International economic law and the pursuit of human rights: A framework for discussion of the legality of 'selective purchasing' laws under the WTO government procurement agreement

Journal of International Economic Law

Volumn 2, Issue 1, 1999, Pages 3-47

  McCrudden, Christopher ^a  

^a NONE

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[No Author keywords available]

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EID: 0033418610     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/2.1.3     Document Type: Article

References (265)

1. R. Haass (ed.), Economic Sanctions and American Diplomacy, Council on Foreign Relations (1998) at 1-3.
2. See The President's Export Council, Unilateral Economic Sanctions: A Review of Existing Sanctions and their Impacts on US Economic Interests with Recommendations for Policy and Process Improvement (June 1997). See also, 'Converting the Dollar into a Bludgeon', New York Times, 20 April 1997.
3. See The President's Export Council, Unilateral Economic Sanctions: A Review of Existing Sanctions and their Impacts on US Economic Interests with Recommendations for Policy and Process Improvement (June 1997). See also, 'Converting the Dollar into a Bludgeon', New York Times, 20 April 1997.
4. Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, §570(c), 110 Stat. 3009-166, 3009-167 (1997); Executive Order 13047, §3, 62 Fed. Reg. 28, 301 (20 May 1997).
5. Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, Pub L. No. 104-114, 110 Stat. 785 (1996).
6. Iran and Libya Sanctions Act of 1996, Pub. L. No. 104-172 (1996), §6(6).
7. See, e.g., P. Glossop, 'Recent US Trade Restrictions Affecting Cuba, Iran and Libya - a View from Outside the US', 15 Journal of Energy and National Resources Law 212 (1997).
8. See R. Bhala, 'Fighting Bad Guys with International Trade Law', 31 U.C. Davis Law Review 1 (1997).
9. See K. A. Rodman, 'Think Globally, Punish Locally': Nonstate Actors, Multinational Corporations, and Human Rights Sanctions', 12 Ethics and International Affairs 19 (1998). For a more general discussion of the reaction of local US communities to globalization, see S. E. Clark and G. L. Gaile, 'Local Politics in a Global Era: Thinking Locally, Acting Globally', 551 Annals 28 (1997). Individual US states have also shown an increasing tendency to develop their own approaches to a variety of social issues, see J. Donahue, Disunited States (1997).
10. See K. A. Rodman, 'Think Globally, Punish Locally': Nonstate Actors, Multinational Corporations, and Human Rights Sanctions', 12 Ethics and International Affairs 19 (1998). For a more general discussion of the reaction of local US communities to globalization, see S. E. Clark and G. L. Gaile, 'Local Politics in a Global Era: Thinking Locally, Acting Globally', 551 Annals 28 (1997). Individual US states have also shown an increasing tendency to develop their own approaches to a variety of social issues, see J. Donahue, Disunited States (1997).
11. See K. A. Rodman, 'Think Globally, Punish Locally': Nonstate Actors, Multinational Corporations, and Human Rights Sanctions', 12 Ethics and International Affairs 19 (1998). For a more general discussion of the reaction of local US communities to globalization, see S. E. Clark and G. L. Gaile, 'Local Politics in a Global Era: Thinking Locally, Acting Globally', 551 Annals 28 (1997). Individual US states have also shown an increasing tendency to develop their own approaches to a variety of social issues, see J. Donahue, Disunited States (1997).
12. 'Advocacy Group's 1997 World Report Shows Heightened Interest in Labor Rights', BNA International Trade Daily, 6 December 1996, reporting a study by Human Rights Watch, which is reported as saying that 'perhaps the most potent force in support [of] labor rights is the growing consumer interest on guarantees that the good[s] being purchased are not the products of abusive labor conditions'.
13. See IRRC, US Business in Burma (Myanmar), Social Issues Service, 1998 Background Report E:2 (IRRC 1998).
14. An Act Regulating Contracts with Companies Doing Business with or in Burma (Myanmar), ch 130, 1996 Session Laws, Mass. Gen Laws Ann., ch 7, 223 (West 1997).
15. 'States, Cities Increase Use of Trade Sanctions Troubling Business Groups and US Partners', Wall Street Journal, 1 April 1998.
16. 'Mr. Rushing says he didn't know about the WTO measure when he pushed the state statute'. Id.
17. K. Whitelaw, 'The Very Long Arm of the Law. Is the World Ready for 7, 284 Secretaries of State?', US News and World Report, 14 October 1996, 57; P. Blustein, 'Thinking Globally, Punishing Locally; States, Cities Rush to Impose Their Own Sanctions, Angering Companies and Foreign Affairs Experts', Washington Post, 16 May 1997, p. G01; G. de Jonquieres, 'Business Worried by US States' Sanctions', Financial Times, 24 April 1997, p. 9; G. G. Yerkey, 'Administration Still Has No Policy on State, Local Government Sanctions', International Trade Reporter, 14, No. 28, 9 July 1997, at 1176-7; 'A State's Foreign Policy: the Mass that Roared', The Economist, 8 February 1997, p. 32; P. Magnusson, 'A Troubling Barrage of Trade Sanctions from All Across America', Business Week, 24 February 1997, p. 59. For a survey of the status of state and local selective purchasing, see IRRC, State and Local Selective Purchasing Laws As of September 1997 (IRRC 1997).
18. K. Whitelaw, 'The Very Long Arm of the Law. Is the World Ready for 7, 284 Secretaries of State?', US News and World Report, 14 October 1996, 57; P. Blustein, 'Thinking Globally, Punishing Locally; States, Cities Rush to Impose Their Own Sanctions, Angering Companies and Foreign Affairs Experts', Washington Post, 16 May 1997, p. G01; G. de Jonquieres, 'Business Worried by US States' Sanctions', Financial Times, 24 April 1997, p. 9; G. G. Yerkey, 'Administration Still Has No Policy on State, Local Government Sanctions', International Trade Reporter, 14, No. 28, 9 July 1997, at 1176-7; 'A State's Foreign Policy: the Mass that Roared', The Economist, 8 February 1997, p. 32; P. Magnusson, 'A Troubling Barrage of Trade Sanctions from All Across America', Business Week, 24 February 1997, p. 59. For a survey of the status of state and local selective purchasing, see IRRC, State and Local Selective Purchasing Laws As of September 1997 (IRRC 1997).
19. K. Whitelaw, 'The Very Long Arm of the Law. Is the World Ready for 7, 284 Secretaries of State?', US News and World Report, 14 October 1996, 57; P. Blustein, 'Thinking Globally, Punishing Locally; States, Cities Rush to Impose Their Own Sanctions, Angering Companies and Foreign Affairs Experts', Washington Post, 16 May 1997, p. G01; G. de Jonquieres, 'Business Worried by US States' Sanctions', Financial Times, 24 April 1997, p. 9; G. G. Yerkey, 'Administration Still Has No Policy on State, Local Government Sanctions', International Trade Reporter, 14, No. 28, 9 July 1997, at 1176-7; 'A State's Foreign Policy: the Mass that Roared', The Economist, 8 February 1997, p. 32; P. Magnusson, 'A Troubling Barrage of Trade Sanctions from All Across America', Business Week, 24 February 1997, p. 59. For a survey of the status of state and local selective purchasing, see IRRC, State and Local Selective Purchasing Laws As of September 1997 (IRRC 1997).
20. K. Whitelaw, 'The Very Long Arm of the Law. Is the World Ready for 7, 284 Secretaries of State?', US News and World Report, 14 October 1996, 57; P. Blustein, 'Thinking Globally, Punishing Locally; States, Cities Rush to Impose Their Own Sanctions, Angering Companies and Foreign Affairs Experts', Washington Post, 16 May 1997, p. G01; G. de Jonquieres, 'Business Worried by US States' Sanctions', Financial Times, 24 April 1997, p. 9; G. G. Yerkey, 'Administration Still Has No Policy on State, Local Government Sanctions', International Trade Reporter, 14, No. 28, 9 July 1997, at 1176-7; 'A State's Foreign Policy: the Mass that Roared', The Economist, 8 February 1997, p. 32; P. Magnusson, 'A Troubling Barrage of Trade Sanctions from All Across America', Business Week, 24 February 1997, p. 59. For a survey of the status of state and local selective purchasing, see IRRC, State and Local Selective Purchasing Laws As of September 1997 (IRRC 1997).
21. K. Whitelaw, 'The Very Long Arm of the Law. Is the World Ready for 7, 284 Secretaries of State?', US News and World Report, 14 October 1996, 57; P. Blustein, 'Thinking Globally, Punishing Locally; States, Cities Rush to Impose Their Own Sanctions, Angering Companies and Foreign Affairs Experts', Washington Post, 16 May 1997, p. G01; G. de Jonquieres, 'Business Worried by US States' Sanctions', Financial Times, 24 April 1997, p. 9; G. G. Yerkey, 'Administration Still Has No Policy on State, Local Government Sanctions', International Trade Reporter, 14, No. 28, 9 July 1997, at 1176-7; 'A State's Foreign Policy: the Mass that Roared', The Economist, 8 February 1997, p. 32; P. Magnusson, 'A Troubling Barrage of Trade Sanctions from All Across America', Business Week, 24 February 1997, p. 59. For a survey of the status of state and local selective purchasing, see IRRC, State and Local Selective Purchasing Laws As of September 1997 (IRRC 1997).
