Hierarchy of norms: the case for the primacy of human rights over WTO law.

• Author: Yigzaw, Destaw A.

ABSTRACT

How World Trade Organization (WTO) rules relate to human rights norms, and whether one takes precedence over the other in the event of conflict remains a subject of contention. This article aims to demonstrate why human rights have primacy over WTO rules. Three lines of argument are advanced here. First, trade is merely a means to advance socioeconomic ends (most of which are recognized as human rights). Should conflict arise between the two, it remains to reason that the end must trump the means. Second, while WTO rules are ordinary treaty rules of reciprocal nature, at least certain human rights norms have peremptory status. Moreover, the U.N. Charter is the foundation for modern human rights law. Thus, the overriding character of the U.N. Charter, it is argued here, accords human rights a superior value compared to ordinary treaty rules. Finally, their peremptory status notwithstanding, human rights are distinct in that they are not statutory norms; they are inherent, inalienable, and universal entitlements of individuals, not of states. On the contrary, human rights are primarily meant to constrain the power of the state (including its contractual power) vis-a-vis the individual. Therefore, human rights transcend the reciprocal interests of trading nations.

1. Introduction II. Trade Is Just a Means to Human Ends (Rights) III. Human Rights as Peremptory Norms A. Peremptory Norms as Checks on State Power B. Criteria (or lack thereof) of Peremptory Norms C. Content of jus cogens D. The Peremptory Character of Human Rights 1. Non-Derogability of Human Rights 2. The Peremptory Status of Human Rights in Case Law E. The Erga Omnes Character of Human Rights F. The U.N. Charter as the Foundation of Human Rights--The Overriding Character of the U.N. Charter IV. Inalienable Nature of Human Rights V. Conclusion I. INTRODUCTION

   International law does not operate under a monolithic constitutional umbrella. Its norms and institutions are fragmented to a point that prompted some commentators to conclude that any attempt for normative unity is an exercise in futility. (1) The most immediate result of such normative decentralization is the uncertainty regarding how conflict of norms ought to be resolved. The conflict between World Trade Organization (WTO) law and human rights has been at the center of the debate on the topic for some time now. Yet, whether human rights norms, as such, take precedence over WTO law is not immediately obvious, unless, of course, the human right in issue is a jus cogens norm. (2) Admittedly, even the notion of jus cogens does not seem to be particularly helpful in resolving conflicts between human rights norms and WTO rules for two reasons. First, while there is no authoritative catalogue of jus cogens norms, it is uncertain if all but few human rights belong to that category. (3) Second, well recognized peremptory norms (jus cogens) seem to have little to do with trade. The WTO has never been accused of committing genocide or perpetrating torture. It is rather socioeconomic rights, which are not widely regarded as jus cogens norms, that normally conflict with WTO law.

   The conflict between WTO law and human rights, as a question of fact, is rarely contested. The WTO itself concedes that people may lose their jobs, go bankrupt, and have their livelihoods shattered as a result of trade liberalization. (4) Ironically, however, when the same issue is presented in normative terms, it becomes a bone of contention. Scholars are deeply divided on the issue. Broadly, there are three different arguments regarding how WTO rules relate to human rights: human rights are inherently superior, and thus should trump WTO rules; human rights and WTO rules are essentially of the same rank, but parallel (not conflicting); and, instead of one trumping the other, there should be a balancing test between the two.

   Human rights advocates generally believe that in the event of conflict, human rights should take precedence over trade rules. (5) The United Nations Committee on Economic, Social and Cultural Rights (CESCR) declared in its 1998 statement on globalization that states and international organizations that they create have the obligation to ensure that trade and other economic policies are compatible with human rights standards. (6) On the occasion of the third WTO Ministerial Conference, the Committee reiterated that trade liberalization must be harnessed towards the promotion and protection of human rights, which is "the first responsibility of governments." (7) The position of other human rights bodies is no different. (8)

