Saturday, January 17, 2009

The WTO, Core ILO Labor Standards, & Human Rights

The continuing dialogue between organised labour, the WTO and some member states indicates two things. Firstly, labour issues remain on the agenda. Their 'solution' may lie at the WTO or in a revitalised ILO or in unilateral action in developed economies. Whatever the case, the concerns of labour will not simply disappear. Secondly, there is an increasing recognition that future liberalisation and the stability of the international trading system is partially linked to the degree to which such institutions and initiatives can accommodate social concerns. The fiction of trade agreements being the preserve of states has given way to a grudging consideration of their roots in civil society.---Robert O'Brien, et al., Contesting Global Governance... (2000): 108.

Opinio Juris, perhaps the premier blog for international law and politics among a fast-growing blogroll in the field, Roger Alford has a post that explains to us how the rules of the World Trade Organization (WTO) perversely express de jure and de facto preference for environmental protection over the protection of basic human rights. The WTO is one of the three so-called Bretton Woods Institutions, the other two being the International Monetary Fund (IMF, or 'the Fund') and the World Bank* (i.e., the World Bank Group, or 'the Bank;' it should be noted that more often than not what is referred to here is the International Bank for Reconstruction and Development [IRBD], which is but one member of the group collectively called 'the Bank'). Alford explains precisely why the environment is accorded more legal protection, with concrete policy consequences and implications, than the protection of basic human rights, in particular, those expressed in the core labor standards established by the International Labour Organisation (ILO):
  1. Freedom of association and right to collective bargaining
  2. Elimination of all forms of forced or compulsory labour
  3. Effective abolition of child labour
  4. Elimination of discrimination in employment and occupation
Before looking at Alford's precise explanation, some background history and information are in order. The ILO is one of the international organizations that helped inspire the controversial but increasingly important (if only because of the current global economic crisis) International Covenant on Economic, Social and Cultural Rights (ICESCR), which itself must be examined in light of its similarities and differences with the International Covenant on Civil and Political Rights ICCPR) (something we can't do here but see Ch. 4, 'Economic and Social Rights,' in Steiner and Alston below in References and Further Reading):

The historical recognition of economic and social rights are diffuse. Those rights have drawn strength from the injunctions expressed in different religious traditions to care for those in need and those who cannot look after themselves. In Catholicism, papal encyclicals have long promoted the importance of the right to subsistence with dignity, while 'liberation theology' has sought to build upon this 'preferential option for the poor.' Virtually all of the major religions manifest comparable concern for the poor and oppressed. Other sources include philosophical analyses and political theory from authors as diverse as Thomas Paine, Karl Marx, Immanuel Kant and John Rawls; the political programmes of the nineteenth century Fabian socialists in Britain, Chancellor Bismarck in Germany (who introduced social insurance schemes in the 1880s), and the New Dealers in the United States; the first and subsequent Soviet constitutions, and the 1919 Constitution of the Weimar Republic (embodying the Wohlfahrtsstaat concept).

The most appropriate starting point [for tracing the 'evolution of these ideas in international human rights law'] is the International Labour Organisation (ILO). Established by the Treaty of Versailles in 1919 to abolish the 'injustice, hardship and privation' which workers suffered and to guarantee 'fair and humane conditions of labour,' it was conceived as the response of Western countries to the ideologies of Bolshevism and Socialism arising out of the Russian Revolution. In the inter-war years, the ILO adopted international minimum standards in relation to a wide range of matters which now fall under the rubric of economic and social rights. They include, inter alia, conventions dealing with freedom of association and the right to organize trade unions, forced labour, minimum working age, hours of work, weekly rest, sickness protection, accident insurance, invalidity and old-age insurance, and freedom from discrimination in employment. The Great Depression of the early 1930s emphasized the need for social protection of those who were unemployed and gave a strong impetus to full employment policies such as those advocated by Keynes in his General Theory of Employment, Interest and Money (1936). (Steiner and Alston: 242)

Now let's take a somewhat cursory look at US trade policy and the promotion of labor rights, relying on a summary provided by Bob Hepple in Labour Laws and Global Trade (2005):

Since the 1980s the promotion of labour rights in developing countries has become an increasingly important part of US trade policy. This is the result of pressure from labour and human rights activists in the US and marks a shift from the older purely protectionist campaigns of US unions to 'stop imports' or 'buy American.' The spate of legislation designed to protect the rights of workers in foreign countries has been characterized by some critics as 'aggressive unilateralism,' 'global bullying,' and disguised protectionism.

