The title of this Article is intended to evoke a connection with the British television series about an aristocratic family and its brigade of servants. They are separate parts of the household and yet inextricably intertwined. Those "downstairs" may be unobtrusive or even invisible to outsiders, but are absolutely necessary to the smooth operation of the mansion. After years of intimate contact and the pressure of world events, the two parts of the household are wedded into a genuine whole. They become "friends," no longer simply master and servant.
This Article principally focuses on issues that the General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO) agreements at present do not directly address but which hover prominently in the background: labor law and employmentrelated aspects of immigration law.1 This glaring omission from the GATT/WTO agreements has already been remarked upon and analyzed in numerous law review articles.2 The situation persists even though the Director-General of the WTO recently affirmed in an address to the International Confederation of Free Trade Unions that "[t] here is a profound connection between economic,
political, social and industiral freedom and economic development."3
How do we achieve the leap from solidarity in a television drama to that in the real world of international trade? First, this Article attempts a diagnosis of the underlying problem, i.e., why labor rights are virtually ignored in the GATT/WTO framework. To understand the present, it is necessary to go back further in time than the last fifty years. Next, this Article addresses the desirability and likelihood of future inclusion. Finally, it considers approaches to, or means of, inclusion: whether the WTO should adopt a side agreement on labor similar to the one created for the North American Free Trade Agreement (NAFTA); whether the International Labor Organization (ILO) as an institution should be given an advisory, consultative, or mediating role in Dispute Settlement Body (DSB) proceedings where labor issues are involved; or whether a new institution, or joint venture, should be created between the WTO and the ILO.
Amending the WTO Agreement or adding a side agreement on labor is an extremely difficult task under any circumstances.4 To undertake an amendment or supplementary agreement so soon after the end of the Uruguay Round would be a misdirection of effort. This Article concludes that proponents of international labor rights should leave off agitating for textual emendations and institutional reforms and instead concentrate their efforts to bringing the proper case to the DSB as it is currently constituted. The DSB has already demonstrated its willingness and competence to handle domestic policies with spill-over effects on trade.5
II. THE HAzARDs OF PREDICTION
Let us begin, however, with the mise-en-scene. The name of this symposium is "Global Trade Issues in the New Millennium," "in" rather than "for" or "at the beginning of." The name is much more
inviting to the imagination than, say, "The DSU After Five Years" or "The WTO at 2000: Success or Failure?" Is the ambiguity of the name accidental or deliberate? Should one predict the future on the basis of the trajectory of past events and take a realistic position about the state of play? Or should one adopt a hopeful and idealistic perspective about the manner in which trade relations should operate starting at some point in the next thousand years, assuming a kind of mutational spurt? A millennium is a very long period of time. Looking back from the year 2000, the second millennium covered the Crusades, the Mongol invasion, the Ottoman Empire, the Renaissance, the French Revolution, two world wars, the invention of the light bulb and the atomic bomb.
What, if anything, do lawyers and law professors as such have to add to a spirited debate about the global economy already begun by historians, economists, and political scientists?6 We come to this forum hobbled by a heavy weight common to all aspects of public international law, the unresolved tension between positivism (what "is") and natural law (what "should be").7 This Article assumes that the conference organizers had "natural law" in mind when they invited the speakers to articulate "normative visions for the future of international trade law."
