aspects.30 In these circumstances, deciding which norm was created later in time is fraught with difficulty, making lex posterior an interpretive principle of lessened value. This is only problematic with respect to clearly conflicting norms, however, because another rule of interpretation urges that rules be constructed as consistent with each other whenever possible.
One final Vienna Convention rule may be relevant to resolve conflict. Even though an established custom can overcome an earlier conflicting treaty provision, or vice versa, the earlier provision still may prevail if it qualifies as lex specialis, a specific rule on the subject as compared with a more general norm.31 As compared with general principles of international law, the detailed and arcane rules of the GATT/WTO may in particular circumstances qualify as lex specialis, although that fact certainly makes no case for the proposition that the WTO is a self-contained system outside the general corpus of public international law.
(C) Beyond Textual Interpretation?
At the other extreme from using non-WTO law to aid textual interpretation, a WTO dispute settlement panel has no jurisdiction to entertain a claim that arises from a human rights treaty or norm, such as an EU complaint against U.S. treatment of terrorist suspects whose gravamen is the Convention on Torture.32 The difficult remaining question is whether a panel may use the Convention Against Torture and other human rights norms only to interpret WTO provisions—for example, the Public Morals Clause of GATT’s General Exceptions—or whether a country, say France, successfully could plead the Convention Against Torture as a defense, for example, to an import ban on U.S. beef. If, in applying the Vienna Convention rules for determining the hierarchy of international legal norms, the human rights law occupies the higher plane, the answer should be in the affirmative.
For the human rights addressed in this volume that intersect with trade’s legal regime and trump trade law, however, the question may be unnecessary. In these cases, the breadth of the human rights policies addressed in the General Exceptions of both the GATT and the GATS, as well as in other provisions of WTO Agreements that are in the nature of exceptions,33 human rights law is the natural and often only other international law relevant to interpretation of the noneconomic policy at issue. This fact will stand out repeatedly as this volume interrogates the intersections of human rights and trade law.
One example may be instructive. If France justifies its violation of GATT’s MFN Clause based on the necessity to protect “public morals” under Article XX(a) of the GATT, a WTO dispute settlement panel should take notice of the jus cogens status of torture in deciding whether public morality is involved. U.S.-Gambling is a case involving the meaning of the Public Morals Clause in the WTO’s GATS34 where the United States had banned cross-border supply of gambling services. The WTC accepted the initial panel’s definition of public morals as referring to “standards of right and wrong conduct maintained by or on behalf of a community or nation.” The panel recognized that “Members should be given some scope to define and apply for themselves the concepts of ‘public morals’ and ‘public order’ in their respective territories.” The panel acknowledged that Members would find interpretation of the terms to be a sensitive undertaking and that the concepts will “vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values.”
Nonetheless, in deciding whether U.S. limitations on gambling fell within the range of policies protected by the Public Morals Clause, the panel turned to other international law, including treaties and the common practice of other states.35 The panel implicitly recognized that resorting solely to the particular customs and cultures of one of the WTO’s diverse 150-plus Members might create an unfettered exception to GATT’s Four Pillars. The panel’s search for other international rights benchmarks to corral the broad Public Morals Clause opens the dispute panel door to human rights norms to interpret a standard that inherently sounds in the rights of the individual.36
(D) Does GATT Article XX Require a Trade Nexus?
An additional question is whether the WTO panel’s response will depend on whether the targeted practice (routine torture of prisoners) must affect trade between the Members to justify a restrictive border measure (the ban on beef imports).37 In most cases, banning beef imports from Country A bears a relatively distant relationship to Country A’s treatment of its prisoners. The trade nexus is weaker, for example, than a ban on radios made with prison labor, a border measure expressly permitted by GATT Article XX(e). On one level, the nexus issue implicates Article XX(a)’s “Necessity Test,” discussed in sections 2.4 and 6.5(B) and (C). From this perspective, the nexus/necessity question is how effective the beef ban must be in preventing torture by Country A’s leaders: the WTC has found that the measure of effectiveness depends on the importance of the value that the trade measure seeks to achieve. If the value is important, the border measure need only make a contribution to achieving its end; if low in priority, its effectiveness must be closer to indispensable in preventing the targeted action.38
If the ban was imposed by Country A’s principal importer of beef, the restriction might well meet even the strictest end of this continuum. If the measure seeks to prevent a jus cogens human rights violation (torture), its burden in meeting the Necessity Test should be no greater than a ban aimed at protecting against human deaths from cancer (EC-Asbestos).39
The trade nexus question also invokes the “Relationship Test,” which substitutes for the Necessity Test in the GATT Article XX exceptions for products of prison labor (Paragraph (e)) and for exhaustible natural resources (Paragraph (g)). Again, the test of how close the measure’s nexus/relationship to trade must be should respond to the importance of the measure’s ends in a common system of values. As when one views the nexus to trade through the lens of the Necessity Test, pursuit of human rights compliance favors a less demanding standard in a relationship/nexus context than an attempt to achieve solely economic objectives. In the absence of an explicit “Trade Nexus Test” in Article XX and given the importance of human rights in a common system of values, human rights policies should fare well in the balance with GATT’s Four Pillars. It ought not to matter whether a panel examines the trade nexus of a border measure undertaken for human rights purposes through the lens of the Necessity or Relationship tests.
Regional FTAs involving the United States consistently include an explicit Trade Nexus Test to introduce a human rights defense. The side agreements to the NAFTA on environment and labor rights require allegation that the violation is “trade-related” (environment) or involves sectors that produce goods or services “traded between the territories of the Parties.” Explicit Trade Nexus tests for worker rights and environmental protection in U.S. FTAs continue today.40 Despite differences in structure, the absence of an explicit Trade Nexus Test in GATT Article XX’s exceptions for environmental, labor, and other human rights measures may be one factor in arguing that no trade nexus dimension exists beyond those included in the Necessity and Relationship tests.41
(E) Preventing Conflict
In light of the complexity of finding a proper hierarchy among sources of international law, we may ask what positive steps states have taken in advance to avoid these conflicts. The surest way, of course, to avoid conflict, whether between provisions in a contract or norms in a treaty that are likely to intersect is to anticipate the situations that could cause conflict and describe in the contract (or legislation or treaty) which in fact will take priority.
To a limited extent, the GATT began that process in 1947 with Article XX, which provides that certain human rights objectives—those involving public health and welfare—can be accorded precedence by states over global trade rules if the state meets certain conditions. GATT’s drafters did not explicitly mention “human rights,” but several provisions of Article XX sound in human rights subjects, from guarding public morals, to protecting public health, to banning products of prison labor, to conserving exhaustible natural resources. States may under certain circumstances restrict importation of goods if the state acts on the basis of one of these listed purposes.
