Human Rights Constitutions

The WTO will not soon embody the kind of human rights protections that domestic societies hope for. The critical issue here is the vocation of the WTO and its relative advantage to states, human rights treaties, the United Nations, and other bodies. In domestic societies, constitutionalism entails a normative commitment to the rule of law, minority rights, and other human rights. Most of these values can typically be decided and provided for at the level of the state. Even where the state is inadequate to protect human rights, the WTO may not be the multilateral mechanism to spearhead human rights efforts. However, the WTO may become involved in linkages relating to these issues.

Just as the European Union’s evolution has required delicate negotiations to insert human rights norms, so too will the WTO’s evolution require human rights-type guidelines. Some argue that this has already occurred because WTO law is part of the overarching international legal system. However, while states are not generally relieved by WTO law of their human rights obligations, the internal WTO dispute settlement system does not provide for the automatic application of human rights law. Constitutional changes in WTO law are required to provide for a more nuanced integration between WTO and human rights law.

Functional Constitutions

While human rights are a single component of constitutionalization, another addresses the extent to which broad social values are integrated with each other, and more specifically, the way market concerns are integrated with non-market concerns. The relationship between trade values (growth or prosperity) and other values, like environmental protection, consumer protection, competition law, bank regulation, or labor rights is a critical challenge to the WTO. The 1994 advance in dispute settlement at the WTO has raised greater concerns about how the WTO deals with multilateral environmental treaties, international labor standards, and human rights treaties that often do not have access to mandatory dispute settlement.

We can see the development of a modest approach to intersectoral coherence in the WTO’s reference to standards promulgated by international organizations. We can also see it in the Appellate Body’s Shrimp-Turtle decision, which referred to an international environmental agreement in order to interpret some of the exceptional provisions of the WTO Agreements. But the international community may need to develop more complete and predictable mechanisms to promote coherence between trade policy and other policies. These will not necessarily result in uniform enforcement of all international law. States need flexibility to create both harder and softer international law. This counsels against blanket calls for direct authority of WTO law in domestic legal orders, and also advises against enforcing other international law in WTO dispute settlement.

Developing countries have been reluctant to bring human rights, labor rights, or environmental protection into the WTO out of fear that social clauses will be used as pretexts for protectionism.Thus, it will be necessary to establish mechanisms to guard against protectionism. The WTO must also provide compensation through trade liberalization or even direct monetary grants to poorer states in exchange for their willingness to accept standards that may otherwise be too costly for their level of development.

Legal Constitutions

Secondary legal norms—constitutional rules—are subjects of the economic, political, and social forces that form the substance of social interaction. However, legal rules are both products and producers of constitutional change. For example, constitutional development may create demand for further changes. The surprising 1994 advance in binding dispute settlement has created an imbalance between adjudication and legislation in treaty-making. Treaty-making is difficult, as it informally requires unanimity to make new treaties or to amend existing ones. At least some of the gaps in previous agreements are filled by adjudication.

Some of these gaps seem to have constitutional dimensions, such as the role of judicial review in balance of payments cases, or the ability to incorporate standards produced by Codex Alimentarius, created in 1963 by Food and Agricultural Organization of the United Nations (FAO) and WHO to develop food standards, guidelines and related texts, into WTO law by majority voting. While the WTO Appellate Body has been very prudent and has avoided extensive “judicial legislation” or judicial centralism, it is required to decide the cases presented to it, and many of these cases have involved matters the negotiators never considered or failed to resolve.

It would be politically impossible, and patently undesirable, to accord broad majority voting-based legislative power to the WTO. However, it might be possible to accord narrower legislative power to the WTO. The WTO agreements contain nuances that show the beginning of narrow legislative capacity, but it is incorporated into the WTO from other international bodies. One of the most important examples is the reference in WTO law to international standards, such as those produced by the FAO’s Codex Alimentarius, or the International Standards Organization. In the WTO Agreement on Sanitary and Phytosanitary Measures and in the WTO Agreement on Technical Barriers to Trade, domestic product standards are required to be based on international standards. These conforming domestic measures are providing substantial protection from scrutiny as potential illegal trade barriers. In the recent WTO Appellate Body Sardines case, even Codex Alimentarius rules produced by majority vote had this effect.

The United States and states in the European Union also have the experience of judicial constitutionalization. The European Court of Justice developed doctrines of supremacy, preemption, direct effect, and judicial review in a way that gave impetus to political integration and, eventually, constitutional amendment. Both the US Supreme Court and the European Court of Justice showed themselves to be keenly aware of the relative need and political appetite for this type of constitutionalization. The WTO Appellate Body has had only limited experience but has demonstrated a similar awareness in such instances as its decision regarding the balance between political and judicial decision-making in the case of India-Quantitative Restrictions.

The selection of areas and rules for incorporation in the WTO legal system entails a degree of dynamism. Through specific adjudication and legislative action, there is a dynamic division of authority between states and the WTO itself. This division can adjust to changing needs, technologies, and social structures over time. The WTO constitution has other dynamic features, including the relationship between horizontal and vertical federalism, and the institutional balance between dispute settlement and adjudication.