (Oxford University Press, Oxford, 2004) 146.
(108) See, eg, UN Declaration on the Rights of Indigenous Peoples (adopted on 2 October 2007, not yet entered into force as at 21 September 2010), UN doc. A/RES/61/295) Article 3.
(109) Committee on the Elimination of Racial Discrimination, ‘General Recommendation No. 21: Right to self-determination’, UN doc A/51/18 (23 August 1996) para 4.
(111) HRC, ‘General Comment 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Article 25)’, UN doc. CCPR/C/21/Rev.1/Add.7 (12 July 1996) para 5 (emphasis added). See also UNHCHR, above n 44, para 8.
(114) Arjun Sengupta, ‘On the Theory and Practice of the Right to Development’ (2002) 24 Human Rights Quarterly 837, 851, and see more generally 848–52.
(115) See, eg, Office of the High Commissioner for Human Rights, ‘Report on Indicators for Promoting and Monitoring the Implementation of Human Rights’, UN doc. HRI/MC/2008/3 (6 June 2008) para 10.
(116) CESCR, ‘General Comment No 14: The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights’, UN doc. E/C.12/2000/4 (11 August 2000) para 11.
(117) See, generally, Caroline E Foster, ‘Public Opinion and the interpretation of the World Trade Organisation’s Agreement on Sanitary and Phytosanitary Measures’ in Joseph, Kinley and Waincymer (eds), above note 1, at 285. X-ref to Chapter 4.
(121) UN doc. CCPR/C/43/D/205/l986 (3 December 1991) (HRC).
(122) UN doc. CCPR/C/85/D/1400/2005 (28 November 2005) (HRC).
(124) UN doc. CCPR/C/88/D/1453/2006 (23 November 2006) (HRC).
(125) The prohibited grounds of discrimination enumerated in Article 2(1) ICCPR are: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
(126) See Dillon, above n 20, 146–8, commenting on the general absence of women in the international trade field. See also Shelley Wright, ‘Women and the Global Economic Order: a Feminist Perspective’ (1995) 10 American University International Law Review 861.
(128) Barnali Choudhury, ‘The Façade of Neutrality: Uncovering Gender Silences in International Trade’ (2008) 15 William and Mary Journal of Women and the Law 113, 129–30.
(129) CEDAW, ‘General Recommendation No 23: Women in political and public life (Article 7)’, UN doc. A/52/38/Rev.1 (31 January 1997) para 39.
(132) Poma Poma v Peru, UN doc. CCPR/C/95/D/1457/2006 (24 April 2009) (HRC) para 7.6.
(138) UNGA, ‘We the Peoples: Civil Society, the United Nations and Global Governance: Report of the Panel of Eminent Persons on United-Nations Civil Society Relations’, UN doc. A/58/817 (11 June 2004) 8, paras 7–10. See also Stiglitz, above n 21, 291.
(139) See Kieran McEvoy, ‘Law, Struggle, and Political Transformation in Northern Ireland’ (2000) 27 Journal of Law and Society 542, 557; Sarah Joseph, ‘Denouement of the Deaths on the Rock: the Right to Life of Terrorists’ (1996) 14 Netherlands Quarterly of Human Rights 5, 6, 22.
(140) See, generally, David Kinley and Penny Martin, ‘International Human Rights Law at Home: Addressing the Politics of Denial’ (2002) 26 Melbourne University Law Review 466.
(141) Of course, human rights are precarious for majorities in non-democracies, governed by dictatorships, such as Burma, or minority rule, such as apartheid South Africa. International human rights law of course also seeks to curb the arbitrary exercises of power of non-democratic governments.
(142) Indigenous peoples in Australia are an example of this latter group. They are not ‘unpopular’, but their interests (eg land rights, compensation for past wrongs) are sometimes perceived to run counter to those of the majority, or are simply of insufficient importance to the majority to influence the latter’s political choices.
(143) See, eg, Australia’s response to the adverse finding of the HRC in A v Australia, UN doc. CCPR/C/59/D/560/1993 (30 April 1997) (HRC): Darryl Williams MP, Attorney General, ‘Australian Government responds to the United Nations Human Rights Committee’ (Press Release, 17 December 1997).
(144) Douglas Lee Donoho, ‘Relativism versus Universalism in Human Rights: the Search for Meaningful Standards’ (1991) 27 Stanford Journal of International Law 345, 372–3.
(145) See General Assembly, ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’, UN doc. A/63/263, 11 August 2008.
(146) See, eg, Susan Waltz, ‘Universalizing Human Rights: the Role of Small States in the Construction of the Universal Declaration of Human Rights’ (2001) 23 Human Rights Quarterly 44. See also Chapter 2, pp 44–6.
(147) There are, exceptionally, some absolute rights, which may never be qualified in any circumstance, such as rights to freedom from torture and freedom from slavery.
(148) See Joseph, Schultz, and Castan, above n 107, 772–9. See also, eg, the HRC decisions in Jouni Länsman, Eino Länsman and the Muotkatunturi Herdsmen’s Committee v Finland, UN doc. CCPR/C/83/D/1023/2001 (15 April 2005), Jouni Länsman et al v Finland, UN doc. CCPR/C/58/D/671/1995 (22 November 1996), and Ilmari Länsman et al v Finland, UN doc. CCPR/C/52/D/511/1992 (8 November 1994).
