Riffel, Christian --- "Human rights protection in the Asia-Pacific: What will be the role of the TPP?" [2016] OtaLawRw 9; (2016) 14 Otago LR 339

Last Updated: 13 January 2018

Human Rights Protection in the Asia-Pacific: What will

^{be the Role of the TPP?}

Christian Riffel^*

The Trans–Pacific Partnership (TPP) may be conducive to the further development of human rights law in the Asia–Pacific. The legal text gives the same latitude that the European Court of Justice (ECJ) used to read common human rights standards into European primary law. It is questionable, however, whether a TPP panel would follow suit. The present paper illustrates possible interpretive vectors in the TPP for the consideration and protection of human rights.

I Introduction

When Gillian Triggs, the President of the Australian Human Rights Commission, visited New Zealand this year, she lamented, among other things, the lack of a regional mechanism for the protection of human rights as it exists in other parts of the world.¹ Europe has the European Convention on Human Rights, America has the American Convention on Human Rights, Africa has the African Charter on Human and Peoples’ Rights, and the Asia-Pacific has ... the TPP, a trade and investment agreement. Can the TPP fill that gap?

It is disputed whether the TPP will be conducive or detrimental to the human rights situation in TPP countries.² In New Zealand several claims against the TPP were brought before the Waitangi Tribunal, also on human rights grounds.³ In particular, the extension of terms of protection of intellectual property rights is hugely controversial.⁴

Access to affordable medicine is a frequently cited example.⁵ Because the jurisdiction of the Waitangi Tribunal is limited, the Tribunal concentrated

^* Senior Lecturer in Law at the University of Canterbury, New Zealand.

^{Email: [e-mail]. A previous version of this paper}

^{was presented at the Environment, Trade & Investment Symposium at}

^{the University of Otago on 21 April 2016.}

^{1 Gillian Triggs, President of the Australian Human Rights Commission}

^{“Human Rights Across the Tasman: A Widening Gulf” (Hotung Lecture}

^{2016, University of Canterbury, Christchurch, 6 April 2016). This lecture}

^{is available at: <www.humanrights.gov.au/news/speeches/hotung-}

^{fellowship-public-lecture-2016>.}

^{2 Sanya Reid Smith Potential Human Rights Impacts of the TPP (Third World}

^{Network, 2015).}

^{3 Waitangi Tribunal The Trans-Pacific Partnership Agreement Report: Pre–}

^{publication Version (Wai 2522, 2016) at 66.}

^{4 James Ting–Edwards and others “TPPA: Intellectual Property and}

^{Information Technology” (New Zealand Expert Paper Series, 2016).}

^{5 In the case of New Zealand, the term of protection for patents does not}

^{need to be increased as a result of the TPP, but copyright protection}

^{goes up from 50 to 70 years after the author ’s death. See Trans-Pacific}

^{Partnership Agreement Amendment Bill 2016 (133-3). The Bills Digest is}

^{available at: <www.parliament.nz/en/pb/bills-and-laws/bills-digests>.}

in its report on the issue of whether the TPP would prevent the New Zealand government from fulfilling its obligations under the Treaty of Waitangi, and found that the exception clause in art 29.6 of the TPP gives the government sufficient policy space to meet its obligations.⁶

When the European Union started off, it was primarily about market integration,⁷ but this did not stop the ECJ from reading human rights into European primary law. Thus, the European Union developed from economic integration into “an area of freedom, security and justice with respect for fundamental rights” as stated in art 67(1) of the Treaty on the Functioning of the European Union (TFEU). This begs the question of whether the TPP has the same potential, as had the European Treaties, to further regional human rights.

II Extra–jurisdictional protection of labour rights

As a preliminary point, it should be noted that the TPP will be subject to peremptory norms of general international law within the meaning of arts 53 and 64 of the Vienna Convention on the Law of Treaties (Vienna Convention). The International Court of Justice sees “basic rights of the human person” as falling under that category,⁸ even though the exact body of rights encompassed remains disputed.⁹ In case of conflict, they would trump the TPP.