The first major legislative achievement of the pressure groups was a labour rights amendment to the US Generalised System of Preferences (GSP) adopted by Congress and signed by President Reagan in 1984. The GSP, as originally enacted by Title V of the Trade Act 1974, aims to provide the developing countries 'fair and reasonable access' into the US for specified products. Under it, more than 3000 products from more than 145 developing countries have duty-free access to US markets. The GSP has been renewed on several occasions most recently 31 December 2006. The labour rights provision prohibits access to US markets to any country 'that is not taking steps to afford internationally recognised worker rights to its workers (including those in export processing zones).' The labour clause in the GSP was followed by a series of other measures which make trade and investment conditional upon observance of labour rights.

Hepple proceeds to outline a number of both positive and negative effects of the GSP and subsequent measures on labor rights. But more to the point for our purposes here, he informs us that

...[C]ritics have argued that unilateralism is a fundamentally flawed approach for three principal reasons: first, it undermines the rule of international law by the use or threat of sanctions against a country for failing to adopt international standards which it has not accepted and do not form part of customary international law; secondly, the processes are ineffective; thirdly, the motivation for unilateral measures is primarily protectionist and political; and finally, there exist suitable alternatives.

The US GSP legislation does not use the ILO concept of 'core labour standards.' Instead, it [i.e., the legislation] applies to 'internationally recognised worker rights.' This concept is used either expressly or by reference to virtually all the US legislative measures. The first four of these rights correspond almost exactly to those in the 1998 ILO Declaration, but the right against all forms of discrimination, which features in the ILO Declaration, is excluded. This important omission was the result of a political compromise on the labour rights amendment in 1984. The Reagan administration successfully resisted the proposal to include discrimination because of their fear of antagonising oil-producing states which practise discrimination against women and non-Muslims, and in order to protect Israel which was accused of discrimination against Palestinian workers. The Administration also insisted on softening language in the original draft which required the mandatory suspension of those who violated rights, so as to make it sufficient for a country to be 'taking steps' to achieve these rights. This was designed to give the Administration maximum discretion in furthering the foreign policy interests of the US. The definition does include 'acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health,' which are not 'core' ILO standards. But the language leaves a wide discretion for the Administration to decide what is 'acceptable.'

[In addition], critics point out that the US is demanding standards of others that it has not accepted as part of its own international obligations. The US has ratified only 14 ILO conventions (2 no longer in force). These include those on forced labour (C.105) and the worst forms of child labour (C.182), but not any of the other 'core' ILO conventions, nor those relating to wages, hours of work or occupational safety and health (with the exception of safety and health in mines [C.105]). Moreover, many of the standards demanded have not yet been accepted by the countries on which US practice imposes them. Nor can the US claim to be enforcing customary international law. ...[I]t is unlikely that any of the ILO conventions apart from those relating to slave and forced labour can be said to be part of customary international law.

Moreover, the interpretations of 'internationally recognised worker rights' are not consistent with the interpretations made by the ILO supervisory bodies. [....] The result of these idiosyncratic interpretations is that attempts to create a consistent set of international labour standards is frustrated.

That said, we can better objectively appreciate Alford's post:

The general exceptions of the WTO provide for various exceptions to the core rules against non-discrimination, quotas, import bans and the like. But not all the exceptions are the same, and WTO jurisprudence has devolved to the absurd point that the environment is more important than human rights.

One of the exceptions, Article XX(g), provides that nothing in the WTO obligations shall prevent Member States from adopting or enforcing measures “relating to the conservation of exhaustible natural resources….” This means that any measure that relates to a legitimate policy of conserving natural resources can invoke Article XX(g) and be exempt from WTO obligations. Thus, the United States could restrict the importation of products that cause air pollution, threaten global warming, or diminish the population of endangered species. Of course, it must implement these measures in a non-discriminatory manner and must impose similar obligations on domestic products. But subject to these limitations, any measure that relates to conservation of exhaustible natural resources is acceptable.