Students of international trade law, like their counterparts in international human rights law, can navigate between the two poles of positivism and natural law by formulating goals and then describing means for achieving them.8 Since it is generally
acknowledged that the Uruguay Round was dominated by "lawyers" rather than "diplomats," it would not be out of place for us to characterize goals and means for progress in international trade using the categories of law.9 Because lawyers see their mission in the process of dispute resolution, this Article later addresses whether or not the DSB has the potential to perform a gap-filling role in so far as labor rights are concerned.10
For this conference we are gathered in the nation's capitol, at a school named for the Father of our country. There is great pressure to conceptualize a millennium in which the United States will play a preeminent role in every respect-military, economic, cultural. 11 However, polls indicate that the American public resists the notion of our actively managing a global empire, a role that England and France comfortably played in an earlier era. Furthermore, other countries do not accept U.S. dominance. Instead they view the United States as posing "the single greatest external threat to their societies."12 Even our allies in Europe view U.S. hegemony with suspicion. 13
From la certain historical perspective, there is no special reason for taking the year 2000 as a road marker. GATT is only about a half-century old; the United States is only about two centuries old. At the same time, a number of GATT/WTO members (or soon-tobe members)-China, India, Greece, Italy, Egypt-have crossed the threshold of a new millennium before. Therefore, they have a very different sense of chronological time than the United States. If seniority and the capacity to endure count for anything, their voices deserve our close attention. One certainly cannot imagine
any aspect of events in the new millennium without due emphasis on the influence of China and India, with their enormous populations, huge markets, and nuclear capabilities.
Even within the mere half-century of GATT's existence, the negotiation of the Havana Charter and the Uruguay Round negotiations each occurred against very different historical backgrounds. The original vision that drove the establishment of the GATT (together with the United Nations (UN) and the International Monetary Fund (IMF)) arose from particular historical circumstances that are not likely to repeat themselves. World War II had led to defeat for Germany and Japan and economic ruin for the rest of Europe and the Soviet Union. The United States was the only major combatant to emerge from the war largely unscathed, indeed richer than it had been before the war.
The founding vision was quickly overtaken by events. Within five years of an overwhelming victory, the United States was drawn into the tar patch of the Korean War, where it could not secure a clear victory and remains mired in an uneasy peace. In 1945 India and China were under foreign occupation. Once liberated, India and China were rent by civil war, the consequences of which are still unresolved: a simmering border war between India and Pakistan in the one case, the de facto independence of Taiwan from mainland China in the other. From an original group of twenty-three contracting parties (including newly independent India and Pakistan and a China ruled by the Nationalist Party), the WTO now counts more than 130 countries as members (not yet including China, ruled by the Communist Party since 1949) .14 Thus, predictions about the third millennium are hazardous not only because it is a very long period of time but also because major shifts can occur quite suddenly.
III. LACUNAE IN THE KEY TEXTS
Although both GATT 1994 and the Uruguay Round Agreement Establishing the WTO indicate in their preambles that "ensuring full employment and a large and steadily growing volume of real income" is an organizational goal, neither agreement has much else to say on the subject of "labor" or "employment."15 Indeed, the word "labor" resurfaces, far from the beginning of GATT 1994, in
Art. XX (e) - General Exceptions, specifically authorizing member countries to preserve domestic legislation against importation of the products of prison labor.16 Employment issues are also addressed, exceptionally, in Art. 8 of the Subsidies Code, dealing with assistance to disadvantaged regions.17 Despite negotiations for the Havana Charter,18 post-Havana efforts to include international fair labor standards (IFLS) in the GATT framework,19 and attempts at the Uruguay Round,20 a "social clause" is still absent from the GATT/WTO framework.21 Since the Uruguay Round, perhaps the most significant statement on labor issues was the Singapore Ministerial Declaration. The Declaration, however, is of a hortatory and aspirational character,22 "soft" law rather than "hard" law.23
Similarly, although the GATT/WTO agreements purport to facilitate the free movement of goods and services according to the doctrine of comparative advantage, they do not commit to the free movement of natural persons. Under GATS art. 5 bis, parties are not prevented from creating regional labor markets, an obvious concession to the European Union. But neither are they compelled to create such markets. Under the GATS Annex on Movement of Natural Persons Supplying Services Under the Agreement,
shall not apply to measures affecting natural persons seeking access to the employment market of a Member, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.24
NAFTA was formed, inter alia, to "facilitate the cross-border movement of goods and services" but is not committed to the free movement of persons among the three member countries. The United States refused to even discuss immigration issues in connection with NAFTA.25 Free trade in goods and services, but not persons, is patently illogical.26 Furthermore, the position on the international movement of natural persons stands in stark contrast to the position taken by the United States on internal mobility of citizens and lawfully admitted aliens. Such mobility is not merely tolerated, but constitutionally protected, however economically inefficient.27 No
matter if the de-restriction of immigration is unlikely to happen in the near future,28 it retains its validity as an ultimate objective.
