Article XX of GATT and the problem of extraterritorial jurisdiction: The case of trade measures for the protection of human rights

Journal of World Trade

Volumn 36, Issue 2, 2002, Pages 353-403

  Bartels, Lorand ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

GATT; HUMAN RIGHTS; INTERNATIONAL TRADE;

EID: 0346577771     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1015554707068     Document Type: Review

References (416)

1. General Agreement on Tariffs and Trade, 15 April 1994, Annex 1A of the Marrakesh Agreement Establishing the World Trade Organization, reprinted at (1994) 33 ILM 1154, also available at 〈www.wto.org〉.
2. Article XX (General Exceptions) provides, relevantly, that "Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: (a) necessary to protect public morals; (b) necessary to protect human, animal or plant life or health; (c) relating to the importations or exportations of gold or silver; (d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies ... the protection of patents, trade marks and copyrights, and the prevention of deceptive practices; (e) relating to the products of prison labour; (f) imposed for the protection of national treasures of artistic, historic or archaeological value; (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption ...".
3. Globalization and its impact on the full enjoyment of all human rights - Preliminary Report of the Secretary-General, UN Doc A/55/342, 31 August 2000,
4. cited also in Hoe Lim, Trade and Human Rights: What's at Issue?, 35 J.W.T. 2 (April 2001), 275 at 284. The Office of the UN High Commissioner for Human Rights subsequently addressed a note verbal to Member States attaching a list often questions raised in the preliminary report, including "(c) To what extent do the exceptions included under article XX of the General Agreement on Tariffs and Trade indicate a point of convergence between trade rules and international human rights law?". By the time of the follow-up report Globalization and its impact on the full enjoyment of all human rights - Report of the Secretary-General, UN Doc A/56/254, 31 July 2001, only five replies had been received, and the Secretary-General recommended that the questions be resubmitted for a report to be submitted to the 57th session of the General Assembly. Of these respondents only Burkina Faso responded directly to question (c), stating that "a State can still adopt appropriate measures for the protection of human rights even if such measures are contrary to the State's trade commitments, if the opening of its frontiers threatens to cause harm to persons" (at para. 6).
5. It is unlikely that this is affected by the rejection of the US proposal to include a sentence in the Singapore Declaration stating, "We recall that all Members have subscribed to the Universal Declaration on Human Rights", noted by Virginia A. Leary, The WTO and the Social Clause: Post-Singapore, 8 European Journal of International Law 1 (1997), 118.
6. But, see Barbara Brandtner and Allan Rosas, "Trade Preferences and Human Rights", in Philip Alston (ed.), The EU and Human Rights (Oxford, Oxford University Press, 1999), p. 8, arguing ("none of these provisions addresses human rights per se. It is thus not very probable that the WTO dispute settlement bodies, which have stressed the need to give a narrow interpretation to these exceptions, and have laid the burden of proof on the party invoking them, would, save perhaps in exceptional circumstances, accept human rights considerations as a ground for trade restrictions") that a trade measure for human rights reasons is likely only to be saved under the prison labour exception in Article XX(e) or the security exceptions in Article XXI.
7. Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 of the Marrakesh Agreement Establishing the World Trade Organization, reprinted at 33 ILM 1226 (1994), also available at 〈www.wto.org〉 ["GATT"].
8. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331.
9. Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, 95 American Journal of International Law (2001), 535 at 562, n. 178
10. [Pauwelyn, Public International Law].
11. The designation by the Appellate Body in United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998 at para. 130 [US - Shrimp], of the term "natural resources" in Article XX(g) as "evolutionary" was not a direct application of Article 31(3)(c), as it depended upon the intention of the parties with respect to a particular treaty provision at the time of conclusion of the agreement, in this case justified by the preamble of the WTO Agreement (at para. 130):
12. cf. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep 16 (Jan. 26)
13. [Namibia Advisory Opinion] , which is cited by the Appellate Body for this method;, the ICJ reasoned as follows: "Mindful as it is of the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion, the Court is bound to take into account the fact that the concepts embodied in Article 22 of the Covenant ... were not static, but were by definition evolutionary, as also, therefore, was the concept of the "sacred trust" (at para 53).
14. Cf also Aegean Sea Continental Shelf (Greece/Turkey), Jurisdiction, Judgment, [1978] ICJ Rep 3 (Dec. 19) at para. 79;
15. and Gabcikovo Nagymaros Project (Hungary/Slovakia), [1997] ICJ Rep 7 (Sep. 25) at para. 112.
