The World Trade Organization and Human Rights: The Role of Principles of Good Governance

Over the past decade the World Trade Organization (WTO) has increasingly become the whipping post of those that criticize globalization. There have been violent expressions of this critique on the streets of cities around the world. But the critique has also arisen in documents of respected international organizations. A striking example is the report on globalization and human rights written in 2000 by two special rapporteurs of the United Nations Sub-Commission on Human Rights in which the WTO is described as being a ‘veritable nightmare’ for developing countries. The main critique of the WTO is that its activities have serious human rights implications and that the organization as such does not properly address the human rights aspects of these activities. The present article will address the question as to the human rights implications of its activities. We will demonstrate that generally the WTO as an international organization does not directly violate human rights. The WTO cannot be compared to other international organizations whose operations may violate the human rights of individuals. To make this clear we will examine to what extent the WTO has been attributed an international legal personality (i.e., was given certain autonomy by its founders) in the first part of this article. Subsequently, it will be argued that even though the WTO does not violate human rights directly its activities can have implications for the enjoyment and protection of human rights.

In 1989, the World Bank first evolved a doctrine of good governance, which it described in the following terms [g]ood governance is epitomized by predictable, open, and enlightened policy-making (that is, transparent processes); a bureaucracy imbued with a professional ethos; an executive arm of government accountable for its actions; and a strong civil society participating in public affairs; and all behaving under the rule of law. 4 Most international organizations have responded to the call for good governance by adopting strategies aimed at enhancing processes of transparency, participation and accountability. The United Nations underlined the importance of the good governance doctrine in its Millennium Declaration.
In paragraph 13 it is stated that the fight against extreme poverty and towards securing development depends inter alia on good governance at the international level and on transparency in the financial, monetary and trading systems. We are committed to an open, equitable, rule-based, predictable and non-discriminatory multilateral trading and financial system. 5 There is now a sprawling body of literature on the concept of good governance. Various definitions exist and many different principles can be 3 Commission on Human Rights resolution 2000/64, The role of good governance in the promotion of human rights, para. 1. 4 World Bank, Governance: The World Bank's Experience (Washington, 1994), at vii. 5 GA Res. 55/2, 8 September 2000. the production of and trade in goods and services, while allowing for the optional use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development. 8 In other words, free trade is not an aim in itself but a means to achieve the aim of sustainable development. Given the rol of principles of good 6 For example, good governance according to the European Commission " means rules, processes and behaviour that affect the way in which powers are exercised at European level, particularly as regards openness, participation, accountability, effectiveness and coherence" (European Governance, a White Paper, COM 2001 428 final). The United Nations Economic and Social Commission for Asia and the Pacific distinguishes the following characteristics of good governance "It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It assures that corruption is minimized, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society." (http://www.unescap.org/pdd/prs/ProjectActivities/Ongoing/gg/governance.asp). 7 See para. 3.1. 8 Emphasis added. Marrakesh Agreement establishing the World Trade Organization, 1867United Nations Treaty Series 3, 33 International Legal Materials 1125(1994, entered into force 1 January 1995. objectives by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations.
But if it seems at first glance that the WTO is not much more than a negotiation forum and a code of conduct, then how does this relate to the human rights critique that the organization is often subject to? In an attempt to answer this question the following section will focus on the question to what extent the organization bears rights and duties under international law in detachment from its members. In essence, this is the question to the autonomy given to it by its founders. Subsequently, the question to the human rights impact of the described autonomous operations of the organization will be dealt with.

