SASKATCHEWAN

LAW REVIEW

Mapping the Equilibrium Line:

Fundamental Principles and Rights at
Work and the Interpretive Universe of
the World Trade Organization

2002 CanLIIDocs 599

Adelle Blackett*

This paper explores the emerging consensus on fundamental human rights at

work and their interface with the world trading system. The author argues that
the World Trade Organization's (WTO) Dispute Settlement Body (DSB) should
recognize normative hierarchies in international law and apply them to the
nexus between trade and fundamental human rights. The author contends that
the labour-trade nexus requires the WTO's DSB to strike balances in a wide
range of cases that go beyond jus cogens, as in the recent Asbestos Appellate
Body Report. The paper calls for the DSB to draw on customary international law
and internationally struck balances to attempt to recognize and respect externally
crafted lines of equilibrium. The author considers that this approach would help
to preserve the integrity of WTO decision making, while recognizing the WTO's
potential contribution to the development of context-sensitive decision making
in public international law.

I. INTRODUCTION
Attempts to links trade to fundamental principles and rights at work2
predate the post-war world trading system,3 and were an integral part
Assistant Professor, Faculty of Law and Member, Institute of Comparative Law,
McGill University. B.A. (Queen's); LL.B. and B.C.L. (McGill); LL.M. (Columbia).
1 For a thoughtful recent attempt to categorize and assess linkage claims, see D. Leebron,
"Linkages" (2002) 96 A.J.I.L. 5.
2 This contemporary phrase reflects the International Labour Organization's Declaration
on Fundamental Principles and Rights at Work and its follow-up, 18 June 1998, 37
I.L.M. 1233, online: <http://ilo.org/public/english/standards/decl/declaration/
text/index.htm> (last modified: 24 July 2001) [hereinafter ILO Declaration] by the
International Labour Conference of the United Nations specialized agency, the
ILO. The principles and rights enshrined within it reflect a limited set of labour
standards that have long been considered central to the ILO's mandate, notably
on freedom of association and collective bargaining, the abolition of child labour,
the abolition of forced labour and equality of opportunity and treatment.
3 See G. Hansson, Social Clauses and International Trade: An Economic Analysis of
Labour Standards in Trade Policy (New York: St. Martins Press, 1983) at 22 (providing
a detailed introduction to the history of labour standards in international trade).
370 Saskatchewan Law Review 2002 Vol. 65

of its initial design.4 Yet the seeming omnipresence of a particular

vision of economic globalization,5 coupled with increasingly stark
examples of its undersides, have added renewed vigour to attempts to
ensure that a human rights dimension to `productive' relations is
integrated into contemporary understandings of liberal trade. Much
of the debate unnecessarily opposes trade insiders to trade outsiders,6
and is increasingly taking a "top-down" approach7 that tries, through
the use of `grand' theoretical tools, to align (and propose analytical
tools to resolve) all linkage concerns.8

2002 CanLIIDocs 599

This paper starts from the premise that linkage claims warrant
careful, contextualized attention to the specificity of each subject matter.
In my writing, I have insisted in particular on the specificity of labour
rights and labour regulatory frameworks9 and have questioned why that
specificity raises a particular case for linkage that may not exist in
4 The Havana Charter for an International Trade Organization, negotiated from 1946-
1948, which never ultimately came into force, contained a clear recognition of the
connection between labour standards and trade. See A. Blackett, "Whither Social
Clause? Human Rights, Trade Theory and Treaty Interpretation" (1999) 31 Colum.
Hum. Rts. L. Rev. 1 at 7. See also R. Gardner, Sterling-Dollar Diplomacy in Current
Perspective: The Origins and the Prospects of Our International Economic Order (New
York: Columbia University Press, 1980) at 104-106 (arguing that the relationship
between employment policy and multilateral trade was "widely appreciated" in
both the U.S. and Britain).
5 See A. Blackett, "Globalization and its Ambiguities" (1998) 37 Colum. J. Transnat'l
L. 57.
However, see the analysis proffered by Robert Howse, which explores the embedded
liberalism of the international economic system, the collapse of this model, and
the challenges that are presented to the construction of a more complex but
broadly beneficial international economic order. See R. Howse, "From Politics to
Technocracy—and Back Again: The Fate of the Multilateral Trading Regime" (2002)
96 A.J.I.L. 94. However, it is telling that most of the articles in the collection do
not cite thoughtful 'outsider' work on this topic.
7 This critique is raised for different reasons by J.H. Jackson, "Afterword: The
Linkage Problem—Comments on Five Texts" (2002) 96 A.J.I.L. 118 at 118.
See J. Bhagwati, "Afterword: The Question of Linkage" (2002) 96 A.J.I.L. 126
(critiquing the failure of the A.J.I.L. symposium articles to draw on/cite the
voluminous material on this topic in specific issue areas, and the homogeneity of
contributors.) See also D.P. Steger, "Afterword: The 'Trade and...' Conundrum—A
Commentary" (2002) 96 A.J.I.L. 135 (lamenting examinations of the status of
linkage claims in particular linkage areas). It is noteworthy, for example, that
many of the contributors speak of the advantages or difficulties of linking an issue
like "child labour" without referencing the conceptual shift that has been worked
out at the international level to prioritize eliminating the worst forms of child
labour while employing broader redistributional approaches to address the
broader issue of child labour. These developments have a tremendous impact on
the feasibility of linkage claims. See Blackett, "Whither Social Clause", supra note
4 at 19-21, 76-78.
See e.g. A. Blackett, "Global Governance, Legal Pluralism and the Decentered State:
A Labor Law Critique of Codes of Corporate Conduct" (2001) 8 Indiana J. Global
Leg. Stud. 401.
 Mapping the Equilibrium Line 371

other issue areas. As I have argued elsewhere, the linkage, particularly

in the labour/human rights area, is inherent given the relationship
between the regulation of productive relations, the increased scope
of the WTO Agreement10 into the world of non-tariff barriers, and
the Dispute Settlement Body's (DSB) broadened dispute resolution
mandate.11 Therefore, this paper focuses not on whether a 'social' or
'human rights' link should be negotiated into the WTO framework;
the link already exists.12 Rather, if one accepts "that the linkage train
left the station a long time ago",13 the pressing question is how the

2002 CanLIIDocs 599

10 Marrakesh Agreement Establishing the World Trade Organization in Uruguay Round of
Multilateral Trade Negotiations, vol. 1 (Geneva: GAIT Secretariat, 1994) 137, 33 I.L.M.
1144, online: World Trade Organization <http://www.wto.org/english/docs_e/
legal_e/04-wto.pdf> (date accessed: 25 June 2002).
11 See A. Blackett, "Defining the Contemporary Role of the State: WTO Treaty
Interpretation, Unilateralism and Linkages" in C. Carmody et al., Trilateral Perspectives
on International Law ASIL-CCIL-JAIL [forthcoming in 2002]; Blackett, "Whither
Social Clause", supra note 4 at 52-56. See also J.T. Gathii, "Re-Characterizing the
Social in the Constitutionalization of the WTO: A Preliminary Analysis" (2001) 7
Widener L. Symp. J. 137 (offering an excellent discussion of the tension between
neo-liberalism and embedded liberalism in relation to multilateral trade, and why
social issues essentially fall within the scope of the WTO's mandate); B.A. Langille,
"General Reflections on the Relationship of Trade and Labor (Or: Fair Trade Is Free
Trade's Destiny)" in J. Bhagwati & R.E. Hudec, eds., Fair Trade and Harmonization:
Prerequisites for Free Trade—Legal Analysis, vol. 2 (Cambridge: MIT Press, 1996) 231
at 247-52; D. Kennedy, "The International Style in Postwar Law and Policy: John
Jackson and the Field of International Economic Law" (1995) 10 Am. U. J. Int'l L.
& Pol'y 671 at 678; D.M. McRae, "The Contribution of International Trade Law to
the Development of International Law" in Recueil des Cours: Collected Courses of the
Hague Academy of International Law 1996, vol. 260 (Boston: Martinus Nijhoff,
1997) at 221.
12 In this sense, I find the discussion by José Alvarez privileging negotiations to
dispute settlement to be somewhat misleading, even if one overlooks the question
of the legitimacy of trade ministers and diplomats holding exclusive decision-
making authority over what issues fall within the scope of an agreement with
such far-reaching consequences as the WTO. I certainly agree with Alvarez that
different linkage "choices" do indeed "pose different political costs and distinct
risks". See J.E. Alvarez, "How Not to Link: Institutional Conundrums of an
Expanded Trade Regime" (2001) 7 Widener L. Symp. J. 1 at 14-15. However, the
question then becomes whether the WTO DSB, in acknowledging the existing
linkages, is able to apply a broad range of remedial powers to address different
distributive consequences that may arise. The sequel to the first Shrimp Turtle
Appellate Body decision is promising in this regard. The recent Shrimp Turtle
Article 21.5 Compliance Report, United States—Import Prohibition of Certain Shrimp
and Shrimp Products (Complaint by India, Malaysia, Pakistan, and Thailand) (2001)
WTO Doc. WT/DS58/RW, illustrates the re-distributive potential that lies within
the WTO mechanisms to give meaning to trade linkage balances that may have
been struck by individual member States.
13 See Steger, supra note 8 at 136. However, I disagree with Steger's reification of the
politics/negotiation vs. rules/interpretation divide in her attempt to argue for
contemporary linkage approaches. For a discussion of why this distinction is
problematic, see Blackett, "Whither Social Clause", supra note 4 at 62-66.
372 Saskatchewan Law Review 2002 Vol. 65