Furthermore, the TPP obligates the Parties to enforce labour standards.¹⁰

^{Labour standards can be viewed as human rights for workers in the}

^{broadest sense, as is evidenced by the many human rights instruments}

^{referencing them.11 The obligation in art 19.3 of the TPP to implement}

^{labour standards into national law entails the jurisdiction of a TPP panel}

^{to construe them.12 In line with the international law presumption against}

^{conflicts,13 a TPP panel would seek information from the International}

^{Labour Organization (ILO) as to the understanding of those standards}

^{according to art 28.15 of the TPP with a view to avoiding divergent}

^{interpretations. As far as the right to acceptable conditions of work is}

⁶ The Trans–Pacific Partnership Agreement Report, above n 3, at 43 and 52.

^{7 Trans-Pacific Partnership Agreement (signed 4 February 2016, not yet in}

^{force), preamble.}

^{8 Barcelona Traction, Light and Power Company, Ltd (Belgium v Spain) (Second}

^{Phase) [1970] ICJ Rep 3 at 32. See also Saskia Hörmann “WTO und}

^{Menschenrechte” in Meinhard Hilf and Stefan Oeter (eds) WTO–Recht}

^{(2nd ed, Nomos, Baden–Baden, 2010) (translation: WTO Law) at 601.}

^{9 See Olivier De Schutter International Human Rights Law: Cases, Materials,}

^{Commentary (2nd ed, Cambridge University Press, Cambridge, 2014) at}

^87–88.

^{10 TPP, above n 7, art 19.3.}

^{11 See, eg, Universal Declaration of Human Rights, art 23. See also}

^{Michael Trebilcock, Robert Howse and Antonia Eliason The Regulation of}

^{International Trade (4th ed, Routledge, London, 2013) at 722.}

^{12 TPP, above n 7, art 28.3.1.}

^{13 United States – Section 110(5) of the US Copyright Act WT/DS160/R, 27}

^{July 2000 (Report of the Panel) at [6.66].}

concerned, however, footnote 5 to art 19.3.2 of the TPP clarifies that each party determines itself what it considers to be “acceptable” in its jurisdiction, thus ruling out any recourse to pertinent ILO instruments. As a corollary, it is clear that an obligation in national law to pay the minimum wage does not infringe the TPP Agreement.¹⁴

This obligation in art 19.3 of the TPP to observe core labour standards has relevance to other chapters in the TPP, too, as these belong to one overall agreement and are therefore to be read together. For instance, it has a bearing on the non-discrimination principle: if, under art III of the General Agreement on Tariffs and Trade (GATT) as incorporated into the TPP by virtue of art 2.3.1 thereof, a product is to be considered as “like” another product produced under conditions violating core labour standards will depend on, inter alia, whether this process and production method is a relevant purchasing factor for consumers.¹⁵ Furthermore, to condition market access on compliance with core labour standards under the TPP is more likely to pass muster in light of the fact that the TPP itself contains such a commitment. Trebilcock, Howse and Eliason submit that such a condition is not per se “less favourable” in any event.¹⁶

The jurisdiction of a TPP panel is delineated by its terms of reference in art 28.8.1 of the TPP, and consequently confined.¹⁷ Hence, a panel would only assess the conformity of government measures with the TPP itself. Because the TPP does not explicitly incorporate any human rights convention, the legality of the measures would not be reviewed in light of human rights. By the same token, human rights other than labour rights could not eo ipso be enforced through the TPP, only in conjunction with a TPP norm and in a cross–border situation.

