Can WTO Member States Rely on Citizen Concerns to Prevent Corporations from Importing Goods Made from Child Labour?

Aleydis Nissen

doi:10.18352/ulr.436

Abstract

There has been a polarised debate on the desirability of import restrictions to increase corporate accountability for child labour that occurs in global supply chains. Some scholars have indicated that states in favour of imposing import restrictions could sidestep this debate relying upon the perceptions that people in the importing market might have. They have based this argument on the case law of the World Trade Organization’s Dispute Settlement Mechanism (WTO DSM). The attitude-behaviour gap has, however, been largely overlooked in their analyses. This behavioural phenomenon provides an explanation as to why there is an inconsistency between what people value or believe and what they actually do. This essay revisits the WTO DSM's case law in order to determine whether such values or beliefs might justify import restrictions. On balance, this essay finds that the WTO DSM has not sufficiently taken the attitude-behaviour gap into account in its interpretation of Article III(4) and Article XX(a) 1994 General Agreement on Tariffs and Trade (GATT).

Highlights

The Dutch Government has tried to mobilise other European Union Member States to eliminate the ‘worst forms of child labour’ in third states by means of unilateral trade-related restrictions.[1]
The CRC suggested that import restrictions might be required with regard to products from third states that are investigated by the International Labour Organisation (ILO) for using child labour in its Concluding Observations for the Republic of Korea.[4]
If import restrictions on products of child labour can be considered inconsistent with the National Treatment Principle, the question arises whether such restrictions can be justified under the exceptions in Article XX GATT

Summary

Introduction

The Dutch Government has tried to mobilise other European Union Member States to eliminate the ‘worst forms of child labour’ in third states by means of unilateral trade-related restrictions (alongside appropriate accompanying measures).[1]. The debate on the linkage between trade and human rights does not yet appear to be settled It recently re-emerged during a discussion of the 2016 ILO Resolution concerning Decent Work in Global Supply Chains.[35] Part of this focused on whether ILO Member States should commit to a reference to labour standards, including core labour standards, in trade and investment agreements.[36] The official record indicates that a number of hegemonic Member States – India, China, Brazil, joined by the United Arab Emirates – were vocal in opposing a reference to a social clause in this Resolution.[37] The Netherlands – speaking on behalf of the EU and its Member States – and other economically developed states such as Norway and New Zealand, supported a reference to labour standards in the discussed Resolution. Economics scholars have demonstrated that import sanctions can be effective if they are accompanied by appropriate additional measures such as educational subsidies and incentives for parents to have small families.[45]

WTO regime through the lens of the attitude-behaviour gap

Interpretation

Attitude-behaviour gap

Chapeau test

Conclusion