Human Rights in the Law of the World Trade Organization: The Case of the European Generalized System of Preferences

Abstract

The relationship between human rights law and international trade law has been a point of discussion for many years. An explicit reference to human rights is nowhere to be found in the WTO Agreement, but the ruling of the Appellate Body in the EC-Tariff Preferences case has made an important contribution to the implicit incorporation of human rights in trade policies and trade disputes. In this case, the Appellate Body laid down four guidelines developed countries need to take into account when granting preferential treatment to developing countries under the Enabling Clause. This paper discusses the application of these guidelines by the European Communities in its most recent Generalized System of Preferences (GSP), known as GSP Plus. It is shown that, although at first sight the human rights conditionalities incorporated in GSP Plus appear to be aligned with the guidelines of the Appellate Body, and therefore to support the view that successful implicit incorporation of human rights in the WTO Agreement is possible, GSP Plus unfortunately allows too much discretion in the trade policies of the EC. This point is illustrated by a short case study on granting preferential treatment to Sri Lanka under the GSP Plus programme. Despite this finding, it is argued that the ruling was an important step for the legitimate incorporation of human rights in GSP programmes, but that a new trade dispute on GSP Plus is needed, in order for the Appellate Body to clarify and tighten its own guidelines.