(149) The ‘margin of appreciation’ is a doctrine used by the European Court of Human Rights in interpreting the ECHR. It is akin to a ‘benefit of the doubt’ given to the State party in implementing certain human rights. If a certain measure is deemed to fall within a State’s margin of appreciation, no violation is found.
(158) Atik, above n 64, 459; Esty, above n 8, 11. See also E-U Petersmann, ‘The Human Rights Approach Advocated by the United Nations High Commissioner for Human Rights and by the International Labour Organisation: is it relevant for WTO law and Policy?’ (2004) 7 Journal of International Economic Law 605, 611. Of course, the interests of multinational corporations and those of consumers can coincide. Eg, the entry of corporations into a market can give consumers access to cheaper goods. However, their interests can diverge, eg, over measures designed to ensure product quality, and arguably over intellectual property laws (see Chapter 7 for discussion of intellectual property).
(159) Human Rights Council, ‘Report of the Special Rapporteur on the right to food, Olivier De Schutter: Building resilience: a human rights framework for world food and nutrition security’, UN doc. A/HRC/9/23 (8 September 2008) para 17. See also Chapter 6 below.
(160) See United Nations Office of the High Commissioner for Human Rights, Human Rights and World Trade Agreements: Using General Exception Clauses to Protect Human Rights (Office of the High Commissioner for Human Rights, New York and Geneva, 2005) 15 〈http://www.fao.org/righttofood/kc/downloads/vl/docs/AH311.pdf〉 accessed 20 September 2010.
(162) See Robert McCorquodale, ‘An Inclusive International Legal System’ (2004) 17 Leiden Journal of International Law 477, 493–4.
(164) Council of Europe, ‘Human Rights and Legal Affairs: Frequently Asked Questions’, 〈http://www.coe.int/t/e/human_rights/execution/01_Introduction/02_FAQ.asp〉 accessed 14 August 2008.
(166) Such ratification is required under Article 6 of the Lisbon Treaty. See Press Release, ‘European Commission and Council of Europe kick off joint talks on EU’s Accession to the Convention on Human Rights’, 7 July 2010, at 〈http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/906&type=HTML〉 accessed 9 October 2010.
(167) See, eg, World Commission on the Social Dimension of Globalisation, A Fair Globalization: Promoting Opportunities for all (ILO, Geneva, 2004).
(168) Pascal Lamy, ‘Towards shared responsibility and greater coherence: human rights, trade and macroeconomic policy’(Speech at the Colloquium on Human Rights in the Global Economy, Co-organized by the International Council on Human Rights and Realizing Rights, Geneva, 13 January 2010) 〈http://www.wto.org/english/news_e/sppl_e/sppl146_e.htm〉 accessed 20 September 2010.
(169) See Joel R Paul, ‘Do International Trade Institutions Contribute to Economic Growth and Development?’ (2003) 44 Virginia Journal of International Law 285, 337–8.
(172) See, eg, World Bank, World Development Report 2002: Building Institutions for Markets (World Bank, Washington DC, 2002) via 〈http://www.worldbank.org/wdr/2001/fulltext/fulltext2002.htm〉 accessed 20 September 2010.
(173) See Daniel T Griswold, ‘Trading Tyranny for Freedom: How Open Markets till the soil for Democracy’ (2004) Trade Policy Analysis no 26, 4–12 〈http://www.freetrade.org/node/37〉 accessed 20 September 2010.
(174) Martin Wolf, Why Globalisation Works (Yale Nota Bene, London, 2005) 30.
(177) Daniel J Gervais, ‘Trips 3.0: Policy Calibration and Innovation Displacement’ in Chantal Thomas and Joel P Trachtman (eds), Developing Countries in the WTO Legal System (Oxford University Press, New York, 2009) 363, 393.
(179) Thomas Pogge, ‘Growth and Inequality: Understanding Recent Trends and Political Choices’ (Winter 2008) Dissent, 6, 〈http://www.dissentmagazine.org/article/?article=990〉 accessed 20 September 2010.
(180) See generally Amy Chua, ‘The Paradox of Free Market Democracy: Rethinking Development Policy’ (2000) 41 Harvard International Law Journal 287.
(181) See, generally, Amy Chua, World on Fire: How Exporting Free Market Democracy Breeds Ethnic Hatred and Global Instability (Doubleday, New York, 2002). See also Anne Orford, ‘Locating the International: Military and Monetary Interventions after the Cold War’ (1997) 38 Harvard International Law Journal 443, 455–9, detailing the role played by IMF and World Bank policies prior to the eruption of genocidal conflict in the former Yugoslavia.
(192) Howse comments on the potential veto power of ‘outsiders’ generated by their ability to expose ‘fault lines’ in proposed deals, which must become public at some stage prior to ratification: Howse, above n 105, 116.
(195) See also Joost Pauwelyn, ‘The Transformation of World Trade’ (2005–2006) 104 Michigan Law Review 1.
(196) See also Keohane and Nye, above n 2, 27; Raustiala, above n 8, 862. See also Deborah Z Cass, The Constitutionalization of the World Trade Organization. Legitimacy, Democracy, and Community in the International Trading System (Oxford University Press, Oxford, 2005) 221–3.
(198) See also Pascal Lamy, ‘The Place and Role of the WTO (WTO law) in the International Legal Order’, Address to the European Society of International Law, 19 May 2006.