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International Trade and Child Labour
Could Article XX of the GATT act as a sort of charter against child
labour?
MASTER THESIS
Ádám Zsolt Lukács
L.L.M. International and European Law: International Trade and Investment Law University of Amsterdam Graduate Law School
Academic Year: 2015/2016 Student ID: 11098147
Thesis Supervisor: Ioana Ciobanasu
Date: 28 July 2016
Number of words including annotations (excluding bibliography, list of abbreviations and table of content): 13352.
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CONTENT
LIST OF ABBREVIATIONS ... 3
ABSTRACT ... 4
INTRODUCTION ... 5
CHAPTER ONE: Trade, Labour and Human Rights ... 7
Trade law as a part of public international law... 7
Human rights and international trade before the WTO ... 9
Labour standards and the WTO ... 12
CHAPTER TWO: Article XX of the GATT and Child Labor ... 17
General issues with Article XX in respect of human rights ... 17
Child labour as a PPM ... 20
Article XX (a) – Child labour and public morals ... 23
Article XX (b) – Child labour and human health and life ... 26
Article XX (d) – Compliance with laws or regulations ... 28
CONCLUSION ... 31
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LIST OF ABBREVIATIONS
AB Appellate Body of the World Trade Organisation
DSB Dispute Settlement Body of the World Trade Organisation DSU Understanding on Rules and Procedures Governing the
Settlement of Disputes
EU European Union
GATT General Agreement on Tariffs and Trade (1947) as amended in 1994
GSP Generalized System of Preferences
ICESC International Covenant on Economic, Social and Cultural Rights (1966)
ILO International Labour Organisation
ITO International Trade Organisation
IPEC International Programme on the Elimination of Child Labour MFN Most Favoured Nation Principle as defined in Article I of the
GATT
NGO Non-governmental International Organisation
OECD Organisation for Economic Co-operation and Development
PPM Processes and Production Methods
UNCTAD United Nations Conference on Trade and Development
UNICEF United Nations Children’s Found
VCLT Vienna Convention on the Law of Treaties (1969)
WHO World Health Organisation
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ABSTRACT
The present paper examines the question whether a trade restrictive measure aiming the elimination of child labour could be justified under Article XX of the GATT. The first chapter deals with the strong and undeniable connection between international trade law and human or labour rights. The understanding of this correlation is quite essential because such relation is the legal basis which opens the gate in front of human or labour rights considerations within the world trade regime. The second chapter analyses the possible interpretations of Article XX (a), (b) and (c). Before such analysis it has to be clarified whether PPMs fall under the scope of the general exceptions, because if not, than trade restrictive measures aiming the elimination of child labour could not be justified by Article XX. The WTO jurisprudence contains cases only in which the product as such endangered the protected policy objective and not the PPMs. However, we must see of course that the fact that the DSB has not yet confirmed expressly the involvement of PPMs in the scope of Article XX, does not mean automatically that this article relates only to products as such. Especially, if we take into account that the worst forms of child labour violate jus cogens norms on the one hand, and on the other, the purpose of Article XX itself assumes that child labour as a harmful production method is also against the general principles of the WTO. The main finding of this paper is that neither the legal text of the GATT nor the jurisprudence of the DSB do not expressly exclude the possibility that the elimination of child labour could fall under the scope of Article XX. Therefore, my conclusion is that Article XX could serve as a mean for the elimination of child labour.
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INTRODUCTION
The use of child labour is still a significant issue in our globalised world. According to the ILO,1 168 million children were involved in unlawful employment in the year of 2012.2 It is hard to say exact numbers, because mainly but not exclusively developing countries are affected in child employment3 where the monitoring infrastructure is not developed enough to identify the punctual number of child labourers. Agriculture and services are the two most infected industries4 in the use of child labour and since these sectors are producing also for export in many developing countries, the connection between child labour and international trade is incontrovertible.
From the view of international trade, child labour might be problematic in three aspects. Firstly it is a pure legal issue. The public international law prohibits the exploitation of children’s workforce5 and acknowledges the children’s right to education6 as a human right instead of working. Since international trade law does not contain human rights provisions, events might occur when the activity of a state is in full accordance with the WTO law on the one hand, but on the other, the same activity violates core human rights. Secondly, the child labour is an economic issue as well. States in which the child labour is widespread have a huge comparative advantage towards economies where such kind of employment is not used. The reason of this is quite simple: the use of illegal and cheap child labour depresses the production costs. Last but not least, child labour raises up some moral issues as well. Children who are excluded from education or social interaction because of child labour, might have serious injuries in their personal development. They grow up without a strong educational or social background and they cannot break out from the dragon circle of poverty. Without the hope of an educated workforce, developing countries cannot grow the volume of their real income or the standards of living, nor the economic development which is of course a moral/economic
1 Yacouba Diallo; Alex Etienne and Farhad Mehran, Global child labour trends 2008 to 2012, 2013, ILO
Governance and Tripartism Department, Geneva, pp. vii.
2 Not all forms of child labour are unlawful. ILO Conventions No. 138 (Minimum Age Convention) and No. 182
(Worst Forms of Child Labour Convention) are regulating the use of child labour. If a state complies with the provisions of these conventions, the employment of humans under the age of 18 shall not be considered automatically illegal. For the shake of clarity when the author talks about child labour in this paper, it means child labour which is not consistent with the above ILO Conventions.
3 Idem. supra note 1 above, pp. 5. 4 Idem. Pp. 14.
5 Article 10 (3) of ICESC (1966); Article 6 of ILO Convention No. 182.
6 Article 26 of the Universal Declaration of Human Rights (1948); Article 7 of ILO Convention No. 182;
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problem on the one hand, but it is also inconsistent with the WTO law.7 The purpose of the present paper is the examination of the first issue above, focusing onto child labour. More specifically, is it possible under the WTO law to adopt trade restrictive measures in order to protect children’s rights?
One might ask that why the WTO would be an appropriate forum for the protection of children’s right? There are a plenty of international human rights institutions in the arena of international law and many of them have a detailed program against child labour, like the IPEC in case of the ILO. However, such human rights organisations do not have which WTO do: strong enforcement system and the economic power of international trade. Taking into account the provisions of the DSU,8 the WTO is quite unique amongst the international organizations in the sense that the decisions of the DSB are enforceable. Such enforceability is obviously a stronger asset than the single monitoring or reporting activity of human rights organisations. If it could be demonstrated that unilateral trade measures aiming the elimination of child labour could be justified under Article XX of the GATT, the WTO could be an effective framework in this fight, since economies are quite sensitive to export bans or other trade restrictive measures.