22. K. Whitelaw, 'The Very Long Arm of the Law. Is the World Ready for 7, 284 Secretaries of State?', US News and World Report, 14 October 1996, 57; P. Blustein, 'Thinking Globally, Punishing Locally; States, Cities Rush to Impose Their Own Sanctions, Angering Companies and Foreign Affairs Experts', Washington Post, 16 May 1997, p. G01; G. de Jonquieres, 'Business Worried by US States' Sanctions', Financial Times, 24 April 1997, p. 9; G. G. Yerkey, 'Administration Still Has No Policy on State, Local Government Sanctions', International Trade Reporter, 14, No. 28, 9 July 1997, at 1176-7; 'A State's Foreign Policy: the Mass that Roared', The Economist, 8 February 1997, p. 32; P. Magnusson, 'A Troubling Barrage of Trade Sanctions from All Across America', Business Week, 24 February 1997, p. 59. For a survey of the status of state and local selective purchasing, see IRRC, State and Local Selective Purchasing Laws As of September 1997 (IRRC 1997).
23. K. Whitelaw, 'The Very Long Arm of the Law. Is the World Ready for 7, 284 Secretaries of State?', US News and World Report, 14 October 1996, 57; P. Blustein, 'Thinking Globally, Punishing Locally; States, Cities Rush to Impose Their Own Sanctions, Angering Companies and Foreign Affairs Experts', Washington Post, 16 May 1997, p. G01; G. de Jonquieres, 'Business Worried by US States' Sanctions', Financial Times, 24 April 1997, p. 9; G. G. Yerkey, 'Administration Still Has No Policy on State, Local Government Sanctions', International Trade Reporter, 14, No. 28, 9 July 1997, at 1176-7; 'A State's Foreign Policy: the Mass that Roared', The Economist, 8 February 1997, p. 32; P. Magnusson, 'A Troubling Barrage of Trade Sanctions from All Across America', Business Week, 24 February 1997, p. 59. For a survey of the status of state and local selective purchasing, see IRRC, State and Local Selective Purchasing Laws As of September 1997 (IRRC 1997).
24. The settlement between several Swiss banks and Holocaust survivors appears to have included a commitment by several US states not to proceed with selective purchasing laws directed against Switzerland. See 'Are State Sanctions Legal?', Washington Times, 14 September 1998.
25. An earlier article considered similar issues in the context of European Community law, see C. McCrudden, 'Social Policy Issues in Public Procurement: A Legal Overview' in S. Arrowsmith and A. Davies (eds), Public Procurement: Global Revolution, 219 (Kluwer 1998), from which part of section I of this article draws.
26. For example, section 5(f)(2) of ILSA, above, note 5, provides an exception which 'makes it unlikely that ILSA's procurement sanction will be imposed' against any of the parties to the GPA. Note, 'The Iran and Libya Sanctions Act of 1996: A Thorn in the Side of the World Trading System', XXIII Brook. J. Int'l L. 505 at 545-547 (1997).
27. J. M. Fernández Martín, The EC Public Procurement Rules: A Critical Analysis (Clarendon Press: Oxford 1996), ch. 2 and 3.
28. For an early account regarding the US, see A. S. Miller, 'Government Contracts and Social Control: A Preliminary Inquiry', 41 Virginia Law Review 27 (1955). For other OECD countries up to 1976, see OECD, Government Purchasing: Regulations and Procedures of OECD Member Countries (OECD 1976).
29. For an early account regarding the US, see A. S. Miller, 'Government Contracts and Social Control: A Preliminary Inquiry', 41 Virginia Law Review 27 (1955). For other OECD countries up to 1976, see OECD, Government Purchasing: Regulations and Procedures of OECD Member Countries (OECD 1976).
30. The Canadian government approved a strategy to promote Aboriginal business development through the Federal government procurement process in 1996. Treasury Board Manuals, Contracting Policy Notice 1996-2, 27 March 1996, available at http://www.inac.gc.ca (go to Aboriginal Supplier Inventory). See also the Canadian procurement preferences for Inuit in Article 24 of the Nunavut Agreement (www.tunngavik.com/site-eng/nlca/articl24.htm).
31. Green Paper on Public Sector Procurement Reform in South Africa (Government Gazette no. 17928, vol. 382 Notice 691 of 1997, Pretoria, 14 April 1997). See further S. Shezi, 'Public Procurement as an Instrument of Government Policy' (Paper delivered to the 9th International Public Procurement Association Conference, Copenhagen, Denmark, June 1998). These documents are available at http://www.pwdprocure.co.za/orientation.html
32. Green Paper on Public Sector Procurement Reform in South Africa (Government Gazette no. 17928, vol. 382 Notice 691 of 1997, Pretoria, 14 April 1997). See further S. Shezi, 'Public Procurement as an Instrument of Government Policy' (Paper delivered to the 9th International Public Procurement Association Conference, Copenhagen, Denmark, June 1998). These documents are available at http://www.pwdprocure.co.za/orientation.html
33. Labour Clauses (Public Contracts) Convention, 1949, ILO Convention No. 94. Currently 56 states have ratified the Convention. These include 10 states which have also ratified the GPA 1994: Austria, Belgium, Denmark, Finland, France, Italy, Netherlands, Spain, Singapore, and Norway.
34. European Commission, Communication: Public Procurement in the European Union, XV/5500/98-EN, Brussels, 11 March 1998, para. 4.6.
35. For example, the 1979 study undertaken by the United States International Trade Commission (ITC) at the request of the Senate Committee on Finance identifies this as one of the major issues which the GPA 1979 was intended to tackle. United States Senate, United States International Trade Commission, MTN Studies 6, Pt. 3, Agreements Being Negotiated at the Multilateral Trade Negotiations in Geneva, Analysis of Nontarif Agreements, Agreement on Government Procurement, A Report prepared at the request of the Committee on Finance, United States Senate, 96th Congress, 1st Session, CP 96-27 (Washington 1979, US GPO) (ITC Committee Print), pp. 188-189.
36. See, e.g., H. Wachtel, 'Labor's Stake in the WTO', 37 The American Prospect (March-April 1998), at 34, 36.
37. See, e.g., J. Leonard, 'The Impact of Affirmative Action Regulation and Equal Employment Law on Black Employment', 4 Journal of Economic Perspectives 4 at 47-63 (1990).
38. See C. McCrudden, 'Human Rights Codes for Transnational Corporations: What Can the Sullivan and MacBride Principles Tell Us?', Oxford Journal of Legal Studies (forthcoming).
39. See, Note, 'In Re Holocaust Victims' Assets Litigation: Do the US Courts Have Jurisdiction over the Lawsuits Filed by Holocaust Survivors Against the Swiss Banks?', Md. J. Int'l. L. and Trade 251 (1997).
40. Doe v UNOCAL Corp., 963 F. Supp. 880 (Central District of California 1997).
41. G. C. Hufbauer, J. Shelton Erb and H. P. Starr, 'The GATT Codes and the Unconditional Most-Favored-Nation Principle', 12 Law and Policy in International Business 59 at 66 (1980).
42. Id. at 67. As one scholar has put it: 'It is difficult to envision a more sovereign, trade-related act than the purchase of goods, supplies, and services by a government with monies collected primarily from its citizens for the purpose of funding government operations and public welfare generally. The relationship between sovereignty and government procurement is an intimate one', P. J. Carrier, 'Sovereignty under the Agreement on Government Procurement', 6(1) Minnesota Journal of Global Trade 67, at 68-69 (1997).
43. Id. at 67. As one scholar has put it: 'It is difficult to envision a more sovereign, trade-related act than the purchase of goods, supplies, and services by a government with monies collected primarily from its citizens for the purpose of funding government operations and public welfare generally. The relationship between sovereignty and government procurement is an intimate one', P. J. Carrier, 'Sovereignty under the Agreement on Government Procurement', 6(1) Minnesota Journal of Global Trade 67, at 68-69 (1997).
44. P. Low, A. Mattoo and A. Subramanian, 'Government Procurement in Services', 20 World Competition 5 at 6 (1996).
45. GATT, Article III, paragraph 8(a). For a detailed history of the early attempts at negotiating the coverage of procurement, see A. Blank and G. Marceau, 'The History of Government Procurement Negotiations Since 1945', 4 Public Procurement Law Review 77 (1996).
46. J. H. Jackson, W. J. Davey, and A. O. Sykes, Jr, International Economic Relations (3rd. edn), p. 550.
47. See Jones, 'The GATT-MTN System and the European Community as International Frameworks for the Regulation of Economic Activity: The Removal of Barriers to Trade in Government Procurement', 8 Md J. Int'l L and Trade 53 (1984); Bourgeois, 'The Tokyo Round Agreements on Technical Barriers and on Government Procurement in International and EEC Perspective', 19 CMLR 5 (1982).
