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16 Manchester J. Int'l Econ. L. 57 (2019)
The WTO Legality of Trade-Labour Sanctions in the US GSP Programme

handle is hein.journals/mjiel16 and id is 64 raw text is: Manchester Journal of International Economic Law Volume 16, Issue 1: 57-78, 2019 The WTO Legality of Trade-Labour Sanctions in the US GSP Programme Md. Abu Saleh* ABSTRACT: GSP is a mechanism for according 'S&D' treatment to the developing countries and least developed countries in order to integrate them into the global trade market by increasing their export earnings. It finds legitimacy in the Enabling Clause to deviate from the WTO general principles of non-discrimination and reciprocity. Though the objectives of the GSP are entirely economic in nature, ironically, the programme has been twisted into an arm of promoting and disseminating internationally recognized labour rights in a third country as part of social concerns. The US GSP programme was an early adopter of labour issues and the country has already applied unilateral trade sanction for around a dozen of times to promote worker rights in the target country. This gives rise to some pressing concerns. First, does Enabling Clause permit the US to impose trade sanction to promote labour rights in a third beneficiary country? Second, whether the US can invoke defence ofArticle XX of GATT to justify trade-labour sanctions in its GSP programme? This paper finds that the US GSP trade-labour sanctions are neither legitimate nor legal under the WTO law. 1. INTRODUCTION There have been divergent views on the question of linkage between trade and labour practices at the global level.' The proponents of using trade to improve international labour standards * The author is an Assistant Professor of Law, Daffodil International University, Dhaka, Bangladesh. He completed LLM (2013-15) in International Law from South Asian University, New Delhi, India. He also received PGD degree in IP law from Indian Society of International Law. Earlier, he obtained LLB and LLM from University of Dhaka. Views and errors are solely the author's responsibility. This article is part of author's LLM thesis paper that was submitted to the South Asian University, India. The author is immensely grateful for the insightful comments and support of Prof. V.G. Hegde, Prof. Prabhash Ranjan and Mr. Shuvra dey provided while writing this paper. He can be contacted at: touch.salehl11@gmail.com or abu.law@diu.edu.bd. 1 There is no consensus on the issue of linkage between trade and labour in the contemporary literature. While many scholars argue that no direct link exists between the two, see, e.g., Jagadish Bhagwati, 'Afterwards: The Question of Linkage', American Journal of International Law, 2002, 96(1): 126-34; Jagdish Bhagwati and T. N. Srinivansan, 'Trade and the Environment: Does Environmental Diversity Detract from the Case for Free Trade?', in Jagdish Bhagwati and Robert Hudec (eds.), Fair trade Harmonization: Prerequisites for Free Trade?: Eonocmic Analysis (MIT Press,1996), Vol.1, 159-224, at 180; Michael J. Trebilcock, 'Trade Policy and Labour Standards: Objectives, Instruments and Institutions', University of Toronto Law and Economics, Research Paper No. 02-01, 2002; Lejo Sibbel and Petra Borrmann, 'Linking Trade with Labour Rights: The ILO Better Factories Cambodia Project', Arizona Journal of International and Comparative Law, 2007, 24(1): 235-49; and also, Elizabeth B. Chilcoat, 'Pinkie Promises of Blood Oaths: Using Social Clauses in Free Trade Agreements to Eradicate Child Labour', Washington University Global Studies Law Review, 2008, 7(2): 307-30. On the contrary, others argue for the linkage between trade and labour rights, see, e.g., Brittany Cohan Baclawski, 'Re-Thinking the WTO's 57

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