The world trade regime has already recognised the correlation between international trade and human rights / labour conditions. A great example for this is the so called Enabling
Clause9 and the GSP under which WTO members are entitled to give more favourable treatment to developing countries who comply with certain conditions. The system applied by the EU10 is quite human rights based, since developing countries the products of which would like to have more favourable treatment, shall ratify numerous human rights treaties, among others the Convention on the Rights of the Child and ILO Conventions No. 138 and 182.11 Another example could be an obligations waiver12 like the Kimberley Process Certification Scheme. The General Council Decision of the WTO acknowledged13 the Kimberley Process in order to
7 Agreement Establishing the World Trade Organization, 1994 (hereinafter: “Marrakesh Agreement”), Preamble. 8 In particular Articles 19, 22 and 23.
9 Differential and More Favourable Treatment Reciprocity and Fuller Participation of Developing Countries –
Decision of 28 November 1979 (L/4903) of the GATT Contracting Parties.
10 Regulation (EU) No. 798/2012 of the European Parliament and of the Council of 25 October 2012 applying a
scheme of generalised tariff preferences and repealing Council Regulation (EC) No. 732/2008.
11 Idem. Article 9 and Annex VIII Part A. 12 Article XXV (5) of the GATT.
13 WTO General Council Decision on Waiver Concerning Kimberley Process Certification Scheme for Rough
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eliminate the trade of “bloody diamonds” and protect human lives, notwithstanding the fact that it obviously violates the MFN clause of the GATT.
However the above actions were not as successful as they should have been. The main problem of the GSP is that it gives advantages to countries complying with certain human or labour rights regulations, but those who violate such laws shall have the same treatment like any other WTO members outside the GSP as it granted by the GATT. Thus, no punishment shall apply in such cases, or in a more simple way one might say that the good behaviour is rewarded, but bad behaviour in not punished. Probably stricter actions, like direct trade restrictive measures, would have more success because the interest of developing countries to access the international markets would defeat the human rights violations. The economic power of international trade is indisputable, however the GATT legally does not allow unilateral trade restrictions unless they could be justified under Article XX. This paper seeks the answer to the question whether the elimination of child labour falls under the scope of the general exceptions, i.e. could trade restrictions aiming the elimination of child labour be justified under Article XX? The first chapter examines the link between international trade law, international human rights and labour law. The deep understanding of such link is essential, because only this could give an appropriate answer to the question that how the WTO should take human or labour rights into consideration. This linkage between the two fields of international law can be the legal basis to protect children’s rights within the framework of the world trade regime. The second part deals with Article XX of the GATT and the question of PPMs. In this analysis the most important factor is the jurisprudence of the WTO and the identification of the DSB’s decisions which might serve as analogies helping to find the answer to the above question.
CHAPTER ONE: Trade, Labour and Human Rights
Trade law as a part of public international law
The WTO is not an institution for the protection of human rights, it was established for the promotion and the liberalisation of the international trade.14 However, it does not mean that the DSB or the member states can automatically ignore other fields of international law during their international trade related activities. International trade law is a part of a more complex and wider legal system,15 namely the public international law, and states shall respect not only
14 Marrakesh Agreement, Preamble.
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the international trade law itself but their other public international legal obligations as well. The Preamble of the Marrakech Agreement contains expressions like “sustainable
development” or ‘raising standards of living” and such phrases clearly show that the drafters
were aware of the connection between international trade and other fields of international law, like for example the general welfare of human beings.
The question is that in what manner the WTO shall take into account international human or labour rights if the subject matter of them are quite different from the scope of international trade law. Is the DSB entitled to make direct statements or verdicts relating to human right issues if they are connected to international trade? The text of the DSU is quite clear in that sense when clarifying that the DSB “serves to preserve the rights and obligations
of Members under the covered agreements.”16 The DSB was always quite cautious with interpretative issues during its jurisprudence and stated that the so called “covered agreements” are only the Marrakesh Agreement itself and the agreements listed in Annexes 1 and 2 of the Marrakesh Agreement, furthermore the Plurilateral Trade Agreement in Annex 4.17 This means that the DSB is entitled to sentence18 only over rights and obligations arising from these agreements, and due to the fact that none of the covered agreements are human or labour right treaties, the DSB cannot make direct judgements in such matters. As it was confirmed in the
Mexico – Soft Drinks and other Beverages case,19 the DSB has absolutely no right to determine rights or obligations outside the scope of the covered agreements. Although these legal circumstances themselves do not support the protection of human rights within the WTO, we must see that this is only one side if the coin. In the following pages some WTO jurisprudence will be presented according to which the DSB might back away in the future from the above narrow approach and it might take into account other public international rights and obligations. The international trade law, as every legal systems, is developing continuously, new judgements are coming out year by year according to which the formers, like Mexico – Soft Drinks and
other Beverages should be reconsidered. Such development of the international trade law could
be the key to integrate the trade related human rights into the world trade regime.
The main purpose of the present chapter is to examine the direct legal and economic link between trade and human rights as a result of which the DSB should apply a broad
16 Article 3.2 of the DSU.
17 Brazil – Measures Affecting Desiccated Coconut (Brazil – Coconut), AB Report, WT/DS22/AB/R, 21 February,
1997, IV. B. last paragraph.
18 Article 1 of the DSU.
19 Mexico – Tax Measures on Soft Drinks and other Beverages (Mexico – Soft Drinks and other Beverages), AB
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interpretation of trade law in such cases. For the shake of clarity, I am not aiming to prove that the DSB has jurisdiction in human right issues, because it obviously has not, but I would like to highlight that the analogical application of some DSB judgements from the past decade might legitimize the place of trade related human rights in trade disputes. In order to understand the linkage between human rights and trade, a short retrospection is needed how this issue was handled before the existence of WTO.
