Making a Home for Human Rights at the WTO

This essay is excerpted from Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization, a report isued this year by Rights and Democracy, International Center for Human Rights and Democratic Development, in Montreal. a preliminary version was presented at a Rights and Democracy workshop in Seattle last fall. The full report is the product of co-authors Robert Howse, a professor at the Law School, and Makau Mutua, a professor and director of the Human Rights Center at the State University of New York at Buffalo School of Law. Complete copies of the report are available through Law Quadrangle Notes

Can Turtles Teach About Whales

The following essay, which discusses the trade and environment jurisprudence of the World Trade Organization and its implication for the Japan-U.S. whaling dispute, is excerpted from Multilateralism, Unilateralism, and Bilateralism in U.S.-Japan Trade Relations: A WTO Law Perspective, a paper the author delivered at the conference on Japan-U.S. trade relations, held at Keijo University, Tokyo, last spring. A complete copy of the paper, which discusses two additional WTO cases, one involving the European Union challenge to Section 301 o the U.S. trade legislation, and the other involving the Canada-U.S. Auto Pact, is available from the author or from Law Quadrangle Notes

Restorative Justice: A Conceptual Framework

Restorative justice has become a fashionable term both in Canadian and foreign legal and social policy discourse. Restorative justice is certainly not a new idea. In fact, it is foundational to our very ideas about law and conflict resolution. There is, nevertheless, a lack of clarity about the meaning of this term. Often it is used as a catchall phrase to refer to any practice which does not look like the mainstream practice of the administration of justice, particularly in the area of criminal justice. Little attention has been spent attempting to articulate what distinguishes a practice as restorative. Rather, we have been content simply to identify what restorative justice is not - namely two lawyers, a jury and/or judge in a courtroom

How Well Does the WTO Settle Disputes?

Last fall, a judicial panel of the WorldTrade Organization (WTO) issued a controversial ruling in a high-stakes corporate tax dispute between the United States and the European Union. Paying scant attention to the complexities of the case, the panel authorized Brussels to implement retaliatory sanction of $4 billion - an unprecedented sum - against Washington. Notably, around the same time the United States and its European allies were also making headlines with another fierce legal battle: over the authority of the International Criminal Court to prosecute American soldiers for alleged misdeeds committed abroad

The Product/Process Distinction - An Illusory Basis for Disciplining \u27Unilateralism\u27 in Trade Policy

It has become conventional wisdom that internal regulations that distinguish between products on the basis of their production method are GATT-illegal, where applied to restrict imports (although possibly some such measures might be justified as \u27exceptions\u27 under Article XX). The aim of this article is to challenge this conventional wisdom, both from a jurisprudential and a policy perspective. First, we argue there is no real support in the text and jurisprudence of the GATT for the product/process distinction. The notion developed in the unadopted Tuna/Dolphin cases that processed-based measures are somehow excluded from the coverage of Article III (National Treatment) and are therefore violations of Article XI (quantitative restrictions) is inconsistent with the text of this provision and the basic structure of the GATT. The real question is whether, under the National Treatment standard of Article III, products may be considered \u27unlike\u27 due to process-based differences. We argue that regulatory distinctions objectively related to actual non-protectionist policies are consistent with Article III. One concern is based on the conflation of process-based measures with measures that distinguish products not according to how they are actually produced, but rather according to their country of origin. We believe that country-based measures are likely to be violations of Article III and/or Article I of the GATT, although under some circumstances they might well be justifiable under Article XX. We address other objections that relate to the purportedly \u27unilateral\u27, \u27extraterritorial\u27 or \u27coercive\u27 nature of process-based measures, and to the notion that they are likely to be protectionist or to result in greater market segmentation, or impose unfair or distributively unjust costs on producers in developing countries, drawing on the economic theory of externalities to justify our conclusion that the rationales and effects of process-based measures do not systematically differ from those for product-based regulations

Are EU Trade Sanctions on Burma Compatible with WTO Law?

This Article will explore the European Union\u27s approach to Burma. The European Union, until recently, has implemented quite limited trade sanctions against the Burmese junta. According to the most recent figures, E.U. countries still import €306 million ($454 million) of commodities and products, ninety-five percent of which are textiles, timber, gems, and precious metals. However, the Common Position of November 19, 2007, strengthens considerably E.U. measures against the Burmese regime and contains a ban on the importation of these goods from Burma. Further, the Common Position requires E.U. countries to prohibit intentional and knowing participation in activities that directly or indirectly have the object or effect of circumventing this ban; this could include the transshipment of banned materials from countries other than Burma, which may have been processed or altered in some way so that they do not qualify as imports of Burmese origin under the rules of origin that apply to imports into the European Community as a general matter

The Product/Process Distinction - An Illusory Basis for Disciplining \u27Unilateralism\u27 in Trade Policy

It has become conventional wisdom that internal regulations that distinguish between products on the basis of their production method are GATT-illegal, where applied to restrict imports (although possibly some such measures might be justified as \u27exceptions\u27 under Article XX). The aim of this article is to challenge this conventional wisdom, both from a jurisprudential and a policy perspective. First, we argue there is no real support in the text and jurisprudence of the GATT for the product/process distinction. The notion developed in the unadopted Tuna/Dolphin cases that processed-based measures are somehow excluded from the coverage of Article III (National Treatment) and are therefore violations of Article XI (quantitative restrictions) is inconsistent with the text of this provision and the basic structure of the GATT. The real question is whether, under the National Treatment standard of Article III, products may be considered \u27unlike\u27 due to process-based differences. We argue that regulatory distinctions objectively related to actual non-protectionist policies are consistent with Article III. One concern is based on the conflation of process-based measures with measures that distinguish products not according to how they are actually produced, but rather according to their country of origin. We believe that country-based measures are likely to be violations of Article III and/or Article I of the GATT, although under some circumstances they might well be justifiable under Article XX. We address other objections that relate to the purportedly \u27unilateral\u27, \u27extraterritorial\u27 or \u27coercive\u27 nature of process-based measures, and to the notion that they are likely to be protectionist or to result in greater market segmentation, or impose unfair or distributively unjust costs on producers in developing countries, drawing on the economic theory of externalities to justify our conclusion that the rationales and effects of process-based measures do not systematically differ from those for product-based regulations

Multilateral Environmental Agreements in the WTO: Silence Speaks Volumes*

Abstract This study contributes to the debate concerning the appropriate role of multilateral environmental agreements (MEAs) in in WTO dispute settlement. Its distinguishing feature is that it seeks to address this relationship in light of the reason why the parties have chosen to separate their obligations into two bodies of law without providing an explicit nexus between them. The basic conclusion is that legislators' silence concerning this relationship should speak volumes to WTO adjudicating bodies: MEAs should not be automatically understood as imposing legally binding obligations on WTO Members, but could be used as sources of factual information