Not so with human rights. Article XX(b) provides that nothing in the WTO obligations shall prevent Member States from adopting or enforcing measures “necessary to protect human … life or health….” The requirement that the measure be “necessary” rather than “relate to” has been interpreted to impose an extremely high hurdle for Member States seeking to promote concerns such as human rights. Essentially, for a measure to be “necessary” a Member State must show that (1) no measures consistent with the WTO could have been employed; and (2) no less trade restrictive measures inconsistent with the WTO could have been employed. In other words, when it comes to human rights, alternative measures that are not trade distorting must first be employed.

Permit me a few reflections on Professor Alford's important conclusion that, for example, according to WTO rules, "you can ban the importation of tuna if it harms dolphins, but not because the fishermen who caught the tuna were employed in a manner inconsistent with core ILO labor standards."

One of the reasons perhaps for the comparative weakness of the Article XX(b) has to do with the pernicious influence of economists on the WTO for, as Sean Turnell reminds us in his paper, “Core Labour Standards and the WTO,” “Using the WTO as the body to police core labour standards is generally opposed by economists.” In this case, it might be fair to say criteria derived from the neo-classical conception of welfare economics trumps fairness criteria generally (as in Kaplow and Shavell’s Fairness versus Welfare, 2002; see Kimberly Ferzan’s excellent review of their book here; see too S.M. Amadae's Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism, 2003).

One of several reasons why the failure to meaningfully implement core ILO standards is disturbing is owing to the fact that ”selective regulation of trade and labour...opens the theoretical door to a prisoners’ dilemma in labour standards and the potential for a ‘race to the bottom.’” Turnell notes that in their book, The International Regulation of Trade (1999 ed.), Trebilcock and Howse argued for a “‘dynamic’ interpretation of Article XX that recognises ‘the evolution of human rights as a core element in public morality [XX(a)] in many post-war societies and at the international level.’ Accordingly, in their analysis, ‘public morals’ in the context of Article XX,’ should extend to universal human rights, including labour rights.’ Under Article XX, enforcement of core labour standards could operate through a number of measures, including (at last resort) the withdrawal of WTO right and obligations.” Ironically, it was a ruling concerning environmental issues, namely the Shrimp/Turtle case, that may serve as precedent for the incorporation of core labor standards, for when the US lost WTO ruling on appeal, it was held that

The appeal was lost on the basis that the US had used restrictive measures that constituted ‘arbitrary and unjustifiable discrimination between members of the WTO, contrary to the requirements of the chapeau of Article XX’ (emphasis added). Significantly, however, the Appellate Body of the WTO found that the environmental objective of the US was legitimate under Article XX. In short, the problem in this case was unjustifiable discrimination, not the use of Article XX in protecting objectives that the WTO allowed as exceptions to its agreements. If an obvious precedent for the core labour standards campaign is created in the ‘Turtles Case,’ so too is the potential role of the ILO in ensuring justifiable discrimination.

But Professor Alford has well-explained for us precisely why Shrimp/Turtle will not likely serve as "an obvious precedent for the core labour standards campaign."

Under "References and Further Reading" I list some material that can help us think deeper about the question of linkage between human rights** generally, ILO labour standards, and the WTO. In my admittedly amateur assessment of the literature I've read (which is far from exhaustive or systematic), the most provocative work I've encountered is by Ernst-Ulrich Petersmann. First, there's his contribution, "Bridging Foundations: Human Rights and International Trade Law," in Thomas Cottier, Joost Pauwelyn and Elisabeth Burgi, eds., Human Rights and International Trade (2005): 29-94. Then, there's his recent article, "Human Rights, International Economic Law and 'Constitutional Justice,'" in the European Journal of International Law, (2008) Vol. 19, No. 4: 769-798, as well as his response to what seem (to me at any rate) to be rather uncharitable if not churlish critics. I’m quite intrigued by Petersmann’s work and a bit mystified as to why some otherwise very intelligent scholars in the field seem unable to comprehend it within the letter if not the spirit of the Principle of Charity. Perhaps there’s some sub-textual or background academic squabble I’m not privy to.