III Human rights as limitations

The ECJ deduced human rights standards from national constitutional traditions common to European states.¹⁸ However, to come to this conclusion, the ECJ only rarely conducted a comparison of laws.¹⁹

^{Instead, the ECJ drew inspiration from human rights conventions, such}

¹⁴ For EU law, see Case C-60/03 Wolff & Müller v José Filipe Pereira Félix

^{[2004] ECR I-9553.}

^{15 Trebilcock, Howse and Eliason, above n 11, at 732; Peter Van den Bossche}

^{and Denise Prévost Essentials of WTO Law (Cambridge University Press,}

^{Cambridge, 2016) at 20.}

^{16 Trebilcock, Howse and Eliason, above n 11, at 732.}

^{17 See Brazil – Measures Affecting Desiccated Coconut WT/DS22/AB/R, 20}

^{March 1997 (Report of the Appellate Body) at 22.}

^{18 Case 11/70 Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle für}

^{Getreide und Futtermittel [1970] EUECJ R-11/70; [1970] ECR 1125 at [4].}

^{19 Damian Chalmers, Gareth Davies and Giorgio Monti European Union}

^{Law: Text and Materials (3rd ed, Cambridge University Press, Cambridge,}

^{2014) at 266; John Morijn “Balancing Fundamental Rights and Common}

^{Market Freedoms in Union Law: Schmidberger and Omega in the Light}

^{of the European Constitution” (2006) 12(1) European Law Journal 15 at}

^18.

as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), to buttress a pan–European human rights model.

In light of the diversity of the TPP signatories, it would be an overstretch to claim the existence of common constitutional traditions amongst them. Unlike the EU Treaties,²⁰ the TPP does not contain an express reference to “human rights”. Of all 12 TPP signatories, Brunei Darussalam, Malaysia and Singapore have not ratified either of the two covenants.²¹ The United States has signed but not ratified the ICESCR. So the problem will be to distil fundamental rights, to use EU jargon, that are common to all TPP signatories. The only common foundation left is the Universal Declaration of Human Rights (UDHR).

A Article 31(3)(c) of the Vienna Convention

The legal nature of the UDHR is contested; customary international law, general principles of law or soft law come all into consideration.²²

According to Boyle, this does not matter: the UDHR is to be taken into account by virtue of art 31(3)(c) of the Vienna Convention regardless of its legal nature.²³ As a side note, the issue as to whether “the parties” refers to all the parties to the treaty or only the disputing parties is immaterial here,²⁴ as the Universal Declaration, as the title suggests, is truly universal. The WTO Appellate Body is stricter on that point and excludes soft law from the remit of art 31(3)(c) of the Vienna Convention:²⁵

... the reference to “rules of international law” corresponds to the sources of international law in Article 38(1) of the Statute of the International Court of Justice and thus includes customary rules of international law as well as general principles of law.

If art 31(3)(c) of the Vienna Convention was ruled out, the UDHR could still inform the ordinary meaning of particular TPP terms in accordance with art 31(1) of the Vienna Convention in conjunction with

²⁰ See, eg, Treaty on European Union, art 2.

^{21 Office of the High Commissioner “Status of Ratification Interactive}

^{Dashboard” United Nations Human Rights <http://indicators.ohchr.}

^org>.

^{22 Hilary Charlesworth “Universal Declaration of Human Rights (1948)” in}

^{Rüdiger Wolfrum and Frauke Lachenmann (eds) Max Planck Encyclopedia}

^{of Public International Law (Oxford University Press, Oxford, 2008) at}

^[13]–[16].

^{23 Alan Boyle “Soft Law in International Law-Making” in Malcolm D Evans}

^{International Law (4th ed, Oxford University Press, Oxford, 2014) 118 at}

^{128. For this issue in general, see Richard K Gardiner Treaty Interpretation}

^{(2nd ed, Oxford University Press, Oxford, 2015) at 307–310.}

^{24 For this issue, see Christian Riffel “Biotech Case” in Rüdiger Wolfrum and}

^{Frauke Lachenmann (eds) Max Planck Encyclopedia of Public International}

^{Law (Oxford University Press, Oxford, 2015) at [5].}

^{25 United States – Definitive Anti-Dumping and Countervailing Duties on Certain}

^{Products from China WT/DS379/AB/R, 25 March 2011 (Report of the}

^{Appellate Body) at [308].}

the first sentence of art 28.12.3 of the TPP.²⁶ The difference is that the consideration of the UDHR under art 31(3) of the Vienna Convention would be mandatory (“shall”), whereas the consideration under the heading “ordinary meaning” would be at the discretion of the panel.²⁷