Human rights and international trade before the WTO
The debate about the connection between trade and human rights issues looks back for a long period of time. The first significant milestone was the abolition of trade in slaves20 where human rights considerations defeated the pure political and economic interests for the first time. However the most important developments happened following the Word War II. In the early post-war era, the states learning from the lesson of the mistakes committed in the Versailles Treaties, worked hard to create the new world order which will be able to prevent the third cataclysm. One part of the projected peaceful word was the liberalisation of trade, since there is an assumption that if the states can trade with each other without limitation then the interest to maintain the developing economic growth and welfare, will prevent the breakout of a new world-wide conflict.21 The Havana Charter for an International Trade Organisation (hereinafter: “Havana Charter”) was drafted in this spirit and aimed to shepherd the international trade under an institutional framework. Although, the ITO has not been established in 1948, the Havana Charter is the living evidence that the important role of human rights in international trade was acknowledged decades ago.
The signatories of the Havana Charter acknowledged that unfair labour conditions, in particular in the export sector, have negative effects on the international trade.22 Therefore, the
20 Peter Hilpold, WTO Law and Human Rights: Bringing Together Two Autopoietic Orders, 2011, Chinese Journal
of International Law, Vol. 10 No. 2, pp. 325.
21 Matthew T. Mitro, Outlawing the trade in child labour products: why the GATT article XX health exception
authorizes unilateral sanctions (Pakistan brick-kiln industry), 2002, American University Law Review, Vol. 51 No. 6, pp. 1225.
22 “The Members recognize that measures relating to employment must take fully into account the rights of workers
under inter-governmental declarations, conventions and agreements. They recognize that all countries have a common interest in the achievement and maintenance of fair labour standards related to productivity, and thus in the improvement of wages and working conditions as productivity may permit. The Members recognize that unfair labour conditions, particularly in production for export, create difficulties in international trade, and, accordingly, each Member shall take whatever action may be appropriate and feasible to eliminate such conditions within its territory” (Article 7.1 of the Havana Charter).
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contracting parties emphasized the importance of the achievement and maintenance of fair labour standards and working conditions.23 The recognition of the linkage between labour and international trade does not require economic expertise. The goods or the services which are subjects of international trade are produced by human workforce at the end, thus it is easy to see that if a country puts less effort and money to maintain its labour conditions, then it will have an unfair advantage comparing to another countries where the working standards are high. As a result of the aforementioned, the labour is more expensive in the latter states, also the end product on the world market. The drafters of the Havana Charter have seen this correlation otherwise they would not have incorporated Article 7 into the document. However, it is likely that Article 7 took into account only economic considerations when it promoted the balance of labour standards between state economies, and not the importance of human rights was the primary factor.24 The main reason for that could be that at the time of the drafting of the Charter, the international human and labour rights regime was not as developed and detailed as today, the human rights expectations were not as strict and high as in the present.
The Havana Charter had not became effective, the world trade regime started to exist without dealing with human or labour rights, because the GATT did not and does not regulate such issues at all. However, we shall keep in mind that the international legal environment has changed a lot since the end of the 40s. At that time the core international human rights documents like the Universal Declaration of Human Rights (1948), ICESC (1966) or the Convention on the Right of the Child (1989) did not exist, thus Article 7 of the Havana Charter tried to functionate as a bridge between the international trade law and the trade related labour rights. Article 7, thus, acknowledged that there is an area of human or labour rights (the trade
related labour or human rights) which are technically a part of the international trade law and
tried to settle the main rules in this regard. The GATT regime threw out this question from its legal environment and focused only to the pure trade related affairs. The reason for this is probably that the signing states could make an arrangement easier without labour provisions which could have been a basis for protectionist purposes in the hands of developed states. Thus, the international trade law and (trade related) human rights started to develop in total separation from each other.
23 Idem.
24 Tatjana Eres, The limits of GATT Article XX: a back door for human rights?, 2004, Georgetown Journal of
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The debate on the possible (re)inclusion of trade related human rights into the trade law was always a core issue between the states. Particularly the developing countries are the biggest opponents of this idea25 and they are arguing that the inclusion of trade related human rights into the trade law would deprive the biggest advantage in the hands of the developing countries, namely the cheap workforce.26 This fear is quite understandable, because if the export would be subject to labour right conditions then many developing countries would be faced with difficulties, since the labour conditions or standards are quite different in Myanmar or Vietnam than in the EU.27 The reduction of foreign investments28 is another argument of developing countries and last but not least, as many of them argued at the negotiations of the Doha Round,29 the core labour standards in the WTO system would be a potential threat for them, because it would be actually a legalized possibility for disguised protectionism in the hands of the developed countries.
However we must see that the above argumentation of developing countries is problematic because of two main reasons. First, all countries in the world shall respect the basic human rights prescribed by the core human rights treaties independently from international trade law. Once a state is a member of the ICESC, it shall ensure the appropriate working conditions30 independently from any other circumstances. Thus this reasoning is quite weak, because when developing countries are arguing that fair labour conditions or human rights shall not be preconditions of free trade, they are technically acknowledging the possibility of the violation of such rights. Secondly, as the empirical experiments show it clearly,31 the introduction and maintenance of fair labour conditions do not have negative effects on the international trade of the given country in a long term basis, rather the effects are quite positive. The similar or same labour market conditions are creating a kind of balance and fair equality between the trading countries. Of course, if a developing country increases the labour standards then probably there will be negative effects in the beginning (e.g. growing of black market or
25 Salman Bal, International free trade agreements and human rights: reinterpreting article XX of the GATT, 2001,
Minnesota Journal of Global Trade, Vol.10 No. 1, pp. 64.
26 Idem.
27 For example it is obvious that a developing country should do more effort to reach and maintain the international
labour standards than the industrialised states and maybe a poor country has not enough resource to do that. It is hardly expectable from developing countries to ensure the Western working conditions within a short period, since they are in a lower stage of the economic development.
28 Sean Turnell, Core Labour Standards and the WTO, 2002, The Economic and Labour Relations Review, Vol.
13 No. 1, pp. 106.
29 Matthew T. Mitro (2002), pp. 1234. 30 Articles 6 and 7 of the ICESC.
31 OECD, Trade, Employment and Labour Standards – A Study of Core Workers’ Right and International Trade,
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illegal employment), but the long-term effects are more important. Especially from the view of the WTO, since the “objective of sustainable development”32 assumes a longsighted way of thinking in international trade law instead of the “living for the today benefit only” mentality.