WTO, particularly through its dispute resolution mechanisms,

intends to deal with the conflicts that come before it.14
Despite this inherent linkage, a starting assumption of this paper
is that grappling with that linkage through trade dispute resolution is
not necessarily the most effective or desirable way to promote human
rights. Much more is needed, in particular real attentiveness to a range
of normative (especially North-South) and institutional concerns. Some
can be addressed through compliance mechanisms and cooperation

2002 CanLIIDocs 599

between international institutions. Others require more profound
North-South engagements.
Therefore, this paper considers the importance of the shift within
the WTO framework toward recognizing the relevance of public
international law to the normative universe of the WTO, and the
WTO's own potential contribution to the development of coherence
in public international decision-making. It posits that the internalization
of this relationship entails greater recognition of the need for context-
sensitive decision making, and respect for the carefully crafted
hierarchy of international norms.
After providing a brief discussion of the debate over the hierarchy
of international norms and the importance of balancing approaches,
this paper focuses on the emerging consensus on certain fundamental
human rights principles within the workplace context. It looks
beyond the most robust jus cogens cases, however, to consider the
varying shades of international commitments taken by WTO Members,
and posits that the WTO Dispute Settlement Body needs also to
take them into account when seeking to give meaning to its treaty
provisions.
The final part of this paper considers how a deferential, case-by-
case approach to treaty interpretation that is sensitive to—but not
unduly restricted by—the (emerging) hierarchy of international
norms provides a way to ensure that internationally-agreed balances
are respected. There is a way for trade law to enhance, rather than
thwart, efforts to create a more complex international law landscape
that facilitates respect for fundamental human rights principles.
Instead of artificially sealing-out crucial issues, or substituting its own
balances by usurping the role of states and other intergovernmental
regimes, the WTO's Dispute Settlement Body should adopt an
approach that identifies externally-identified lines of equilibrium to
promote and reinforce a textured international architecture.
14 See K. Bagwell, P.C. Mavroidis & R.W. Staiger, "It's a Question of Market Access"
(2002) 96 A.J.I.L. 56 at 76 (attempting to `micromanage' linkage claims, by
proposing an interpretive approach that "[limit] linkages issues to addressing
pecuniary externalities alone" by having the "WTO dispute settlement
system...stick to the idea of protecting market access" rather than becoming "a
court of general jurisdiction").
 Mapping the Equilibrium Line 373

IL INTERNATIONAL TRADE WITHIN THE SYSTEM OF

INTERNATIONAL LAW
A common characterization of the pre-WTO multilateral trade system
is that of a self-enforcing system of individually negotiated reciprocal
exchanges and concessions, ushered into the multilateral sphere
through the consensual contract that is the General Agreement on
Tariffs and Trade.i5 A rather narrow approach to interpretation
developed, emphasizing the contractual roots of the GATT and
neglecting the treaty's place in the broader public international law

2002 CanLIIDocs 599

universe. Pragmatism over politics, bright if narrow rules over murky
debate, and predictability over whimsical domestic concern, became
guiding principles.16 GATT panels were accused of clinging to the
perception that as a treaty with a profoundly economic mandate, it
was far afield from the world of public international law, both as it
related to broader normative concerns, and as it related to the
burgeoning field of human rights.17
The conceptual justifications for this approach lay precisely in the
argument that international economic law is at its core preoccupied
with a different range of concerns. While the focus of international
law is state sovereignty and challenges to that notion, the focus of
international trade law is on removing barriers that inhibit the free
movement of products and services across sovereign borders, to
promote the fundamentally economic rationale of comparative
advantage.18 However, to the extent that the distinction characterizes
the approach adopted by GATT panelists in the early post-War period
of multilateral trade, it underestimates the extent to which the
political concerns of the trading regime have been rendered explicit
through the creation of a full-fledged intergovernmental organization,
the WTO. Through the WTO framework, the interplay between
sovereignty and economic policies, or between public international
law and international economic law becomes clearer.19
These changes have been followed by a fairly profound crisis to
the legitimacy of the WTO.2° On the one hand, its attempts to seal
15 30 October 1947, 58 U.N.T.S. 187, Can. T.S. 1947 No. 27 (entered into force 1
January 1948) [hereinafter GAi"1].
16 See J. Bhagwati, The World Trading System at Risk (Princeton: Princeton University
Press, 1991) at 21-22.
17 See P. Alston, "Commodity Agreements: As Though People Don't Matter" (1981) 18
J. World Trade L. 488 at 459 (arguing that social dimensions of trade are considered
a foreign element in an agreement constituted along a narrowly economistic vision).
18 See McRae, supra note 11 at 111.
19 Ibid. at 189. See also discussion in Blackett, "Whither Social Clause", supra note 4
at 59. However, it is still profoundly contested. Compare Bagwell, Mavroidis, &
Staiger, supra note 14 with Steger, supra note 8.
20 For a discussion of the factors preventing the WTO from dealing with these issues
on an institutional, governance level, see J. Audley & A.M. Florini, Overhauling the
WTO: Opportunity at Doha and Beyond, Policy Brief No. 6, October 2001, online:
374 Saskatchewan Law Review 2002 Vol. 65

out competing public policy concerns from the scope of trade have
proven futile, and costly to its legitimacy bank.21 On the other
hand, its ability to render authoritative decisions on those linkage
considerations that fall outside of the traditional scope of international
trade law and practice has also been singularly contested. The WTO
dispute resolution mechanisms, and in particular the permanent
Appellate Body, have needed to develop a sensible balancing
approach, one that is not only sensitive to interpretative traditions
in international law, but also attune to the limits of the WTO's

2002 CanLIIDocs 599

interpretative mandate.
The Dispute Settlement Body has entertained this process
through increasingly consistent reliance upon the 1969 Vienna
Convention on the Law of Treaties,22 as mandated by Article 3.2 of the
Dispute Settlement Understanding.23 It regularly, if not in a somewhat
rote fashion at times, invokes the provisions of Articles 31 and 32 of
the Vienna Convention to establish that the provisions of the WTO,
including the exceptions clauses, should be interpreted in a manner
that reflects the object and purpose of the provision being invoked.
Although this may seem basic, earlier GATT panels and some more
recent WTO Dispute Settlement Body panels appeared to identify
objectives in a sweeping fashion, to suggest that anything but
particularly narrow interpretations of exceptions clauses would threaten
to undermine the broad objective of the GATT/WTO framework, that
is, liberal trade. In contrast, recent Dispute Settlement Body and
Appellate Body decisions have attempted to identify the ordinary