IV. PROMOTING U.S. INTERESTS AT THE GATF/WTO
It is not surprising that labor and employment issues have, more or less, been left out of the GATT/WTO framework.29 The United States dominated the negotiations for all of the international institutions established in the 1940s and it dominated the Uruguay Round in the late 1980s and early 1990s.30 The United States is the only major industrial society never to have experienced a large social movement.31 The labor union movement achieved legitimacy only during the New Deal and has been in sharp decline for most of the postwar period.32 In recent months, the quixotic effort of unions to block permanent normal trading relations between the United States and China exposed their inherent weakness. Unions represent a very small percentage of the American workforce.33 Unions are not a political presence in certain geographic areas of the country, in particular the Southern "right-towork" states that consistently produce leaders for both the executive and legislative branches of the federal government.34 The United States is party to very few ILO Conventions and only one of
seven "core" conventions so identified in the 1998 Declaration.35 For reasons of constitutional law, domestic politics, and historical development, the United States is ill suited to lead the charge in forging a trade-labor link.
Including labor and employment issues in the original GATT framework would have required that Marxism, and the theory of "surplus value," be taken seriously.36 In the context of the Cold War, the United States could not credit in any way the official political-economic philosophy of the Soviet Union. (Indeed, domestic advocates of "Communism" were persecuted and imprisoned during the period of McCarthyism.) Limited concessions to government participation in the economy were made e.g., in connection with state trading enterprises (Art. XVII of GATT 1947). Command economies in Eastern Europe were later admitted to GATT under special arrangements.37
The "fall" of Soviet socialism and the rise of "transitional" economies removes manipulation of the workers' rights agenda from countries that never practiced a pure form of socialism anyway. State control of the forces of production did not effectuate egalitarian real incomes and living standards in these countries. An appalling gulf between urban and rural living standards persisted. The Communist Party elite monopolized both political power and economic privileges. Trade unions were reduced to instruments of authoritarian control.38 Perhaps now that the military threat posed by the Soviet Union has largely been removed, it will be possible
for the United States to address labor issues in a non-defensive way, disassociated from superpower confrontation.39
V. TRADE IN "HUMAN RESOURCES"
If participants at this conference are being encouraged to think about international trade law in novel ways, an argument can be made that the existing conceptual categories-goods, services, agricultural products, textiles, telecommunications, intellectual property-do not capture the rich reality of actual trade relations. They serve a useful purpose as bargaining chips in the process of trade negotiations. Nonetheless, shattering reality into manageable pieces produces a distorted image.
Perhaps all of the existing categories could be collapsed into one, trade in "human resources." The contemporary doctrine of comparative advantage recognizes an educated workforce and a research-and-development base as factor endowments, equal to if not greater in importance than traditional measures such as land and weather.40 However, an educated workforce is not necessarily a purely indigenous phenomenon, permanently fixed within territorial boundaries. High-technology companies in the United States and Europe actively recruit specialists in developing countries.41 Asian students who came to California after the liberalization of
immigration quotas in the 1960's eventually became independent businessmen. These people create "brain circulation" between their home countries and the California economy.42
The GATT/WTO regime already governs both the tangible and intangible "output" of human effort and ingenuity. Ordinary common sense tells us that human potential must have some economic value or otherwise employers would not hire inexperienced college graduates, would not make intra-corporate transfers, and would not sponsor non-citizens for work visas. Measuring trade in human resources is a positive endeavor where the "social clause" approach is a negative one. The social clause establishes a "floor" for labor standards, thereby justifying the imposition of sanctions for noncompliance and is directed mainly towards preventing the exploitation of unskilled and semiskilled labor. By contrast, the value of a human "export" should be counted as a credit for the home country and a debit to the host country. The debit could be offset by remittances,43 reverse immigration, and foreign direct investment by immigrants in the home country.44
Recognition of trade in "human resources" would represent a further step in an ongoing process of transcending the borders of nation-states.45 International and domestic law has slowly been
catching up with the phenomenon of the "stateless" corporation, with operations, including research and development, outside the home country of the parent corporation and multinational management.