As a result of the above mentioned, there are no economical or legal reasons to ignore human rights in international trade relations, however the different political interests are still hindering the (re)inclusion of trade related human rights into the international trade law. Of course, it does not mean that the DSB or other WTO organs are not taking into account these rules during their activity. However, we must see that as far as this strict legal separation between international trade law and trade related human rights exists, the protection of workers’ rights, in particular child labourers, could face with issues within the WTO.
Labour standards and the WTO
The establishment of the WTO did not bring significant changes with respect to the relationship between human rights and international trade law, the formers are still not part of the WTO legal system. In my view this is one of the biggest deficiencies of the WTO, because the legal environment has not reflected to the economic issues of international trade, namely to the indisputable correlation between trade and labour standards. Nevertheless, the preamble of the Marrakesh Agreement determines various goals of the WTO which are human rights related, and also some paragraphs of Article XX of the GATT could considered to be a sort of human rights provision. The fact is that neither the main text of the Marrakesh Agreement nor the “Annex 1 Agreements” contain direct provisions on labour standards nor trade related human rights. Thus, it is not surprising that the number of cases related to human rights33 was quite limited in front of the DSB in the first twenty years of the WTO. Moreover, even in this few cases the judges avoided the reference to the core human rights agreements.34 However, the truth is that the WTO members were not striving to base their legal argumentation on core human rights provisions either,35 thus the DSB was technically never forced to give its opinion on how the core human right treaties shall be taken into account in the WTO dispute settlements.
32 Marrakesh Agreement, Preamble.
33 E.g. EC – Asbestos, Thailand – Cigarettes regarding human life or health.
34 Rachel Harris & Gillian Moon, GATT Article XX and Human Rights: What do we know from the first 20
years?, 2015, Melbourne Journal of International Law, Vol. 16, pp. 3., (source:
http://law.unimelb.edu.au/__data/assets/pdf_file/0007/1687786/Harris-and-Moon.pdf, last visited: 2 May 2016, 16:04)
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In order to decide the potential weight of human rights or labour standards in trade disputes, two factors shall be examined. Firstly the “official opinion” of the WTO which is not a legal but rather a political factor. It is clear that no legal changes could be made in the WTO without a political will and consensus. Secondly and more importantly the jurisprudence of the DSB focusing on the question whether the broad interpretative approach to the WTO law allows the reference to core labour or human rights standards. More punctually, the question is whether labour or human rights related trade measures could be justified in the WTO law in general. It is obvious that the DSB cannot totally ignore such standards which were classified as “basic
human rights” by the ILO,36 but the question is whether a direct violation of trade related human rights could be a successful argument in justifying a trade restrictive measure.
The official viewpoint of the WTO regarding labour standards was already made clear in the first year of the organisation.37 The Singapore Declaration acknowledges the importance of the “internationally recognized core labour standards” however clarifies that the ILO is the competent organisation to deal with such rules.38 Although the commitment with the strong collaboration between the ILO and the WTO39 is quite sublime, we must see that these lines in the text are technically empty. Through the Singapore Declaration the WTO technically escaped from the responsibility regarding the core labour standards when it declared the exclusive competence of the ILO in this kind of issues. This is quite a different solution from the heritage of the Havana Charter. Such opinion is not surprising, since as it was mentioned above, the developing countries have the fear that the industrialised world would use the core labour standards for protectionist purposes. However, two factors shall be taken into consideration regarding the Singapore Declaration. The first is that this is a political document and not an international treaty, thus it is not a source of the international law, only an expression of a political opinion of the member states. However we must see that the decisions in international law are influenced strongly by politics which gives a high importance to the Singapore Declaration. As long as member states do not change their political conviction regarding trade related labour rights, no legal and enforceable changes could be made in international trade law regarding this matter. Secondly, the literal interpretation of the text of the Singapore Declaration
36 Salman Bal (2001), pp. 68.
37 Singapore Ministerial Declaration, WT/MIN(96)/DEC, adopted on 13 December 1996 (hereinafter referred to
as: “Singapore Declaration”), para 4.
38 Idem. 39 Idem.
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does not exclude the possibility of labor or human rights related trade measures as such.40 It does exclude expressly the adoption of protectionist trade restrictive measures disguised by labor rights considerations but theoretically the possibility of trade restrictions is not excluded if they do not serve protectionist purposes. The above conviction of the WTO members has not changed since Singapore, the Doha Ministerial Declaration only reaffirmed the statements of the Singapore Declaration without any significant changes.41 The truth is that the political approach of the member states probably will not change in the near future, because the different interests will remain between developing and developed countries. Thus, due to the lack of the political consensus, the implementation of the core labour standards into international trade law is not a reasonable expectation in the near future. Therefore, the jurisprudence of the DSB and its interpretation of international (trade) law could be the only hope for human or labour rights considerations within the framework of the WTO.
As it was mentioned earlier, the DSU relatively limits the jurisdictional scope of the DSB,42 but the Panels and the AB have dealt several times with interpretative issues of the WTO Agreements. It shall be kept in mind that the international trade law is only one field of the international law, and member states have various other international obligations which shall not be violated during the trade related activities. The Panel, in the Korea – Government
Procurement case,43 emphasized the importance of the “pacta sunt servanda” principle44 which assumes clearly that the DSB acknowledges that the member states shall respect their international obligations outside the scope of the trade law. Such principle was acknowledged also in EC – Sardines when the AB confirmed that “that Members of the WTO will abide by
their treaty obligations in good faith, as required by the principle of pacta sunt servanda articulated in Article 26 of the Vienna Convention.”45 Although the AB made its
aforementioned statement regarding the TBT, the fact that the VCLT and the pacta sunt servanda principle was invoked directly in a trade dispute assumes that the international trade law is not isolated from public international law, otherwise the DSB could not refer to the latter.
40 Robert Howse, The World Trade Organization and the protection of workers' rights, 1999, Journal of Small and
Emerging Business Law, Summer, Vol . 3 No. 1, pp. 148.
41 Doha Ministerial Declaration, WT/MIN(01)/DEC/1, adopted 14 November 2001 (hereinafter referred to as:
“Doha Declaration”), para 8.
42 Article 3.2 of the DSU.
43 Korea – Measures Affecting Government Procurement (Korea – Government Procurement), Report of the Panel,
WT/DS163/R, 1 May 2000, para 7.93.