Carnegie Endowment for International Peace <http://www.ceip.org/files/pdf/

pb6-AudleyFlorini.pdf> (date accessed: 11 June 2002).
21 See discussion of Dolphin Tuna in Blackett, "Whither Social Clause", supra note 4
at 56-57.
22 23 May 1969, UN Doc. A/CONF.39/27, 1155 U.N.T.S. 331, 8 I.L.M. 679 (entered
into force 27 January 1980).
23 Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2
to the Marrakesh Agreement Establishing the World Trade Organization, supra note 10,
vol. 31, 25539, 33 I.L.M. 1226, online: World Trade Organization <http://www.wto.org/
english/tratop_e/dispu_e/dsu_e.htm> (date accessed: 11 June 2002) [hereinafter
Dispute Settlement Understanding]. Article 3.2 calls for the WTO Agreement to be
interpreted in accordance with customary rules of interpretation of public
international law.
Article 3.2 reads:
The dispute settlement system of the WTO is a central element in
providing security and predictability to the multilateral trading system.
The Members recognize that it serves to preserve the rights and
obligations of Members under the covered agreements, and to clarify
the existing provisions of those agreements in accordance with customary
rules of interpretation of public international law. Recommendations
and rulings of the DSB cannot add to or diminish the rights and
obligations provided in the covered agreements.
 Mapping the Equilibrium Line 375

meaning of terms, in keeping with contemporary concerns. In this

realm, negotiating history may be relevant, but is not immediately
turned to in the face of clear provisions.24 Additionally, and most
importantly for this discussion, the WTO's Appellate Body moves
beyond the simple assertion that balances need to be struck to
suggest where one might begin to look to identify those balances.
This inquiry is the equilibrium line analysis which, I argue, has the
potential to foster a robust interpretation of the role of a broad range
of internationally articulated norms in the WTO framework. Moreover,

2002 CanLIIDocs 599

in relation to the contingent and contested domain of international
human rights law, this approach benefits from careful attention to
normative hierarchies.

III. NORMATIVE HIERARCHIES IN PUBLIC INTERNATIONAL

LAW
The existence of normative hierarchies in public international law
remains the subject of lively and ongoing debate. The approaches to
answering the question, as well as the answers themselves, span the
theoretical range that infuses contemporary international law.25
Should we be concerned about whether a normative hierarchy exists,
or whether one should exist? Should we be concerned about whether
a fixed set of identifiable norms themselves exist or not? Should we
ensure that we know what we mean when we refer to 'international
law', indeed to 'law' itself? Should we be concerned about the
meaning ascribed to hierarchization?26
This paper engages the notion of normative hierarchies without
reifying it. It is rooted in a critical tradition that accepts the contingency
of rights and is concerned about the historical processes by which
some rights are hierarchized. Therefore, it is reluctant to embrace an
approach that rests on identifying in an abstract, decontextualized
fashion which values will necessarily 'trump' in trade law, out of a
concern that this inquiry may underestimate the complexity of the
balancing enterprise to which the interpreters of the WTO
Agreements are increasingly called to undertake. By the same token,
it is reluctant to throw hierarchy away, as it recognizes the potential
alchemical27 value of rights to those communities that have not been
accorded the privilege of being considered worthy of holding rights.

24 For a fuller discussion of this interpretative approach, see Blackett, "Whither

Social Clause", supra note 4 at 62-74.
25 See J.H.H. Weiler & A.L. Paulus, "The Structure of Change in International Law or Is
There a Hierarchy of Norms in International Law?" (1997) 8 E.J.I.L. 545 (questioning
the "is-ought" dichotomy).
26 Ibid.
27 See P.J. Williams, The Alchemy of Race and Rights (Cambridge: Harvard University
Press, 1991).
376 Saskatchewan Law Review 2002 Vol. 65

From this critical tradition, despite the problems inherent to current

hierarchization,28 there is real value to being able to classify some
action as violating 'inalienable' jus cogens rights. I suggest in this
paper that the WTO's Dispute Settlement Body is crafting a balancing
approach, focused on its 'equilibrium line' analysis, that holds the
potential to embrace, in a case-by-case fashion, the nuanced position
that these tensions impose.
Article 38 of the Statute of the International Court of Justice29
establishes the sources of international law, broadly understood.

2002 CanLIIDocs 599

Despite the judicious attempts to avoid explicit hierarchization in the
list of Article 38 sources, the Vienna Convention does establish normative
hierarchies amongst some, but not all, relationships between sources
of international law. Of logical concern in this paper is the relationship
between a treaty norm that has attained the status of jus cogens and
the WTO. Article 53 of the Vienna Convention defines a peremptory
norm as one "accepted and recognized by the international community
of States as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general
international law having the same character".30 It invalidates a
treaty that conflicts with a peremptory norm at the time the treaty is
concluded. To the extent that the WTO Agreement, which contains an
Annex of the new and distinct GATT 1994,31 and which includes a
version of the GATT 1947 as modified and legally-distinct from the
original GATT, it is plausible to assert, depending on the context and
the ultimate interpretation, that the GATT 1994 or another of the
WTO single undertaking Agreements is indeed a treaty that 'when
concluded' conflicted with a peremptory norm of general international
law. That is, if the WTO Agreements were interpreted in a manner
that would seek to exclude the applicability of those human rights
norms that are considered to have attained the status of jus cogens,
this line of argument could be pursued. Furthermore, although lex
specialis rules might be invoked as challenges to the applicability of
other bodies of law to trade law,32 the argument is weakened to the
extent that trade law is itself increasingly difficult to circumscribe. In
other words, if the WTO is required to consider the interface between

28 See H. Charlesworth, C. Chinkin & S. Wright, "Feminist Approaches to International

Law" (1991) 85 A.J.I.L. 613.
29 Appendix to the Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7,
online: United Nations <http://www.un.org/Overview/Statute/contents.html>
(last modified: 1 February 1996).
30 Supra note 22.
31 General Agreement on Tariffs and Trade: Multilateral Trade Negotiations Final Act
Embodying the Results of the Uruguay Round of Trade Negotiations, 15 April 1994, 33
I.L.M. 1125 (entered into force 1 January 1995) [hereinafter GATT 1994].
32 See Alvarez, supra note 12.
 Mapping the Equilibrium Line 377

its rules and regulatory action undertaken by its members in fulfilment

of other international obligations, the alternative for the WTO to
considering those other international obligations as baselines upon
which to strike balances is to articulate its own `rules' in those policy
areas, as it essentially did in the Dolphin Tuna decisions, and arguably
also did in the recent Asbestos Report.33 That alternative would have
the singular effect of increasing the scope of WTO decision making,
while potentially (and unnecessarily) undermining balances struck in
other international fora.

2002 CanLIIDocs 599

Given the tremendous difficulties associated with defining which
norms have in fact attained peremptory status, jus cogens is (an
unduly small) part of the international human rights landscape that
I argue should be considered by the WTO. Article 31(3)(c) further
clarifies that for the purposes of interpretation, "any relevant rules of
international law applicable in the relations between the parties"34
must be considered. This broad articulation is understood to include
customary international law, but to be broader than it. To this principle
is added the International Court of Justice's clarification in Nicaragua
v. U.S.35 that norms may at once be of customary international law
status, and co-exist as conventional international law. Yet, as Philippe
Sands has noted, there has been a palpable reluctance to apply Article
31(3)(c), and the hierarchy tends to tilt in favour of allowing treaty
provisions to prevail over customary international law, even when
the latter is later in time.36
Sands makes a compelling case for Article 31(3)(c) to be
operationalized.37 He argues that the parameters within Article 31(3)(c)
are sufficiently clear to delimit the use of the provision. First, the
difficult task of establishing a custom needs to be overcome. Second,
the custom must be "relevant"; according to Sands, this term suggests
that the custom must relate to the interpreted treaty norm. Third, it
must be "applicable"; in other words, it must be legally binding other
than as a treaty upon the parties.
Even after the tests for Article 31(3)(c) have been established,
Sands remains careful to point out that the customary international
33 See discussion in Part IV.B, below.
34 Vienna Convention, supra note 22.
35 Case concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States), [1986] I.C.J. Rep. 14.
36 See P. Sands, "Treaty, Custom and the Cross-Fertilization of -International Law"
(1998) 1 Yale Hm. Rts. & Dev. L.J. 85 at 95-98.
37 See also B. Mulamba Mbuyi, Introduction à l'étude des sources modernes du droit
international public (Sainte-Foy, Qc.: Presses de l'Université Laval, 1999) who argues
that "la coutume et le traité se donnent la main pour éviter de ruiner leur valeur
juridique obligatoire... [Les règles conventionnelles] peuvent être parfaitement
interprétées dans la mesure où le juge les rapproche à la lumière des règles
coutumières" at 172.
378 Saskatchewan Law Review 2002 Vol. 65