   Trade scholars, by contrast, seem unenthusiastic about any association between trade and human rights. Nonetheless, they also claim that WTO rules have generally equal legal value with other norms of international law. Pascal Lamy, former WTO Director General, argued:

   in international law, all norms are equal except (i) those included in the so-called 'peremptory norms' or jus cogens and (ii) those that would be in conflict with the UN Charter ... I believe that none of the work that we do in the WTO corresponds to any of these two exceptions; so, generally ... WTO norms are equal to other international norms. (9) The allusion seems to be that the WTO is not obliged to take into account human rights, unless the human right in issue is a jus cogens norm or stems from the U.N. Charter. While the question of whether all human rights form part of jus cogens is arguable, there is little doubt, however, that the U.N. Charter is the basis for modern human rights norms. (10)

   Lastly, some commentators believe that there should be a sort of "balancing test" to ensure coherence between the goals of trade and human rights in the same fashion that trade and environmental objectives are balanced. (11) It is claimed that trade has some compelling values such as poverty reduction that justify "modest incursions on human rights." (12) When subjected to scrutiny, this argument is problematic. Human rights are individual entitlements; therefore, they cannot be subjects of commercial tradeoff. (13)

   This article aims to demonstrate why human rights, including socioeconomic rights, have primacy over WTO rules. Three lines of argument are advanced here. The first one is a purposive argument. Trade, per se, has no intrinsic normative value; it is merely a means to advance socioeconomic ends (most of which are recognized as human rights). Should conflict arise between the two, it stands to reason that the end trumps the means (for the relevance of the means hinges on the end it serves). Second, given the reciprocal nature of the rights and obligations they create, WTO rules do not have the status of customary international law, let alone that of jus cogens. (14) By contrast, it is unarguable now that at least certain human rights norms have peremptory character. (15) It is no accident that most cases of jus cogens involve human rights. The link between jus cogens and human rights seems indeed intrinsic. (16) Moreover, the U.N. Charter is the foundation for modern human rights law. Thus, the overriding force of the U.N. Charter, it is argued here, accords human rights a superior status to ordinary treaty rules. (17) Finally, their peremptory status notwithstanding, there is no doubt that human rights are distinct from all other norms of international law. Human rights are not statutory norms; they are inherent, inalienable, and universal entitlements of individual human beings, not of states. On the contrary, human rights are primarily meant to constrain the power of the state (including its contractual power) vis-a-vis the individual. Therefore, human rights transcend the reciprocal interests of trading nations and are nonnegotiable. (18) These three arguments are put forward under Parts II, III, and IV, respectively.

2. TRADE IS JUST A MEANS TO HUMAN ENDS (RIGHTS)

   The case for free trade is not self-evident. Thus, addressing the basic question of why trade should be liberalized is the point of departure for any discussion about international trade. The more familiar economic argument for free trade is based on the classic theory of comparative advantage. Nobel Laureate Paul Samuelson provides a representative summary of economic arguments. He writes:

   there is essentially only one argument for free trade or freer trade, but it is an exceedingly powerful one: Free trade promotes a mutually profitable regional division of labor, greatly enhances the potential real national product of all nations, and makes possible higher standards of living all over the globe. (19) That is the central premise underpinning the establishment of the WTO. The Preamble of the WTO Agreement reaffirms that trade (and economic relations in general) should be conducted with a view to, inter alia, raising standards of living of people worldwide. (20) The WTO's raison d'etre lies in the enhancement of standards of living for all.

   There is not much dispute over the economic virtues of free trade. There is profound disagreement, however, on whether WTO trade proceeds in accordance with the stated goals. Also, to argue that free trade can help enhance the economic welfare of nations is one thing; whether it is enhancing the standards of living of people equitably is something else altogether. (21) Therein lies the major weakness of the argument for balancing trade and human rights mentioned above. A balancing test that may work to harmonize the goals of trade and that of environmental protection (both of which involve collective interests), may not be relevant to deal with human rights. As individual entitlements, human rights cannot be reduced to bargaining chips between trading nations. Therefore, any discussion about trade and human rights, it is argued here, should start with the recognition that individuals possess certain entitlements that cannot be trumped by national welfare considerations. (22) It is a question of...