A TPP panel would follow the Appellate Body here and take account of soft law solely in the context of an ordinary meaning analysis. This would be the case notwithstanding that the second sentence of art 28.12.3 of the TPP stipulates that outcome only with respect to incorporated WTO provisions:

With respect to any provision of the WTO Agreement that has been incorporated into this Agreement, the panel shall also consider relevant interpretations in reports of panels and the WTO Appellate Body adopted by the WTO Dispute Settlement Body.

Still, art 3.2.2 of the Dispute Settlement Understanding makes arts 31 and 32 of the Vienna Convention part of the WTO acquis, and is, on this account, material. Even without that explicit reference in art 28.12.3 of the TPP, WTO case law would be relevant in a comparative law approach, given that the TPP builds upon the WTO.²⁸ It bears noting that art 28.12.3 of the TPP obliges TPP panels to “consider relevant interpretations”, not to adhere to Appellate Body reports implicitly.

B Ordinary meaning under art 31(1) of the Vienna Convention

1 Protection of public morals

What comes to mind when searching for a linkage to human rights in the legal text of the TPP is the “public morals” exception in art XX(a) of the GATT and art XIV(a) of the General Agreement on Trade in Services (GATS): “nothing in this Agreement shall be construed to prevent the adoption or enforcement ... of measures: (a) necessary to protect public morals”. Article 29.1 of the TPP incorporates the general exceptions from the WTO Agreement, art XX of the GATT and art XIV of the GATS, into the TPP. Broadly speaking, exception clauses are structured as follows: firstly, they require a legitimate policy objective to be pursued by the measure at issue; secondly, the measure at issue must not be disproportionate in relation to that objective.²⁹ As regards proportionality, different degrees

²⁶ European Communities – Measures Affecting the Approval and Marketing of Biotech Products WT/DS291/R, WT/DS292/R, WT/DS293/R, Corr.1 and Add.1, 2, 3, 4, 5, 6, 7, 8 and 9, 21 November 2006 (Reports of the Panel) at [7.92].

^{27 At [7.69].}

^{28 TPP, above n 7, at preamble, recital 3: “BUILD on their respective rights}

^{and obligations under the Marrakesh Agreement Establishing the World Trade}

^{Organization”.}

^{29 It is disputed if this includes proportionality stricto sensu. In the negative,}

^{Trebilcock, Howse and Eliason, above n 11, at 682–683.}

exist (“necessary”, “related to”).³⁰

In WTO law, the term “public morals” is understood as referring to “standards of right and wrong conduct maintained by or on behalf of a community or nation”.³¹ It follows that the WTO adjudicatory bodies, mindful that policy–making entails political compromises, give states a considerable margin of appreciation to define public morals in their legal system. This degree of deference is welcome, as values differ, even within a society. Just think of bans on commercial surrogacy or regulations on Sunday opening hours of shops. What is accepted in one country may be found egregious in another. Foisting the value judgments of one state on another would perforce lead to tensions. Yet, a respondent would still need to establish the existence of such standards in its territory, as it bears the burden of proof in this respect.³² The more internationalised particular morals are, the easier it is for the respondent to prove the genuineness of its defence.³³

The concept of “public morals” is, by definition, evolutionary.³⁴

^{Nowadays, it seems settled that the “public morals” exception embraces}

^{human rights.35 One rationale for this is given by Chalmers, Davies and}

^{Monti: so “that economic freedoms do not compromise political values}

^{which are central to protecting human dignity, autonomy and equality”.36}

^{On this basis, both national and international human rights standards}

^{shape “public morals”, with the UDHR being the internationally}

^{recognised minimum standard.}

Note that extraterritoriality would not be an issue here. The panel

³⁰ See Ernst–Ulrich Petersmann “The Promise of Linking Trade and Human Rights” in Daniel Drache and Lesley A Jacobs (eds) Linking Global Trade and Human Rights: New Policy Space in Hard Economic Times (Cambridge University Press, Cambridge, 2014) 46 at 55–56.