48. See Jones, 'The GATT-MTN System and the European Community as International Frameworks for the Regulation of Economic Activity: The Removal of Barriers to Trade in Government Procurement', 8 Md J. Int'l L and Trade 53 (1984); Bourgeois, 'The Tokyo Round Agreements on Technical Barriers and on Government Procurement in International and EEC Perspective', 19 CMLR 5 (1982).
49. M. Pomeranz, 'Toward a New International Order in Government Procurement', 11 Law and Policy in International Business 1263 (1979).
50. 1979 Agreement, Article II.
51. 1979 Agreement Article I.
52. At that time, around $190,000.
53. E. Goldstein, 'Doing Business under the Agreement on Government Procurement: The Agreement on Government Procurement: The Telecommunications Business - A Case in Point', 55 St. John's Law Review 63 (1980); D. J. Peterson, 'The Trade Agreements Act of 1979: The Agreement on Government Procurement', 14(2) Journal of International Law and Economics 321 (1980); A. L. C. de Mestral, The Impact of the GATT Agreement on Government Procurement in Canada, in J. Quinn and P. Slayton Non-Tarif Barriers After the Tokyo Round (Institute for Research on Public Policy 1982), at 171; R. A. Horsch, 'Eliminating Nontarif Barriers to International Trade: The MTN Agreement on Government Procurement', 12 New York University Journal of International Law and Politics at 315 (1979).
54. E. Goldstein, 'Doing Business under the Agreement on Government Procurement: The Agreement on Government Procurement: The Telecommunications Business - A Case in Point', 55 St. John's Law Review 63 (1980); D. J. Peterson, 'The Trade Agreements Act of 1979: The Agreement on Government Procurement', 14(2) Journal of International Law and Economics 321 (1980); A. L. C. de Mestral, The Impact of the GATT Agreement on Government Procurement in Canada, in J. Quinn and P. Slayton Non-Tarif Barriers After the Tokyo Round (Institute for Research on Public Policy 1982), at 171; R. A. Horsch, 'Eliminating Nontarif Barriers to International Trade: The MTN Agreement on Government Procurement', 12 New York University Journal of International Law and Politics at 315 (1979).
55. E. Goldstein, 'Doing Business under the Agreement on Government Procurement: The Agreement on Government Procurement: The Telecommunications Business - A Case in Point', 55 St. John's Law Review 63 (1980); D. J. Peterson, 'The Trade Agreements Act of 1979: The Agreement on Government Procurement', 14(2) Journal of International Law and Economics 321 (1980); A. L. C. de Mestral, The Impact of the GATT Agreement on Government Procurement in Canada, in J. Quinn and P. Slayton Non-Tarif Barriers After the Tokyo Round (Institute for Research on Public Policy 1982), at 171; R. A. Horsch, 'Eliminating Nontarif Barriers to International Trade: The MTN Agreement on Government Procurement', 12 New York University Journal of International Law and Politics at 315 (1979).
56. E. Goldstein, 'Doing Business under the Agreement on Government Procurement: The Agreement on Government Procurement: The Telecommunications Business - A Case in Point', 55 St. John's Law Review 63 (1980); D. J. Peterson, 'The Trade Agreements Act of 1979: The Agreement on Government Procurement', 14(2) Journal of International Law and Economics 321 (1980); A. L. C. de Mestral, The Impact of the GATT Agreement on Government Procurement in Canada, in J. Quinn and P. Slayton Non-Tarif Barriers After the Tokyo Round (Institute for Research on Public Policy 1982), at 171; R. A. Horsch, 'Eliminating Nontarif Barriers to International Trade: The MTN Agreement on Government Procurement', 12 New York University Journal of International Law and Politics at 315 (1979).
57. Agreement on Government Procurement, contained in Proposal for a Council Decision Concerning the Conclusion of the Results of the Uruguay Round of Multilateral Trade Negotiations (1986-1994), COM(94)143 final/2, Brussels, 25 April 1994). The full Agreement, including the Annexes, is contained in Agreement Establishing the World Trade Organisation: Plurilateral Trade Agreements: Agreement on Government Procurement, Cm.2575, HMSO, May 1994. For discussion of the background to the Agreement, see C. Barshevsky, A. Sutton, A. Swindler, 'Developments in EC Procurement Under the 1992 Program', 4 Brigham Young University Law Review 1269 at 1326-1336 (1990). P. A. Messerlin, Agreement on Public Procurement, in OECD, The New World Trading System: Readings (OECD, Paris: 1995), p. 65; B. M. Hoekman and P. C. Mavroidis (eds), Law and Policy in Public Purchasing: The WTO Agreement on Government Procurement (1997), in addition to the literature cited below.
58. Agreement on Government Procurement, contained in Proposal for a Council Decision Concerning the Conclusion of the Results of the Uruguay Round of Multilateral Trade Negotiations (1986-1994), COM(94)143 final/2, Brussels, 25 April 1994). The full Agreement, including the Annexes, is contained in Agreement Establishing the World Trade Organisation: Plurilateral Trade Agreements: Agreement on Government Procurement, Cm.2575, HMSO, May 1994. For discussion of the background to the Agreement, see C. Barshevsky, A. Sutton, A. Swindler, 'Developments in EC Procurement Under the 1992 Program', 4 Brigham Young University Law Review 1269 at 1326-1336 (1990). P. A. Messerlin, Agreement on Public Procurement, in OECD, The New World Trading System: Readings (OECD, Paris: 1995), p. 65; B. M. Hoekman and P. C. Mavroidis (eds), Law and Policy in Public Purchasing: The WTO Agreement on Government Procurement (1997), in addition to the literature cited below.
59. Agreement on Government Procurement, contained in Proposal for a Council Decision Concerning the Conclusion of the Results of the Uruguay Round of Multilateral Trade Negotiations (1986-1994), COM(94)143 final/2, Brussels, 25 April 1994). The full Agreement, including the Annexes, is contained in Agreement Establishing the World Trade Organisation: Plurilateral Trade Agreements: Agreement on Government Procurement, Cm.2575, HMSO, May 1994. For discussion of the background to the Agreement, see C. Barshevsky, A. Sutton, A. Swindler, 'Developments in EC Procurement Under the 1992 Program', 4 Brigham Young University Law Review 1269 at 1326-1336 (1990). P. A. Messerlin, Agreement on Public Procurement, in OECD, The New World Trading System: Readings (OECD, Paris: 1995), p. 65; B. M. Hoekman and P. C. Mavroidis (eds), Law and Policy in Public Purchasing: The WTO Agreement on Government Procurement (1997), in addition to the literature cited below.
60. See the useful article, P. Low, Aaditya Mattoo and A. Subramanian, 'Government Procurement in Services', 20 World Competition 5 at 6 (1996).
61. The GPA 1994 threshold is 130,000 SDR (1 SDR = $US 1.37 (1997)) for procurements of goods and services (except construction services) by central government entities. Thresholds for purchases by sub-central entities vary by country (usually around 200,000 SDR), as do purchases by government-related enterprises (usually around 400,000 SDR). In general, the threshold is 5,000,000 SDR for procurement of construction services by all of these entities.
62. A. Davies, 'Remedies for Enforcing the WTO Agreement on Government Procurement from the Perspective of the European Community: A Critical View', 20 World Competition 113 (1996-7); B. M. Hoekmann, and P. C. Mavroidis 'The WTO's Agreement on Government Procurement: Expanding Disciplines, Declining Membership?' (1995), 4 Public Procurement Law Review 63.
63. A. Davies, 'Remedies for Enforcing the WTO Agreement on Government Procurement from the Perspective of the European Community: A Critical View', 20 World Competition 113 (1996-7); B. M. Hoekmann, and P. C. Mavroidis 'The WTO's Agreement on Government Procurement: Expanding Disciplines, Declining Membership?' (1995), 4 Public Procurement Law Review 63.
64. GPA 1994, Article XXII(1).
65. GPA 1994, Article XX.
66. P. A. Messerlin, 'Agreement on Public Procurement', in OECD, The New World Trading System: Readings (1995), p. 65.
67. For a detailed discussion of EU implementation of the 1993 GPA, see P. Didier, 'The Uruguay Round Government Procurement Agreement: Implementation in the European Union', in Bernard M. Hoekman and Petros C. Mavroidis (eds), Law and Policy in Public Purchasing (1997), ch. 7.
68. The 27 members are Austria, Belgium, Canada, Denmark, the European Community, Finland, France, Germany, Greece, Hong Kong, Ireland, Israel, Italy, Japan, Korea, Liechtenstein, Luxembourg, the Netherlands, the Netherlands with respect to Aruba, Norway, Portugal, Singapore, Spain, Sweden, Switzerland, the United Kingdom, and the United States.
