WTO-Compliant Protection of Fundamental Rights: Lessons from the EU Privacy Directive

Abstract

Nation states often create legislative schemes regulating services industries in order to protect fundamental rights such as human life, economic security, or human security. World Trade Organization members are constrained in their creation of such regulatory schemes by their obligations under the General Agreement on Trade in Services (‘GATS’). WTO members raised concerns about such constraints even before the creation of GATS. As a result, GATS contains clauses specifically designed to allow members enough regulatory latitude to protect important domestic social interests, such as fundamental rights, while simultaneously liberalising trade in services. WTO jurisprudence interpreting these clauses, however, has called the robustness of this reserved power into question. Using the European Union’s attempt to protect the fundamental right to privacy through a WTO-compliant privacy directive as a case study, this article highlights important aspects of international trade law that policymakers should take into consideration when deciding how to protect fundamental rights through domestic regulation of trade in services.

Keywords: EU Privacy Directive, WTO, Privacy