44 Article 26 of the VCLT.
45 European Communities – Trade Description of Sardines (EC – Sardines), Report of the Appellate Body,
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This assumption was also confirmed in US – Gasoline where it was expressly stated that the GATT “is not to be read in clinical isolation from public international law.”46
Not the “pacta sunt servanda” is the only public international law rule which was applied or invoked directly in trade disputes. Regarding to retroactivity,47 the AB stated that it is a “general principle of law, which is relevant to the interpretation of the WTO covered
agreements.”48 We must see further that the members of the WTO had not “contracted out” from their international customary law obligations by signing the WTO agreements, none of the treaties mention such a waiver. Due to the aforementioned, it is more than obvious that “the
customary rules of international law apply to the WTO treaties and to the process of treaty formation under the WTO.” 49
The above approaches of the DSB are quite significant because they technically acknowledge that other sources than the international trade law could be taken into consideration in trade disputes. If the general rules of public international law were recognized as applicable provisions in trade law, then other provisions of public international law should have similar positions as well because there is no hierarchy between the various fields of international law. The law of international treaties (VCLT) has the same position as, for example, international environmental or human right law, therefore there is no reason to give green light to the former in trade disputes but ignore the latter. Of course I do not mean that the rules of the public international law other than trade law have the same significance as the WTO treaties in trade disputes, but the former could play a completing/supporting role where trade law does not cover all aspects of the case.
As the AB pointed out,50 the key shall be Article 31 (1) of the VCLT which says that “a
treaty shall be interpreted in a good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” The
emphasis is on the last words of the previous sentence, thus the context and the purpose of the given provision shall show that in which manner other public international law provisions shall
46 United States – Standards for Reformulated and Conventional Gasoline (US – Gasoline), Report of the Appellate
Body, WT/DS2/AB/R, 29 April 1996, para III.B. pp. 17.
47 Article 28 of the VCLT.
48 European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft (EC –
Aircraft), Report of the Appellate Body, WT/DS316/AB/R, 18 May 2011, paras 672, 675, 677.
49 Korea – Government Procurement, Report of the Panel, para 7.96. 50 Idem, pp. 16.
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be considered in trade disputes. However, due to the complexity of trade law and trade measures, this question shall be decided on a case-by-case basis.51
Apart from the above conclusions of the DSB, we must see that the rational way of thinking claims also that other sources of public international law should be “incorporated” into international trade law. The reason is quite simple. As Rao Geping52 points out, the scope
and the context of the WTO agreements are not broad enough to cover all aspects of trade, therefore other provisions of international law could not be ignored. Trade affairs are complex issues with many connections to other legal and economic aspects and the WTO law covers only a narrow part of these matters.53 As a result of this, when a panel or the AB would like to make a fair judgement,54 they should take into account every provisions connecting to the nature of the measure at issue, even if such provisions are not contained by the “covered agreements”. In case of a trade dispute where the labour standards play a significant role, the DSB probably should examine the impact of core human rights on international trade law simply because of the fact that the latter is absolutely silent on this matter.
In addition to the above, some other general guidelines could be given relating to the link between Article XX of the GATT and public international law. Article XX was incorporated to the GATT in order to make it possible to adopt trade restrictive measures aiming the protection of some fundamental interests, like human life or health.55 Thus, it is obvious that Article XX is willing to protect human rights and as a result of this it shall be interpreted in the context of the prevailing human rights law. In other words, due to the fact that the WTO law does not contain human right provisions, when Article XX (b) of the GATT refers to the protection of human health or life, it refers actually to other relevant instruments of international human rights law which shall be connected and applied together with the GATT. This means actually that the international human rights law gives the material content to the GATT provisions or expressions which are undefined by the WTO law. The scope and sort of the applicable treaties shall be determined on a case-by-case basis, but we can see that since the
51 Idem, pp. 18.
52 Rao Geping, The law applied by World Trade Organization panels (U.S.-China WTO Roundtable), 2003,
Temple International and Comparative Law Journal, Vol. 17(1), pp. 128.
53 The WTO also recognized the complexity of international trade. A core evidence for this are the special
agreements like the TRIPS which are regulating special areas of international trade.
54 According to the Oxford dictionary the meaning of fair is “treating people equally without favouritism or
discrimination” (http://www.oxforddictionaries.com/definition/english/fair). In my view the definition of fair is more than that, because a fair judgement does not consider only the pure legal paragraphs. It seeks for the justice and the justice is not always in the legal provisions but sometimes between the lines (economic, social, etc. considerations are also important).
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GATT does not determine what shall be understood under “human health or life” there can be several different cases relating to child labour which might fall under the scope of Article XX. The purpose of the following chapter is to identify those possibilities in which the use of child labour falls in that sense under the scope of Article XX of the GATT.
As a finding of the above analysis, it can be stated that although the DSB interprets the WTO law quite narrowly in general, the AB acknowledged more times that international trade law cannot be isolated from public international law. However, the link between them is subject to a case-by-case analysis and the consideration of human rights in trade issues is always dependent from the context of the affected trade provision. Thus, it is quite difficult to “enforce” human or labour rights through international trade law, but it is absolutely not impossible.
CHAPTER TWO: Article XX of the GATT and Child Labor
General issues with Article XX in respect of human rights
In general, states might protect the human rights beyond their borders in two main ways: they can use force56 in order to protect human lives or they can use their economic power instead of the weapons. The latter falls under the scope of the WTO regime in most of the cases, since economic sanctions often involve trade restrictive measures such as import / export bans or embargos. The fundamental problem with the protection of child labour throughout economic sanctions is that when the member states joined to the WTO and signed the GATT, they contracted away the possibility of the adoption of unilateral trade restrictive measures in general.57 In other words, states are not allowed to discriminate between like products of other WTO members,58 neither between domestic and foreign like products.59 Thus, every like products shall have the same treatment in the territory of WTO member states. Neither the text of Article I, nor Article III of the GATT mentions exceptions from this restriction, therefore nothing but the pure trade facts shall be taken into consideration when we decide whether there is a discrimination between goods. The international trade regime does not know human rights. Although the GATT is extremely strict and committed to the free trade, Article XX gives the
56 That is what society knows as humanitarian intervention and the most famous example for it is the NATO
bombings in Serbia and Kosovo in 1999. However, the public international law prohibits the use of force in general (see. Article 2.4 of the Charter of the United Nations) and there is still a strong debate in the international community whether humanitarian reasons could be a legal basis of the authorisation of the Security Council for the use of force.