69. Of the countries negotiating their accession to the WTO, several have been asked to become parties to the GPA, and this may well lead to an enlargement of membership in the GPA, see V. Kulacoglu, 'An Overview of Developments within the WTO since the Singapore Ministerial Conference', paper presented to the Conference on Public Procurement: Global Revolution, 11-12 September 1997, Aberystwyth, Wales.
70. GPA 1994, Article III.
71. GPA 1994, Article VIII (b).
72. GPA 1994, Article IX(9)(b).
73. GPA 1994, Article XIII(2)(h).
74. GPA 1994, Article XIII(2)(j).
75. GPA 1994, Article XIII(4)(a).
76. GPA 1994, Article XIII(4)(b).
77. GPA 1994, Article XIII(4).
78. GPA 1994, Article XIII(4)(d).
79. GPA 1994, (Article XVI(1)). According to a footnote to this Article, included in the text of the Agreement, offsets are regarded as 'measures used to encourage local development or improve the balance-of-payments accounts by means of domestic content, licensing of technology, investment requirements, counter-trade or similar requirements'.
80. GPA 1984, Article XXIII(2).
81. D. J. Peterson, 'The Trade Agreements Act of 1979: The Agreement on Government Procurement', 14(2) Journal of International Law and Economics 321 at 337 (1980).
82. Peterson, ibid., at 337.
83. GATT, Practical Guide to the GATT Agreement on Government Procurement (Revised), February 1989, p. 64.
84. 'US Would Relax Preferences to Small and Minority Firms; Small and Minority Firms Face Loss of Preference', The Washington Post, 14 March 1979.
85. J. E. Twiggs, The Tokyo Round of Multilateral Trade Negotiations: A Case Study in Building Domestic Support for Diplomacy (University Press of America), p. 66.
86. Hearings before the Subcommittee on General Oversight and Minority Enterprise of the Committee on Small Business, House of Representatives, Multinational Trade Negotiations, 96th Congress, First Session, 20 March 1979, p. 19.
87. 'Set-Aside Restored by Carter; White House Gives in on Minority Trade Plan', The Washington Post, 23 March 1979 at F1.
88. R. Lawrence, 'Defenders of Smaller US Firms Force Strauss to Amend Negotiating Plans on Procurement Practices Code', Journal of Commerce, 29 March 1979, included in id. at 171.
89. ITC Committee Print, p. 268.
90. Hearings before the Subcommittee on General Oversight and Minority Enterprise of the Committee on Small Business, House of Representatives, Multinational Trade Negotiations, 96th Congress, First Session, 4 April 1979, p. 81.
91. Id. p. 118.
92. Id. p. 117.
93. Id. p. 119.
94. This discussion is taken from the Hearings before the Subcommittee on International Trade of the Committee on Finance, Oversight on Government Procurement Code and Related Agreements, United States Senate, 97th Congress, 2nd Session, 9 June 1982, p. 24.
95. US GAO, The International Agreement on Government Procurement: An Assessment of Its Commercial Value and US Government Implementation (GAO/NSIAD-84-117, 16 July 1984), p. 17.
96. P. Tate, 'Breaking into the US market; It's Rough Sailing for Europeans Trying to Cross the Atlantic with Their DP Wares', 29 Datamation at 162 (1983); 'Buy America Actions Concern Allies', Aviation Week and Space Technology, 22 March 1982, at 27.
97. P. Tate, 'Breaking into the US market; It's Rough Sailing for Europeans Trying to Cross the Atlantic with Their DP Wares', 29 Datamation at 162 (1983); 'Buy America Actions Concern Allies', Aviation Week and Space Technology, 22 March 1982, at 27.
98. United States, Procurement of a Sonar Mapping System, GPR. DS1/R, not adopted, 23 April 1992.
99. 'Government Procurement; Free Trade Stops at City Hall', The Economist, 17 January 1981, at 63. For a discussion of the legality of state Buy American Laws under US constitutional Law, see Note, 'State Buy American Laws in a World of Liberal Trade', 7 Connecticut Journal of International Law 311 (1992).
100. 'Government Procurement; Free Trade Stops at City Hall', The Economist, 17 January 1981, at 63. For a discussion of the legality of state Buy American Laws under US constitutional Law, see Note, 'State Buy American Laws in a World of Liberal Trade', 7 Connecticut Journal of International Law 311 (1992).
101. See, for example, M. T. Janik, 'A US Perspective on the GATT Agreement on Government Procurement', 20(3) George Washington Journal of International Law and Economics 491, at 502-512 (1987).
102. US GAO, The International Agreement on Government Procurement: An Assessment of Its Commercial Value and US Government Implementation (GAO/NSIAD-84-117, 16 July 1984).
103. US GAO, International Procurement: Problems in Identifying Foreign Discrimination Against US Companies (GAO/NSIAD-90-127, 5 April 1990).
104. The United States had earlier taken a reservation stating that Agreement obligations would not apply to set-asides on behalf of small and minority businesses under the North American Free Trade Agreement, ch. 10, Annex 1001.2b, General Notes, Schedule of the United States, Note 1.
105. United States Annex to Appendix 1, General Notes, Note 1.
106. Industry Canada, Industry and the Uruguay Round, volume 1 - Results of the Negotiations (March 1995), Internet edition.
107. Ibid.
108. Canadian Annex to Appendix 1, General Notes, 1(d).
109. Korean Annex to Appendix 1, Annex 1, Note 3; Annex 2, note 3; Annex 3, note 2.
110. United States, Annex 2.
111. US Annexes to Appendix 1, General Note 1.
112. They were notified by the European Community to the WTO in a communication dated 22 December 1995 (WTO, Interim Committee on Government Procurement, Modifications to Appendix I of the European Communities and the United States, GPA/IC/10, 16 January 1996), p. 8.
113. M. H. Shuman, op cit. at 529: 'Perhaps the most insidious feature of the GATT is that it systematically strips communities of powers they might otherwise use to protect themselves against the adverse effects of the global economy . . . [C]ommunities might be able to influence the behavior of multinational firms through regulations, subsidies, tax abatements, public investments and contracts, community ownership, and lobbying. The Uruguay Round of the GATT, however, preempts or weakens nearly all these powers.' (emphasis added)
114. S. Arrowsmith, 'Public Procurement as an Instrument of Policy and the Impact of Market Liberalisation', 111 Law Quarterly Review 235 at 270 (1995).
115. Ralph Nader was one of the most prominent opponents of the Marrakesh agreements and he specifically berated the Administration for failing to include an exception for minority and small business set-asides in testimony to Congress in April 1994, after the GPA had been concluded but (apparently) before he had access to the full text, including the all-important country annexes. Statement of Ralph Nader, House of Representatives Small Business Committee, 26 April 1994, Uruguay Round Agreements of the General Agreements on Tariffs and Trade. In his testimony to a congressional Committee in May 1994, however, Ambassador Kantor confirmed that the Agreement specifically excluded from coverage set-asides on behalf of small and minority businesses. Hearing before the Legislation and National Security Subcommittee of the Committee on Government Operations, House of Representatives, 103rd Congress, Second Session, 19 May 1994, p. 5.
116. M. H. Shuman, 'GATTzilla v. Communities', 27 Cornell International Law Journal 527 at 545-547 (1994).
117. See, e.g., J. E. Garten, 'Destination Unknown', Foreign Affairs, May-June 1997; G. C. Hufbauer, K. A. Elliott, T. Cyrus, and E. Winston, US Economic Sanctions: Their Impact on Trade, Jobs, and Wages, Working Paper, Institute for International Economics, 1997.
118. See, e.g., J. E. Garten, 'Destination Unknown', Foreign Affairs, May-June 1997; G. C. Hufbauer, K. A. Elliott, T. Cyrus, and E. Winston, US Economic Sanctions: Their Impact on Trade, Jobs, and Wages, Working Paper, Institute for International Economics, 1997.
119. See the President's Export Council Report, above, note 2.
120. See, for example, the National Association of Manufacturers, A Catalog of New US Unilateral Economic Sanctions for Foreign Policy Purposes 1993-96 (NAM 1997). In addition, a coalition of business interests has formed a pressure group specifically on the issue named USA*ENGAGE.
121. See 'Businesses Battle State Sanctions', Journal of Commerce, 28 August 1997, at 1.
122. Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, 4818, Section 102 (c) (1)(B).
123. HR Rep. No. 103-826, pt.2 (1994) quoted in C. Tiefer, 'The GATT Agreement on Government Procurement in Theory and Practice', 26 U. Balt. L. R. 31 at 41 (1997).
124. HR Rep. No. 103-826, pt.2 (1994) quoted in C. Tiefer, 'The GATT Agreement on Government Procurement in Theory and Practice', 26 U. Balt. L. R. 31 at 41 (1997).
125. See E. Vermulst and B. Driessen, 'The Choice of a Switch: The European Reaction to the Helms-Burton Act', 11 LJIL 81 (1998).
126. United States - The Cuban Liberty and Democratic Solidarity Act, WTO Doc. WT/DS 38/2 (1996).
127. EU, Amicus Curiae Brief in Support of Plaintiff National Foreign Trade Council, Appendix 4 (see below, text at footnote 136).
