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

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 & int’l 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, everyone’s “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 ‘inalienable’ and ‘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).