The international legal personality of the WTO
Before human rights accountability of an international organization can be established it is first necessary to examine its position in public international law. Legally speaking, international organizations can only be held accountable if they have actual duties in international law, which they violate rather than the Member States acting as a collectivity. 12 In other words, does an entity bear separate rights and duties under international law? States are the traditional subjects of international law and have full legal personality.
International organizations, however, are created by these original subjects.
They are attributed rights and duties by States. Therefore, organizations which have been attributed such international legal personality are frequently defined as ancillary subjects of international law. 13 In order to determine to what extent an international organization such as the WTO is an international legal person it is necessary to examine to what extent it is a distinct entity from its Member States. Has it been given certain autonomy by its creators? The WTO is often referred to as a member-driven 12

How does the WTO affect human rights?
The foregoing illustrates that it is not the organization as such that is responsible for human rights violations in these processes but rather its  2330, 2003. 28 Although these articles do not constitute a binding legal instrument as such it may be considered an influential source since they are an attempt to reflect State practice. 29 Gattini makes clear that the ILC through these obligations 'gave substance to the fundamental idea of the social ban on and isolation of the outlaw'. Note that Article 16 deals with assistance in the commission of an internationally wrongful act. In contrast, Article 41 'deals with conduct "after the fact" which assists the responsible State in maintaining a situation opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law'. Gattini  It seems that States in realizing this obligation may violate other norms of international law such as international trade law. This can be illustrated by the abovementioned example of the US trade embargo in 1978 adopted against Uganda in response to genocide committed by the Ugandan government. The US claimed that it 'should take steps to dissociate itself from any government which engages in the international crime of genocide'. 32 Admittedly, maintaining trade relations in such cases would be tantamount to rendering aid or assistance in maintaining the situation created by the ongoing breach.
As the International Confederation of Free Trade Unions (ICFTU) held with regard to systematic and widespread forced labour in Burma: It is impossible to conduct any business relationship in Burma without directly or indirectly supporting the Burmese military dictatorship which is responsible for the extensive use of forced labor, as well as other serious human and trade union rights violations. 33 To sum up, it has been demonstrated that under general international law on State responsibility, States have the obligation not to render aid or assistance with regard to a serious breach of a peremptory norm. The substance of this obligation however, may not always be clear. In the case of Burma it is evident that the Burmese regime is directly responsible for the serious violation of international law. Any support to that regime would therefore boil down to a violation of the obligation not to render aid. This may, however, be different if it is a non-governmental actor rather than a government that does not respect a peremptory norm. When it comes to violations of labour rights it is often corporations that do not respect these norms rather than the State. This raises the question if the obligation not to render aid or assistance can also be fulfilled by tailored sanctions against corporations or certain industries that do not respect such norms. One can think of import prohibitions targeted against products. In the words of Vázquez: Are countries required to prohibit all imports from the exporting country (even goods not made with child labor)? After all, a total embargo is even more likely to induce the exporting country to prohibit child labor than is a ban on the importation of one product.
On this view, failure to impose a complete embargo would be tantamount to 'encouragement' or 'support' of child labor. 34 It can be concluded that States are under the obligation not to render aid or assistance in the case of a serious violation of a peremptory norm. It is open for further debate whether this obligation stretches beyond the adoption of tailored sanctions.
What seems clear is that if States are under such obligation it is feasible that the WTO 'judiciary' 35 may have to decide on the legality of such measures under WTO law. 36 In fact, the chances that this will happen have increased with the establishment of the WTO. In the old GATT system trade rules were often bend and even broken because no effective dispute settlement system existed. Rulings could be easily blocked by one of the parties to a dispute. Journal of International Economic Law 6(4), 797-839. 35 Strictly speaking the term 'judiciary' is not correct when referring to WTO panels and AB. The panels are established ad hoc and the legal findings of both the panels and the AB are recommendations that need to be adopted by the Dispute Settlement Body in order for them to become binding. Nevertheless, the independent functioning of the panels and the AB in practice gives them a judicial character in the international law sense. Therefore the term judiciary will be used in this article. See Pauwelyn J., Conflict of Norms in Public International Law (Cambridge University Press Cambridge 2003), p. 442. 36 It is worth noting that Maupain claims that the US considered the chance that Myanmar would go to the WTO to complain rather small in view of similar sanctions adopted by other countries. Supra Note 26, p. 114. 37 Under the old GATT a procedure for dispute settlement already existed. Yet, this system did not prove to be very effective. Rulings could be easily blocked because they could only be adopted by consensus. Moreover, many cases dragged on for a long time inconclusively because of the lack of fixed timetables. Therefore, the Understanding on Rules and Procedures Governing the Settlement of Disputes was adopted in order to structure the system. It introduced deadlines set in various stages of the procedure and it became impossible for a losing country to block a ruling.
In the light of this it is worth mentioning that the question whether the implementation of selective public procurement policies is in violation of WTO law has already been raised with regard to legislation adopted by Massachusetts which prohibited State agencies from contracting with corporations doing business in Burma. 38 The European Union claimed that this policy was in violation of the WTO Government Procurement Agreement 39 as it imposed conditions that were not essential to fulfil the contract and were based on political instead of economic considerations. 40 The EU therefore requested consultation in the WTO. 41 The Massachusetts law was also challenged in the domestic courts of the United States by the National Foreign Trade Council (NFTC), a coalition of corporations, which claimed that the Massachusetts law was unconstitutional as it infringed on the federal governments' exclusive authority to regulate foreign affairs. 42 The case went to the Supreme Court, which ruled in favour of the NFTC. The EU then decided to withdraw their request for consultations and the case did not proceed any further within the WTO. As a result the WTO dispute settlement system has not yet had the opportunity to address the question whether public procurement policies that are selective in view of protecting human rights abroad are in violation of WTO law.
The foregoing proves that it is not unlikely that the WTO judiciary at some point will be asked to rule on the legality of such trade measures. If it would decide that the measure taken in view of protecting fundamental norms are in In other words, the way the most important institution advocating trade liberalization goes about this process is vital. It is necessary that the WTO is receptive to human rights concerns to ensure that in the process of trade liberalization ample room is provided for human rights considerations.