128. United States - Measure Affecting Government Procurement; Request for Consultations by the European Communities, WT/DS88/1; GPA/D2/1, 26 June 1997.
129. O.J.C. 200, 30/06/1997, p. 0174.
130. United States - Measure Affecting Government Procurement; Request to Join Consultations; Communication from Japan, WT/DS88/2; 2 July 1997.
131. United States - Measure Affecting Government Procurement; Request for Consultations by Japan, WT/DS95/1; GPA/D3/1, 21 July 1997.
132. United States - Measure Affecting Government Procurement; Request to Join Consultations, Communication from the European Communities, WT/DS96/2 (30 July 1997).
133. EC Brief, at 6-7.
134. See 'Brussels and US End Sanctions Dispute', Financial Times, 19 May 1998.
135. EU-US Summit, London, 18 May 1998, 'Transatlantic Partnership on Political Co-operation'.
136. EC Brief, at 9.
137. 'EU Drops WTO Helms-Burton Suit', 12 Export Practitioner 5 (15 May 1998).
138. 'Japan Seeks WTO Panel to Repeal Massachusetts Law', Japan Economic Newswire, 9 September 1998.
139. Bulletin Quotidien Europe, No. 7306, 23 September 1998, p. 11.
140. 'EU Accused of Condoning "Pariah" Burma with WTO Action', Agence Fr. Presse, 21 September 1998 (objection by the International Confederation of Free Trade Unions and the European Trade Union Confederation).
141. WT/DS88/1; GPA/D2/1.
142. The request for consultations further states: 'This measure also appears to nullify or impair the benefits accruing to the European Communities under this Agreement, particularly as it limits the access of EC suppliers to procurement by a sub-federal authority covered by the Government Procurement Agreement in such a way as to result in a de facto reduction of the sub-federal offer under the GPA. The European Communities additionally consider that this measure has the effect of impeding the attainment of the objectives of the GPA, including that of maintaining a balance of rights and obligations.'
143. WT/DS95/1; GPA/D3/1. See also Inside US Trade, 25 July 1997, at 14.
144. See, in particular, the testimony by various individuals, companies and groups on the proposed Massachusetts Indonesia legislation. Those against included: the Institute for Training and Development, Associated Industries of Massachusetts, the Alliance for the Commonwealth, United Parcel Service, the American Indonesian Chamber of Commerce. Those in favor included Professor Richard Falk, the Robert F. Kennedy Memorial Center for Human Rights. See M. S. Lelyveld, 'Corporate giants take on state in sanctions fight', Journal of Commerce, 3 March 1997, at 1A.
145. G. G. Yerkey, 'Administration Still Has No Policy on State, Local Government Sanctions', International Trade Reporter 14(28), 9 July 1997, pp. 1176-1177.
146. The modification to the Annex submitted by the United States and the European Community following the bilateral agreement reached between the EC and the US in Marrakesh in April 1994 (see G. de Graaf and M. King, 'Towards a More Global Government Procurement Market: The Expansion of the GATT Government Procurement Agreement in the Context of the Uruguay Round', 29(2) The International Lawyer at 435, 448-451 (1995)) specifically included Massachusetts. They were notified to the WTO in a communication dated 22 December 1995 (WTO, Interim Committee on Government Procurement, Modifications to Appendix I of the European Communities and the United States, GPA/IC/10, 16 January 1996), p. 8).
147. The modification to the Annex submitted by the United States and the European Community following the bilateral agreement reached between the EC and the US in Marrakesh in April 1994 (see G. de Graaf and M. King, 'Towards a More Global Government Procurement Market: The Expansion of the GATT Government Procurement Agreement in the Context of the Uruguay Round', 29(2) The International Lawyer at 435, 448-451 (1995)) specifically included Massachusetts. They were notified to the WTO in a communication dated 22 December 1995 (WTO, Interim Committee on Government Procurement, Modifications to Appendix I of the European Communities and the United States, GPA/IC/10, 16 January 1996), p. 8).
148. This issue, involving the authority of the United States to put Massachusetts forward as part of its proposals, arose because of the way in which the United States chose to deal with the tricky political issue of how best to involve the separate states in the WTO process. The United States asked the states to agree to be included under the GPA. Thirty-seven states agreed to be covered by the GPA 1994. Of the 37, however, there was considerable variation in the extent to which their executive branch agencies were covered. Several 'only agreed to coverage of selected executive branch agencies, or excepted significant sectors', C. Tiefer, 'The GATT Agreement on Government Procurement in Theory and Practice', 26 U. Balt. L. R. at 31, 39 (1997). A letter from Massachusetts Gov. William Weld to the then United States Trade Representative Mickey Kantor stated that he had reviewed the terms of the Agreement and that Massachusetts 'has no present intention of going against it'. In the controversy surrounding the Myanmar legislation, an argument was made that this was both ambiguous and in any event an inadequate legal basis to regard the state as legally committed to the Agreement. See M. S. Lelyveld, 'Weld Letter a New wrinkle in EU-Massachusetts spat', Journal of Commerce, 13 March 1997, at 5A. See further, A. Carvajal, 'State and Local "Free Burma" Laws: The Case for Sub-national Trade Sanctions', 29 Law and Pol'y Int'l Bus 257 at 265.
149. This issue, involving the authority of the United States to put Massachusetts forward as part of its proposals, arose because of the way in which the United States chose to deal with the tricky political issue of how best to involve the separate states in the WTO process. The United States asked the states to agree to be included under the GPA. Thirty-seven states agreed to be covered by the GPA 1994. Of the 37, however, there was considerable variation in the extent to which their executive branch agencies were covered. Several 'only agreed to coverage of selected executive branch agencies, or excepted significant sectors', C. Tiefer, 'The GATT Agreement on Government Procurement in Theory and Practice', 26 U. Balt. L. R. at 31, 39 (1997). A letter from Massachusetts Gov. William Weld to the then United States Trade Representative Mickey Kantor stated that he had reviewed the terms of the Agreement and that Massachusetts 'has no present intention of going against it'. In the controversy surrounding the Myanmar legislation, an argument was made that this was both ambiguous and in any event an inadequate legal basis to regard the state as legally committed to the Agreement. See M. S. Lelyveld, 'Weld Letter a New wrinkle in EU-Massachusetts spat', Journal of Commerce, 13 March 1997, at 5A. See further, A. Carvajal, 'State and Local "Free Burma" Laws: The Case for Sub-national Trade Sanctions', 29 Law and Pol'y Int'l Bus 257 at 265.
150. This issue, involving the authority of the United States to put Massachusetts forward as part of its proposals, arose because of the way in which the United States chose to deal with the tricky political issue of how best to involve the separate states in the WTO process. The United States asked the states to agree to be included under the GPA. Thirty-seven states agreed to be covered by the GPA 1994. Of the 37, however, there was considerable variation in the extent to which their executive branch agencies were covered. Several 'only agreed to coverage of selected executive branch agencies, or excepted significant sectors', C. Tiefer, 'The GATT Agreement on Government Procurement in Theory and Practice', 26 U. Balt. L. R. at 31, 39 (1997). A letter from Massachusetts Gov. William Weld to the then United States Trade Representative Mickey Kantor stated that he had reviewed the terms of the Agreement and that Massachusetts 'has no present intention of going against it'. In the controversy surrounding the Myanmar legislation, an argument was made that this was both ambiguous and in any event an inadequate legal basis to regard the state as legally committed to the Agreement. See M. S. Lelyveld, 'Weld Letter a New wrinkle in EU-Massachusetts spat', Journal of Commerce, 13 March 1997, at 5A. See further, A. Carvajal, 'State and Local "Free Burma" Laws: The Case for Sub-national Trade Sanctions', 29 Law and Pol'y Int'l Bus 257 at 265.
151. K. A. Elliott, 'Backing Illegal Sanctions', Journal of Commerce, 6 August 1997, at 8A.
152. HR 2267. See further, IRRC, Burma, above, note 10, at 6.
153. J. Lobe, 'Clinton Manages to Avert Blow to WTO's Power', Inter Press Service, 7 August 1998; M. S. Lelyveld, 'Anti-sanctions Forces Win Key Vote', Journal of Commerce, 7 August 1998, at 1A.
154. J. Lobe, 'Clinton Manages to Avert Blow to WTO's Power', Inter Press Service, 7 August 1998; M. S. Lelyveld, 'Anti-sanctions Forces Win Key Vote', Journal of Commerce, 7 August 1998, at 1A.
155. 'US Vows to Defend Sanctions by State', Journal of Commerce, 11 September 1998, at 3A.
156. See Testimony of Deputy Assistant Secretary David Marchick before the Maryland House of Delegates Committee on Commerce and Government Matters, 25 March 1998. See also 'Sanctions Bid Against Nigeria Stirs Ire', Washington Post, 27 March 1998.
