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WTO and Human Rights - Perceptions of Status and Relationship of Norms

Bengtsson, Malena (2008)
Department of Law
Abstract
International law is divided into different functional entities governed by different international institutions. The fields of the institutions may intersect and give rise to situations of norm conflict and/or diverging interpretation. This in turn may create legal uncertainty and conflicting State obligations on the international arena. The thesis examines the relationship between the World Trade Organisation (WTO) norms and human rights norms through the respective perspective of the WTO dispute settlement and human rights institutions. On the whole, general international law does not create any hierarchy between WTO norms and human rights norms, although exceptions may be found in for example jus cogens and possibly in some... (More)
International law is divided into different functional entities governed by different international institutions. The fields of the institutions may intersect and give rise to situations of norm conflict and/or diverging interpretation. This in turn may create legal uncertainty and conflicting State obligations on the international arena. The thesis examines the relationship between the World Trade Organisation (WTO) norms and human rights norms through the respective perspective of the WTO dispute settlement and human rights institutions. On the whole, general international law does not create any hierarchy between WTO norms and human rights norms, although exceptions may be found in for example jus cogens and possibly in some interpretative norms and maxims. However, the institutions governing respective norm complexes do not necessarily follow the same reasoning and may make diverging interpretations of general international law, of the exceptions to lack of hierarchy and of the place of specialised international law within international law. The WTO dispute settlement proclaims an inclusive approach to general international law evidenced by the inclusion of some basic general international customary law. Concurrently, the WTO exhibits isolationist characteristics in case law. Examples of this are&semic avoidance of use customary law through avoiding to determine it&semic a restrictive approach to article 31.3 (c) of the Vienna Convention on the Law of Treaties calling for presence of other international norms in the interpretative context and&semic limitations to inclusion of human rights as specific terms by not using human rights terminology. The approach in practice isolates trade law and protects it from external influence and use beyond the scope of the WTO regime. Doctrine on the matter suggests several openings for the WTO dispute settlement to other international law, including human rights law. Approaches range from directly applying other international law in the WTO dispute settlement to using other law in the interpretative material. Human rights institutions have a different approach to the relationship between norms of human rights and of the WTO. Some basic international law norms have been applied over human rights provisions, but this is not likely in relation to trade norms. Instead, trade norms could be included through interpretation of human rights provisions. Human rights have an all-inclusive character in the sense that all spheres of life are touched upon and may be present in the interpretation. In case of inclusion of trade into the definition of a human right, it would also be present in the balancing between different human rights and thereby have an impact on several human rights. In practice, inclusion of trade is not clearly evidenced. Instead, the overall approach of human rights institutions is that trade law should accommodate human rights within its structure and interpretation. Furthermore, human rights law protects its own structures from external influence through claiming superiority and particularity of its norms. In conclusion, the WTO approach is protectionist by isolating the regime from other international law and thereby safeguarding the integrity of its norm complex. The human rights approach on the other hand is aggressive in relation to other norm complexes urging them to apply with human rights norms, while concurrently protecting its own structures. (Less)
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author
Bengtsson, Malena
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Folkrätt
language
English
id
1556102
date added to LUP
2010-03-08 15:55:19
date last changed
2010-03-08 15:55:19
@misc{1556102,
  abstract     = {International law is divided into different functional entities governed by different international institutions. The fields of the institutions may intersect and give rise to situations of norm conflict and/or diverging interpretation. This in turn may create legal uncertainty and conflicting State obligations on the international arena. The thesis examines the relationship between the World Trade Organisation (WTO) norms and human rights norms through the respective perspective of the WTO dispute settlement and human rights institutions. On the whole, general international law does not create any hierarchy between WTO norms and human rights norms, although exceptions may be found in for example jus cogens and possibly in some interpretative norms and maxims. However, the institutions governing respective norm complexes do not necessarily follow the same reasoning and may make diverging interpretations of general international law, of the exceptions to lack of hierarchy and of the place of specialised international law within international law. The WTO dispute settlement proclaims an inclusive approach to general international law evidenced by the inclusion of some basic general international customary law. Concurrently, the WTO exhibits isolationist characteristics in case law. Examples of this are&semic avoidance of use customary law through avoiding to determine it&semic a restrictive approach to article 31.3 (c) of the Vienna Convention on the Law of Treaties calling for presence of other international norms in the interpretative context and&semic limitations to inclusion of human rights as specific terms by not using human rights terminology. The approach in practice isolates trade law and protects it from external influence and use beyond the scope of the WTO regime. Doctrine on the matter suggests several openings for the WTO dispute settlement to other international law, including human rights law. Approaches range from directly applying other international law in the WTO dispute settlement to using other law in the interpretative material. Human rights institutions have a different approach to the relationship between norms of human rights and of the WTO. Some basic international law norms have been applied over human rights provisions, but this is not likely in relation to trade norms. Instead, trade norms could be included through interpretation of human rights provisions. Human rights have an all-inclusive character in the sense that all spheres of life are touched upon and may be present in the interpretation. In case of inclusion of trade into the definition of a human right, it would also be present in the balancing between different human rights and thereby have an impact on several human rights. In practice, inclusion of trade is not clearly evidenced. Instead, the overall approach of human rights institutions is that trade law should accommodate human rights within its structure and interpretation. Furthermore, human rights law protects its own structures from external influence through claiming superiority and particularity of its norms. In conclusion, the WTO approach is protectionist by isolating the regime from other international law and thereby safeguarding the integrity of its norm complex. The human rights approach on the other hand is aggressive in relation to other norm complexes urging them to apply with human rights norms, while concurrently protecting its own structures.},
  author       = {Bengtsson, Malena},
  keyword      = {Folkrätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {WTO and Human Rights - Perceptions of Status and Relationship of Norms},
  year         = {2008},
}