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Raising Human Rights Concerns in the World Trade Organization Actors, Processes and Possible Strategies

From: Human Rights Quarterly
Volume 24, Number 1, February 2002
pp. 1-50 | 10.1353/hrq.2002.0008

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Human Rights Quarterly 24.1 (2002) 1-50

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Raising Human Rights Concerns in the World Trade Organization:
Actors, Processes and Possible Strategies

Caroline Dommen

I. Introduction 2
II. Shared Features of the International Human Rights and Trade Regimes 3
III. The World Trade Organization (WTO)--Structure, Functions and History 6
   A. Structure and Functions 6
      1. The WTO Agreement 6
      2. The WTO, the Organization 7
      3. The WTO Secretariat 9
      4. The Dispute Settlement Mechanism 9
   B. Historical Background 10
IV. Specific Areas of Conflict Between Human Rights and WTO Law 13
   A. The WTO, Domestic Health Policy, and the Right to Health 16
      1. The "Hormone-Beef" and "Asbestos" Cases before the WTO Dispute Settlement Mechanism 17
      2. The Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement and Access to Pharmaceuticals 23
   B. WTO Agreements and the Right to Food 30
      1. The Agreement on Agriculture 31 [End Page 1]
      2. Plant Variety Protection, the WTO and Intellectual Property Rights 38
V. The WTO, Transparency, Participation, and Equity 41
   A. Internal Transparency 41
   B. External transparency and Participation 43
   C. Equity 45
VI. Possible Strategies 49

I. Introduction

Whether the World Trade Organization (WTO) helps or hinders the realization of human rights has been high on the popular agenda in the last couple of years. Yet the WTO has been accused of preventing countries from setting their own health standards, of dangerously eroding citizens' interests in favor of commercial interests, and of being a veritable nightmare for certain sectors of humanity. These accusations usually end with a call to the WTO to recognize the primacy of human rights over international trade law. Such calls have not been heeded, and one might wonder whether they have even been heard.

This article will explore why calls for the WTO to take human rights on board have not yet met with success. To set this exploration in context, it starts with an overview of the history, structure, and functions of the WTO. It then looks at some specific areas of conflict between human rights norms and WTO-related policies, in order also to give concrete illustration of some of the main political and economic dynamics at play in the WTO. It will conclude that this is a propitious time to raise human rights in the WTO, but will argue that in order to be heard, human rights advocates will have to ensure that the strong legal and ethical arguments supporting the primacy of human rights are directed to the appropriate actors and processes in international trade policy, rather than to the WTO as a whole. Human rights advocates also need to ensure that calls for the WTO to respect human rights are framed in the context of the political realities that shape the WTO's environment. The article will also conclude that human rights activists could make much better use of human rights mechanisms to ensure that trade and economic policy promote rather than jeopardize human rights. [End Page 2]

II. Shared Features of the International Human Rights and Trade Regimes

The Universal Declaration of Human Rights (UDHR) 1 was adopted within months of the WTO's predecessor, the General Agreement on Tariffs and Trade (GATT), 2 and both had as their main aim to prevent the recurrence of the events of the 1930s and 1940s which caused the suffering and devastation that occurred in the Second World War. The UDHR sought to protect individuals from human rights abuses of the kinds millions in Europe and Asia had been subjected to in the 1940s, before and during the war. Indeed, these events demonstrated as never before the extreme consequences that could follow from doctrines of national sovereignty and ideologies of superiority, and highlighted the need to reaffirm safeguards for minorities and human rights, and for respecting the inherent dignity of each human being. In 1942, almost all the states at war against Germany, Italy, or Japan affirmed in the Declaration of the United Nations the need to preserve human rights and justice in their own...