The WTO and Principles of Good Governance
What has the WTO done so far to contribute to an environment conducive to human rights? In other words what role do the principles of good governance play within the organization? And what further steps can the WTO take?
As discussed in the introduction, the doctrine of good governance in international organizations deals with processes that enhance transparency, participation and accountability. In this article two principles will be discussed that, arguably, are particularly relevant in the context of the WTO. These are the principles of participation and transparency.
The principle of participation is of fundamental importance for any international organization. It is a mistake to think that a State can adequately represent all voices. Increasingly, people join together out of concern for a certain topic that they feel might be better represented by an NGO across geographical and political borders than by their own government. Civil society can bring to the fore topics that would otherwise escape attention. The principle of participation is especially relevant for the WTO in light of the often voiced criticism that, notwithstanding the fact that legally all States have equal rights given the principle of consensus voting, in practice a couple of selected countries hold all the power. These countries set the agenda and negotiate the bargains that others are expected to take. This effect is strengthened by the WTO structure as a Single Undertaking referred to earlier. Furthermore, meaningful participation requires transparency. The WTO is often perceived as a rather arcane organization. For civil society and others to participate in a meaningful manner they need to know what is going on. An often-voiced criticism towards the WTO is the secrecy especially surrounding the proceedings of the dispute settlement mechanism. Enhancing transparency and participation in the institutional processes of the WTO will also contribute to other good governance principles such as accountability. 44 The following section will discuss what so far has been done in the WTO concerning the principles of participation and transparency.

