“Transcending the ostensible”: constitutional democracy and World Trade Law

The General Agreement on Tariffs and Trade (GATT) was negotiated as an agreement about rights and obligations of states and of other “customs territories” in 1947, i.e., at a time when human rights were not yet recognized as part of general international law. Today, more than fifty years later, human rights have become recognized by virtually all 189 United Nations (UN) member states as part of general international law and, in part, of international ius cogens. This “human rights revolution” and the customary rules of international treaty interpretation (as reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties) require interpretation of the 1994 Agreement establishing the World Trade Organization (WTO) with due regard to “any relevant rules of international law applicable in the relations between the parties” (Article 31:3(c) Vienna Convention), including universally recognized human rights. What are the legal consequences of this “paradigm change” from a state-centered approach towards a human rights approach in international law for the interpretation and progressive development of WTO law? Does it matter, for instance, for the interpretation of the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS) that UN human rights instruments recognize intellectual property and the right of everyone to benefit from the protection of intellectual property as human rights?