World Trade, Child Labour and Transnational Constitutionalism

Franziska Humbert, Ph.D. (2007), PD (2021) at the University of Berne, head of economic justice at Oxfam Deutschland has published on the issue of trade, business and human rights, including entries in legal commentaries on the German Supply Chain Act.

Foreword


Preface


Acknowledgements


List of Abbreviations


Introduction

 1 Globalization, Child Labour and the International Legal Order


 2 Contents




1 The Problem of Child Labour and Trade

 1 Introduction


 2 The International Dimension of Child Labour

 2.1 Child Labour as a Global Problem


 2.2 The Protection from Exploitative Child Labour as Ius Cogens




 3 The Need for Global Solutions Including Trade Measures




2 The Status Quo of Trade Measures on Child Labour in WTO Law

 1 Introduction

 1.1 Unilateral Trade Measures


 1.2 Defining PPM  s and Rules of Interpretation




 2 The Rationale of the WTO and the GATT 1994


 3 Trade Measures Concerning Child Labour under the Most-Favoured-Nation Clause of GATT Article I

 3.1 Most-Favoured-Nation Obligations


 3.2 The Relationship with the TBT Agreement


 3.3 The Scope of GATT Article I:1


 3.4 Like Products


 3.5 Any Advantage


 3.6 Immediately and Unconditionally


 3.7 Exceptions under the Enabling Clause


 3.8 Conclusion




 4 Compatibility of Trade Measures on Child Labour with GATT Art. II


 5 Trade Measures Concerning Child Labour under GATT Art. III

 5.1 Overview over the Structure and Scope of GATT Art. III


 5.2 The Coverage of GATT Art. III in Relation to PPM-Measures


 5.3 Like Products


 5.4 Equality of Treatment


 5.5 Contextual Approach


 5.6 Ius Cogens


 5.7 Conclusion




 6 Application of the Results found under GATT Art. III to GATT Art. I

 6.1 Introduction


 6.2 Like Products


 6.3 Regulatory Purposes and Ius Cogens


 6.4 ‘Asymmetric Impact’


 6.5 ‘Supply Substitutability’ and ‘Inherence’ Test


 6.6 Conclusion




 7 Application of the Results found under GATT Art. III to GATT Art. II


 8 Compatibility of Trade Measures on Child Labour with Quantitative Restrictions of GATT Art. XI and XIII

 8.1 Trade Measures on Child Labour as Quantitative Restrictions


 8.2 The Ius Cogens Nature of the Prohibition of Child Labour




 9 Trade Measures on Child Labour under the GATT Art. XIX


 10 Trade Measures Concerning Child Labour under GATT Art. XX

 10.1 Overview over the Scope and Structure of GATT Art. XX


 10.2 The Public Morals Exception


 10.3 Human Life and Health


 10.4 Prison Labour


 10.5 The Chapeau of GATT Art. XX


 10.6 Burden of Proof


 10.7 Conclusion




 11 Trade Measures Concerning Child Labour under GATT Art. XXI

 11.1 Introduction


 11.2 GATT Art. XXI (b) (iii)


 11.3 GATT Art. XXI (c)


 11.4 Conclusion




 12 Compatibility of Trade Measures on Child Labour with the Agreement on Technical Barriers to Trade

 12.1 Introduction


 12.2 Scope of Application


 12.3 Substantive Provisions of the TBT Agreement


 12.4 Conclusion




 13 Compatibility of Trade Measures on Child Labour with the Agreement on Government Procurement

 13.1 Introduction


 13.2 Art. IV – General Principles


 13.3 Art. VIII – Conditions for Participation


 13.4 Art. X – Technical Specifications and Tender Documentation


 13.5 Art. XV – Treatment of Tenders and Awarding of Contracts


 13.6 Art. III – General Exceptions


 13.7 Conclusion




 14 Non-WTO Norms as a Defence for Trade Measures on Child Labour

 14.1 Introduction


 14.2 The Jurisdiction of WTO Panels


 14.3 The Applicable Law


 14.4 Conclusion




 15 Conclusion of Chapter 2




3 A Constitutionalist Approach to International Law

 1 Introduction


 2 Different Approaches to International Law

 2.1 Legal Interpretation


 2.2 New Haven School


 2.3 Feminist Approaches to International Law


 2.4 Global Legal Pluralism and Conflicts-Law Approach


 2.5 Global Administrative Law


 2.6 International Public Authority


 2.7 Constitutional Approaches




 3 A New Legal Humanism

 3.1 Limits of Hart’s Positivism and Kelsen’s ‘Pure Law Theory’


 3.2 Towards More Natural Law


 3.3 The Quest for Global Values


 3.4 Core Elements of a New Legal Humanism




4 Implications of a New Legal Humanism for Trade and Child Labour

 1 Introduction


 2 Towards More Substantive Coherence of Trade and Human Rights Law


 3 Direct Effect of WTO-Law and Human Rights

 3.1 The Traditional Doctrine of Direct Effect




 4 Institutional Coherence: A New ILO-WTO Joint Implementation Mechanism on Child Labour

 4.1 Introduction


 4.2 Trade-and Country-Related Child Labour


 4.3 Institutional Framework


 4.4 Cooperative Activities


 4.5 Dispute Settlement


 4.6 Human Rights Obligations for Companies?




 5 Conclusion




5 Concluding Summary

 1 Summary of Results

 1.1 Chapter 1


 1.2 Chapter 2


 1.3 Chapter 3


 1.4 Chapter 4




 2 Epilogue




Bibliography


Table of WTO Reports


Table of GATT 1947 Reports


Index