157. L. Henkin, Foreign Affairs and the United States Constitution, ch. 6 (2nd. edn, 1996); Note, 'State Buy America Laws in a World of Liberal Trade', 7 Connecticut Journal of International Law at 311 (1992); J. D. Southwick, 'Binding the States: A Survey of State Law Conformance with the Standards of the GATT Procurement Code', 13 University of Pennsylvania Journal of International Business Law at 57 (1992); Note, 'To Compel or Encourage: Seeking Compliance with International Trade Agreements at the State Level', 2 Minnesota Journal of Global Trade at 143 (1993).
158. L. Henkin, Foreign Affairs and the United States Constitution, ch. 6 (2nd. edn, 1996); Note, 'State Buy America Laws in a World of Liberal Trade', 7 Connecticut Journal of International Law at 311 (1992); J. D. Southwick, 'Binding the States: A Survey of State Law Conformance with the Standards of the GATT Procurement Code', 13 University of Pennsylvania Journal of International Business Law at 57 (1992); Note, 'To Compel or Encourage: Seeking Compliance with International Trade Agreements at the State Level', 2 Minnesota Journal of Global Trade at 143 (1993).
159. L. Henkin, Foreign Affairs and the United States Constitution, ch. 6 (2nd. edn, 1996); Note, 'State Buy America Laws in a World of Liberal Trade', 7 Connecticut Journal of International Law at 311 (1992); J. D. Southwick, 'Binding the States: A Survey of State Law Conformance with the Standards of the GATT Procurement Code', 13 University of Pennsylvania Journal of International Business Law at 57 (1992); Note, 'To Compel or Encourage: Seeking Compliance with International Trade Agreements at the State Level', 2 Minnesota Journal of Global Trade at 143 (1993).
160. L. Henkin, Foreign Affairs and the United States Constitution, ch. 6 (2nd. edn, 1996); Note, 'State Buy America Laws in a World of Liberal Trade', 7 Connecticut Journal of International Law at 311 (1992); J. D. Southwick, 'Binding the States: A Survey of State Law Conformance with the Standards of the GATT Procurement Code', 13 University of Pennsylvania Journal of International Business Law at 57 (1992); Note, 'To Compel or Encourage: Seeking Compliance with International Trade Agreements at the State Level', 2 Minnesota Journal of Global Trade at 143 (1993).
161. P. J. Spiro, 'Note: State and Local Anti-South African Action as an Intrusion Upon the Federal Power in Foreign Affairs', 72 Va. L. R. 813 (1986). However, in 1986 an opinion from the Office of Legal Counsel of the Department of Justice concluded that the selective purchasing laws relating to South Africa were probably constitutional. 10 US Op. Office of Legal Counsel 49 (9 April 1986).
162. P. J. Spiro, 'Note: State and Local Anti-South African Action as an Intrusion Upon the Federal Power in Foreign Affairs', 72 Va. L. R. 813 (1986). However, in 1986 an opinion from the Office of Legal Counsel of the Department of Justice concluded that the selective purchasing laws relating to South Africa were probably constitutional. 10 US Op. Office of Legal Counsel 49 (9 April 1986).
163. More extensive discussions on the constitutionality of the Massachusetts Myanmar law can be found in D. Schmahmann and J. Finch, 'The Unconstitutionality of State and Local Enactments in the United States Restricting Business Ties with Burma (Myanmar)', 30 Vanderbilt Journal of Transnational Law 2 (1997); A. Carvajal, 'State and Local "Free Burma" Laws: The Case for Sub-national Trade Sanctions', 29 Law and Policy in International Business at 257 (1998) ; D. M. Price and J. P. Hannah, 'The Constitutionality of United States State and Local Sanctions', 39 Harvard International Law Journal at 443 (1998). For a discussion of the constitutionality of proposed legislation by Massachusetts relating to Indonesia, see D. R. Schmahmann, J. Finch, T. Chapman, 'Off the Precipice: Massachusetts Expands Its Foreign Policy Expedition from Burma to Indonesia', 30 Vanderbilt Journal of Transnational Law at 1021 (1997).
164. More extensive discussions on the constitutionality of the Massachusetts Myanmar law can be found in D. Schmahmann and J. Finch, 'The Unconstitutionality of State and Local Enactments in the United States Restricting Business Ties with Burma (Myanmar)', 30 Vanderbilt Journal of Transnational Law 2 (1997); A. Carvajal, 'State and Local "Free Burma" Laws: The Case for Sub-national Trade Sanctions', 29 Law and Policy in International Business at 257 (1998) ; D. M. Price and J. P. Hannah, 'The Constitutionality of United States State and Local Sanctions', 39 Harvard International Law Journal at 443 (1998). For a discussion of the constitutionality of proposed legislation by Massachusetts relating to Indonesia, see D. R. Schmahmann, J. Finch, T. Chapman, 'Off the Precipice: Massachusetts Expands Its Foreign Policy Expedition from Burma to Indonesia', 30 Vanderbilt Journal of Transnational Law at 1021 (1997).
165. More extensive discussions on the constitutionality of the Massachusetts Myanmar law can be found in D. Schmahmann and J. Finch, 'The Unconstitutionality of State and Local Enactments in the United States Restricting Business Ties with Burma (Myanmar)', 30 Vanderbilt Journal of Transnational Law 2 (1997); A. Carvajal, 'State and Local "Free Burma" Laws: The Case for Sub-national Trade Sanctions', 29 Law and Policy in International Business at 257 (1998) ; D. M. Price and J. P. Hannah, 'The Constitutionality of United States State and Local Sanctions', 39 Harvard International Law Journal at 443 (1998). For a discussion of the constitutionality of proposed legislation by
166. More extensive discussions on the constitutionality of the Massachusetts Myanmar law can be found in D. Schmahmann and J. Finch, 'The Unconstitutionality of State and Local Enactments in the United States Restricting Business Ties with Burma (Myanmar)', 30 Vanderbilt Journal of Transnational Law 2 (1997); A. Carvajal, 'State and Local "Free Burma" Laws: The Case for Sub-national Trade Sanctions', 29 Law and Policy in International Business at 257 (1998) ; D. M. Price and J. P. Hannah, 'The Constitutionality of United States State and Local Sanctions', 39 Harvard International Law Journal at 443 (1998). For a discussion of the constitutionality of proposed legislation by Massachusetts relating to Indonesia, see D. R. Schmahmann, J. Finch, T. Chapman, 'Off the Precipice: Massachusetts Expands Its Foreign Policy Expedition from Burma to Indonesia', 30 Vanderbilt Journal of Transnational Law at 1021 (1997).
167. National Foreign Trade Council v Baker and Anderson. The text of the complaint can be found at http://usaengage.org./background/lawsuit/index.html.
168. NFTC v. Baker et al., _F. Supp._ (D. Mass., 1998).
169. 'US changes stance on role in state sanctions cases', Journal of Commerce, 8 July 1998. See also, IRRC, US Business in Burma (Myanmar), Social Issues Service, 1998 Background Report E:2, at 6.
170. 'US changes stance on role in state sanctions cases', Journal of Commerce, 8 July 1998. See also, IRRC, US Business in Burma (Myanmar), Social Issues Service, 1998 Background Report E:2, at 6.
171. EU Brief at 2.
172. EU Brief at 2.
173. As noted earlier, ILSA has adopted this approach, see above note 17. Canadian preferences for the Inuit are subject to a clause that provides that the preferences are subject to Canada's international obligations'. Article 24, Nunavut Agreement, above, note 20.
174. Compare House Bill 3730, An Act regulating state contracts and investments with companies doing business with or in Indonesia, with House Bill 4575, An Act regulating state contracts and investments with companies doing business with or in Indonesia. The latter, which was the Bill favorably reported out of the Committee on State Administration in July 1997, inserted a provision limiting coverage of the legislation to contracts below the GPA thresholds in cases where the state agency is subject to the GPA.
175. 'NFTC Files Suit Contesting State and Local Sanctions', 12 Export Practitioner 5 (15 May 1998).
176. 'EU in Burma Law Protest', Financial Times, 13 July 1998.
177. Case 31/81 Beentjes [1988] ECR 4635.
178. Article VIII(b). P. Kunzlik, 'Environmental Issues in Public Procurement', paper presented to Conference on 'Public Procurement: Global Revolution', Aberystwyth, Wales, September 11th, 1997 at 5-6 makes a similar argument in the context of environmental conditions, but the issue of whether such conditions can be 'technical' remains. See text below, at footnote 173.
179. P. 281.
180. Articles IX and XIII.
181. P. Didier, 'The Uruguay Round Government Procurement Agreement: Implementation in the European Union', in B. M. Hoekman and P. C. Mavroidis (eds), Law and Policy in Public Purchasing (1997), ch. 7, p. 134.
182. B. M. Hoekman and P. C. Mavroidis, 'Basic Elements of the Agreement on Government Procurement', in B. M. Hoekman and P. C. Mavroidis (eds), Law and Policy in Public Purchasing, ch. 1, p. 14.
183. Gasoline case, Appellate Body Report, at IIIB (criticism of the Panel Report for its failure 'to take adequate account of the words actually used. . .').
