THE 'HUMAN RIGHTS APPROACH' ADVOCATED BY THE UN HIGH COMMISSIONER FOR HUMAN RIGHTS AND BY THE INTERNATIONAL LABOUR ORGANIZATION:: IS IT RELEVANT FOR WTO LAW AND POLICY?

Abstract

The today universal recognition of 'inalienable' human rights implies that the legitimacy and legality of all government measures, including rules and decisions of intergovernmental organizations, depend also on their respect for human rights as defined in national constitutions and international law. This contribution argues that the universal human rights obligations of every Member of the World Trade Organization (WTO) pursue objectives (like protection of personal autonomy, freedom of choice, legal security) that complement those of liberal trade and may be legally relevant context for the interpretation of WTO rules (chapters I-II). The human rights approach to international trade advocated by the UN High Commissioner for Human Rights (chapter III) could, like the 1996 WTO and 1998 ILO Declarations on core labor standards (chapter IV), promote synergies between human rights law and GATT/WTO law. The 'basic rights approach' to trade liberalization in European integration (chapter V), as well as the GATT-, WTO- and EC dispute settlement jurisprudence (chapter VI) confirm that, on the level of principles, human rights and liberal trade rules do not conflict with each other. The emerging 'human right to democratic governance' requires, however, more effective parliamentary involvement, citizen participation, and 'deliberative democracy' in WTO matters (chapter VII). A WTO Declaration (1) confirming the commitment of WTO Members to respect their existing human rights obligations in all policy areas; (2) supporting the progressive development of human rights through the competent UN and other human rights bodies; and (3) welcoming the UN initiatives for harnessing the complementarity of WTO rules and human rights for welfare-increasing cooperation among free citizens, could enhance the 'input-legitimacy' as well as the 'output-legitimacy'of WTO negotiations -- without creating new WTO obligations or new WTO competencies. The limited mandate of the WTO, however, and the divergent human rights concepts and diverse constitutional traditions in WTO member countries, make a consensus among WTO Members on such a Declaration unlikely. Even though the WTO should leave the interpretation, monitoring, and progressive development of human rights to specialized human rights bodies outside the WTO, WTO dispute settlement bodies may be legally required to address arguments that human rights may be relevant legal context for interpreting WTO rules (chapter VIII). Oxford University Press 2004; all rights reserved, Oxford University Press.