³¹ United States – Measures Affecting the Cross Border Supply of Gambling and Betting Services WT/DS285/R, 20 April 2005 (Report of the Panel) at [6.465].

³² United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India WT/DS33/AB/R, 23 May 1997 (Report of the Appellate Body) at 14.

³³ See Alan Boyle and Christine Chinkin The Making of International Law (Oxford University Press, Oxford, 2007) at 246; Holger Hestermeyer Human Rights and the WTO: The Case of Patents and Access to Medicines (Oxford University Press, Oxford, 2007) at 222.

³⁴ US – Gambling, above n 31, at [6.461]. For evolutionary treaty interpretation, see United States – Import Prohibition of Certain Shrimp and Shrimp Products WT/DS58/AB/R, 6 November 1998 (Report of the Appellate Body) at [130]. See also Rorbert Kolb The Law of Treaties: An Introduction (Edward Elgar, Cheltenham, 2016) at 158–159.

³⁵ Trebilcock, Howse and Eliason, above n 11, at 733; James Harrison The Human Rights Impact of the World Trade Organisation (10th ed, Hart Publishing, Oxford, 2007) at 211–212.

^{36 Chalmers, Davies and Monti, above n 19, at 896.}

in EC – Tariff Preferences stated with respect to art XX(b) of the GATT:³⁷

... the policy reflected in the Drug Arrangements is not one designed for the purpose of protecting human life or health in the European Communities [the respondent] and, therefore, the Drug Arrangements are not a measure for the purpose of protecting human life or health under Article XX(b) of GATT 1994.

Correspondingly, art XX of the GATT could not be invoked to justify an inconsistent measure designed to protect human rights abroad. This resonates with the classic tenet of sovereignty according to which a state’s responsibility ends at the border.³⁸ In the present constellation, the respondent seeks to protect public morals in its own territory. That it would at the same time protect human rights in another country is immaterial. If the respondent banned the importation of products of child labour, it would primarily protect its own public morals, but also, as a side effect, target child labour overseas.

Unlike intellectual property, it is difficult to think of human rights in terms of levels of protection, as often the right of one person is pitted against the right of another person. The right to life in an abortion constellation or the conflict between freedom of the press and the right to privacy are cases in point.³⁹ From this vantage point, human rights are equivalent to a decision between interests and/or values. The European Court of Human Rights noted in this regard that “[i]t is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a ‘democratic society’”.⁴⁰ Two examples from European law illustrates this, viz Eugen Schmidberger, Internationale Transporte und Planzüge v Republic of Austria (Schmidberger) and Omega Spielhallen– und Automatenaufstellungs–GmbH v Oberbürgermeisterin der Bundesstadt Bonn (Omega).

In Schmidberger, demonstrators blocked motorways leading into the country from abroad as a protest against air pollution caused by freight traffic.⁴¹ Importantly, the state did not support the blockade in any way but merely abstained from taking action against it. So the actions of the private citizens could not be attributed to the respondent according to arts 4 ff of the Articles on State Responsibility. The state defended itself by arguing, among other things, that any intervention would have worsened the situation and led to outbreaks of violence.

If the case had played out before a TPP panel, let us assume that demonstrators block the Pan–American Highway coming from Peru

³⁷ European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries WT/DS246/R, 20 April 2004 (Report of the Panel) at [7.210].