By way of a taste of Petersmann's highly original and sophisticated argument(s), the following are the "three normative premises on which all [of his] arguments are based...:"

First, the today universal recognition--not only in the Preambles of all UN human rights conventions but also in regional and many national human rights instruments and state practices--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' justifies the claim that respect for human dignity and liberty has become the ius cogens core of 'inalienable human rights' limiting all governance powers at national and intergovernmental levels.

Secondly, human life in dignity, liberty, and social responsibility requires legal protection for individual freedom to participate in markets (e.g., as dialogues about values, decentralized information, coordination and discovery mechanisms) and to exchange the fruits of one's labour for scarce goods and services needed for personal self-development. Specialization (e.g., in families, societies) and exchange are among the most basic human activities. While some markets have a 'price' rather than 'dignity,' others are of existential importance for individual, social, and democratic self-development. Human rights cannot be effectively protected without due regard to the economic insight that personal freedom is not only a fundamental moral and constitutional principle, but also the most important instrument for satisfying human needs.

Thirdly, even though constitutional contracts for the collective supply of public goods may legitimately differ among rational citizens due to different value preferences and historical experiences (cf. the diversity of agreed, specific human rights guarantees), respect for human dignity requires treating individuals as legal subjects and 'market citizens' (e.g., respect for 'indivisible' individual liberty to decide which equal freedoms an individual values most). As explained by Immanuel Kant more than 200 years ago, the moral imperative requiring legal protection of maximum equal freedom and democratic peace cannot be realized without complementary national, international, and cosmopolitan guanrantees.

* Please see the BIC (Bank Information Center), which "partners with civil society in developing and transition countries to influence the World Bank and other international financial institutions to promote social and economic justice and ecological sustainability."

**See the many links available at the Business and Human Rights Resource Centre.

References and Further Reading:

