WTO Adjudication@ me.too: Are Global Public Goods like the World Trade Organization Owned by Governments or by Peoples and Citizens?

Author:Ernst-Ulrich Petersmann
Position:Emeritus Professor of International and European Law at the European University Institute, Florence (Italy)
Pages:21-52
SUMMARY

As the most frequent and most successful user of the dispute settlement system of the WTO, the US has welcomed judicial clarifications by WTO dispute settlement bodies whenever they confirmed legal claims of the US. Yet, the Trump administration increasingly rejects judicial findings against the US trade restrictions as violating the WTO prohibitions of "add(ing) to or diminish(ing) the rights... (see full summary)

 
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WTO ADJUDICATION@
me.too: Are Global Public
Goods like the World Trade
Organization Owned by
Governments or by Peoples
and Citizens?
This paper is an expanded and updated version of the author’s Guest Post: WTO ADJUDICATION@me.too:
Hidden in plain sight, published at International Trade Law and Policy Blog, available at https://ielp.worldtradelaw.
net/2020/03/guest-post-wto-adjudicationmetoo-hidden-in-plain-sight.html. All websites cited in this article were last
visited on May 1, 2020.
∗∗ Emeritus Professor of International and European Law at the European University Institute, Florence (Italy); Former legal
advisor in the German Ministry of Economic Affairs, GATT and WTO; and former secretary, member or chairman of
GATT and WTO dispute settlement panels. The author was secretary of the Uruguay Round Negotiating Group 13 that
elaborated the WTO Dispute Settlement Understanding. Dr. iur. (Heidelberg). The author may be contacted at: Ulrich.
petersmann@eui.eu / Address: European University Institute, Via Bolognese 156-50139 Firenze, Italy.
Ernst-Ulrich Petersmann
∗∗
As the most frequent and most successful user of the dispute settlement system of
the WTO, the US has welcomed judicial clarifications by WTO dispute settlement
bodies whenever they conrmed legal claims of the US. Yet, the Trump administration
increasingly rejects judicial ndings against the US trade restrictions as violating the
WTO prohibitions of add(ing) to or diminish(ing) the rights and obligations provided
in the covered agreements. This contribution criticizes the illegal US blocking of the
WTO Appellate Body and the underlying, hegemonic nationalism and protectionist
interest group politics. It suggests that reasonable and responsible citizens benetting
from the WTO trading, legal and dispute settlement systems must resist illegal power
politics, for instance, by supporting a WTO Adjudication@me.too enlightenment
campaign pressuring democratic institutions and governments to protect rule of law
and judicial remedies in international trade as prescribed by parliaments when they
approved the WTO Agreement.
J. East asia & intl l. Vol. 13/No.1 (2020); 21-52
Publication type : Research Article
Section : Article
DOI : http://dx.doi.org/10.14330/jeail.2020.13.1.02
22 E.-U. Petersmann
Keywords
WTO, Appellate Body, Constitutionalism, Human Rights, Judicial Remedies,
Public Goods, Public Reason.
I. From Apology to Utopia? Need for
Critical Legal Positivism
Public international law historically evolved as a power-oriented legal system
regulating rights and duties of governments and states. Yet, since the American and
French democratic revolutions during the 18th century, the recognition of inalienable
human rights laid down in the US Declaration of Independence (1776) and the
French Declaration of the Rights of Man and the Citizen (1779) provoked progressive
challenges of state-centered conceptions of international law among sovereign
states. Slaves, religious minorities, women, workers and other suppressed citizens
increasingly invoked the declared human rights and revolutionary practices in
France and the US. Following World War I, workers and trade unions pressured their
governments to establish the Constitution of the International Labor Organization
(ILO) - as Part XIII of the Peace Treaty of Versailles (1919) - proclaiming in its
Preamble, inter alia:
Whereas universal and lasting peace can be established only if it is based upon
social justice; and whereas conditions of labor exist involving such injustice,
hardship and privation to large numbers of people as to produce unrest so great
that the peace and harmony of the world are imperiled…..; whereas also the
failure of any nation to adopt humane conditions of labor is an obstacle in the way
of other nations which desire to improve the conditions in their own countries;
the High Contracting Parties, moved by sentiments of justice and humanity as
well as by the desire to secure the permanent peace of the world, and with a
view to attaining the objectives set forth in this Preamble, agree to the following
Constitution of the International Labor Organization.
It was only in response to World War II that, in the 1944 ILO Declaration Concerning
the Aims and Purposes of the ILO, member states could agree on a list of fundamental
principles (like labor is not a commodity; freedom of expression and of association
are essential to sustained progress), human and labor rights (like the right to
collective bargaining) and state obligations (e.g. to promote full employment and
the raising of standards of living, extension of social security measures to provide
Global Public Goods 23
XIII JEAIL 1 (2020)
a basic income to all in need of such protection and comprehensive medical care,
adequate protection of the life and health of workers in all occupations, provision
of child welfare and maternity protection).
The UN Charter and the 1948 Universal Declaration of Human Rights responded
to the tragedies of war and holocaust by basing the UN Charter not only on sovereign
equality of states,
1
but also on recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human family (as) the foundation of
freedom, justice and peace in the world.
2
They recognized that human rights should
be protected by the rule of law,
3
and included, inter alia, everyones right to take part
in the government of his country, directly or through freely chosen representatives.
4
The universal recognition of civil, political, economic, social and cultural human
rights in dozens of the UN and regional human rights conventions, the recognition
of the inalienable and indivisible character of these human rights, and their
incorporation into national Constitutions adopted by most of the 193 UN member
states entailed a paradigm change transforming the international law among
sovereign states into an international law of states, peoples and citizens with
inalienable human and democratic rights (e.g. to popular self-determination). The
legal empowerment of peoples and citizens not only induced struggles for justice
like decolonization. It also progressively transformed the state-centered international
law of coexistence into a citizen-oriented international law of cooperation
5
for
collective protection of public goods (PGs) based on human and constitutional
rights of citizens (notably in European human rights and economic integration law)
recognizing that all human beings are born free and equal in dignity and rights,
endowed with reason and conscience and should act towards one another in a spirit
of brotherhood.
6
The universal recognition of inalienableand indivisible human
rights also reects recognition of the sociological fact that civil, political, economic,
social, cultural, moral and legal orders are interdependent and dynamically interact.
1 U.N. Charter art. 2.
2 UDHR pmbl.
3 Id.
4 Id. art. 21.
5 For details on the post-1945 evolution from the “international law of coexistence” to an “international law of
cooperation,” see generally W. Friedmann, The Changing STruCTureS oF inTernaTional laW 60ff (1964).
6 UDHR art. 1. Johannes Morsink maintains that the history of the UDHR, and its references to “reason and conscience”
as justifications of the inherent, ‘inalienable’ nature of human rights, confirm the reliance by the drafters of the UDHR
on the enlightenment doctrines of “metaphysical inherence” and “epistemic awareness” (moral intuitionism) in order
to demonstrate the universality of human rights and of corresponding state obligations to promote human capabilities,
human flourishing, participatory democracy and cosmopolitan human rights. See J. morSink, inherenT human righTS
17 ff (2009).

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