In order to examine the effects of IHRL on ITL as reflected in the case-law I focus on ten notable cases. It must be noted at the outset that the WTO dispute settlement bodies have not yet directly dealt with IHRL qua IHRL in interpreting trade law. There are cases where possible conflicts between WTO law and other areas of PIL have been touched upon. But those conflicts have not led to a direct discussion of IHRL and its relationship with ITL. Nevertheless, there are some instances where the WTO panels and Appellate Bodies (ABs) or/and the State parties involved in a dispute refer to international human rights instruments and regional human rights courts case-law – in particular, the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights. Given the scarcity of WTO cases directly resorting to IHRL, I also touch upon the case-law of the Court of Justice of the European Union (CJEU), where principles of economic exchange were balanced against human rights law principles and provisions.

IHRL as General International Law

One can assert that the legal relationship between the IHRL and ITL regimes stems from the sole fact that both are part of general international law. This view was confirmed by the AB in US — Gasoline –when it stated that the “WTO law cannot be read in clinical isolation from other rules of international law”. The WTO panel of Korea – Government Procurement also confirmed that customary international law is relevant to the application of WTO norms and that WTO law is to be interpreted ‘in accordance with the customary rules of interpretation’ of the Vienna Convention on the Law of Treaties 1969 (VCLT). Yet, the Appellate Body of the European Communities – Meat and Meat Products took a narrow view of this approach when it held that customary law, aside for jus cogens norms, will not displace inconsistent WTO norms. Hence, whilst IHRL as general international law may influence the interpretation of ITL, whether and how they would, if they are not norms of ius cogens, is so far unclear.

International Human Rights Law Case Law as Filling Gaps or Persuasive Authority

When we take a closer look at the WTO jurisprudence, we find that there were some instances where the States Parties, WTO panels and Appellate Bodies made reference to IHRL instruments, and regional human rights jurisprudence. These were often done to fill gaps or as persuasive authority. In European Communities – Meat and meat products in discussing the panel members’ selection for the present dispute the EC referred to Bönisch v. Austria. The latter ECtHR’s case concerned a violation of the right to fair trial (Art. 6 of the ECHR) deriving from lack of respect by Austrian authorities for the principle of equality of arms. In European Communities – Seal Products, the panel made reference to IHRL instruments to underline the special rights protection offered to Inuit or indigenous communities by the international community, such as United Nations Declaration on the Rights of Indigenous Peoples and the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries. In another dispute – US — Gasoline – the AB referred to ECtHR’s Golder v. United Kingdom case and Inter-American Court of Human Rights’ International Law Reports on Restrictions to the Death Penalty Cases to support its claim that Art. 31 of the VCLT has attained the status of international law and therefore, is part of the customary rules of interpretation of PIL.

IHRL and the Chapeau

Most of the trade agreements do not include human rights clauses[1], this is particularly the case for the GATT/WTO agreements. Instead, human rights ‘concerns’ surface at the WTO as legitimate exceptions to restricting free trade. GATT Art. XX (also known as the chapeau) and GATS Art. XIV allow WTO member states to restrict trade for non-economic reasons when it is a) necessary to protect public morals; and (b) necessary to protect human, animal or plant life or health. The GATS adds that “The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society”. These exceptions aim at ensuring a balance between the right of WTO members to enforce trade restrictions to achieve legitimate policy objectives and the rights of other WTO members under free trade rules.

Public morals

The WTO dispute settlement body has dealt with several disputes concerning general exceptions for both GATS and GATT agreements. Several disputes are particularly relevant to the discussion on the relationship between IHRL and ITL. The public morals clause was invoked in four decisions:  US – Gambling, China – Audiovisual entertainment products, European Communities – Seal Products, and most recently Colombia – Textiles. The US – Gambling panel defined public morals as “standards of right and wrong conduct maintained by or on behalf of a community or nation.” (para. 3.278) but without mentioning what morals qualifies as public morals and who must decide on what public morals means. The panel further noted that the term’s meaning can vary in time and space depending on prevailing social, cultural, ethical and religious values. (para. 3.278) The China – Audiovisual entertainment products decision also upheld this. Only in European Communities – Seal Products the AB left the decision on determining the definition of public morals to the discretion of the WTO’s Members.

The dispute of Colombia – Textiles reinforced the interpretation of the Art. XX (a) that the objective pursued by the measure must be recognized as a matter of ‘public morals’. Moreover, the panel reinforced the two-tier test applicable since the US – Gambling decision, namely the necessity analysis test and Art. XX GATT chapeau. In none of these decisions the measures discussed were found justifiable under the Art. XX (a) GATT (public morals) exception. Thus, it is not clear from these decisions whether public morals can be understood to include human rights. However, in the context of public morals, the WTO panels and ABs present a high degree of deference.

Public health

The Thailand – Cigarettes, European Communities –  Asbestos and asbestos-containing products and Brazil – Re-treaded Tyres disputes involve environmental and public health concerns for which the State Members invoked the Art. XX (b) GATT clause. Thanks to the language within the treaty, trade liberalization can be restricted in favour of health policies. The AB has never referred to the ‘right to health’ as a human rights norm. It always referred to the ‘right to health’ as a public concern.

The EU case law offers a counter point and a potential model to doctrinally develop the effects of IHRL on ITL. The cases of Omega, Schmidberger and Familiapress, in particular, are well known for balancing trade related issues and human rights concerns and for offering human rights a lexical priority in the balancing exercise. In all three cases the Court directly made reference to the ECHR and the ECtHR’s case law. In the case of Omega, the European Court of Justice (ECJ) held that the principle of human dignity prevails over the right to free movement of goods and freedom to provide services. The Schmidberger case showed that the ECJ uses a balanced approach between the rights and competing interests of the States when must decide on conflicts between the free movement of goods and the freedom of expression. In the case of Familiapress the ECJ held that there are circumstances when the right to freedom of expression can strengthen the exercise of free movement of goods by balancing the interests in free movement of goods, market competition, press diversity and freedom of expression. Overall, the EU case-law shows that IHRL had the effect of establishing a base-line for adjudication of restrictions upon free movement of goods and services and that of identifying the balance between rights and competing interests, offering rights a lexical priority in the balancing exercise.

In sum, what the surveyed jurisprudence shows is that at the international level, WTO panels and ABs only refer to international human rights instruments to test and sustain their claims with regards to aspects of international rules of treaty interpretation. The case law also shows the lack of interest on the part of states to refer to IHRL instruments such as ICCPR or ICESCR for the interpretation of public morals or public health. Yet, it is interesting to observe how IHRL slowly infiltrates within the trade jurisprudence and the difference between the EU’s Court and the AB approaches in recognizing human rights law as a direct concern in trade disputes. Not fast enough, would say some of us.