16. To the extent that the "evolutionary approach" itself forms part of customary international law, it falls within the scope of Article 31(3)(c) and consequently it is unnecessary to question whether the Appellate Body was here deviating from its view that Articles 31, 32 and 33 of the Vienna Convention represent the "customary rules of interpretation of public international law" referred to in Article 3.2 of the DSU. It should also be said that there is a view that the evolutionary approach is the same as that in Article 31(3)(c): cf, e.g., the Dissenting Opinion of Judge Ameli in INA Corporation v Iran (1985) 8 Iran-US CTR 373 at text to mi 91 to 101. There is, however, a significant difference between the two insofar as the evolutionary approach depends upon a term being considered "evolutionary" at the time of treaty conclusion, whereas Article 31(3)(c) applies even to terms that might have been considered "static" at that time.
17. United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, at p. 17 [US - Gasoline].
18. Cf. comment of Burkina Faso, see note 3 above.
19. Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, adopted 7 November 1990, DS10/R, BISD 37S/200, which concerned a public health issue, was not framed by either party or the panel in human rights terms.
20. James Thuo Gathii, Construing Intellectual Property Rights and Competition Policy Consistently with Facilitating Access to Affordable AIDS Drugs to Low-End Consumers, 53 Florida Law Review (2001), 727.
21. The Draft Ministerial Declaration on the TRIPS Agreement, IP/C/W/312, WT/C7C/W/450, 4 October 2001, advanced by the African Group and 19 other developing countries included a reference to "discharging the obligation to protect and promote the fundamental human rights to life and the enjoyment of the highest attainable standard of physical and mental health ... as affirmed in the International Covenant on Economic, Social and Cultural Rights", however the final Ministerial Declaration on the TRIPS Agreement, WT/MIN(01)/DEC/W/2, 14 November 2001, did not include any references to human rights.
22. See also the Resolution of the Sub-Commission on the Promotion and Protection of Human Rights, Intellectual Property Rights and Human Rights, E/CN.4/Sub.2/Res/2000/7, 17 August 2000, declaring that "there are apparent conflicts between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other" (at para. 2) and "requesting the World Trade Organization, in general, and the Council on TRIPS during its ongoing review of the TRIPS Agreement, in particular, to take fully into account the existing State obligations under international human rights instruments" (at para. 8). Intellectual property rights may also be treated as human rights in a positive sense, e.g., as a reflection of Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), opened for signature on 19 December 1966, 993 UNTS 3, which sets out a person's "right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author".
23. Virginia A. Leary, " 'Workers' Rights and International Trade: The Social Clause (GATT, ILO, NAFTA, US Laws)", in Jagdish Bhagwati and Robert Hudec (eds), Fair Trade and Harmonization: Prerequisites for Free Trade? (Cambridge, MA, MIT Press, 1996), p. 204 (with further references)
24. [Leary, Workers' Rights];
25. Janelle M. Diller and David A. Levy, Child Labor, Trade and Investment: Toward the Harmonization of International LAW, 91 American Journal of International Law (1997), 663 at 683;
26. Patricia Stirling, The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: a Proposal for Addition to the World Trade Organization, 11 American University Journal of International Law and Policy 1 (1996), 33-39;
27. Michele Vellano, "Full Employment and Fair Labour Standards in the Framework of the WTO", in Paolo Mengozzi (ed.), International Trade Law on the 50th Anniversary of the Multilateral Trade System (Milan, Giuffrè, 1999), pp. 395-396 (noting the possibility but remaining non-committal);
28. contra, however, Frank J. Garcia, Trading Away the Human Rights Principle, 25 Brooklyn Journal of International Law 1 (1999), 51, at 79-80; ("The prison labor exception is least likely to serve in this case, despite the fact that arguably it is the clearest case of a human rights exception in the GATT, for the very reason that it is so clearly drafted to refer to a single category of products, namely those produced by prison labor") and
29. Christopher McCrudden, 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, 2 Journal of International Economic Law 1 (1999), 3 at 39.
30. Note also the failure of a US proposal to include an express limitation on "involuntary labour" at the 1947-48 ITO Conference and again (this time forced or compulsory labour) in 1956 referred to in Steve Charnovitz, The Influence of International Labour Standards on the World Trading Regime. A Historical Overview, 126 International Labour Review 5 (1987), 565 at 571
31. [Charnovitz, Influence].
