The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec

By Daniel L. M. Kennedy; James D. Southwick | Go to book overview

2
Constitutionalism and WTO law: From a
state-centered approach towards a human rights
approach in international economic law
ERNST-ULRICH PETERSMANN

I
“Transcending the ostensible” : constitutional democracy
and World Trade Law

The General Agreement on Tariffs and Trade (GATT) was negotiated as an agreement about rights and obligations of states and of other “customs territories” in 1947, i.e., at a time when human rights were not yet recognized as part of general international law. Today, more than fifty years later, human rights have become recognized by virtually all 189 United Nations (UN) member states as part of general international law and, in part, of international ius cogens. This “human rights revolution” and the customary rules of international treaty interpretation (as reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties) require interpretation of the 1994 Agreement establishing the World Trade Organization (WTO) with due regard to “any relevant rules of international law applicable in the relations between the parties” (Article 31:3 (c) Vienna Convention), including universally recognized human rights. What are the legal consequences of this “paradigm change” from a state-centered approach towards a human rights approach in international law for the interpretation and progressive development of WTO law? Does it matter, for instance, for the interpretation of the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS) that UN human rights instruments recognize intellectual property and the right of everyone to benefit from the protection of intellectual property as human rights?

Human rights, and the need for constitutional safeguards to protect human rights against abuses of government powers, are nowhere explicitly mentioned in the more than 30,000 pages of the WTO Agreement and of its annexes and “schedules of concessions. ” Yet, if one follows Professor Hudec's approach of “transcending the ostensible” 1 and explores the constraints of trade policy-making that lie beneath the surface of the WTO's treaty text, it is evident that the law and politics of GATT and of the WTO are strongly influenced by the constitutional systems of the major trading powers, notably those of the United States (US) and the

____________________
1
Robert E. Hudec, Transcending the Ostensible: Some Reflections on the Nature of Litigation Between Governments (1987), in Hudec, Essays on the Nature of International Trade Law 117–131 (1999) [hereinafter Hudec, Essays].

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