Defining Development in WTO Law: The Legality and Parameters of Labour Rights Conditionality in the Generalised System of Preferences

38 Pages Posted: 25 Jun 2012

See all articles by Brynn O'Brien

Brynn O'Brien

Faculty of Law, University of Technology, Sydney (UTS)

Ruben Zandvliet

Grotius Centre for International Legal Studies, Leiden Law School

Date Written: June 25, 2012

Abstract

This paper argues that GSP labour rights conditionality is in conformity with WTO law. This hinges on the critical question of whether the realisation of labour standards can meet a ‘development need,’ a term considered by the WTO Appellate Body report in the EC – Tariffs Preferences case, but yet undefined in WTO law. This paper first analyses the framework against which the lawfulness of non-trade conditions must be assessed: Article XX GATT and the WTO’s Enabling Clause. It then examines the meaning of ‘development needs.’ Based on a contemporary understanding of development theory, and consistent with the WTO Appellate Body’s own jurisprudence, this paper rejects the proposition that ‘development needs’ should be defined narrowly, in pure economic terms. Instead, it makes the case for an expansive yet nuanced understanding of this critical term which, properly construed, should be seen as including social and environmental concerns. The paper then assesses the legitimacy of labour rights conditionality as a means to advance development needs. The analysis demonstrates that the fulfilment of labour rights can be both constitutive of and instrumental to development. This makes GSP trade-labour linkage and differentiation between developing countries based on compliance with certain labour standards, in principle, permissible under WTO law. Finally, this paper addresses some of the technical aspects of labour conditionality schemes and suggests where they may need strengthening.

Keywords: generalized system of preferences, development, trade law, economic law, labour law, human rights, international labour organization, linkage, conditionality

JEL Classification: F02, F10, F20, F30, F40

Suggested Citation

O'Brien, Brynn and Zandvliet, Ruben, Defining Development in WTO Law: The Legality and Parameters of Labour Rights Conditionality in the Generalised System of Preferences (June 25, 2012). Society of International Economic Law (SIEL), 3rd Biennial Global Conference. Available at SSRN: https://ssrn.com/abstract=2091506 or http://dx.doi.org/10.2139/ssrn.2091506

Brynn O'Brien (Contact Author)

Faculty of Law, University of Technology, Sydney (UTS) ( email )

Sydney
Australia

Ruben Zandvliet

Grotius Centre for International Legal Studies, Leiden Law School ( email )

Leiden University Law Faculty
P.O. Box 9520
Leiden, 2300 RA
Netherlands

HOME PAGE: http://law.leiden.edu/organisation/publiclaw/publicinternationallaw/staff/zandlviet-r.html

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