57 Tatjana Eres (2004), pp. 8. See also e.g. Articles I and III of the GATT. 58 Article I of the GATT (MFN).
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possibility to justify trade restrictive measures because of more important purposes. However, we must see that Article XX is not a general and positive legal basis for member states to take unilateral trade measures, it is only a possibility for governments to adopt illegal actions if there is no other way to handle the policies or issues determined by paragraphs (a) – (j).60 As the Panel stated as well, Article XX “provides only a limited and conditional exception”61 and this is “not a positive rule establishing obligations in itself.” 62 Therefore, the text of Article XX shall be interpreted narrowly as a result of which states can only protect the children throughout trade measures if they fulfil the conditions set out in the general exceptions.
As it was mentioned in the previous chapter, the DSB has to take the public international law into consideration in a manner during the dispute resolutions,63 however it does not mean that the rights of children could be the primer factor in trade disputes. The DSB has the competence to make decisions only regarding rights and obligations determined by the covered agreements.64 That means that there is no possibility to approve trade restrictive measures on the basis of human rights because none of the covered agreements deal with human rights.65 On the other hand, other international institutions or judicial bodies do not have the right to justify or legitimize WTO violations,66 the DBS has exclusive competence in such issues. The aforementioned means that if a state would like to fight for the elimination of child labour with trade restrictive measures, it shall be proven that the purpose of the elimination of child labour itself falls under the scope of at least one of the exceptions listed in Article XX of the GATT. Otherwise there is no possibility to protect the children legally with trade sanctions. The purpose of this chapter is to show that the protection of children, particularly the elimination of child labour is part of the policy purposes listed in sections (a) – (j) of Article XX of the GATT.
The justification of a trade restrictive measure under Article XX is not an easy process. As a first step, it shall be established that the measure at issue falls under at least one of the paragraphs of Article XX and secondly, if the answer of the aforementioned is positive, then it
60 Salman Bal (2001), pp. 69.
61 United States – Section 337 of the Tariff Act of 1930, Report of the Panel (US – Section 337), L/6439 - 36S/345
7 November 1989, para 5.9.
62 United States – Restrictions on Imports of Tuna, Report of the Panel (US – Tuna), DS21R – 39S/155, 3
September 1991, para 5.22.
63 US – Gasoline, AB Report, para III.B. pp. 17.
64 Mexico – Soft Drinks and other Beverages, AB Report, para 56. 65 See also Articles 22 and 23 of the DSU.
66 United States – Section 301 – 310 of the Trade Act of 1974 (US – Section 301), Report of the Panel,
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shall be proved that the measure meets with the conditions determined in the chapeau.67 Due to the length limitations of this paper, my analysis focuses only to the first step. In my view the requirements of the chapeau are not core issues, because if it can be demonstrated that the elimination of child labour is a legitimate policy purpose under the paragraphs of Article XX, then states can easily shape the design and structure of the measure in order to comply with the chapeau as a second step.68
In case of the protection of children’s rights, three paragraphs of Article XX could be taken into account, namely paragraphs (a),69 (b)70 and (d).71 Before the deep examination of the content and purposes of these paragraphs, we must see that in general two things shall be demonstrated if a state wants to justify its trade restrictive measure aiming the elimination of child labour. First, “the policy in respect of the measures for which the provision was invoked
fell within the range of policies designed to protect” the purpose of the objective defined in the
certain paragraph.72 It means technically that there has to be a (direct) connection between the affected product and the policy objective, i.e. the affected product has to impose a risk to the object protected by Article XX.73 Relating to child labour this condition might be a bit problematic, because not the product as such poses the risk, but the PPM of the products. In a simpler way, not the T-shirts made by forced child labour itself violate the public morals or impose a risk to human health, but the way how that T-shirts were manufactured. The purpose of the next pages is to examine whether the nexus between the PPM and the policy objectives is enough for a justification or the connection must be established strictly between the product as such and the policy objective.
67 United States – Import Prohibitions of Certain Shrimp and Shrimp Products (US – Shrimp), Report of the
Appellate Body, WT/DS58/AB/R, 12 October 1998, paras 115-116.
68 The chapeau regulates technically the structure and the design of the measure at issue and not the content of it.
When the chapeau prescribes that a measure shall not be arbitrary or unjustifiable, it regulates technical conditions and not policy purposes. Therefore, if a member state can demonstrate that the content/purpose of the measure at issue meets with one paragraph of article XX, the compliance with the chapeau as the next step is quite easy. There could be several ways to draft a provision with different words but with the same content.
69 The measure at issue is “necessary to protect public morals.”
70 The measure at issue is “necessary to protect human, animal or plant life or health.”
71The measure at issue is “necessary to secure compliance with laws or regulations which are not inconsistent
with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices.”
72 US - Gasoline, Report of the Panel, WT/DS2/R, 29 January 1996, para 6.20.
73 European Communities — Measures Affecting Asbestos and Products Containing Asbestos (EC – Asbestos),
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The second factor to be demonstrated is the necessity.74 Although the analysis of the term “necessity” is out of the scope of this paper, the significance of this condition cannot be ignored. Even if the connection between the PPM and the policy objective is sufficient, it shall be demonstrated that the measure at issue is necessary in order to avoid or reduce the risks. Three main factors play role in the demonstration of the necessity:75 (a) the “relative importance
of the common interests or values that the law or regulation to be enforced is intended to protect” and (b) the possible “reasonably available” alternative measures with which the same
effect could be reached; and finally (c) the availability of less WTO inconsistent alternatives.
Child labour as a PPM
Before the examination that child labour as such falls under the policy objectives of Article XX, it has to be clarified whether child labour as a PPM could even be under the scope of the general exceptions. Although this paper does not aim to analyse deeply the legal position and types of PPMs76 within the WTO law, some thoughts must be mentioned relating to this issue. The reason of the high importance of this problem is that if PPMs would totally be outside of the general exceptions’ scope, then no trade restrictive measures aiming the elimination of child labour could be justified, even if the child labour as such is a protected policy objective under Article XX of the GATT. There is no clear understanding between the scholars whether PPMs are under Article XX or not,77 but we must admit the pure fact that PPMs are not a priori ruled out from the GATT itself.78 The potential purpose of Article XX assumes that a broad interpretation of the general exceptions would be more appropriate than a restrictive approach. For instance, a plenty of situation can be imagined where the products as such do not violate the public morals but the circumstances how these products were made do so.79 The child labour
74 US – Gasoline, Report of the Panel, para 6.20.
75 Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef (Korea – Beef), Report of the Appellate
Body, WT/DS161/AB/R – WT/DS169/AB/R, 11 December 2000, paras 160 – 166.
