Should the World Trade Organization Incorporate Labor and Environmental Standards

I. IntroductionWhile the Members of the World Trade Organization (WTO) have yet to adopt affirmative labor and environmental obligations, the link between trade, labor, and the environment has been pressed in much academic and policy discourse. ' Particularly with respect to environmental issues, the judicial body of the WTO has been called on to identify some of the contours of appropriate linkage between such "nontrade" issues and WTO rules in a series of closelywatched disputes.2 The holdings of these cases have shifted since the WTO's establishment in 1995, away from a deep suspicion about the propriety of linking trade with nontrade issues, and towards a nuanced view that accepts the validity of linkage as long as it meets certain formal parameters.Some have applauded this shift, others have excoriated it. As the shape of WTO jurisprudence on linkage has shifted, calls for resolution through political negotiations have increased.3 Some perceive a "legislative" solution to offer greater legitimacy because it would represent a more "democratic" solution negotiated by the entire membership, rather than a rule adjudicated by a panel of judges to resolve a dispute between particular members. Yet political negotiations are fraught with a host of separate problems. What might be called the "decision costs" of a legislative solution are high, possibly prohibitively so.4 A knotty problem arises for those concerned with linkage: there seems to be an inverse relationship between perceived legitimacy, on the one hand, and decision costs on the other. The expense of negotiating a specific rule, the dangers of holdout and other strategic problems, and the specter of capture might all render the legislative option unfeasible;5 more seriously, they may threaten the very legitimacy that the legislation solution purports to provide.This Article considers the judicial and legislative responses to "the linkage question" within the WTO. First, the Article recounts why the question has arisen in the first place: the relative weakness of enforcement mechanisms within international labor and environmental law.6 Second, the Article reviews the range of WTO judicial responses to unilateral linkage efforts by member states, considered under existing "negative" provisions of WTO law-a law of exceptions that allows but does not mandate linkage.7 Third, the Article considers the obstacles confronting the legislative response of defining the relationship between trade, labor, and environmental policies through multilateral negotiations to create "positive" labor and environmental obligations within the WTO.8 Finally, the Article makes reference to a notably successful effort at transitioning from negative exception to positive obligation: the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPs).9 The TRIPs Agreement indicates that the costs of legislation need not prohibit successful negotiation; however, it also demonstrates that legislative outcomes will not always foreclose legitimacy concerns.II. International Labor and Environmental Law Enforcement MechanismsThe problem at the center of the "trade linkage" question is the discrepancy between enforcement in the WTO regime and enforcement in other international legal regimes. This Part recounts the enforcement processes that have developed within international environmental and labor regimes and the challenges these processes continue to face.A. International Labor LawEstablished in 1919,10 the International Labor Organization (ILO) has established more than 180 binding conventions11 and 190 nonbinding resolutions,12 on subjects ranging from human rights13 to occupational safety.14 Despite one of the oldest pedigrees in international law, however, the ILO's enforcement record has proved woeful.An initial problem is that differing groups of countries have ratified different treaties, creating a patchwork of inconsistent legal obligations (although those conventions dealing with "core" labor standards tend to have more uniform ratification). …