The principle of participation
The WTO system is often considered a '  44 In a strict legal sense it is not appropriate in the context of the WTO to use the term accountability. As discussed in section 2, the WTO differs from most other international organizations given the limited independence from its Member States. Accountability therefore lies primarily with these States. However, if accountability is taken as a broader concept where the organization is required to render account for its actions towards its constituencies this good governance principle is also relevant in the light of the present article. 45 1998, paras. 108-109. 63 For example, In the Softwood lumber case the panel received an amicus brief from the NGO Northwest Ecosystem Alliance. In the report of the Panel of 22 March 2004 (WTO Doc. WT/DS277/R) the panel states (in a footnote): "Having carefully considered the question of how to treat that communication, and any further such communications that might be received, and in the light of the absence of consensus amongst WTO members on the question of how to treat amicus submissions: we decided not to accept unsolicited amicus curiae submissions in the course of this dispute"(footnote 75). The Panel went on to state that arguments that were raised by amici will only be examined to the extent they are taken up in the written submissions of the parties to the dispute.
Amicus curiae participation has also been allowed at the appellate level by the Appellate Body which believes such a right flows from its broad authority to adopt procedural rules, provided they do not conflict with the DSU or the covered agreements. 64 The discretion to accept unsolicited amicus curiae submissions lies with the Appellate Body and so far none have been considered to be pertinent or useful.
NGOs participating in the WTO dispute settlement procedures as 'friends of the court' have caused considerable controversy. Member States reacted fiercely to the decision to allow for amicus curiae participation. On behalf of the Informal Group of Developing Countries, Egypt requested an extraordinary meeting of the WTO General Council. 65 The vast majority of the Member States alleged that the Appellate Body had trespassed its own mandate and had unduly acted as a legislator. Only the United States, New Zealand and Switzerland supported the Appellate Body decision to allow for amicus curiae submissions.
It can be concluded that NGOs acting as amicus curiae -at least in theoryhave found their way into WTO proceedings. However, despite this in practice most submissions are rejected with little or no explanation. This has, nevertheless, not stopped NGOs from acting as friends of the court.

The principle of transparency
To be able to participate in the WTO it is necessary that the organization is transparent. What has the WTO done over the years to increase transparency?
A number of Member States, notably the United States during the Clinton administration, have pushed an agenda for reform in the area of transparency urging for greater transparency within the WTO. 66 The WTO has responded to demands for greater release of information concerning WTO policymaking, most notably by constructing an elaborate website. In 2002, a long debated decision was taken on earlier de-restriction of documents. 67 Negotiating proposals are now public; they have generally been made accessible and can therefore be publicly scrutinized. However, the idea of transparency does not seem to have been mainstreamed throughout the whole organization. Howse

The Sutherland report
On the occasion of the tenth anniversary the WTO published the report entitled European Community) and scholars 84 to formulate a standard procedure for the acceptance of such submissions. As mentioned earlier, the Sutherland report on the future of the WTO also emphasized the need for general rules.
In the absence of a standardized procedure for amicus curiae briefs the WTO panels and Appellate Body could also seek more NGO input in the form of an expert opinion especially when confronted with disputes that touch on nontrade issues such as human rights. Besides authorizing WTO panels to seek information from any relevant source, article 13 (2) DSU 85 also authorizes WTO panels to consult with experts to obtain their opinion on certain aspects of the matter. This article gives considerable flexibility to WTO panels to involve NGOs that have shown interest in providing information as experts.
The authority to seek and accept expert advice is discretionary and in practice WTO panels have requested such contributions in only very few instances.
Such expert opinion should also be made public.
A more far-reaching suggestion was made by the International Law policies. Evidently, it primarily concerns policies for the protection of human right (say, the right to health) within a State's own jurisdiction. Yet, it has also been illustrated that it is feasible that the WTO dispute settlement mechanism at some point will be asked to rule on the lawfulness of trade restrictions for the protection of human rights elsewhere. This shows that human rights considerations are of particular relevance for the dispute settlement mechanism. Human rights considerations, however, may also be relevant for activities that do not bind the Member States and may have a normative impact such as the Trade Policy Review Mechanism and technical assistance.
It is here where principles of good governance can play an important role.
Serious deficiencies in the field of transparency and participation in the past have contributed to suspicion and hostility that the organization has encountered. The tide of good governance has, however, not completely bypassed the WTO. In recent years the organization has taken significant steps to enhance its transparency and the possibility for participation by nonstate entities. Nevertheless, a lot remains to be done to help secure a human rights responsive environment within the WTO. than likely that the WTO will be confronted with more difficult and controversial cases also involving human rights issues. There is, therefore, an ever-increasing need for transparency and greater participation in these proceedings by actors representing such issues.
Future developments as suggested in this article will help, on the one hand ensure that the WTO does not pose an obstacle in the realisation of human rights, and on the other hand help sensitize the organization for human rights considerations.