Neither the place of incorporation nor the "control" test is particularly useful in determining whether corporate activities are beneficial or harmful to the economic or security interests of the home country or any of the host countries within which the multinational corporation operates.46 A United States corporation can remain permanently invested at home and eligible for U.S. government contracts. Yet it can import specialists from abroad. While remaining physically "located" in the U.S., it can subcontract particular tasks to foreign companies or local start-up companies run by immigrants.47 It is now possible to subcontract tasks via computer to English-speaking countries with low wages, such as India, Ireland, and the Philippines.48 In the face of borderless business operations, the U.S. export control laws apply not only to the U.S. citizens and corporations but also the transfer of U.S. sourced technology.49 The legal solution lies neither in clinging to obsolete criteria for corporate nationality nor withdrawing from regulation altogether, but rather in crafting a new approach to regulation that better reflects current business realities.
Similarly, the process of internationally integrated production challenges national origin requirements. International trade increasingly consists of intra-firm trade by multinational companies with production facilities in many jurisdictions.50 To determine whether a particular company has "standing" under the U.S. antidumping laws to represent the interests of a domestic industry, the International Trade Administration of the Department of Commerce has applied a six-pronged test to the production process.51 Along the same lines, in safeguard actions under Section 201, the International Trade Commission considers the produc
tion process in determining the "domestic industry" entitled to relief.52
There are two serious objections that might be raised to the creation of a new category of trade in "human resources." The first is that the value of "human resources" is not quantifiable with the same precision as tangible and intangible forms of property. Just as intellectual property rights are not accorded to mere "ideas" not reduced to concrete expression, a person's latent potential, not yet encapsulated in actual achievement, is too ephemeral for measurement.
The problem of valuation, however, is overcome every day with respect to public offerings of stock in new technology companies. In the words of a recent conference announcement,
As the probability distribution of success in internet business and new tech companies is very skewed (small probability of gigantic success and a high probability of failure), the traditional valuation techniques using discounted cash flows break down.53
In the U.S. law of contracts, uncertainty is no longer a barrier to the recovery of damages by a new business.54 In some jurisdictions, like New York, the future value of a professional certificate is considered marital property for purposes of distribution in the event of divorce.55
The more serious objection to the recognition of trade in "human resources" is that it amounts to a recrudescence of legalized slavery, indentured servitude, and trafficking in human beings. Labor would be treated as a "commodity" or "article of commerce."56 There is a germ of uncomfortable truth to this assertion. During the colonial period, Western countries exploited overseas territories for their natural and agricultural resources
diamonds, tea, spices-and their human resources-slaves.57 Slaves and indentured laborers were taken from one colony to another to do the work that native peoples were unwilling or unable to do.58 In the American colonies, Native Americans were "unsuitable" for work on sugar and cotton plantations so slaves were brought from Africa to fill the void.
The benefit to the United States economy from encouraging immigration of skilled artisans was early recognized by Alexander Hamilton in the 1790s. Because of the "disturbed state of Europe" at that time, the United States was particularly attractive to immigrants.59 At present, Western countries exploit the brain drain from the developing world. The educated elite of developing countries, often educated at home at public expense, go abroad for advanced study and eventually settle abroad.60 Immigrants, legal and illegal, are driven to leave home by the specter of war and poverty; in that sense, they are acting involuntarily. Legal immigrants admitted on employment visas serve at the mercy of their employers and are not paid as well as their native counterparts.61 From a certain vantage point, immigrants, whether legal or illegal, whether skilled or unskilled, are an underclass in the United States.
None of these criticisms of the concept of trade in "human resources" justifies the failure to give appropriate weight to the contribution of immigrants. Discounting such contribution results in economic loss to individuals, prejudice against immigrant communities, and a warped view of the reality of economic exchange between developed and developing countries.62
VI. LABOR RIGHTS AND DISPUTE SETTLEMENT BODY (DSB) REMEDIES
Of the three main post World War II international institutions, the GATT/WTO was the least visible, at least until the 1999 Seattle Ministerial.63 It has a much more limited agenda than the UN64trade and economic endeavor-but as a result has been perceived as less interventionist. There is a definite advantage to developing in obscurity, out of the spotlight.65 Also, an institution can demonstrate progress more readily if it has a circumscribed official agenda.
