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UN Guiding Principles

Generally considered the most commanding IGO due to its binding rule-making powers and its built in enforcement mechanism,23

the WTO may have

the greatest potential to transform the Guiding Principles into the ultimate authoritative code of business conduct, especially because TNCs are often the “imminent and unequivocal beneficia- ries of the WTO agreements.”24

The human rights 30

community has continually pushed for greater integration of human rights into WTO trade poli- cies. As the UN High Commissioner on Human Rights has expressed, “to level the playing field and foster equitable development strategies, there is a clear need for an international trade regime to incorporate all human rights.” Current WTO leadership has acknowledged the ability of trade policies to align with human rights policies. Pascal Lamy, the current Director-General of the WTO recently expressed his sentiment that “hu- man rights and trade rules, including WTO rules, are based on the same values: individual freedom and responsibility, non-discrimination, rule of law, and welfare through peaceful cooperation among individuals.”

Although the WTO has not been an outspoken promoter of human rights, it has made human rights accommodations in the past. Perhaps the WTO’s most well-known human rights conces- sion was the Doha Declaration, which abridged member-state obligations under the much disput- ed Trade Related Aspects of Intellectual Property (TRIPS) Agreement by allowing member-states to overlook intellectual property rights that have the potential to impinge on access to essential medicines. The WTO also demonstrated a will- ingness to support human rights through its Kimberley Process waiver system, which allows WTO member-states to limit their diamond trade to only conflict-free diamonds certified under the Kimberley Process.

Finally, the General Agreement on Trade and Tar- iffs (GATT), which is the WTO’s key trade-regu- lating instrument, contains certain exceptions to

its general free trade principles. Specifically, un- der Articles XX of the GATT, member-states may impose “non-tariff barriers” to trade whenever necessary to “protect public morals ... protect human, animal or plant life or health ... to se- cure compliance with laws or regulations which are not inconsistent with the provisions of [the GATT].” Though the human rights dimensions of these exceptions have not been fully tested, hu- man rights advocates assert that WTO member- states could justify trade restrictions based on human rights violations through Article XX.

Despite being well positioned to make additional human rights accommodations by bolstering the UN Guiding Principles, the WTO has remained completely silent about both the UN Framework and the Guiding Principles. This omission by the WTO is perhaps the greatest gap in the valida- tion and international promotion of the Guiding Principles. Instead of remaining silent, the WTO could take various steps to show its support of the Guiding Principles and to increase their overall effectiveness. First, the WTO could allow member-states to waive equal trading obligations against countries and TNCs that do not live up to their human rights responsibilities. The WTO could do this through a waiver system similar to its Kimberley Process waiver, or it could simply allow states to invoke Article XX exceptions and impose trade barriers against states and TNCs that do not comply with the Guiding Principles. Second, the WTO could allow member-states to use a preference system whereby member- states could award government contracts only to companies that fulfill their human rights obliga- tions. Third, the WTO could also allow member- states to create bilateral trade agreements that include human rights provisions. Finally, though least likely, the WTO could pass a binding agree- ment that would require member-states to sat- isfy their human rights responsibilities under the Guiding Principles, and could then use its Dispute Settlement Body to enforce such an agreement.

ILSA Quarterly » volume 22 » issue 1 » October 2013

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