norm can only be used to interpret the treaty provision in question,

not replace it. However, the adjudicator has no discretion in the
matter; the Vienna Convention mandates that the decision-maker
take the customary international law principle into account.38 Sands
recommends that the WTO's Dispute Settlement Body establish a
presumption that the WTO system "is to be interpreted consistently
with general international law, and that the customary rule is to
apply unless it can be shown that such an application would
undermine the object and purpose of the WTO system".39

2002 CanLIIDocs 599

And, indeed, the WTO's Dispute Settlement Understanding directs
dispute resolution bodies to "clarify the existing provisions"40 of the
WTO Agreement "in accordance with customary rules of interpretation
of public international law".41 To date, this has been taken as a clear
mandate to apply those provisions of the Vienna Convention that
relate specifically to treaty interpretation (Articles 31 and 32).42 The
jury is out as to whether the Dispute Settlement Understanding actually
restricts the WTO's scope of inquiry to the Vienna Convention principles
in Articles 31 and 32, or by contrast, to the full range of Vienna
Convention provisions that have attained the status of customary
international law, notably Article 53. However, I argue that the
membership's instructions to the panels and appellate body under
the Dispute Settlement Understanding are for them to seek conformity
with customary international law principles, as part of the interpretive
arsenal, rather than emphasizing a more conflictual approach to the
WTO Agreements. This entails reconciling specific provisions of the
WTO Agreements in the increasingly sophisticated manner that has
recently been embraced by WTO Appellate Body Reports.43 In other
words, the Dispute Settlement Body should not shun particular
interpretations that do not immediately appear to foster deeper
liberal trade under the premise that they were contrary to the "basic
objectives and principles"44 of the GATT/WTO system. Rather the
vision of the WTO system as a potentially robust pillar in the broader

38 For Sands, this language is at once "stronger than 'take into consideration' but
weaker than 'apply': supra note 36 at 103.
39 Ibid. at 104. Sands would put the burden on the party opposing the interpretation
that is argued to be in keeping with customary international law.
40 Supra note 23, art. 3(2).
41 Ibid.
42 United States—Standards for Reformulated and Conventional Gasoline (Complaint by
Brazil and Venezuela) (1996), WTO Doc. WT/DS2/AB/R (Appellate Body Report), 35
I.L.M. 603 at 611.
43 See United States Import Prohibition of Certain Shrimp and Shrimp Products
(Complaint by India, Malaysia, Pakistan, and Thailand) (1998), WTO Doc.
WT/DS58/AB/R (Appellate Body Report), 38 I.L.M. 118 [hereinafter Shrimp Turtle].
44 See General Agreement on Tariffs and Trade: Dispute Settlement Panel Report on United
States Restrictions on Imports of Tuna (1994), 33 I.L.M. 839 at 894.
 Mapping the Equilibrium Line 379

public international law landscape is complicated with many

competing rights and obligations that all need to be validated, and
to the extent possible, flexibly reconciled to foster deeper consistency
with international commitments—especially human rights
commitments—that are fostered in other international fora.
In advocating this interpretive approach, I further argue that it is
in the WTO's institutional self-interest to ensure that it is reinforcing
efforts to seek multilateral/international solutions to trade linkage
concerns, rather than 'going it alone' when attempting to decide

2002 CanLIIDocs 599

whether and how much to encroach on issues that would otherwise
be considered within individual member States' own rightful
domestic regulatory realm. This latter assertion suggests that there is
a potential role for the broader body of public international law—
notably treaties within the WTO's interpretive context—that may not
be reflective of customary international law. Rather than excluding or
ignoring them, I suggest that the WTO should draw on them at least
as persuasive authority when attempting to demarcate appropriate
lines of equilibrium. This approach would emphasize the broad and
textured nature of the Article 31(3)(c) Vienna Convention reference to
"any relevant rules of international law",45 and enable the WTO to
deal sensitively with internationally struck balances.

IV. FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK

AND BROADER DOMESTIC REGULATORY CAPACITY
The ILO context provides a useful framework within which to test the
usefulness of a textured interpretive approach to the WTO treaty.
Although the gulf between international human rights law and
international labour standards has at some moments been considered
to be particularly wide,46 a respected intellectual view of the ILO's
normative universe is that the wide range of international labour
standards crafted since 1919 are invariably protective of a "special
category of human rights"47 that were "painstakingly constructed
and consolidated".48 Most recently, however, the ILO has identified,
albeit in a soft law instrument,49 those rights and principles that are
45 Supra note 22 [emphasis added].
46 See V. Leary, "Workers' Rights and International Trade: The Social Clause (GATT,
ILO, NAFTA, U.S. Laws)" in Bhagwati & Hudec, supra note 11 at 177.
47 See N. Valticos, "International Labour Standards and Human Rights: Approaching
the Year 2000" (1998) 137 Intl Lab. Rev. 135 at 137.
48 Ibid. See also C.W. Jenks, "Human Rights, Social Justice and Peace: The Broader
Significance of the I.L.O. Experience" in A. Eide & A. Schou, eds., International
Protection of Human Rights: Proceedings of the Seventh Nobel Symposium (New York:
Interscience, 1968) 227.
49 The recourse to a Declaration, which unlike the ILO's Philadelphia Declaration
(ILO Constitution, see infra note 58), does not have constitutional status, may seem
surprising given the broad range of instruments that the ILO possesses. However,
380 Saskatchewan Law Review 2002 Vol. 65

so central to the ILO's mandate and raison d'être that ILO members
have an obligation "to respect, to promote and to realize, in good faith
and in accordance with the [ILO's] Constitution"50 the principles of
freedom of association and the effective recognition of the right to
collective bargaining, the elimination of all forms of forced or
compulsory labour, the effective abolition of child labour, and the
elimination of discrimination in respect of employment and obligation.51
This privileged status to core labour standards has more than
internal organizational meaning. It also reflects the identification,

2002 CanLIIDocs 599

prioritization, and consolidation of the principles arid rights at work
that the member States of the ILO-constituted with tripartite (plus)52
representation—project upon the broad public international law
community. In other words, since the ILO is the premier institution
on international labour norms,53 its articulation of fundamental
principles and rights and works has broader implications for the
system of international law-making.
In the WTO context, particularly in the interpretation of textual
language in the WTO Agreement, this work of normative prioritization
can only be useful to the task of assisting WTO dispute resolution
bodies to identify whether certain principles have attained the status
of peremptory norms warranting careful consideration by WTO
dispute resolution bodies. Admittedly, it can be argued that the many
other international labour standards crafted by the ILO constitute lex
specialis to which member States agreed only to the extent that they
commit them to the ILO's supervisory mechanisms.54 However, that
the ILO Declaration has been set apart by the Organization as a fundamental
document around which cardinal obligations have been extended to all ILO
member States, and the ILO's priorities have been re-focused. Indeed, the meaning
of "fundamental" rights and principles itself warrants deeper exploration.
50 ILO Declaration, supra note 2, art. 2.
51 Ibid.
52 By tripartite (plus), I mean representation that builds upon but moves beyond the
traditional notions of workers' and employers' representatives, to embrace more
fluid notions of identity. See Blackett, "Codes of Corporate Conduct", supra note
9 at 436-40.
53 The WTO acknowledged in its Singapore Ministerial Declaration (1996), WTO Doc.
WT/MIN(96)/DEC, 36 I.L.M. 218, online: World Trade Organization
<http://www.wto.org/english/thewto_a/minist_e/min96_e/wtodec_e.htm> (date
accessed: 14 June 2002) that the ILO "is the competent body to set and deal with
these [recognized core labour] standards" and reaffirmed its "support for its work
in promoting them".
54 See Alvarez, supra note 12 at 9. Although his point is generally an important one,
I disagree with Alvarez's conflation of the ILO Declaration, which unequivocally
embraces at least some jus cogens norms, and the broader range of international
labour standards. My proposals on the use of the broadly developed instruments
as forms of persuasive authority also seeks to provide a textured approach to
the international norms that focuses on consistency rather than hierarchical,
conflictual adjudicative approaches in the WTO setting.
 Mapping the Equilibrium Line 381