  • Aaronson, Susan Ariel and Jamie M. Zimmerman. Trade Imbalance: The Struggle to Weigh Human Rights Concerns in Trade Policymaking. Cambridge, UK: Cambridge University Press, 2007.
  • Alston, Philip, ed. Labour Rights as Human Rights. New York: Oxford University Press, 2005.
  • Alston, Philip, and Mary Robinson, eds. Human Rights and Development: Toward Mutual Reinforcement. New York: Oxford University Press, 2005.
  • Barry, Christian and Sanjay G. Reddy, "Just Linkage: International Trade and Just Labor Standards," August 25, 2005. Available:
  • Basu, Kaushik, et al., eds. International Labor Standards: History, Theory and Policy Options. Malden, MA: Blackwell, 2003.
  • Bossche, Peter van den. The Law of the World Trade Organization: Text, Cases and Materials. Cambridge, UK: Cambridge University Press, 2nd ed., 2008.
  • Caney, Simon. Justice Beyond Borders: A Global Political Theory. New York: Oxford University Press, 2005.
  • Compa, Lance A. and Stephen F. Diamond, eds. Human Rights, Labor Rights, and International Trade. Philadelphia, PA: University of Pennsylvania Press, 2003.
  • Cottier, Thomas, Joost Pauwelyn, and Elisabeth Burgi, eds. Human Rights and International Trade. New York: Oxford University Press, 2005.
  • Darrow, Mac. Between Light and Shadow: The World Bank, the International Monetary Fund, and International Human Rights Law. Oxford, UK: Hart, 2003.
  • Dasgupta, Partha. An Inquiry into Well-Being and Destitution. New York: Oxford University Press, 1993.
  • De Greiff, Pablo and Ciaran Cronin, eds. Global Justice and Transnational Politics. Cambridge, MA: MIT Press, 2002.
  • Donnelly, Jack. Universal Human Rights in Theory & Practice. Ithaca, NY: Cornell University Press, 2nd ed., 2003.
  • Elson, Diane. "Market Socialism or Socialization of the Market? New Left Review, No. 172 (November/December 1988): 3-44.
  • Elster, Jon and Karl Ove Moene, eds. Alternatives to Capitalism. Cambridge, UK: Cambridge University Press, 1989.
  • Flanagan, Robert J. Globalization and Labor Conditions: Working Conditions and Worker Rights in a Global Economy. New York: Oxford University Press, 3rd ed., 2006.
  • Forsythe, David P. Human Rights in International Relations. Cambridge, UK: Cambridge University Press, 2000.
  • Garcia, Frank J. Trade, Inequality and Justice: Toward a Liberal Theory of Just Trade. Ardsley, NY: Transnational, 2003.
  • Garcia, Frank J. "Global Justice and the Bretton Woods Institutions," Journal of International Economic Law 10, No. 3 (September 2007): 461-481.
  • Gross, James A., ed. Workers’ Rights as Human Rights. Ithaca, NY: Cornell University Press, 2003.
  • Harrison, James. The Human Rights Impact of the World Trade Organisation. Oxford, UK: Hart, 2007.
  • Harrod, Jeffrey and Robert O'Brien, eds. Global Unions? Theory and Strategies of Organized Labour in the Global Political Economy. New York: Routledge, 2002.
  • Harvey, David. A Brief History of Neoliberalism. New York: Oxford University Press, 2005.
  • Hausman, Daniel M. and Michael S. McPherson. Economic Analysis, Moral Philosophy, and Public Policy. Cambridge, UK: Cambridge University Press, 2nd ed., 2006.
  • Heintz, James. "Global Labor Standards: Their Impact and Implementation" (2002) PERI Working Paper No. 46. Available:
  • Hepple, Bob. Labour Laws and Global Trade. Oxford, UK and Portland, OR: Hart, 2005.
  • Hestermeyer, Holger P. Human Rights and the WTO: The Case of Patents and Access to Medicines. New York: Oxford University Press, 2007.
  • Hockett, Robert. "Three (Potential) Pillars of Transnational Economic Justice: The Bretton Woods Institutions as Guarantors of Global Equal Treatment and Market Completion," in Christian Barry and Thomas W. Pogge, eds. Global Institutions and Responsibilities: Achieving Global Justice. Malden, MA: Blackwell, 2005: 90-123.
  • Howse, Robert and Ruti G. Teitel. "Beyond the Divide: The Covenant on Economic, Social and Cultural Rights and the World Trade Organization," (April 2007), Dialogue on Globalization, Occasional Paper, Geneva: Friedrich-Ebert-Stiftung. Available:
  • Nussbaum, Martha C. Women and Human Development: The Capabilities Approach. Cambridge, UK: Cambridge University Press, 2000.
  • O'Brien, Robert, Anne Marie Goetz, Jan Aaart Scholte and Marc Williams. Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements. Cambridge, UK: Cambridge University Press, 2000.
  • Patterson, Dennis and Ari Afilalo. The New Global Trading Order: The Evolving State and the Future of Trade. Cambridge, UK: Cambridge University Press, 2008.
  • Pollin, Robert. "Financial Structures and Egalitarian Economic Policy," PERI, University of Massachusetts, Amherst. Working Paper Series No. 182 (December 1995). New Left Review I/214 (November-December 1995). Available:
  • Raz, Joseph. The Morality of Freedom. New York: Oxford University Press, 1986.
  • Robinson, William I. A Theory of Global Capitalism: Production, Class, and State in a Transnational World. Baltimore, MD: Johns Hopkins University Press, 2004.
  • Rubin, Neville, Evance Kalula and Bob Hepple, eds. Code of International Labour Law, 2 Vols. Cambridge, UK: Cambridge University Press, 2005.
  • Saad-Filho, Alfredo and Deborah Johnson, eds. Neoliberalism: A Critical Reader. London: Pluto Press, 2005.
  • Santos, Boaventura de Sousa and Cesar A. Rodriguez-Garavito, eds. Law and Globalization from Below: Towards a Cosmopolitan Legality. Cambridge, UK: Cambridge University Press, 2005.
  • Schweickart, David. Against Capitalism. Boulder, CO: Westview Press, 1996.
  • Sen, Amartya. Development as Freedom. New York: Alfred A. Knopf, 1999.
  • Shaikh, Anwar, ed. Globalization and the Myths of Free Trade: History, Theory, and Empirical Evidence. New York: Routledge, 2007.
  • Steiner, Henry J. and Philip Alston, eds. International Human Rights in Context: Law, Politics, Morals (Texts and Materials). New York: Oxford University Press, 2nd ed., 2000.
  • Unger, Roberto Mangabeira. Free Trade Reimagined: The World Division of Labor and the Method of Economics. Princeton, NJ: Princeton University Press, 2007.
  • United States--Import Prohibitions on Certain Shrimp and Shrimp Products, WTO Appellate Body Report, WT/DS58/AB/RW, 22 October 2001 (Shrimp/Turtle II).
  • Wright, Erik Olin, et al., The Debate on Classes. London: Verso, 1989.

