Human rights treaties, similarly, address actions of a state and require a state to limit its intrusion into individuals’ sphere of existence (with negative rights) as well as mandate the state to take certain actions to ensure human well-being (with positive rights). Because of the supra-sovereign nature of human rights, however, the discipline also looks to what goes on inside the state vis-à-vis individuals. Thus, as human rights concerns travel across state lines, this deterritorialization of authority over human rights oversight translates to acceptance as legitimate only those state leaders whose treatment of their citizenry accords with basic human rights norms. To be sure, the UN Charter gives sovereignty to states, but on the assumption that sovereign national authority ultimately must yield to the power of the people whom state leaders purport to represent. A critical limitation on the legitimacy of state leaders is their respect for the human rights of their civil society.14
Yet the lines drawn are not so clear. For example, the CEDAW, which aims at women’s equality, is replete with reservations—indeed, it is the most reserved-against treaty in history—that entrench women’s subordinated status. The legitimacy of the reservations is rarely, if ever, questioned. Similarly, there was nary an outcry when one of the proposed constitutions for Iraq disenfranchised women, with the world, by its tacit response, ostensibly accepting institutionalizing broadly proscribed discrimination.
4.3 Legal Hierarchy of Trade and Human Rights Norms
(A) Generally
Given the actual relationship between these fields, it is relevant to explore the legal hierarchy of human rights and trade norms in international law. That is, which should prevail in the event of conflict, which may and does occur in the cases both of silent indifference and of direct contradiction in terms? In fact, conflicts likely will intensify as the cultural heterogeneity of the WTO proceeds apace and the Third World’s reliance on trade for economic progress grows.15 Given that human rights norms are indisputably the foundational, widely shared standards of justice and right conduct, human rights norms intuitively should prevail over trade norms, which, at bottom, govern the movement of widgets across borders, not the right treatment of the individual in society.
Law is not, of course, founded on intuition. Moreover, the bases of trade laws, too, are central principles of public life, including nondiscrimination and the rule of law, that describe elemental standards of justice and underpin societal values far weightier than simple economic efficiency.16 In large part because of their intersection with a wide range of human rights, trade rules profoundly affect almost all segments of society and find relevance in almost all other rules of international law.17 Through their mandates to states of transparency, accountability, and due process,18 trade rules “require governments to have a conscience and to hold a mirror to themselves” in their treatment of civil society.19
Nonetheless, even if we could agree that human rights law occupies the higher moral rank, we cannot for this reason alone conclude that human rights law trumps trade law from a legal perspective. As a matter of international law, neither policy presumptively prevails in the event of conflict. The lack of a formal hierarchy in international law follows from its origin in the consent of states: it is a law of coordination, not subordination, because the creation of international law relies on the explicit or implicit consent of states, which are complete equals in the creation of law.20
Chapter 1 explained that one type of international law—jus cogens—governs over any other conflicting rule of international law, whether sourced in custom or treaty. At a minimum, such practices by the state as genocide, torture, slavery, and systematic racial discrimination fall into this category. A dispute settlement panel, whether convened under authority of a trade or human rights treaty, should find that such norms “trump” any conflicting international rules of a lesser status.
(B) Application of International Law’s Hierarchy to WTO Cases
As with other international treaties, WTO rules form part of the larger body of public international law: “Each new state, and each new treaty, is automatically born into” that wider corpus of law,21 which includes human rights law whether sourced in treaty or in custom. The WTC acknowledged in its first decision that the WTO “is not to be read in clinical isolation from public international law.”22 A WTO panel correctly has observed that custom applies generally to the economic relationship among Members unless a particular provision of a WTO Agreement contracts out of the custom.23
With respect to treaties, other international law norms govern the relationship among WTO Members subject to pacta tertiis. That is, the non-WTO treaties bind only WTO Members that are parties to them.24 Customary international law, on the other hand, binds states regardless of whether they have given written consent. Freedom from torture is a human right so widely accepted as a legal obligation in the practice of nations that it has become customary international law. WTO Agreements thus need not explicitly provide a “torture” exception to justify a WTO Member’s successfully pleading the custom before a WTO dispute settlement panel in defense of a violation of the Four Pillars. For some customs, the WTO could “contract out” of the custom by a later disavowal of the principle.25 Nothing in the WTO Agreements suggests that the WTO has done so with respect to any fundamental human right. Moreover, a party cannot contract out of a jus cogens norm. In the example above, given that the prohibition against torture is jus cogens, regardless of whether a particular WTO Member has signed the Convention Against Torture, no WTO Member could contract out.
Putting observation to practice, a number of WTO panels have applied rules of general international law independent of interpreting a particular WTO provision, for example, in deciding the role of amicus curiae briefs, drawing adverse inferences, and deciding a panel’s jurisdiction.26 The question must be asked, however, How does the human rights norm at issue enter the field of play? One noncontroversial instance is to aid textual interpretation. A panel may examine later treaties to give present meaning to inherently dynamic treaty terms. For example, the WTC found that the term “natural resources,” in GATT Article XX(g), is inherently evolutionary, citing to an ICJ decision as support for application in the WTO case of this general international law principle. The WTC proceeded to search current multilateral environmental treaties to justify its conclusion that the term includes living resources and not solely the mineral products that the GATT’s drafters had in mind in 1947.27
For other treaties to find relevance in defining WTO terms, they must reflect the “common intentions” of the Members.28 These other sources of international law, whether custom, general principles, or other treaties, need not explicitly bind all WTO Members to give meaning to WTO Agreement provisions, but all WTO Members must at least implicitly tolerate the other source (it must be “applicable in the relations” among WTO Members).29 With respect to customary human rights law of a peremptory nature, WTO Members are bound; if the human rights norm is not jus cogens, WTO Members are bound unless a WTO Agreement has opted out of such custom—either explicitly (rare) or by adoption of a later in time, clearly conflicting provision (discussed in section 7.5(B) in respect to the Precautionary Principle).
The Vienna Convention recognizes in Article 30(3) a possible additional test to resolve conflict between two rules of international law. Because all such rules have the same status, the later in time—lex posterior—overrules an earlier expression of state consent. Major difficulties nonetheless exist in applying lex posterior to international law in general and in particular to the international human rights and trade norms addressed in this book. States periodically revise both human rights law and trade law through treaties that both confirm prior norms and either expand them or provide detail as to particular aspects.30 In these circumstances, deciding which norm was created later in time is fraught with difficulty, making lex posterior an interpretive principle of lessened value. This is only problematic with respect to clearly conflicting norms, however, because another rule of interpretation urges that rules be constructed as consistent with each other whenever possible.
One final Vienna Convention rule may