does not preclude considering those standards in an effort to give

interpretive content to provisions of the WTO Agreement. In other
words, the presumption needs to be in favour of a harmonious rather
than `isolationist' approach to treaty interpretation.
Two recent examples illustrate this point. The first is the ILO's
landmark articulation of jus cogens principles in Forced Labour in
Myanmar (Burma): Report of the Commission of Inquiry Appointed under
Article 26 of the Constitution of the International Labour Organization to
Examine the Observance by Myanmar of the Forced Labour Convention,

2002 CanLIIDocs 599

1930 (No. 29).55 The Myanmar Report underscores the extent to which
the fundamental principles and rights at work may to some extent
already be considered principles of customary international law, and
in this case, jus cogens norms. It also opened the door for Members of
the ILO to undertake actions—which may include trade sanctions—
against Myanmar. How the WTO should address this kind of action is
one concern of this paper.
A second example flows from the WTO's landmark Appellate
Body decision in Asbestos,56 which calls into question the extent to
which `ordinary' international law treaties, which may or may not be
ratified by the member States concerned, can and should be drawn
upon by the WTO dispute resolution bodies in their attempts to
demarcate appropriate scope for balances struck internationally to be
reflected in spheres of broad domestic policy making.

A. ILO'S MYANMAR REPORT

For over thirty years, the ILO has—through its supervisory bodies—
been criticizing Myanmar's gross violations of the Forced Labour
Convention.57 After a complaint was presented in 1996 under Article
26 of The Constitution of the International Labour Organisation,58 a
Commission of Inquiry comprising eminent legal experts was
established. Although the Government of Myanmar did not authorize
a visit to its country, via Article 28 the Commission of Inquiry was
established. It found abundant evidence of pervasive forced labour

55 ILO Official Bulletin, 1998, Special Supp., Vol. LXXXI, Ser. B, online: International
Labour Organization <http://www.ilo.org/public/english/standards/relm/gb/docs/
gb273/myanmar.htm> (last modified: 26 January 2000) [hereinafter Myanmar Report].
56 European Communities—Measures Affecting Asbestos and Asbestos-Containing
Products (Complaint by Canada) (2001), WTO Doc. WT/DS135/AB/R (Appellate
Body Report), 40 I.L.M. 496.
57 Convention (No. 29) concerning Forced or Compulsory Labour, 28 June 1930, 39
U.N.T.S. 55 (entered into force 1 May 1932), online: <http://ilolex.ilo.ch:1567/
scripts/convde.pl?C29> (date accessed: 17 July 2002).
58 Part XXIII to the Peace Treaty of Versailles, 28 June 1919, 49 Stat. 2712, 225 Consol.
T.S. 378, online: International Labour Organization <http://www.ilo.org/public/
english/about/iloconst.htm> (last modified: 2 May 2002).
382 Saskatchewan Law Review 2002 Vol. 65

imposed on civilians, with a disproportionate burden falling on

landless labourers, poor segments of the society, women, children
and the elderly, as well as disadvantaged ethnic groups, and the
Muslim minority.59
In the Myanmar Report, the chairperson, Sir William Douglas, found
that the obligation in Article 1, paragraph 1 of Convention No. 29 to
"suppress" the use of forced or compulsory labour was violated by
Myanmar, both in law and in practice "in a widespread and systematic
manner, with total disregard for the human dignity, safety and health

2002 CanLIIDocs 599

and basic needs of the people of Myanmar".60 The Commission
found a further violation of Article 25 of Convention No. 29, in that
Myanmar failed to ensure that penalties were both adequate and
strictly enforced.61
The findings under Convention No. 29 were particularly important
given that the provisions and overall thrust of the Convention, if not
read in relation to contemporary context as mandated by Article 31
of the Vienna Convention, could have been considered to suggest that
forced labour could still be tolerated. The 1930s Convention No. 29
reflects its times and emphasizes control over the use of forced labour
while clarifying that suppression is an ultimate goal. The ILO's later
Abolition of Forced Labour Convention,62 not ratified by Myanmar, is by
contrast clear in its call for forced labour to be eradicated. However,
the ILO's Commission of Inquiry took an unequivocal stance that
ensured that Convention No. 29 was indeed read in light of the evolution
of customary international law principles on forced labour. Therefore,
it relied on the interaction of customary international law with a
specific ratified treaty in a manner that ensured that that treaty was
articulated in accordance with the respect of developments in
customary international law.
In concluding, the Commission of Inquiry rested its findings not
only on the provisions of Convention No. 29, but also on jus cogens
norms. It found, in particularly forceful language, that a

State which supports, instigates, accepts or tolerates forced

labour on its territory commits a wrongful act and engages
its responsibility for the violation of a peremptory norm in

59 For a synthesis of the factual context of the Report, see ILO, Stopping Forced Labour
(June 2001), online: International Labour Organization <http://www.ilo.org/public/
english/standards/ded/publ/reports/fullreport2/toc.pdf> (last modified: 21 May 2001).
60 Supra note 55, "Conclusions on the substance of the case" at para. 536.
61 Ibid. at para. 537.
62 Convention (No. 105) concerning the Abolition of Forced Labour, 25 June 1957, 320
U.N.T.S. 291 (entered into force 17 January 1959), online: International Labour
Organization <http://ilolex.ilo.ch:1567/scripts/convde.pl?C105> (date accessed:
17 July 2002).
 Mapping the Equilibrium Line 383

international law. Whatever may be the position in national

law with regard to the exaction of forced or compulsory
labour and the punishment of those responsible for it, any
person who violates the prohibition of recourse to forced
labour under the Convention is guilty of an international
crime that is also, if committed in a widespread or systematic
manner, a crime against humanity.63

With overwhelming support from the ILO's tripartite constituency

2002 CanLIIDocs 599

at the 2000 International Labour Conference (ILC),64 a Resolution
on the Widespread Use of Forced Labour in Myanmar65 was adopted. It
considered Myanmar's "attitude and behaviour"66 to be "grossly
incompatible with the conditions and principles governing membership
of the Organization";67 as a result, it called on the ILO to cease
providing technical cooperation or assistance to Myanmar and to
cease inviting Myanmar to ILO meetings.68 A more forceful
Resolution by the ILO's Governing Body was adopted prior to the
2000 ILC Resolution; it recommended that the 2000 ILC adopt—for
the first time in the ILO's history—measures under Article 33 of the
ILO Constitution.69 One recommended measure was that the ILO's
constituents as a whole

review, in the light of the conclusions of the Commission

of Inquiry, the relations that they may have with the
member State concerned and take appropriate measures to