^{38 International Commission on Intervention and State Sovereignty The}

^{Responsibility to Protect (December 2001) at [2.8] and [2.15].}

^{39 Chalmers, Davies and Monti, above n 19, at 259.}

^{40 Chassagnou v France [1999] ECHR 22; (1999) 29 EHRR 615 (Grand Chamber, ECHR) at [113].}

^{41 Case C–112/00 Eugen Schmidberger, Internationale Transporte und Planzüge}

^{v Republic of Austria [2003] EUECJ C-112/00; [2003] ECR I-5659.}

on the Chilean side, the respondent Chile would have failed to carry out its obligation under art 2.10.1 of the TPP, which prohibits inter alia import restrictions.⁴² This provision includes a duty on the part of Chile to protect imports against the actions of private individuals in its territory, in the present case, a duty to clear the highway. The violation is based on the failure of the state to prevent the conduct in question.⁴³ That such failure entails international responsibility is settled since US Diplomatic and Consular Staff in Tehran.⁴⁴ Apprehension of internal difficulties cannot justify a failure to apply TPP law correctly pursuant to art 27 of the Vienna Convention and arts 3 and 32 of the Articles on State Responsibility.

However, the demonstrators exercised their right of peaceful assembly. In accordance with art 20(1) of the UDHR, “Everyone has the right to freedom of peaceful assembly and association.” Following the above, the respect for that right would fall under the public morals exception clause, a ground of justification not available in the European context.⁴⁵

2 Maintenance of public order

Omega concerned the prohibition of the commercial exploitation of laser games simulating acts of homicide on grounds of human dignity.⁴⁶

Assuming that the provision of such games is a covered service (franchising), the issue is whether a TPP panel should show deference to the national law decision to prohibit laser games and accept it, or subject that decision to scrutiny. This concerns its standard of review.

Bearing in mind that the burden of proof rests with the responding party, a respondent would invoke art 29.1.3 of the TPP in conjunction with art XIV(a) of the GATS (“necessary ... to maintain public order”). Footnote 5 to art XIV(a) of the GATS clarifies: “The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.” Human dignity is at the top of human rights considerations. The UDHR starts by proclaiming that:⁴⁷

... recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

The ECJ in casu showed deference to the national protection of human

⁴² Articles 34–35 TFEU are the equivalent of art XI:1 GATT. See Eric Neumayer “Greening the WTO Agreements: Can the Treaty Establishing the European Community be of Guidance?” (2001) 35(1) Journal of World Trade 145 at 147.

^{43 See James Crawford and Simon Olleson “The Character and Forms of}

^{International Responsibility” in Evans, above n 23, 443 at 456.}

^{44 United States Diplomatic and Consular Staff in Tehran (United States of America}

^{v Iran) (Judgment) [1980] ICJ Rep 3 at 31.}

^{45 Morijn, above n 19, at 38.}

^{46 Case C–36/02 Omega Spielhallen– und Automatenaufstellungs-GmbH v}

^{Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I–9609.}

^{47 TPP, above n 7, at preamble, recital 1.}

dignity. A TPP panel is likely to take the same deferential approach, giving broad discretionary powers to TPP Members. TPP rules allow for cultural diversity. Recital 16 of the preamble to the TPP explicitly acknowledges “the importance of cultural identity and diversity among and within the Parties”. Barring an international definition, this encompasses the notion of human dignity.

3 Constraints

When reading human rights into the public morals/public order exception, these rights ensure the policy space of the respondent. Despite any margins of appreciation, freedoms such as freedom of assembly are subject to certain constraints themselves. One of these constraints is the principle of proportionality as elaborated in the necessity test: the TPP– inconsistent measure must be necessary to achieve the stated goal (here the protection of human rights). As a corollary, if a TPP Member has a choice, it has to choose the less trade–restrictive measure. This does not imply, however, that only preponderant human rights considerations could justify a severe trade restriction. This balancing act is left to the national lawmakers to decide.⁴⁸ Additionally, there is the issue of consistency of the municipal policy, which would be considered under the chapeau, lest human rights be used as disguised protectionism. Consistent policy is regarded as a proxy for genuineness.⁴⁹ The chapeau serves to prevent arbitrariness, thus ensuring a minimum of good governance.⁵⁰

It can be observed that the operation of the necessity test depends upon the context. It is applied more strictly, with heavier evidential burden, in cases concerning sanitary and phytosanitary measures or technical barriers to trade.⁵¹ In that context, the test is more of a procedural nature, requiring a proper risk assessment and decision–making based on scientific evidence.⁵² It bears emphasising that the general exceptions are applicable to the Sanitary and Phytosanitary Measures as well as the Technical Barriers to Trade chapter in the TPP.⁵³ This is different for the WTO Agreement on the Application of Sanitary and Phytosanitary Measures and the WTO Agreement on Technical Barriers to Trade.⁵⁴

^{In cases where moral values are at stake, the more lax approach has}

⁴⁸ See above III.B.1.