32. Leary, ibid., at 227, n. 57.
33. In US - Tuna (1994), as note 35 below, at para. 3.35, the EC argued that "... the exception in paragraph (e) on the products of prison labour was not intended to combat prison labour practices in other contracting parties. There was very little that was humanitarian about this type of provision on prison labour ... Many, if not all, contracting parties operated systems of prison labour, not necessarily forced or hard labour. Contracting parties simply wanted to be able, if necessary, to protect themselves against the 'unfair competition' resulting from the low-cost labour employed in the production of prison goods". In
34. Frieder Roessler, "Diverging Domestic Policies and Multilateral Trade Integration", in Jagdish Bhagwati and Robert E. Hudec (eds), Fair Trade and Harmonization: Prerequisites for Free Trade?, Vol. 2 (Cambridge, MA, MIT Press, 1996), pp. 38-39, Roessler states that a WTO Member can justify a ban on foreign goods produced by prison labour under Article XX(e) while at the same time permitting the sale of goods made in domestic prisons, thus underscoring not only the competitive but even the protective origins of the provision. This may be what the Appellate Body was referring to when it said, in US - Shrimp, as note 8 above, at para. 120, that "what is appropriately characterizable as 'arbitrary discrimination' or 'unjustifiable discrimination', or as a 'disguised restriction on international trade' in respect of one category of measures, need not be so with respect to another group or type of measures. The standard of 'arbitrary discrimination', for example, under the chapeau may be different for a measure that purports to be necessary to protect public morals than for one relating to the products of prison labour". On what might be required for the public morals exception, see note 16 below.
35. Ernst-Ulrich Petersmann, International Trade Law and International Environmental Law, 27 J.W.T. (1993), 43 at 71, n. 57
36. [Petersmann, International Trade Law];
37. Robert Howse, The World Trade Organization and the Protection of Workers' Rights, 3 Journal of Small and Emerging Business Law 1 (1999), 131 at 142-143,
38. [Howse, Workers' Rights]
39. who is followed by Yasmin Moorman, Integration of ILO Core Rights Labor Standards into the WTO, 39 Columbia Journal of Transnational Law (2001), 555;
40. Vellario, as note 13 above, at 396-397 (noting the potential for Article XX(a)); Lucia Serena Rossi, "Comments", in Paolo Mengozzi (ed.), International Trade Law on the 50th Anniversary of the Multilateral Trade System (Milan, Giuffrè, 1999), p. 422;
41. and Salman Bal, International Free Trade Agreements and Human Rights: Reinterpreting Article XX of the GATT, 10 Minnesota Journal of Global Trade (2001), 62 at 78-79
42. (though incorrectly citing Virginia A Leary, "Workers' Rights and International Trade: The Social Clause (GATT, ILO, NAFTA, US Laws)" in J Bhagwati and R Hudec (ed.), Fair Trade and Harmonization: prerequisites for Free Trade?, MIT Press, Cambridge, Massachusetts, 1996 for this proposition. Leary's reference was to a hypothetical "social clause," not to Article XX(a)).
43. E.g. Howse, Workers' Rights, as note 15 above, p. 169 ("the public morals exception in Article XX(a) risks being almost limitless if the content of public morals does not have a universal element. Fundamental Rights supply this content, so a WTO dispute panel could use as a primary test to determine whether sanctions come within the ambit of Article XX(a), if the sanctions have a basis in the Declaration on Fundamental Labor Rights or other international human rights instruments of a universal character ...");
44. and Christoph T. Feddersen, Focusing on Substantive Law in International Economic Relations: The Public Morals of GATT's Article XX(a) and "Conventional" Rules of Interpretation, 7 Minnesota Journal of Global Trade (1998), 75 at 77 ("since standards of 'public morals' could differ among participating states, an interpretation of these standards must be found which can be consistently shared among all GATT members"). Feddersen rejects an interpretation of "public morals" that extends beyond a "core interpretation" for two reasons: (i) because Article XX does not extend to extraterritorial matters (at 117) and (ii) because the travaux preparatoires distinguish between public morals and ordre public, and consequently the public morals exception does not cover trade measures conflicting with the domestic legal order (at 118-119). Both of these points are disputed in this article. That the second is unnecessary may be seen from Case 121/85, Conegate Limited v. HM Customs & Excise [1986] ECR 1007 where the European Court of Justice stated that "a Member State may not rely on grounds of public morality in order to prohibit the importation of goods from other Member States when its legislation contains no prohibition on the manufacture or marketing of the same goods on its territory" (at para. 16). Article 30 EC, which corresponds to Article XX of GATT, includes reference to both public morality and ordre public.