184. Such as the legality under customary international law of the extra-territorial assertion of jurisdiction, see R. L. Muse, 'A Public International Law Critique of the Extraterritorial Jurisdiction of the Helms-Burton Act (Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996)', 30 Geo. Wash. J. Int'l L. and Econ. 207 (1996-97).
185. Some significance might be attached to the fact that procurement was not dealt with simply by removing the limitation in Article III(8) of GATT.
186. See, e.g., the South African Constitution 1996, section 217 of which provides that provincial and local social policy provisions in procurement must take place within a framework prescribed by national legislation. This is, of course, the issue currently before the United States federal courts, see above text at footnotes 133-134.
187. United States Senate, United States International Trade Commission, MTN Studies 6, Pt. 3, Agreements Being Negotiated at the Multilateral Trade Negotiations in Geneva, Analysis of Nontariff Agreements, Agreement on Government Procurement, A Report prepared at the request of the Committee on Finance, United States Senate, 96th Congress, 1st Session, CP 96-27 (Washington 1979, US GPO).
188. United States Senate, United States International Trade Commission, MTN Studies 6, Pt. 3, Agreements Being Negotiated at the Multilateral Trade Negotiations in Geneva, Analysis of Nontariff Agreements, Agreement on Government Procurement, A Report prepared at the request of the Committee on Finance, United States Senate, 96th Congress, 1st Session, CP 96-27 (Washington 1979, US GPO).
189. ITC Committee Print, pp. 233-237; 264-278.
190. Ibid., p. 264.
191. Ibid., p. 266.
192. Ibid., p. 269.
193. Ibid., p. 270 (emphasis added).
194. Ibid., p. 266.
195. Ibid., p. 269.
196. Ibid., p. 270.
197. Ibid., p. 359.
198. Ibid., p. 270.
199. Ibid., p. 366.
200. Ibid., p. 272. '[T]he program does not appear to comport with the intent or language of the exception. The essence of paragraph (1) is expressed by the modifiers 'essential' and 'indispensable', words which the United States will find difficult to argue as appropriately applying to the labor surplus program. Although any conclusion is dependent upon the attitude adopted by other signatories regarding their own similar programs, it seems unlikely that Part VIII could be used to shelter the Labor Surplus Area Concerns program from the code.' ITC Committee Print, p. 366.
201. See, e.g., E. A. Laing, 'Equal Access/Non-Discrimination and Legitimate Discrimination in International Economic Law', 14 Wisconsin International Law Journal 246 (1996).
202. European Communities - Regime for the Importation, Sale and Distribution of Bananas, Report of the Appellate Body, 9 September 1997.
203. Tuna/Dolphin I, Panel Report, 16 August 1991, 30 ILM 1594 (1991)
204. Tuna/Dolphin II, Panel Report, June 1994, 33 ILM 839 (1994).
205. R. Howse and M. J. Trebilcock, 'The Free Trade-Fair Trade Debate: Trade, Labor, and the Environment', in J. S. Bhandari, and A. O. Sykes, Economic Dimensions in International Law: Comparative and Empirical Perspectives (1997) 186, at 215-217.
206. P. Kunzlik, 'Environmental Issues in Public Procurement', paper presented to Conference on 'Public Procurement: Global Revolution', Aberystwyth, Wales, UK, 11 September 1997.
207. Article VI(1). This approach is repeated in Article VI(2).
208. Ibid. p. 8.
209. I am grateful to Peter Trepte and Christoph Benedict for pointing out these alternative arguments to me.
210. As opposed to the minority and small business set-asides, see below.
211. See, e.g., EC Commission, EC Report on United States Trade Barriers and Unfair Practices, 20-40 (1990).
212. Bovis has written that during negotiations, the EC did raise the issue of 'protection of minorities through contract compliance'. C. Bovis, 'Utilities Directive and Public Procurement Trade War', Utilities Law Review 84 at 87 (Summer 1993). Greenwold and Cox have argued that the small business, and minority and women set-aside programs restrict access to the American procurement market, S. Greenwold and A. Cox, 'The Legal and Structural Obstacles to Free Trade in the United States Procurement Market', 2 Public Procurement Law Review 237 at 250 (1993). Halford, too, has written that such provisions discriminate in favour of certain United States domestic businesses, A. Halford, 'An Overview of E.C.-United States Trade Relations in the Area of Public Procurement', 4 Public Procurement Law Review 36 at 44 (1995).
213. Bovis has written that during negotiations, the EC did raise the issue of 'protection of minorities through contract compliance'. C. Bovis, 'Utilities Directive and Public Procurement Trade War', Utilities Law Review 84 at 87 (Summer 1993). Greenwold and Cox have argued that the small business, and minority and women set-aside programs restrict access to the American procurement market, S. Greenwold and A. Cox, 'The Legal and Structural Obstacles to Free Trade in the United States Procurement Market', 2 Public Procurement Law Review 237 at 250 (1993). Halford, too, has written that such provisions discriminate in favour of certain United States domestic businesses, A. Halford, 'An Overview of E.C.-United States Trade Relations in the Area of Public Procurement', 4 Public Procurement Law Review 36 at 44 (1995).
214. Bovis has written that during negotiations, the EC did raise the issue of 'protection of minorities through contract compliance'. C. Bovis, 'Utilities Directive and Public Procurement Trade War', Utilities Law Review 84 at 87 (Summer 1993). Greenwold and Cox have argued that the small business, and minority and women set-aside programs restrict access to the American procurement market, S. Greenwold and A. Cox, 'The Legal and Structural Obstacles to Free Trade in the United States Procurement Market', 2 Public Procurement Law Review 237 at 250 (1993). Halford, too, has written that such provisions discriminate in favour of certain United States domestic businesses, A. Halford, 'An Overview of E.C.-United States Trade Relations in the Area of Public Procurement', 4 Public Procurement Law Review 36 at 44 (1995).
215. And from the larger field of public international law, see D. Palmeter and P. C. Mavroidis, 'The WTO Legal System: Sources of Law', 92 Am. J. Inter. Law 398 (1998).
216. GATT Art. XX(a). Another exception in Article XXIII of the GPA 1994 which I do not consider here, though it is relevant, is that relating to 'human . . . life or health'. Although earlier disputes panels suggest that this exception should not be read as applying to the 'human life or health' of those in countries other than the country claiming the exception, the text gives no clear support for this limited interpretation.
217. C. T. Feddersen, 'Focussing on Substantive Law in International Economic Relations: The Public Morals of GATT's Article XX(a) and "Conventional" Rules of Interpretation', 7 Minn. J. Global Trade 75 (1998); S. Charnowitz, 'The Moral Exception in Trade Policy', 38 Va. J. Inter. Law 689 (1998).
218. C. T. Feddersen, 'Focussing on Substantive Law in International Economic Relations: The Public Morals of GATT's Article XX(a) and "Conventional" Rules of Interpretation', 7 Minn. J. Global Trade 75 (1998); S. Charnowitz, 'The Moral Exception in Trade Policy', 38 Va. J. Inter. Law 689 (1998).
219. Petersmann has argued that there is a risk of interpreting the 'public morals' exception as including large areas of social policy, see E.-U. Petersmann, International and European Trade and Environmental Law After the Uruguay Round (1995) at 51.
220. J. Bhagwati, 'The Agenda of the WTO', in P. van Dijck and G. Faber (eds), Challenges to the New World Trade Organization (1996), p. 27 at 39 'labour standards . . . are seen in moral terms'.
221. C. Feddersen, op. cit. at 115.
222. C. Feddersen, op. cit at 115.
223. C. Feddersen, op cit. at 109-110.
224. It is by no means clear that the process-product distinction applies in the defenses context at all.
225. See Laing, Equal Access, at 332, n. 472.
226. Laing, ibid, at 331: '. . .existing practice does not appear to sanction construing a treaty containing only a public morals exceptions provision as encompassing public order'.
227. Charnowitz, 'Moral Exception', op. cit. at 743. See also 'US Moral Dictates Thwart Free Trade, Says EU Report', J. Comm., 31 July 1997, at 4A.
228. Charnowitz, 'Moral Exception', op. cit. at 743. See also 'US Moral Dictates Thwart Free Trade, Says EU Report', J. Comm., 31 July 1997, at 4A.
229. The French text provides as follows: '2. Sous réserve que ces mesures ne soient pas appliquées de façon à constituer, soit un moyen de discrimination arbitraire ou injustifié entre les pays où les mêmes conditions existent, soit une restriction déguisée au commerce international, rien dans le présent accord ne sera interprété comme empêchant une Partie quelconque d'instituer ou d'appliquer des mesures: nécessaires à la protection de la moralité publique, de l'ordre public ou de la sécurité publique, à la protection de la santé et de la vie des personnes et des animaux ou à la préservation des végétaux, ou à la protection de la propriété intellectuelle; ou se rapportant à des articles fabriqués ou des services fournis par des personnes handicapées, ou dans des institutions philanthropiques, ou dans les prisons.' (emphasis added)
230. G. Husserl, 'Public Policy and Ordre Public', 25 Va. L. Rev. 27 (1938).
231. See, e.g., Oppenheimer v Cattermole [1976] AC 249, 278 (claims based on racially discriminatory foreign law will not be recognized).