^{49 For WTO law, see US – Gambling, above n 31, at [351]. For EU law, see}

^{Chalmers, Davies and Monti, above n 19, at 903.}

^{50 US – Shrimp, above n 34, at [158].}

^{51 See eg United States – Certain Country of Origin Labelling (COOL)}

^{Requirements WT/DS384/AB/R, WT/DS386/AB/R, 23 July 2012 (Report}

^{of the Appellate Body) at [374]–[379].}

^{52 See Agreement on the Application of Sanitary and Phytosanitary}

^{Measures, art 5; Agreement on Technical Barriers to Trade, art 2.2.}

^{53 TPP, above n 7, at art 29.1.1.}

^{54 China – Measures Related to the Exportation of Rare Earths, Tungsten, and}

^{Molybdenum WT/DS431/AB/R, WT/DS432/AB/R, WT/DS433/AB/R,}

^{2 September 2014 (Report of the Appellate Body) at [5.56]; Bossche and}

^{Prévost, above n 15, at 85.}

a bearing on the necessity element too.⁵⁵ By their very nature, moral values are not susceptible to a scientific appraisal. Besides, the WTO adjudicatory bodies held that the importance of the policy objective is a touchstone of necessity, that is, the more important the policy objective pursued by the measure at issue, the more likely the measure is deemed to be necessary.⁵⁶

IV Human rights as limitations on a limitation

^{With respect to the equivalent exception in the TFEU, the ECJ noted in}

^ERT/DEP:57

... in order to justify rules which are likely to obstruct the exercise of the freedom to provide services, such justification ... must be interpreted in the light of the general principles of law and in particular of fundamental rights.

In other words, exception clauses, guaranteeing policy space for national legislatures, are subject to human rights considerations.⁵⁸

How could a government measure that is inconsistent with international human rights standards be considered “necessary”? Hence, human rights can also function as a limitation on a limitation of the right to trade. In ERT/DEP, the ECJ struck a balance between the right to trade, on the one hand, and human rights standards, on the other hand, with a view to reaching what the German constitutional court calls “practical concordance” or “optimum effectiveness” in European law,⁵⁹ ie a Pareto optimum which allows both positions to be realised.⁶⁰

This attracted criticism because it places the right to trade on an equal footing with human rights.⁶¹ Brown put his concern as follows:⁶²

Using the language of prima facie breach or restriction of economic rights suggests that, even if the restriction is ultimately justified, it remains something which is at its heart “wrong”, but tolerated. This sits rather uneasily with the State’s usually paramount constitutional obligation to

⁵⁵ Chalmers, Davies and Monti, above n 19, at 902.

^{56 For the GATT, see European Communities – Measures Affecting Asbestos}

^{and Asbestos-containing Products WT/DS135/AB/R, 5 April 2001 (Report}

^{of the Appellate Body) at [172]; for the GATS, see US – Gambling, above}

^{n 31, at [6.477].}

^{57 Case C–260/89 ERT/DEP [1991] ECR I–2925 at [43].}

^{58 Petersmann, above n 30, at 46 ff.}

^{59 Opinion of Advocate General Trstenjak Case C–271/08 European Commission}

^{v Federal Republic of Germany [2010] ECR I–7099 at [191].}

^{60 Federal Constitutional Court, Order of the First Senate (28 October}

^{2008), 1 BvR 462/06 at 47; Order of the First Senate (19 July 2011),}

^{1 BvR 1916/09 at 86. These Orders are available at <www.bverfg.}

^{de/e/rs20081028_1bvr046206en.html> and <www.bverfg.de/e/}

^{rs20110719_1bvr191609en.html respectively>.}

^{61 Morijn, above n 19, at 15.}

^{62 Christopher Brown “Case C–112/00, Eugen Schmidberger, Internationale}

^{Transporte und Planzüge v Austria. Judgment of 12 June 2003, Full Court”}

^{(2003) 40(6) CML Rev 1499 at 1508.}

protect human rights.