45. Cf. Trade Policy Review - Israel - Minutes of Meeting on 14 and 16 September 1999, WT/TPR/M/58, 19 October 1999, at paras. 45, 55.
46. In addition to the references at note 16 above, see Steve Charnovitz, The Moral Exception in Trade Policy, 38 Virginia Journal of International Law (1998), 689 at 742
47. [Charnovitz, Moral Exception], ("Rejecting the extremes of 'anything goes' and 'no outwardly-directed,' the WTO should use international human rights law to ascribe meaning to the vague terms of Article XX(a)") and Garcia, as note 13 above, p. 80 (disagreeing with Charnovitz on the scope of the exception, but agreeing in principle that international human rights law can give content to the term "public morals").
48. Cf. Nottebohm (Liechtenstein v. Guatemala), [1955] ICJ Rep 4 (April 6).
49. See Karl Meessen, "Kollisionsrecht als Bestandteil des allgemeinen Völkerrechts: völkerrechtliches Minimum und kollisionsrechtliches Optimum", in Werner Flume (ed.), Internationales Recht and Wirtschaftsordnung: Festschrift für F. A. Mann zum 70. Geburtstag am 11 August 1977 (Munich, Beck, 1977), p. 227
50. [Meessen, Kollisionsrecht],
51. discussing the distinction drawn in Kurt Lipstein, The General Principles of Private International Law, 135 Recueil des Cours 1 (1972), 97 at 173-174, between "rules of international conflict of laws" (of which Meessen gives the Nottebohm case as an example) and "rules of public international law bearing on private international law".
52. See Conegate, as note 16 above, where the Court said that "although Community law leaves the Member States free to make their own assessments of the indecent or obscene character of certain articles, it must be pointed out that the fact that goods cause offence cannot be regarded as sufficiently serious to justify restrictions on the free movement of goods where the Member State concerned does not adopt, with respect to the same goods manufactured or marketed within its territory, penal measures or other serious and effective measures intended to prevent the distribution of such goods in its territory. [16] It follows that a Member State may not rely on grounds of public morality in order to prohibit the importation of goods from other Member States when its legislation contains no prohibition on the manufacture or marketing of the same goods on its territory".
53. Diller and Levy, as note 13 above, pp. 682-683;
54. Howse, Workers' Rights, as note 15 above, p. 144; Bal, as note 15 above, pp. 79-86.
55. E.g. Barry Carter, International Economic Sanctions: Improving the Haphazard US Legal Regime (Cambridge, Cambridge University Press, 1988), p. 132, n. 141 (the GATT exceptions "might be stretched to cover human rights violations or racial discrimination"). Also apparently going this far is Charnovitz, Moral Exception, as note 18 above. Stirling, as note 13 above, cites the prison labour exception and reasons that "[a]s the suggestion of a social clause indicates, a formal link between trade and human rights is an acceptable idea among industrialized members of the WTO" (at 37). Stirling proposes the establishment of a Human Rights Body within the WTO to authorize trade sanctions for human rights violations, although this would seemingly exceed the limited objectives of the WTO.
56. See, for this terminological distinction, Steve Charnovitz, A Taxonomy of Environmental Trade Measures, 6 Georgetown International Environmental Law Review (1993) 1 at 4
57. [Charnovitz, Taxonomy];
58. Daniel C. Esty, Unpacking the "trade and environment" conflict, 24 Law and Policy in International Business 4 (1994), 1259 at text to n. 16;
59. and OECD, Processes and Production Methods (PPMs): Conceptual Framework and Considerations on Use of PPM-Based Trade Measures, OCDE/GD(97)137, at p. 6.
60. US - Gasoline, as note 9 above, p. 29 ("Article XX of the General Agreement contains provisions designed to permit important state interests - including the protection of human health, as well as the conservation of exhaustible natural resources - to find expression".) On the other hand, the Appellate Body in US - Shrimp, as note 8 above, para. 121, stated in the same context that "the domestic policies embodied in such measures have been recognized as important and legitimate in character" (emphasis added).