The GATT/WTO has been able to build on the mistakes and misfortunes of UN institutions. A minority of countries submitted to the compulsory jurisdiction of the International Court of justice (ICJ), and most of them hedged their submission with reservations.66 The ICJ was rather passive initially and held back from addressing important issues. In several potentially fruitful cases, the ICJ did not address the merits of the dispute on the grounds that the petitioners) lacked standing.67 When the ICJ finally mustered the boldness to address a "peace and security" issue on the merits, in the Nicaragua case,68 the United States walked away from the proceedings and withdrew from the compulsory jurisdiction of the Court.69
These actions were taken at great cost to the ICJ and to the image of the United States as a law-abiding country.70 After all, our legal system is one of our major cultural exports. However, the
aftermath of the Nicaragua case, along with our failure to "win" militarily in Korea and Vietnam, have been chastening experiences. Theoretically the United States retains the right to withdraw from the WTO if it is dissatisfied with the outcome of the dispute resolution process.71 Such action would be a much more drastic step, requiring overwhelming support in Congress, than the action the United States took by executive decree in the Nicaragua case.72
In contrast to the ICJ, the DSBs jurisdiction is mandatory and the dispute settlement process subject to strict deadlines.73 Where the ICJ was tentative in its early years, the DSB has been exceedingly prolific-31 panel reports in four years, averaging 184 pages in length.74 One of the most controversial issues in international trade law-the authority of a state to take unilateral action75-has already been addressed in the Section 301 dispute.76 In Photographic Film, the DSB took on a "non-violation" Art. XXIII:I (b) case, quite rare in the history of GATT.77
Unlike the ICJ in its early years, the DSB glides over procedural obstacles. In Bananas, the panel and the Appellate Body addressed the issue as to whether the United States had standing to bring a complaint but did not linger unduly on this procedural question
before answering in the affirmative.78 Third parties to disputes have been freely permitted to intervene.79 With increasing global economic integration, all members of the WTO are affected in some way by the dispute resolution process. Its legitimacy, therefore, depends on its openness.
Reports of panels and the Appellate Body rely heavily on the abundant jurisprudence developed by other international institutions such as the Permanent Court of International Justice (PCIJ), the ICJ, and GATT.80 International law principles can outlive the international institutions that created them. A body of principles may be created even if the institutional apparatus is weak or makeshift, such as the GATT panel process before 1994. Successor institutions will revive legal principles and give them new meaning. The DSB is not original in this respect. The ideas of the PCIJ were resurrected by the ICT.81
Although the GATT/WTO purports only to deal with trade and economic issues, "domestic policy externalities" with substantial adverse effect on WTO obligations have crept in through the side door.82 Environmental protection measures were at issue in Reformulated Gas, health standards were taken up in Hormones.83 The DSB went even further in Photographic Film. The claims that the United States asked the DSB to address dealt fundamentally with competition policy and restrictive business practices, despite an absence of a WTO agreement on those issues.84
One can envision a labor standards issue being brought to the DSB under the rubric of "domestic policy externalities." For example, when countries are permitted to set up export processing zones with special restrictions on unions, the reduced cost of labor inputs is every bit as real a subsidy as a government grant for a
material input.85 Systematic failure to enforce domestic law could also be treated as a subsidy. U.S. agencies have admitted to inadequate enforcement of laws prohibiting the employment of illegal immigrants.86 GATT/WTO jurisprudence looks to the law as implemented in practice, not merely the "law on the books."87
Arguably, prohibiting imports of goods produced by foreign prison labor while allowing the same goods produced in domestic prisons to circulate in local commerce is an "unfair" and "discriminatory" practice in violation of the national treatment obligation under Art. III of GATT 1994.88 To the extent that the United States has imposed penalties on some countries rather than others for systematic suppression of union organization, it discriminated between trading partners in violation of the Most Favored Nation obligation of Art. 1.89