63 Myanmar Report, supra note 55, "Conclusions on the substance of the case" at para.
538 [footnotes omitted].
64 There were 257 for, 41 against and 31 abstentions. See Vote on the Resolution
concerning the Measures Recommended by the Governing Body under Article 33 of the
Constitution with respect to Myanmar, online: International Labour Organization
<http://www.ilo. org/public/english/standards/relm/i1c/i1c88/pdf/v-myanm.pdf>
(date accessed: 16 June 2002).
65 See ILO Provisional Record 4, International Labour Conference, Eighty-eighth
Session, Geneva 2000, Annex 1: Resolution on the Widespread Use of Force Labour in
Myanmar adopted by the International Labour Conference at its 87th Session (June
1999), online: International Labour Organization <http://www.ilo.org/public/english/
standards/relm/ilc/î1c88/pr-4.htm>, select: "Annex 1" (last modified: 5 June 2000).
66 Ibid.
67 Ibid.
68 In both cases, however, exceptions are made for assistance or meetings that have
as their purpose securing "immediate" implementation/full compliance with the
recommendations: ibid.
69
See Measures Recommended by the Governing Body under Article 33 of the
Constitution Implementation of the Recommendations contained in the Report of the
Commission of Inquiry Entitled Forced Labour in Myanmar (Burma), online:
International Labour Organization <http://www.ilo.org/public/english/standards/
relm/i1c/î1c88/pr-4.htm> (last modified: 5 June 2000).
384 Saskatchewan Law Review 2002 Vol. 65

ensure that the said Member cannot take advantage of

such relations to perpetuate or extend the system of forced
or compulsory labour referred to by the Commission of
Inquiry, and to contribute as far as possible to the
implementation of its recommendations.70

This proposal would have included the potential for trade sanctions.71
A wide range of UN responses have also placed Myanmar's actions
within the context of gross violations of internationally recognized

2002 CanLIIDocs 599

human rights. 72
Consequently, the unequivocal articulation within the ILO
framework of systematic forced labour violations as violations of
peremptory human rights law, coupled with the potential range of
measures that might be taken on the question, leaves the door open
as to how the WTO should deal with attempts by individual member
States to sanction Myanmar's actions.73 Faced with a trade measure
restricting imports in a manner consistent with the unequivocal and
clearly exceptional ILO action in relation to Myanmar to seek the
respect of jus cogens norms, how should the WTO respond?

B. WTO'S ASBESTOS REPORT

In some senses, a harder—but rather different—question has come
before the WTO already. The question relates to the role to be given
to domestic policy making, consistent with internationally-agreed
treaty norms, which may not have attained customary international
law status.
In the Asbestos case, the WTO Dispute Settlement Body had to
grapple with whether occupational safety and health legislation,
enacted pursuant to the French Labour Code, that banned the
importation of known cancer-causing asbestos-based products was
GATT 1994 consistent. Canada, a major exporter of asbestos and

70 Ibid. at "Recommended action".

71 It is also noteworthy that various Resolutions have been adopted by UN bodies on
the human rights violations in Myanmar. See notably Situation of Human Rights in
Myanmar, GA Res. A/RES/54/186, UN GAOR, 54th Sess., Supp. No. 49, UN Doc.
A/54/49 (1999) and UN Commission on Human Rights, Situation of Human Rights
in Myanmar, Res. 2000/23, 56th Sess., (2000).
72 See ibid.
73 Ironically, trade with Myanmar, by both the U.S. and the EU, has soared. In the
U.S., the fact that the U.S. has refused to negotiate bilaterally with Myanmar has
meant, among other things, that the U.S. has no bilateral quota for apparel with
Myanmar. This has led to a loop-hole, whereby Myanmar has greater access to the
U.S. market than many other countries; indeed, manufacturers from China and
other countries have established operations in Myanmar in order to export to the
U.S. market. See E. Olson, "Myanmar Tests Resolve of I.L.O. on Enforcing
Standards," The New York Times (5 June 2001) Wl.
 Mapping the Equilibrium Line 385

asbestos-based products, challenged the French legislation before the

WTO as being contrary to the GATT 1994. The national treatment
non-discrimination provisions under Articles III:4 and the health
exception under Article XX(b) were in issue.
The French law, by prohibiting the manufacture, processing, sale,
import, placement on the domestic market and transfer of all varieties
of asbestos fibres, sought to ensure that asbestos was not a part of the
domestic landscape for the stated purpose of protecting workers.
However, to establish that it was not in violation of the fundamental

2002 CanLIIDocs 599

national treatment obligations of Article III:4, the Appellate Body
needed to determine whether asbestos fibres were "like" other products
available on the French market, which may have shared a number of
similar characteristics or qualities, notably physical properties. The
Appellate Body clarified that the carcinogeneity of chrysotile asbestos
fibres is a "defining aspect" of the product's physical characteristics. 74
Nevertheless, using a market-based analysis adapted from the Working
Party Report on Border Tax Adjustments,75 the focus of the Appellate
Body was on the perspective of the end uses and competitiveness in
relation to consumers' tastes and habits.76 One concurring Member
of the Appellate Body nonetheless lamented the "'fundamentally'
economic interpretation of the 'likeness' of products under Article
III:4";77 he considered that a definitive characterization that asbestos
fibres are not "like" the fibres under consideration was warranted, on
the basis that the latter were not shown by Canada to have the same
lethal properties as asbestos fibres.78
In the second major aspect of the decision, the Appellate Body
reconsidered its approach to the Article XX exceptions to the GATT
1994, which excuses a member State of violations of general principles,
like Article III:4 national treatment requirements, for policy reasons
such as health and "public morals" under a set of conditions that

74 See Asbestos, supra note 56 at para. 114.

75 Adopted 2 December 1970, BISD 18S/97, online: World Trade Law
<http:www.worldtradelaw.net/reports/gattpanels/bordertax.pdf> (date accessed:
16 June 2002).
76 See Asbestos, supra note 56 at paras. 133ff. The fourth criterion was tariff classifications.
The fact that tariff classifications were different for the fibres was seen as suggesting,
although not establishing, that they might not be like products for the purposes
of Article III:4 of the GATT 1994. However, the fact that they were the same in
relation to cement-based products containing the different fibres was simply
stated not to be "decisive". See discussion, ibid. at paras. 133, 141, 146.
77 Ibid. at para. 154.
78 Ibid. at paras. 152-54. For a thorough discussion of the decision, notably the
Article III:4 analysis, see R. Howse & E. Tuerk, "The WTO Impact on Internal
Regulations—A Case Study of the Canada—EC Asbestos Dispute" in G. de Burca &
J. Scott, eds., The EU and the WTO: Legal and Constitutional Issues (Oxford: Hart,
2001) 283.
386 Saskatchewan Law Review 2002 Vol. 65

have until recently been strictly interpreted. In this regard, I argue

that it is relevant, but not much discussed in the decision, that
measures adopted by France were based loosely on international labour
standards, notably the ILO's Asbestos Convention.79 Perhaps ironically
though, Convention No. 162 has been ratified by Canada, the asbestos-
exporting country,80 but not by France, the country imposing the
ban. In Convention No. 162, ILO member States undertake to "prescribe
the measures to be taken for the prevention and control of, and
protection of workers against, health hazards due to occupational

2002 CanLIIDocs 599

exposure to asbestos".81 Article 10 of Convention No. 162 requires
member States to replace or ban the use of asbestos where it is
"necessary to protect the health of workers and technically practicable".82
Occupational safety and health standards have not been identified
as among the fundamental principles and rights articulated within
the ILO Declaration. Nevertheless, as I have argued elsewhere, a strong
case can be made that they should be considered a concrete
embodiment in the workplace context of the "right to life, liberty and
security of person",83 enshrined in Article 3 of the Universal Declaration
of Human Rights84 from which under Article 4 of the International
Covenant on Civil and Political Rights85 no derogation is permitted.