Update: Professor Steven Schwinn of the Constitutional Law Prof Blog has kindly informed me of a title that looks like an intriguing if not important addition to the above list: Raj Bhala's Trade, Development and Social Justice. Durham, NC: Carolina Academic Press, 2003.


Blogger Unknown said...

It is obvioius workers have not voice in the process of globalization and the WTO does nothing to corrrect this.

It also obvious that free trade is not trade as historically practiced in the exchanging of products but is primarily based on moving production from place to place anywhere in the world for the sake of cheaper labor. Factories have been moved from the USA to Asia and then back to Mexico and now many of these are being moved to China. China also is contracting work out to nations for the sake of even a cheaper labor cost.
In the current economic crisis, we find economies that are based on making money on money instead of making things are burning out.
At the same time the value of workers and labor that acted as a money standard being a real tangible asset has been deflated severely.
See and

1/18/2009 5:05 PM  
Anonymous Anonymous said...

It is novel to hear that the WTO is too protective of the environment. Closer to the truth is that the WTO has undermined governments' ability to protect the environment, through decisions like Varietals and EC-Biotech, including by undermining the force of the precautionary principle as applicable to issues within WTO jurisdiction, and substituting a cost-benefit analysis approach. There are also open questions concerning the interaction between emissions trading schemes and the WTO, esp. the services agreement; it might be possible that credits certified in a state with lax certification criteria, or lax enforcement of the criteria, would have to be accepted in other signatory states.

I wasn't able to consult the full Alford post, since the website seemed to be having problems. But as for "you can ban the importation of tuna if it harms dolphins, but not because the fishermen who caught the tuna were employed in a manner inconsistent with core ILO labor standards," you should note that neither the Tuna-Dolphin I nor Tuna-Dolphin II panel report was adopted (and in fact the panel decision I went against the US ban). So the precedential value of these cases is quite questionable; you shouldn't read too much into them.

1/20/2009 2:42 AM  
Blogger Patrick S. O'Donnell said...


Roger isn't claiming that the WTO is too protective of the environment, only that in comparison to its protection of labor rights as human rights, the former fares better than the latter. My personal take on the precautionary principle is that it's overly broad but not without value (i.e., I share some--although not to the same degree--of the concerns of Cass Sunstein here), yet wholesale reliance on "cost-benefit" criteria is not an adequate substitute or supplement.

While Roger was referring to Dolphin/Tuna cases in his last line of his post, and I may have added to the confusion by referencing his reasoning and explanation by way of Shrimp/Turtle, I was referencing the latter case and not the Dolphin/Tuna cases and the fact that those who want to carve out a broad interpretation of Article XX(a) exceptions with regard to labor rights rely on the Appellate Body's statement in Shrimp/Turtle I when interpreting Article XX(g) "that the exception must be read 'in the light of contemporary concerns of the community of nations about the protection and concern of the environment." But as Hepple notes there are a number of perhaps insuperable obstacles to the application of Article XX reasoning to labour rights, and that is the point I wanted to reiterate, regardless of Roger's rhetorical reference to the Tuna/Dolphin cases at the end of his post (incidentally, I too have been having a difficult time accessing Opinio Juris). As to Shrimp/Turtle:

"After the U.S. made the changes in the Endangered Species Act required by the Dispute Settlement Body's November 6, 1998 recommendations, Malaysia continued to assert that the U.S. had not fully complied with the WTO ruling. In a May 16, 2001 ruling, a WTO compliance panel ruled in favor of the U.S. It found that the U.S.'s continuation of the import ban on shrimp and shrimp products was justified under Article XX(g) of the General Agreement on Tariffs and Trade (GATT), which provides a general exception to GATT rules for measures relating to the conservation of exhaustible natural resources."