Furthermore, if the purpose of Section 307 was to protect domestic production and civilian employment at a time of economic depression, that rationale no longer holds.90 The United States should not be able to justify an otherwise GATT-inconsistent measure on the basis of Art. XX (e) when the domestic law is obsolete or otherwise inapposite.91
If a respondent were to raise a defense based on Art. XX(e), the panel would have to deal with the fundamental matter of definition. In other words, what is "prison labor" for the purposes of Art. XX(e)?92 There are various facilities and myriad situations where a person does not enjoy freedom of movement; one's own home could be considered a "prison" under circumstances of house arrest. Does "prison labor" encompass those confined in extra-judicial forms of detention, such as "re-education through labor"?93 What about convicts "subcontracted" to civilian employers?94 Exconvicts who remain in a kind of de facto exile near labor camps because their "household registration" has been cancelled might also be deemed prisoners of a sort.95
However, none of these issues will reach the DSB unless a WTO member brings a complaint. Labor rights organizations would have to do the same kind of behind-the-scenes lobbying and provide the same level of tactical and logistical support to the complaining party that Kodak, for example, undertook for Photographic Film.96 Even if a complaint is brought, there is no provision in the DSU for amicus curiae briefs.97 WTO procedures permit, but do not require, dispute panels to consider unsolicited amicus curiae briefs from nongovernmental organizations (NGOs).98
NGOs may well determine that they can put their limited resources to better use in civil litigation than in attempting to influence intergovernmental dispute resolution. There is no question that private lawsuits have pulled labor rights issues out of the
shadows and established important precedent on matters of standing, justiciability, and discovery.99 On the other hand, achieving redress for a class of individual plaintiffs is not a substitute for "topdown" remediation. By way of comparison, private lawsuits brought by concentration camp survivors and forced laborers against the government of Germany and German companies, some of which were dismissed in court, achieved success ultimately by compelling lump sum settlements.100
The "globalization" debate brought the ILO back into the spotlight after years of "obscure work" and despite "a lack of enforcement power."101 The ILO itself has been pressing for a closer working relationship with the WTO.102 As both organizations are located in Geneva, there would seem to be no physical or logistical barrier to their cooperation. Yet international labor law experts are profoundly pessimistic that labor standards will become part of the WTO agenda and that the ILO will be given a formal role in DSB proceedings.103
Both the WTO and ILO have weaknesses that impede their formal cooperation. Assuming that WTO Secretary-General Moore is correct in saying that "[p]overty, not trade, is the main cause of unacceptable working conditions and environmental degradation," the WTO does nothing to ensure distributive justice within member countries.104 If anything, it undermines national efforts to ensure a minimum standard of living. The Subsidies Code sets strict limits on aid to economically disadvantaged regions. Egregious examples abound, both in the developed and developing world, where per capita incomes have risen but the distribution of
wealth is highly unequal. The rising tide of international trade does not necessarily lift all boats.105
Even though the DSB has already tackled some very thorny disputes, it may not be prepared to address the trade-labor linkage.106 The DSB is clearing its docket of some cases left over from GATT panels, which were not conclusively resolved under prior GATT dispute resolution.107 If the strength of the WTO is as an instrument of dispute settlement,108 its power should be conserved and selectively applied.
For its part, the ILO is an old institution. It outlived the League of Nations. Perhaps one should say that its very survival is miraculous. Because of its age, however, it does not have the energy and momentum of a new international agency.109 It is a standard-setting agency.110 The ILO can only use publicity to "shame" nations into compliance, but cannot apply sanctions, not even expulsion of members from the organization. It has not developed any "case law" to contribute to the functioning of the DSB.