79 Convention concerning Safety in the Use of Asbestos, ILO Convention No. 162, 24 June
1986, online: International Labour Organization <http://ilolex.ilo.ch:1567/scripts/
convde.pl?C162> (date accessed: 16 June 2002).
80 Ibid. Canada ratified Convention No. 162 on 16 June 1988, online:
<http://ilolex.ilo.ch:1567/cgi-lex/ratifce.pl?C162> (date accessed: 17 July 2002). A
total of 26 ILO Members have ratified Convention No. 162.
81 Ibid., art. 3.
82 Ibid., Article 10 reads as follows:
Where necessary to protect the health of workers and technically
practicable, national laws or regulations shall provide for one or more
of the following measures—
(a) replacement of asbestos or of certain types of asbestos or products
containing asbestos by other materials or products or the use of
alternative technology, scientifically evaluated by the competent
authority as harmless or less harmful, whenever this is possible;
(b)total or partial prohibition of the use of asbestos or of certain
types of asbestos or products containing asbestos in certain work
processes.
83 GA Res. 217(III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71, art. 3.
84 Ibid. Under such a reading of occupational safety and health standards, although
the complexity and technicality of the labour standards as elaborated by the ILO
would prove complicated webs within which another international organization
would not want to be required to interpret in any detail, the underlying principles
linked to the protection of life and health could be called upon as broader
international values worthy of considered attention within the framework of
overlapping policy considerations.
85 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368, art. 4(2)
(entered into force 23 March 1976).
 Mapping the Equilibrium Line 387

In comparison to the Myanmar Report, considering international

human rights norms in determining whether France can ban the
importation of asbestos products may not necessarily seem equally
compelling. The pariah status of Burma, linked only in part to the
pervasive and extreme nature of the forced labour violations condemned
in the Myanmar Report, seems to be on the opposite end of the spectrum
in the use of international law, as compared to the clear-cut domestic
regulation of a life-saving health measure in the Asbestos Report.
However, as I shall suggest in the following section, it is precisely this

2002 CanLIIDocs 599

kind of distinction in the use of public international law principles
within the WTO framework that overlooks the problematic alternative:
the WTO dispute resolution bodies, in the multilateral context then
retain the full responsibility to establish appropriate balances—and as
a result, undertake the (re)distribution of costs associated to individual
member States' risk allocation—'unilaterally', without particular
attention to the line-drawing exercises that different constellations of
members of the international community have sought to establish in
fora that are particularly conducive to establishing those balances.
Therefore, I argue that in the robust jus cogens context, as well as in
the broad realms of 'ordinary' international law treaty-based norms
and customary international law, the WTO Dispute Settlement Body
must develop a way to ensure that internationally-established balances
are considered. For peremptory norms, this must mean that if, after
careful attention to interpretation, there is a conflict, then the jus
cogens norms as developed over time must prevail. For customary
international law, the context will very much matter. For 'ordinary'
international treaty law in areas of human rights concern (including
the gamut of international labour standards), contextual attempts to
reinforce locally established balances should be seriously undertaken.
At the very least, this may mean that they are considered 'persuasive
authority', in a way not unlike that of the ILO's non-binding
Recommendations, adopted precisely to provide member States with
guidance on establishing and interpreting appropriate regulatory
levels. The latter may serve as helpful lines of equilibrium upon which
the WTO Dispute Settlement Body may draw, instead of attempting,
in fields outside of its competency, to determine what state regulatory
action is 'necessary' to achieve those regulatory objectives.

V. TOWARD A TEXTURED APPROACH TO WTO TREATY

INTERPRETATION TO ENCOMPASS FUNDAMENTAL
PRINCIPLES AND RIGHTS AT WORK, OR THE IMPORTANCE
OF THE EQUILIBRIUM LINE ANALYSIS TO THE AFFIRMATION
OF INTERNATIONALLY ESTABLISHED BALANCES
The equilibrium line approach to internationally struck balances has
implications for several of the WTO Agreements that resulted from
388 Saskatchewan Law Review 2002 Vol. 65

the Uruguay Round of multilateral trade negotiations.86 However,

this section focuses exclusively on the Article XX exceptions to the
GATT 1994.87 It attempts to flesh out the contours of the equilibrium
line analysis, and explain why it offers a distinct and more desirable
alternative to a standard, domestic law balancing test.
The equilibrium line analysis is drawn from the Shrimp Turtle
Appellate Body Report, in which Article XX is interpreted to recognize
that the WTO Treaty is not uniquely and single-mindedly concerned

2002 CanLIIDocs 599

with trade liberalization. Rather, it provides room to consider that
balances between competing rights and obligations are inherent to
the WTO system, and require, in the words of Judge Rosalyn Higgins,
that "policy factors are dealt with systematically and openly"88 during
decision making. This approach is particularly apposite in WTO
dispute resolution in relation to linkage areas, where government
policy making in a range of `non-(core) trade' areas is brought under
the direct scrutiny of the WTO for its consistency with one, particularly
powerful, international treaty. Nothing less than attention to the
broader policy context would seem fitting.
In the Shrimp Turtle Report, the Appellate Body interpreted Article
XX in a manner that acknowledges the competing rights contained
in the WTO Treaty. The Appellate Body drew upon its equilibrium
line analysis to set the appropriate parameters for a balance; in the
process, it articulated an intellectually rigorous, case-by-case
approach to interpretation through which matters like policy could
be appropriately analyzed.89
Article XX is clearly an exceptions clause, as its textual title
indicates. However, the Shrimp Turtle Appellate Body Report challenges
the assumption that Article XX need necessarily be construed narrowly
because it is an exception. The ordinary meaning of its rather forceful
preambular language would certainly lend itself to this perception:
86 Key examples would be the interpretation of such provisions as Articles 7, 8, 27
and 30 of the Agreement on Trade-Related Aspects of Intellectual Property Rights,
Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization,
supra note 10, vol. 31, 25427, 33 I.L.M. 1197, online: World Trade Organization
<http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm> (date accessed: 15
June 2002) and Articles 2, 3 and 5 of the Agreement on the Application of Sanitary
and Phytosanitary Measures, Annex lA to the Marrakesh Agreement Establishing the
World Trade Organization, supra note 10, vol. 27, 21895, online: World Trade
Organization <http://www.wto.org/english/tratop_e/sps_e/spsagr_e.htm> (date
accessed: 15 June 2002).
87 The GATT 1994, supra note 31, is based on the text of the original GATT (1947),
supra note 15, as subsequently amended. For a discussion of Article III of the GATT
1994, see Blackett, "Defining the Contemporary Role of the State", supra note 11.
88 Judge R. Higgins, Problems & Process: International Law and How We Use It (Oxford:
Clarendon Press, 1994) at 5.
89 For a more detailed articulation of this approach, see Blackett, "Whither Social
Clause", supra note 4 at 66ff.
 Mapping the Equilibrium Line 389

"nothing in this Agreement shall be construed to prevent the adoption

or enforcement by any contracting party of measures"90 justified under
its terms. The Appellate Body recognized that the Vienna Convention
does not mandate a narrow interpretive approach. Instead, the
Appellate Body recognized that, on the one hand, an unduly narrow
construction would seriously circumscribe individual nations' capacity
to set policy, whereas on the other hand, an excessively broad reading
could undermine the legitimacy of the treaty. However, it also seemed
to recognize that from a policy perspective, the components of Article

2002 CanLIIDocs 599

XX already contain the safeguards necessary to ensure that it does
not become a floodgate.91 As such, the Appellate Body members
embarked upon an intellectually rigorous interpretation of the text,
in keeping with basic principles of public international law. The
Shrimp Turtle approach is therefore textured, and reflects a stated
willingness to grapple with each case that comes before it, and in the
process engages in a delicate search for balance. The Appellate Body
refers to this search as an attempt at "locating and marking out a line
of equilibrium".92
In the Shrimp Turtle Report, the Appellate Body considered the
chapeau of Article XX in relation to each of the specific exceptions in
paragraphs (a) and (j), drawing on its two-step analysis articulated
initially in the Conventional Gasoline Report.93 The Appellate Body
considered each exception in Article XX to be limited and conditional.94
However, in its application of the two-step test articulated in Conventional
Gasoline, the Shrimp Turtle Appellate Body Report considered that the
actual contours and contents of the standards established in the
chapeau of Article XX would vary, depending on the kind of measure
under examination.95
The equilibrium line is situated between the right of a Member to
invoke an exception under Article XX, and the rights of other
Members that exist under the other provisions of the GATT 1994.96
The equilibrium line is needed to ensure that neither right is cancelled
out. In other words, the equilibrium line is meant to reflect the fact
that Members to the agreement were themselves engaged in a process
of identifying a balance when they negotiated the WTO Agreements.
The dispute resolution bodies therefore have a responsibility not only
to promote liberal trade but also to ensure that liberal trade does not
prevent member States who choose to exercise the rights contained
90 GATT 1994, supra note 31.
91 See R. Howse, "The Turtles Panel—Another Environmental Disaster in Geneva"
(1998) 32 J. World Trade 73 at 85.
92 See Shrimp Turtle, supra note 43 at para. 159.
93 Supra note 42 at 611.
94 Shrimp Turtle, supra note 43 at para. 156.
95 Ibid. at para. 120.
96 Ibid. at para. 159.
390 Saskatchewan Law Review 2002 Vol. 65

in Article XX from doing so in a manner that is consistent with the

strictures of Article XX. For the dispute resolution body, not only can
substantive rights be nullified or impaired but also an equilibrium
line is needed to ensure that "neither of the competing rights will
cancel out the other and thereby distort and nullify or impair the
balance of rights and obligations constructed by the Members
themselves in that Agreement."97
The Appellate Body's case-by-case focus illustrates the assertion
that the line of equilibrium "moves as the kind and the shape of the

