Double Agents, Discrimination, Duress and Doha: A Review of Trade and Human Rights since the China – Publications and Audiovisuals Decision

Abstract

In January 2010, the first decision of the dispute settlement system of the World Trade Organization (WTO) dealing with restrictions imposed for reasons of ‘public morals’ on trade in goods was handed down. Article XX of the General Agreement on Tariffs and Trade (GATT) is a general exceptions clause and it includes a subclause which legitimates otherwise non-complying domestic measures introduced for the protection of public morals. Human rights advocates have long wondered about the extent to which public morals might be said to include human rights, but until this year the phrase had not been the subject of any determination. It is for this reason that the China – Publications and Audiovisuals decision invites a review of the extent to which the general exceptions provision in article XX of GATT and, specifically, the public morals clause on which the dispute turned, might legitimate or protect domestic human rights measures which unlawfully affect trade. This is often referred to as policy space, a term describing the scope or freedom which governments have to address domestic policy issues and problems in their own ways. Human rights policy is an important area of legislative responsibility for the 153 member states of the WTO, all of which bear legal obligations under a multiplicity of human rights treaties. The decision also provides an opportunity to conduct a wider review of the extent to which WTO law as a whole preserves adequate human rights policy space, and the second part of this paper explores that question. Both the review of article XX and that of WTO law as a whole are undertaken in the context of the human rights obligations of developing country members of the WTO, particularly their obligations regarding economic and social rights. The basis for this is a conviction