The question arises as to whether the opportunity for formal cooperation between the ILO and the WTO would be enhanced by a side agreement on labor, with its own institutional apparatus, along the lines of the North American Agreement on Labor Cooperation (NAALC or the Side Agreement on Labor).111 As noted earlier, even if a party were inclined to bring a labor issue to the DSB, the organic instruments supply very little direct authority for a cause of action. Reserving the question as to whether the DSB "makes" or "interprets" law,112 the DSB arguably would benefit from having more treaty language for reference.113
On the other hand, negotiations for a side agreement and a new institutional apparatus consume an enormous amount of time and energy. The recent debacle in Seattle underscores the importance of careful preparation, both domestically and internationally, for productive negotiations.114 If the WTO were to create a special role for the ILO, it would set a precedent for other UN agencies to demand similar status. Such a move would hamper the efficiency of the DSB.
Even if negotiations for a side agreement were successful, the outcome would be criticized as half-measures, as crumbs thrown to mollify the labor unions in developed countries rather than to solve international trade problems. There is simply no impetus for such a negotiation when LDC governments and left-wing labor activists in LDCs are opposed.115
An optimal approach at the present time would be to work with the DSB as it is currently structured. In contrast to treaty negotiations, where parties argue endlessly about the possible application of a verbal formula, in litigation a case is limited to its facts. Indeed, if the 1996 Singapore Ministerial and the 1999 Seattle Ministerial are any indication of the profound rift between developed and developing countries,116 the time is ripe for adding obligations
on a case-by-case or judicialized basis rather than on a codified or legislative basis.117
ILO or NGO reports of worker rights abuses have their place in raising international consciousness about poverty and exploitation. But unless they are introduced into evidence at a DSB proceeding they do not become findings of fact and conclusions of law, leading to measurable consequences for the offending party. Indeed, far more convincing to the panel than reports by amici curiae or experts should be admissions made by, or attributable to, the delinquent party itself.118
Ideally, the camel's nose under the tent would come in the form of a case brought by an LDC against a developed country, precisely because it is the LDCs that have accused the developed countries of being hypocritical and self-serving on the matter of the trade-- labor link.119 It is the labor forces of the LDCs that have been affected most seriously by the relentless pursuit of surplus value. The gravamen of the complaint should be based on one or more of the substantive GATT obligations. Whether such a case will be brought is very much an open question because those LDCs that have been most active at the DSB are opposed to linking trade and labor.120
Advocates of social justice trained in the law need not limit their efforts to lobbying or suing their home governments in domestic
fora.121 Given the opportunity, they may better achieve their goals by lending their legal expertise to a foreign government, following the example of Prof. Abram Chayes in the Nicaragua case.122 The expense of bringing a WTO complaint can deter a developing country from bringing an otherwise meritorious complaint against a developed country.123
In the final analysis, the most important remedy the WTO provides is not a pronouncement that Country A can "legally" retaliate against Country B's exports to the extent of X dollars until such time as Country B brings its law into compliance with a DSB recommendation or ruling. The real remedy is that the WTO has shone a bright light on an otherwise obscure problem, considered the arguments of interested parties, arrived at a conclusion, and explained itself. There is more than enough clear injustice in the world, an abundance of rules and standards, and ample data. Whether the specific issue presented to the DSB deals with forced labor, child labor, or suppression of trade unions is not critical.
The DSB provides a forum for the peaceful settlement of trade disputes. It may even afford an opportunity for countries that are otherwise extremely hostile to each other to join in a common endeavor.124 But it cannot supply a common ethos or belief-system for the member nations of the WTO. The Protestant ethic that drove the rise of capitalism and the Marxist vision that responded to it have both been corrupted and discredited. As yet, we have nothing to take their place. As stated by Hernando de Soto, "[w]ith its victory over communism, capitalism's old agenda for economic progress is exhausted and requires a new set of commitments."125
HILARY K- JOSEPHS*
* Professor of Law, Syracuse University College of Law. This article was written with financial support from a COL summer grant and research support from Frank Taffy, COL `01. All errors are mine. This article is dedicated to R. Randle Edwards, Walter Gellhorn Professor and Director, Center for Chinese Legal Studies, Columbia Law School, with profound respect and gratitude. Unless otherwise noted, all references to World Trade Organization (WTO) documents are retrievable at the WTO website, http://www.wto.org.…