2002 CanLIIDocs 599

measures at stake vary and as the facts making up specific cases
differ".98 In the specific context of the Shrimp Turtle Report, the
equilibrium line analysis was drawn upon to reflect how parties to a
subsequently negotiated treaty, the Inter-American Convention for the
Protection and Conservation of Sea Turtles,99 reconciled the use of Turtle
Excluder Devices with their WTO treaty obligations.100 The equilibrium
line was found to be located outside of the WTO Agreements, in the
established, consensual, multilateral procedures to conserve sea
turtles that were coupled with a reaffirmation of the obligations of the
parties to the Inter-American Convention under the WTO Agreement.
In relation to Shrimp Turtle, therefore, I consider the Appellate
Body's assertion in the recent Asbestos Report that "WTO Members
have the right to determine the level of protection of health that they
consider appropriate in a given situation"101 to be welcome, but
ultimately somewhat misleading. The Asbestos Appellate Body Report
still reflects a framework in which the WTO must itself determine
whether the chosen level of protection (in this case, a ban on imports)
is necessary in light of the "well-known, and life-threatening, health
risks posed by asbestos fibres".102 A WTO Member choosing to do less
to protect the health of its population would certainly not run afoul
of WTO principles. A Member choosing to do more than is deemed
necessary within the framework of Article XX(b) on a relevant policy
issue would see that chosen level of protection challenged, despite
what seemed to be a rather deferential approach from the Appellate
Body.103 Nevertheless, to arrive at its determination, the WTO
97 lbid.
98 Ibid.
99 1 December 1996, online: Inter-American Convention for the Protection and
Conservation of Sea Turtles Homepage <http://www.seaturtle.org/iac/english.pdf>
(date accessed: 25 June 2002) (entered into force 2 May 2001).
100 See Shrimp Turtle, supra note 43 at para. 170.
101 Supra note 56 at para. 168.
102 Ibid. at para. 172.
103 In this case, it was considered legitimate to do as much as possible, given that on
the facts, the "objective pursued by the measure is the preservation of human life
and health through the elimination, or reduction, of the well-known, and life-
threatening, health risks posed by asbestos fibres. The value pursued is both vital
and important in the highest degree": ibid.
 Mapping the Equilibrium Line 391

Appellate Body is still required to determine on the basis of what

information it would use to arrive at that determination. This calls
into question the importance of international indicia.
What the Appellate Body in the Asbestos Report did not do dearly,
therefore, was to articulate the role that international authorities
played in its acceptance of the level of protection and of the need for
individual action.104 The Asbestos Report provides a clear-cut factual
context that may have empowered the Appellate Body to draw bright
lines for future Article XX interpretation.105 In other words, although

2002 CanLIIDocs 599

banning a lethal cancer-causing agent may have been as straight-
forward a case as it could hope to find, the Appellate Body will
increasingly need to be able to draw upon authoritative sources to
root its decisions in governmental policy when harder, essentially
re-distributional, balances need to be struck. This is the case even
though international material was available and on record from the
Asbestos Panel Report.106 The line between scientific data and the
authority of international sources (including international instruments)
was certainly somewhat blurred. How to weave in the different
sources107 to determine whether France's measures met the necessity
standard should have been addressed directly by the Appellate Body
in its attempt to clarify the proper interpretative approach to Article
XX. In this sense, the Shrimp Turtle Appellate Body's attempt to
identify a principled balancing approach, through the lines of
equilibrium that draw upon externally crafted international norms,
holds the potential to become invaluable. It holds the ability to
preserve for the WTO a way to engage in meaningful decision making
about difficult policy choices, without seeking to do too much by
deciding it all.
Consequently, although the Asbestos decision has been applauded
in part because the Appellate Body came to the welcomed decision
that a member State could undertake to ban the import products
104 The Appellate Body cited the Panel's condusions in relation to the evidence,
including information from the WHO and an International Agency for Research
on Cancer, to the effect that "the carcinogenicity of chrysotile fibres has been
acknowledged for some time by international bodies" in its Article III analysis:
ibid. at para. 114.
105 Indeed, the analysis under Article XX at the Appellate Body level was not strictly
necessary, since no breach of Artide III was established: ibid. at para. 148.
106 European Communities—Measures Affecting Asbestos and Asbestos-Containing
Products (Complaint by Canada) (2000), WTO Doc. WT/DS135/R at paras. 8.191,
8.205, 8.210, 8.220 (Panel Report).
107 In particular, the Panel rejected Canada's suggestion that the ISO 7337 controlled-
use standard should be considered illustrative of the fact that a ban is not necessary,
and accepted that the World Health Organization (WHO) Convention establishes
a lower level of protection than that established by France. It accepted, however,
that the ILO's Convention No. 162 suggests that, as far as possible, asbestos should
be replaced by less hazardous materials: ibid. at para. 8.210.
392 Saskatchewan Law Review 2002 Vol. 65

made with an internationally recognized carcinogenic substance

(indeed, the contrary decision would have seemed unimaginable), it
left wide room for the WTO to be the ultimate arbiter of acceptable
domestic policy concerns. In contrast, the Shrimp Turtle Appellate
Body Report was of some concern to environmentalists because of its
conclusions.i08 I argue, however, that it ultimately contains the seeds
of a more promising interpretive approach, one which would give
greater prominence to—and impetus for—the development of
externally crafted equilibrium lines.

2002 CanLIIDocs 599

VI. CONCLUSION
In this paper I have argued that international human rights law is not
only relevant to the WTO decision-making process; it is crucial.
Although jus cogens norms must have a particular place in the landscape
of WTO decision making, the interpretive call of Article 31 of the
Vienna Convention foresees a more robust role for the broader range of
relevant international rules. I have argued that this includes not only
customary international law but also the range of balances that have
been struck by the international community, in fora where the
issue-areas (like labour) are most appropriately addressed. WTO
decision makers may find it tempting in 'easy' cases to act without
the guidance that international human rights (and other public
international law) texts provide. However, the rigour and longer-term
legitimacy of relying upon internationally struck balances should not
be overlooked in those contexts. Indeed, it is by considering—with
appropriately weighted attention—the broader range of international
law principles that the WTO's Dispute Settlement Body can give
meaning to the principles contained in its particularly expansive
treaty in a way that is sensitive to the balances that must be struck
with the many other, often equally or more important rights,
obligations, and indeed values, that are also a part of the international
law landscape. It is by considering, reconciling, reflecting, and where
appropriate, enforcing the internationally articulated balances in
other international fora that the WTO can provide a valuable—and
needed—contribution to international law. In the process, it helps to
preserve the integrity of WTO decision making, while engaging the
WTO in the broader project of creating a more textured international
law architecture.

108 The recent WTO Shrimp Turtle Article 21.5 Compliance Report, supra note 12, has
allayed some of those concerns, I would argue, while reinforcing the role that the
WTO DSB can play in ensuring policy concerns that individual member States
seek to promote are negotiated in a way that accounts for the legitimate interests
of trading partners, and are accompanied by suitable re-distributive mechanisms
(e.g., technology transfer, as in the case with the Turtle Excluder Devices).