Protecting Rule of Law and Human Rights in the World Trading System

Abstract

Abstract Chapter 6 illustrates how the World Trade Organization (WTO) jurisprudence has, for twenty-five years (1995–2020), promoted the rule of law consistent with constitutional principles (e.g. of proportionality balancing) of judicial administration of justice. It discusses legitimacy problems of WTO adjudication resulting from the limited jurisdiction of WTO dispute settlement bodies. Notwithstanding the rare invocation of human rights and the reticent use of systemic treaty interpretation methods by WTO governments, WTO jurisprudence protected human rights values. Even if WTO complainants, defendants, and WTO dispute settlement bodies avoided references to human rights, there is no empirical evidence that the more than 500 GATT/WTO panel, appellate, and arbitration findings violated human rights. Many GATT/WTO dispute settlement findings balanced private and public interests, for instance by systemic interpretation of WTO rules consistent with multilateral treaties like the World Health Organization (WHO) Framework Convention on Tobacco Control. The increasing recourse to unilateral invocations of national security and public morals for justifying politically motivated trade sanctions was successfully contained by WTO panel reports limiting the allegedly self-judging nature of such invocations of WTO exceptions by insistence on good faith interpretation and respect for the necessity, proportionality, and other rule-of-law principles in WTO law and general international law. Democratic constitutionalism and related theories of justice explain why power-oriented pursuit of the sustainable development goals—including a rules-based, mutually beneficial multilateral trading system, and transnational rule of law—require multilevel constitutional restraints such as those underlying the WTO dispute settlement system.