76 In general we can talk about two main types of PPMs. The product related PPMs (i.e. used ingredients;
supplements; etc.) have a significant effect on the end products and product characteristics, while the non-product related PPMs are totally independent from the end product. The child labour obviously falls under the latter, because the fact that who is involved in the manufacturing of a given product does not make any change in the characteristics.
77 Robert Howse (1999), pp. 143.
78Erich Vranes, Processes and Production Methods: A Special Case under the GATT and the TBT Agreement?,
in: Trade and the Environment: Fundamental Issues in International Law, WTO Law, and Legal Theory, 2009, Oxford Scholarship Online, Chapter 9, pp. 329.
79 For example if live chickens are raised up in heinous circumstances, then probably such inhuman treatment
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is only one example for this situation, but if we would accept only the “product as such” approach than it would mean technically that all products produced by criminal organisations or other illegal way would enjoy the full protection of the WTO regime, because in that case the production methods would not have to be taken into account.80 I see that this approach would not be consistent with the whole purpose of the Marrakesh Agreement.81
The jurisprudence of the WTO went through a significant development in the past decades and it is more than likely that the possibility that PPM related trade measures could be justified under Article XX of the GATT, exists. None of the most significant cases where PPMs were core issues (US – Tuna; US – Shrimp and EC – Seals82) have denied nor confirmed
explicitly the involvement of PPMs under the scope of Article XX. All of these cases contain a deep analysis regarding PPMs and Article XX assumes itself that PPMs are not excluded from the general exceptions, otherwise the panels nor the AB would not have made such a detailed examination in this topic. If it is self-evident that an issue is outside of the scope of an agreement or the jurisdiction of a court, than generally the judges do not make a deep analysis regarding the issue or if they do so, the result of the analysis is the explicit expression of the lack of competence. In the abovementioned WTO cases such statement is missing which assumes that PPMs are not inherently excluded from Article XX of the GATT. This view was technically confirmed by the AB in the US – Shrimp83 when the AB rejected the panel’s conclusion that the measure (PPM) at issue falls outside the scope of Article XX of the GATT. Furthermore, the AB made the following statement:84 “conditioning access to a Member's domestic market
on whether exporting Members comply with, or adopt, a policy or policies unilaterally prescribed by the importing Member may, to some degree, be a common aspect of measures falling within the scope of one or another of the exceptions (a) to (j) of Article XX.” It is more
than obvious that this sentence of the AB left the door open before PPMs to be under the scope of the general exceptions. If we take a look to the findings of the EC – Seals, we should arrive to a similar conclusion. The AB accepted the panel’s reasoning that the EU Seal Regime85 is
might be different in case of pornographic DVD-s in case of which the product as such, namely the content of the DVD might violate the feeling of several persons.
80 Robert Howse (1999), pp. 143.
81 See the objectives in the Preamble of the Marrakesh Agreement.
82 European Communities - Measures Prohibiting the Importation and Marketing of Seal Products (EC – Seals),
Report of the Appellate Body, WT/DS401/AB/R, 22 May 2014.
83 US – Shrimp, AB report, para 121. 84 Idem.
85Regulation (EC) No. 1007/2009 of the European Parliament and of the Council of 16 September 2009 and
Commission Regulation (EU) No. 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No. 1007/2009 of the European Parliament. These regulations imposed an import ban to seal
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under the scope of Article XX (a) and it “is provisionally deemed necessary within the meaning
of Article XX(a) of the GATT 1994.”86 Although at the end, the measures at issue were not been justified under Article XX in the aforementioned cases, they were a huge step forward in the debate of the PPMs’ involvement in the general exceptions. The DSB has technically recognized implicitly that if the genuine relationship between the policy objective and the measure exists, then not only the product as such can be the subject of Article XX, but PPMs as well.
In addition to the above conclusion, the involvement of PPMs under the scope of the general exceptions could be supported by the literal interpretation of Article XX’s text. One paragraph of the Article deals especially with a PPM, namely prison labour.87 On the other hand, more paragraphs, like para (a), (b) or (g) have been invoked relating to PPMs several times,88 due to the fact that the subject matter and nature of these provisions are broad enough to cover both products as such and PPMs. Returning back to Paragraph (e), it is obvious that prison labour is a PPM and not a product as such, which means that the drafters of the GATT intentionally incorporated a PPM into Article XX. It means that if a PPM is already under the scope of the general exceptions, then there are no logical reasons for the exclusion of other PPMs. If the drafters’ intention would have been the total exclusion of other PPMs from Article XX then they would have expressed this explicitly in the other paragraphs.89 Since the drafters did not do so, it is more than likely that paragraphs (a), (b) and (g) could cover PPMs also and not only products as such. It is quite easy to accept this logic if we see the things from the other side. Like Article XX(e) regulates a specific PPM, Article XX(c) of the GATT relates to defined products as such, namely to gold and silver. The fact that a specific product as such is mentioned in a paragraph, does not mean that other paras do not cover different products as such than gold or silver, otherwise for example the EC – Asbestos case (asbestos products) could not have handled by the DSB. Therefore, if a trade restrictive measure relating to a product as such other than gold or silver could be justified by paragraph (a), (b) or (g), than PPMs other than prison labour could be justified as well. I see that the aforementioned argumentation could be supported by Article 31 (1) of the VCLT because of the following reasons. If we check the
products with some limited exceptions and they were based on mostly PPMs, namely the hunting, processing and production of seals/ seal products.
and of the Council on trade in seal products
86 EC – Seals, AB Report, para 5.289 – 2.90.
87 Paragraph (e) of Article XX: … ”relating to the products of prison labour.”
88 Jacob Potts, The Legacy of PPMs under the GATT, 2008, International Institute of Sustainable Development,
pp. 24.