In other words, for environmentalists the latter ruling does, it seem, lend itself to a far more favorable trend for environmental protection. But unlike the wishes of some this does not serve to help the cause
of labor rights protection.

1/20/2009 8:22 AM  
Blogger Patrick S. O'Donnell said...

A bit more clarification: Roger wasn't necessarily referencing the Dolphin/Tuna cases as such, but he's right insofar as Shrimp/Turtle would appear, now at any rate, to likewise apply to the protection of dolphins....

1/20/2009 8:45 AM  
Anonymous Anonymous said...

Thanks for your clarifications.

As you and some readers may know, the key difference between the precautionary principle and CBA (as practiced) is this: the PP says it's best not to do activity X until you have a good idea it's safe, while CBA says it's fine to do activity X unless you can demonstrate that the costs of doing so outweigh the benefits. This presupposes that (i) only those aspects of the decision that can be quantified are relevant, and (ii) the pertinent costs and benefits can be measured. Alain Desrosières distinguishes step (i) as "quantification" and step (ii) as "measurement".

In many cases, these operations lead to downright silly exercises; you might check Kontoleon & Swanson's 2002 paper "Can a Charismatic Species be an Instrument for Conservation of Natural Habitat?", available online, with its use of integral equations to calculate the value of pandas, based on spurious data. (Note also the implicit but contrafactual assumption of continuity of relevant variables in such a formulation.) See also Ackerman & Heinzerling's Priceless (New York: The New Press 2004), now the locus classicus of the US critique of CBA. Plus Theodore Porter's Trust in Numbers (Princeton UP 1995), which describes how CBA was adopted in the 1930s as a tool to disguise "subjective" decisions behind an "objective"-seeming process, thereby protecting the decisons from democratic oversight. This fits in well with Cass Sunstein's anti-democratic tendencies, as exemplified in Nudge (Yale UP 2008), authored with R. Thaler.

Part of Sunstein's rhetorical strategy against the PP is to hypothesize it as a rule of law, and then attack it as being difficult to apply consistently. However, it's a "principle", not a rule, and therefore is something to be applied with judgment, not with the brainless automaticity he lampoons.

The EC-Biotech case limits the discretion of governments to apply the PP, in effect forcing them to do a CBA to show that it's reasonable to use the PP. It is just a panel decision, but as there wasn't any Appellate Body ruling, it remains in force to make the world safe for accelerating fossil fuel emissions and much else.

Without fundamental changes in WTO and its enforcement, I expect that apparent disparities between human rights and environmental protection are likely to even out eventually, each in a lowest common denominator fashion. Unfortunately, since the panels are often made up of ad hoc groups of trade lawyers hanging around Geneva, it is unlikely that WTO ever will be enforced by people who think there can be anything more important than trade.

1/20/2009 8:25 PM  
Blogger Patrick S. O'Donnell said...


I invariably learn something from your comments in the legal blogosphere, and here is no exception. Thanks!

I'm still concerned that as a principle the PP is overly broad, effectively sanctioning too wide a berth for discretionary judgment, but given our tendency to let corporate-driven imperatives dominate the development of science and technology (as part of what John Ziman terms post-academic science, which is organized on market principles and includes such things as a pronounced proprietorial attitude to the results of research), and is therefore steered by a fairly limited set of (special!) social interests, perhaps in the end this performs a more or less democratically valuable (and rebuttable) default presumption.

I may be more hopeful (naive?) about the prospects for reforming the WTO if only because I'm impressed by the sheer number of thoughtful proposals in that direction and suspect the pressures from both above and below will combine to make some progress toward giving such proposals viability.

Anyway, and again, I'm grateful for the thoughtful comment.

1/20/2009 9:01 PM  

<< Home