^{In the same vein, Advocate General Stix–Hackl noted in the Omega}

^{opinion that:63}

The need “to reconcile” the requirements of the protection of fundamental [human] rights cannot therefore mean weighing up fundamental freedoms against fundamental rights [right to trade] per se, which would imply that the protection of fundamental rights is negotiable.

Within the framework of the TPP, things are no different given the main purpose of this Agreement:⁶⁴ not that economic integration and trade/ investment liberalisation have to be justified but, conversely, a restriction thereof. However, not all human rights constitute peremptory norms of general international law, so there is no inherent hierarchy between economic freedoms and human rights. Therefore, the modus operandi as provided for in the TPP, and the WTO for that matter, is justified.⁶⁵

V Caveats

The question arises whether human rights will also extend the ability of a TPP panel to find that national laws and regulations are inconsistent with the TPP. This would be nothing short of an evolutionary step. A TPP panel defining fundamental rights for the TPP area would entail the danger of creeping usurpation of competences and judicial activism. The European Union expressly foreclosed that in art 6(1) of the Treaty on European Union and art 51(2) of the Charter of Fundamental Rights. The TPP has the third sentence of art 28.12.3.⁶⁶ The development of a human rights standard in the European Union was triggered by the primacy of EU law over the law of EU Member States,⁶⁷ and the fact that EU law even trumps constitutional guarantees.⁶⁸ The same does not hold true for the TPP. The signatories did not intend to establish any form of supranationality.

It bears noting that the jurisdiction of TPP panels would not be the issue here, as the change would concern the necessity test under art XX of the GATT and art XIV of the GATS.

⁶³ Opinion of Advocate General Stix–Hackl Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I–9612 at [53].

⁶⁴ TPP, above n 7, at preamble, recital 1: “a comprehensive regional agreement that promotes economic integration to liberalise trade and investment”.

^{65 Chalmers, Davies and Monti, above n 19, at 772–773.}

^{66 TPP, above n 7, at art 28.12.3 “The findings, determinations and}

^{recommendations of the panel shall not add to or diminish the rights}

^{and obligations of the Parties under this Agreement.”}

^{67 Chalmers, Davies and Monti, above n 19, at 252.}

^{68 Case C–399/11 Stefano Melloni v Ministerio Fiscal [2013] ECR I–000 at [59].}

^{VI Conclusions}

TPP provisions will have to be interpreted in light of international human rights standards, be it in an ordinary meaning interpretation or by virtue of the first sentence of art 28.12.3 of the TPP in conjunction with art 31(3) (c) of the Vienna Convention. Human rights have a double function with respect to national policy space. On the one hand, they expand it: TPP Members may restrict trade on human rights grounds as long as they do not discriminate (de jure or de facto). On the other hand, human rights limit the policy space of national lawmakers. As seen, it does not take much to make Triggs’ dream of a regional human rights mechanism a reality but a recalibration of the necessity test.

Once again, it is worth recalling that trade liberalisation as realised under the TPP is not an end in itself but serves to raise living standards in the member countries at the end of the day.⁶⁹ Ergo, the objective of trade liberalisation must be balanced against other societal values and interests. Trade restrictions are, consequently, justifiable on grounds of human rights. A human rights dimension as set out above might be instrumental in the TPP gaining legitimacy as a whole.

⁶⁹ See TPP, above n 7, at preamble, recital 1: “a comprehensive regional agreement that promotes economic integration to ... bring economic growth and social benefits, create new opportunities for workers and businesses, contribute to raising living standards, benefit consumers, reduce poverty and promote sustainable growth”.