Including a General Public Interest Clause in WTO Agreements : A Way Forward in Trade Linkage Debates

The linkage between trade-related and non-trade-related issues is not a new phenomenon, but as a result of the escalating interface between international trade law and a variety of other areas of international law, linkages have increasingly been subject of disputes before WTO panels and increasingly been subject of discussion within academic and policy communities. This puts more pressure on WTO members to reconcile free trade with non-trade-related aims concerning public health, labour standards, culture, human rights or environmental protection. In order to not compromise the credibility and legitimacy of the WTO such reconciliation requires more efforts than have hitherto occurred both at the dispute settlement and negotiating levels. This provides me with an opportunity to first identify the central aim in all trade linkage debates and common obstacles of achieving it, and second to suggest a way forward in these debates, namely how to overcome these obstacles with the inclusion of a general public interest clause in WTO agreements. I suggest in order to achieve consensus for striking a balance and to overcome these obstacles a more general approach is required on what the right order in international trade law is. For this purpose, I first re-look at the notion of free trade and how it is used by the commentators in the linkage debate. Based on this understanding I then recommend the implementation of a public interest clause into the general exceptions as a more general approach of finding a solution within the WTO-system to take non trade related concerns into account. Finally, I will use the example of the trade and culture debate to show how the proposed clause would help and apply in practice