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wording of the GATT, in particular Article XX, then we must see that the meaning of the terms
of the treaty in their context 90 does not themselves exclude PPMs from the scope of Article XX. Furthermore, the object and purpose of the general exceptions is to ensure the deviation from the general trade rules if the protection of the listed policy purposes requires to do so. Such policy objectives could be endangered by several ways (both PPMs and products as such could be endangering factors), thus an interpretation according to which only products as such could violate these objectives would be contrary with the “interpretation in light if the object
and purpose” requirement of Article 31 (1) of the VCLT. According to my view the generality
of the wording of the policy objectives is not accidental. It assumes itself that every aspect which endangers the listed objectives could be taken into account during the justification of trade restrictive measures, otherwise the general exceptions could not serve their original purpose.
Taking into account the above and with special regard to child labour, if this kind of PPM would be excluded from the scope of Article XX then it would violate the “rising of
standards of living” principle of the WTO on the one hand,91 and it would be also against the jurisprudence of the DSB, since Article XX shall be interpreted in the light of the goals determined by the Preamble of the Marrakesh Agreement.92 Therefore I see that if the nexus between the PPM (measure) at issue and the protected policy objective can be established then PPMs shall fall under the scope of Article XX even if only measures relating to product as such had success regarding the general exceptions until today.93
Article XX (a) – Child labour and public morals
The first possible exception which might legitimize a trade restrictive measure aiming the elimination of child labour is the invocation of “public morals” clause of Article XX. Although, the DSB has not yet interpreted deeply the exact content of public morals,94 the broad interpretative possibilities of this expression might serve as a legal basis to protect human rights. The successful invocation of Article XX (a) for the aforementioned purposes requires the demonstration that the content of the measure at issue is serving the protection of public
90 Article 31 (1) of the VCLT. 91 Marrakesh Agreement, Preamble. 92 US – Shrimp, AB Report, para 153.
93 See for example US – Tuna and Thailand – Cigarettes cases. 94 Robert Howse (1999), pp. 142.
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morals.95 But what is the exact meaning of public morals? Is the protection of human rights involved in its scope?
The WTO law does not contain a precise definition of public morals and without a proper definition it is quite problematic to decide whether the rights of the children is connected to public morals or not. The WTO jurisprudence has dealt with the complexity of the determination of the meaning of public morals among others in the US – Gambling case. The Panel pointed out that the meaning and content of public morals might be different in the member states due to the different social, cultural or religious habits and values.96 This approach was confirmed also in China – Audiovisual Products relating to the GATT.97 The Panel stated further that “the term public morals denotes standards of right and wrong conduct maintained
by or on behalf of a community or nation.”98 The above mentioned approach means technically that a universal definition and interpretation of public morals do not exist, and therefore during the examination of the content of public morals, the local values of the given member state shall be taken into consideration case-by-case. However, this approach is not a perfect solution in case of the protection of children’s rights. We must see that the fundamental human rights e.g. the right to life and health and the way to ensure them are not regional values, but universal rights of human beings. Therefore, such rights shall be respected anywhere in the planet irrespectively from cultural or social factors. Thus, the violation of such rights is a “wrong
conduct” in the parties of the core human right treaties, particularly if these violations are
affecting a vulnerable layer of the society, namely children. In other words, if children are exploited by illegal employment, it has to violate the public morals of every healthy society because these rights are incorporated into various universal international agreements.99
As it was discussed earlier, human or labour rights considerations did not play as significant role in the drafting of the GATT as in case of the Havana Charter. However, the world and the international legal order has changed a lot since 1947. In the last five decades the role of human rights is more appreciated and it cannot be ignored in international legal affairs.
95 Salman Bal (2001), pp. 76.
96 United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (US –
Gambling), Report of the Panel, WT/DS285/R, 10 November 2004, para 6.461.
97 China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual
Entertainment Products (China – Audiovisual Products), Report of the Panel, WT/DS363/R, 12 August 2009, para 7.759.
98 US – Gambling, Report of the Panel, para 6.465.
99 Article 10 (3) of the International Covenant on Economic, Social and Cultural Rights (1966); Article 6 of ILO
Convention No. 182; Article 26 of the Universal Declaration of Human Rights (1948); Article 7 of ILO Convention No. 182; Convention on the Rights of the Child (1989), in particular Articles 28 and 32.
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If we accept the approach of the AB relating to the change of the international legal environment, we must admit that the old legal text of the GATT “must be read by a treaty
interpreter in the light of contemporary concerns.”100 Although the AB made the aforementioned conclusion relating to the interpretation of “exhaustible resources”, the analogy of this statement might be applied relating to human rights, and particularly the protection of children. Therefore, following this path it can be established that theoretically the protection of core human rights could be under the scope of public morals.
Another interesting approach of public morals was mentioned in the US – Tuna case. Australia referred101 to the fact that the “inhuman treatment of animals” is against the public morals and therefore a measure aiming to eliminate such treatment could be justified under Article XX (a) if it is not discriminatory. If the inhuman treatment of animals is accepted as an exception then there are no rational reasons to deny the application of Australia’s conclusions to child labourers.102 If animals cannot be treated inhumanly then it is a logic consequence that the inhuman treatment of humans is also a violation of the public morals. The detailed analysis of the meaning of inhuman treatment is not a subject matter of this paper, however the illegal employment of children, especially bad or dangerous labour conditions shall not be considered as a normal conduct, for sure. Moreover, in my view every conduct which is illegal itself is against the public morals, since the law is a sort of written incarnation of morals in societies, therefore a conduct which conflicts with the law, probably conflicts with the public morals as well. The forced and exploiting employment of children is definitely against the law,103 because states obliged themselves in international treaties to avoid this practice and as a result this it must be also against the public morals.
As a conclusion of the present subchapter, it can be established that Article XX (a) could serve as an exception in case of trade restrictive measures aiming the elimination of child labour. Firstly, because the violation of children’s right is definitely against the democratic public morals. Secondly, with reference to the EC – Seals case, the AB has already acknowledged that a PPM related trade measure could fall under the scope of the general exceptions and such regulations could be necessary to protect public morals.104 The analogical interpretation of this decision might serve as a strong argument in future cases regarding child
100 US – Shrimp, AB Report, para 129. 101 US – Tuna, Report of the Panel, para 4.4. 102 Salman Bal (2001), pp. 77.
103 See supra note 74.