232. European Convention on Establishment, ETS No. 19, Paris, 13 December 1955, Protocol, Section III(a).
233. Regina v Bouchereau, Case 30/77, [1977] ECR 1999 at 2015.
234. GATS Art. XIV(a), n. 5.
235. It has been argued that the public order exception in the TRIPS Agreement should also be interpreted in light of the ECJ's approach, see T. G. Ackermann, 'Dis''ordre''ly Loopholes: TRIPS Patent Protection, GATT, and the ECJ', 32 Tex. Int'l. L. J. 489 (1997).
236. J. H. Jackson, The World Trading System: Law and Policy of International Economic Relations (2nd. ed. MIT, 1997) at 25.
237. F. Roessler, 'Domestic Policy Objectives and the Multilateral Trade Order: Lessons from the Past', in Anne O. Kreuger (ed), The WTO as an International Organization, 213 (1998), reprinted in 19 U. Pa. J. Int'l Econ L. 513 at 514. See also J. Atik, 'Identifying Antidemocratic Outcomes: Authenticity, Self-Sacrifice and International Trade', 19 U. Pa. J. Int'l Econ L. 229 at 234.
238. F. Roessler, 'Domestic Policy Objectives and the Multilateral Trade Order: Lessons from the Past', in Anne O. Kreuger (ed), The WTO as an International Organization, 213 (1998), reprinted in 19 U. Pa. J. Int'l Econ L. 513 at 514. See also J. Atik, 'Identifying Antidemocratic Outcomes: Authenticity, Self-Sacrifice and International Trade', 19 U. Pa. J. Int'l Econ L. 229 at 234.
239. F. Roessler, 'Domestic Policy Objectives and the Multilateral Trade Order: Lessons from the Past', in Anne O. Kreuger (ed), The WTO as an International Organization, 213 (1998), reprinted in 19 U. Pa. J. Int'l Econ L. 513 at 514. See also J. Atik, 'Identifying Antidemocratic Outcomes: Authenticity, Self-Sacrifice and International Trade', 19 U. Pa. J. Int'l Econ L. 229 at 234.
240. Roessler, ibid.
241. Appellate Body in Gasoline, at IIIB.
242. ILO Declaration on Fundamental Principles and Rights at Work (Geneva, June 1998).
243. Referring to the influence of the Universal Declaration of Human Rights, Schwelb wrote as long ago as 1959: 'It can be assumed, for instance, that these principles might achieve relevance, among others, in situations where public policy or ordre public governs legal relations.', S. Schwelb, 'The Influence of the Universal Declaration of Human Rights on International and National Law', 53 Am. Socy. Inter'l Law Proc. 217 at 222 (1959). More recently, F. Francioni, 'An International Bill of Rights: Why it Matters, How it Can be Used', 32 Tex. Inter'l L. J. 471, 481 (1997) refers to 'the "international public policy" of human rights'. Compare the European Court of Human Rights reference to the European Convention on Human Rights as an 'instrument of European public order ('ordre public') for the protection of individual human beings', in Loizidou v Turkey (1995) 20 EHRR 99, para. 93.
244. Referring to the influence of the Universal Declaration of Human Rights, Schwelb wrote as long ago as 1959: 'It can be assumed, for instance, that these principles might achieve relevance, among others, in situations where public policy or ordre public governs legal relations.', S. Schwelb, 'The Influence of the Universal Declaration of Human Rights on International and National Law', 53 Am. Socy. Inter'l Law Proc. 217 at 222 (1959). More recently, F. Francioni, 'An International Bill of Rights: Why it Matters, How it Can be Used', 32 Tex. Inter'l L. J. 471, 481 (1997) refers to 'the "international public policy" of human rights'. Compare the European Court of Human Rights reference to the European Convention on Human Rights as an 'instrument of European public order ('ordre public') for the protection of individual human beings', in Loizidou v Turkey (1995) 20 EHRR 99, para. 93.
245. ILO, Forced Labour in Myanmar (Burma): Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), Geneva, 2 July 1998.
246. For discussions, see A. K. Schneider, 'Democracy and Dispute Resolution: Individual Rights in International Trade Organizations', 19 U. Pa. J. Int'l Econ. L. 587 (1998); S. Charnovitz, 'Participation of Nongovernmental Organizations in the World Trade Organizations', 17 U. Pa. J. Int'l Econ. L. 331 (1996).
247. For discussions, see A. K. Schneider, 'Democracy and Dispute Resolution: Individual Rights in International Trade Organizations', 19 U. Pa. J. Int'l Econ. L. 587 (1998); S. Charnovitz, 'Participation of Nongovernmental Organizations in the World Trade Organizations', 17 U. Pa. J. Int'l Econ. L. 331 (1996).
248. United States - Measures Affecting Alcoholic and Malt Beverages, GATT BISD (39th Supp.), at para. 5.42; United States - Restrictions on Imports of Tuna (1991) (unadopted) at para. 5.22.
249. United States - Reformulated Gasoline, 35 ILM 603 (1996) at IV.
250. S. P. Croley and J. H. Jackson, 'WTO Dispute Procedures, Standard of Review, and Deference to National Governments', 90 American Journal of International Law (1996), 193 at 213.
251. United States - Section 337, GATT BISD (36th Supp.), para 5.27; see also Canada -Administration of the Foreign Investment Review Act, GATT BISD (30th Supp.), at para. 5.20; United States - Restrictions on Imports of Tuna (1981) at para. 5.22 (unadopted).
252. United States Section 337, at para. 5.26; see also Thailand - Restrictions on Cigarettes, GATT BISD 37th Supp. 200 (7 November 1990), holding that 'necessary' in Article XX(b) has the same meaning as in Article XX(d)); United States - Restrictions on Imports of Tuna, 16 August 1991, 30 ILM 1594 (1991) (unadopted).
253. United States Section 337, at para. 5.26; see also Thailand - Restrictions on Cigarettes, GATT BISD 37th Supp. 200 (7 November 1990), holding that 'necessary' in Article XX(b) has the same meaning as in Article XX(d)); United States - Restrictions on Imports of Tuna, 16 August 1991, 30 ILM 1594 (1991) (unadopted).
254. For the strengths and weaknesses of drawing comparisons between the WTO dispute settlement bodies and the ECJ, see P. M. Nichols, 'GATT Doctrine', 36 Va. J. Int'l L. 379, 459-465 (1996); M. Trebilcock and R. Howse, 'Trade Liberalization and Regulatory Diversity: Reconciling Competitive Markets with Competitive Politics', 6 European Journal of Law and Economics 5, 32.
255. For the strengths and weaknesses of drawing comparisons between the WTO dispute settlement bodies and the ECJ, see P. M. Nichols, 'GATT Doctrine', 36 Va. J. Int'l L. 379, 459-465 (1996); M. Trebilcock and R. Howse, 'Trade Liberalization and Regulatory Diversity: Reconciling Competitive Markets with Competitive Politics', 6 European Journal of Law and Economics 5, 32.
256. See further G. M. Kelly, 'Public Policy and General Interest Exceptions in the Jurisprudence of the European Court of Justice: Towards a "European" Conception of Values and Fundamental Rights', 4 European Review of Private Law 17-40 (1996).
257. For an insightful discussion of the standard of review, see M. Trebilcock and R. Howse, 'Trade Liberalization and Regulatory Diversity: Reconciling Competitive Markets with Competitive Politics', 6 European Journal of Law and Economics 5, 32 (1998).
258. Ibid, p. 212.
259. Sir Leon Brittan, 'Rough with the Smooth', Financial Times, 10 September 1997. For a more detailed exposition of this argument, see P. M. Nichols, 'Corruption in the World Trade Organization: Discerning the Limits of the World Trade Organization's Authority', 28 NY U J Inter'l L and Pol. 711 (1996).
260. Sir Leon Brittan, 'Rough with the Smooth', Financial Times, 10 September 1997. For a more detailed exposition of this argument, see P. M. Nichols, 'Corruption in the World Trade Organization: Discerning the Limits of the World Trade Organization's Authority', 28 NY U J Inter'l L and Pol. 711 (1996).
261. In its complaint to the US, the EU called the Massachusetts legislation a 'de facto reduction of the US sub-central offer', above note 118.
262. Rossler, op cit., at 527-528.
263. Kulacoglu, op. cit.
264. Compare B. A. Languie, 'Eight Ways to Think about International Labor Standards', 31 Journal of World Trade 27 (1997).
265. See, e.g., Singapore Ministerial Declaration, para. 4, WTO Doc. WT/MIN (96)/DEC/W (Dec. 13, 1996) which states that the appropriate body to set and deal with labor standards is the ILO. For a discussion of this aspect of the Declaration, see Note, 'Linking Labor Standards and Trade Sanctions: An Analysis of their Current Relationship', 36 Columb. J. Trans. Law. 659 (1998).