61. US - Shrimp, as note 8 above, para. 133.
62. The term had been adopted by all parties in US - Tuna (1994), as note 35 below.
63. This was recognized by the panels in United States - Restrictions on Imports of Tuna, unadopted, 3 September 1991,
64. DS21/R, BISD 39S/155, para. 5.25 [US - Tuna (1991)],
65. and US - Tuna (1994), as note 35 below, para. 5.16 (on Article XX(g)) and para. 5.31 (on Article XX(b)).
66. E.g. Bal, as note 15 above, p. 86;
67. Howse, Workers' Rights, as note 15 above, p. 143 (both referring to the prison labour exception in Article XX(e)
68. and Charnovitz, Moral Exception, as note 18 above, pp. 700-701 (referring to both Article XX(e) and the exception for measures for the protection of national treasures in Article XX(f)).
69. Feddersen, as note 16 above, pp. 109-110 (criticized for this in Howse, Workers' Rights, as note 15 above, p. 143);
70. and McCrudden, as note 13 above, pp. 38-41.
71. Cf. Edward Gordon, The World Court and the Interpretation of Constitutive Treaties, 59 American Journal of International Law (1965), 794 at 806,
72. noting that "the [ICJ] has not fully accepted the expressio unius maxim and that it has relied on other considerations to reach its decisions". Note also scepticism as to the maxim expressio unius est exclusio alterius in United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products From Japan - First Written Submission of the United States (Annex A-2), WT/DS184/R, 28 February 2001, p. A-178, with further references.
73. Matthias Reuß, Menschenrechte durch Handelssanktionen (Baden-Baden, Nomos, 1999), p. 97.
74. Steve Charnovitz, Exploring the Environmental Exceptions in GATT Article XX, 25 J.W.T. 5 (1991), 37.
75. In Charnovitz, Moral Exception, as note 18 above, he also argues, somewhat dubiously, that "since GATT negotiators based their drafting on provisions 'in prior treaties', it would seem reasonable to consider such treaties as 'preparatory work' " (at 705). Others have followed Charnovitz's lead, e.g.
76. Myung Hoon Choo, An Institutionalist Perspective on Resolving Trade-Environmental Conflicts, 12 Journal of Environmental Law and Litigation (1997), 433 at 445 ("Nothing in the plain language of Article XX or in its drafting history indicates that measures to protect human, animal, and plant life or health must be limited to purely domestic issues. As such, future panels should not read restrictions into the existing provisions solely for the sake of maintaining the consistency of panel decisions which might hamper a nation's legitimate attempt to protect the environment.").
77. This point has been very well made by Elissa Alben, GATT and the Fair Wage: A Historical Perspective on the Labor-Trade Link, 101 Columbia Law Review (2001), 1410, who notes that "it is clear that parties in the early period did not see anything intrinsically improper about discussing labor standards in the context of a trade negotiation. This confirms the 'conventional wisdom' supporting a labor-trade link. It may not support, however, modern human rights concepts of 'fair labor standards'. History equally suggests that, in the labour context, the GATT was largely conceived as a means to ensure proper mechanisms for wage setting" (at 1440 and passim). For references to additional treaties prior to the GATT that did relate trade to human rights concerns, see Charnovitz, Influence, as note 13 above.
78. US - Tuna (1994), as note 35 below, para. 5.16 ("It could not therefore be said that the General Agreement proscribed in an absolute manner measures that related to things or actions outside the territorial jurisdiction of the party taking the measure.")
79. Indeed, this is more or less admitted in Charnovitz, Moral Exception, as note 18 above, p. 717. ("The various ways morality-based trade measures had been employed before the GATT was written foreshadow many of the uses to which article XX(a) might be enlisted today. Concerns about narcotics, pornography, alcohol abuse, animal cruelty, bombing of civilians, and abortion-inducing drugs remain strong 50 years after the GATT was written. The one new element in today's debate is the use of trade measures to pressure other countries to democratize."). This last element could, of course, be relevant under Article 31(3)(c).
80. E.g. Gabrielle Marceau, A Call for Coherence in International Law: Praises for the Prohibition Against "Clinical Isolation" in WTO Dispute Settlement, 33 J.WT. 5 (1999), 87 at 132;
81. and David Palmeter and Petros C. Mavroidis, The WTO Legal System: Sources of Law, 92 American Journal of International Law (1998), 398 at 411 ("The word 'parties,' as used in that provision [Article 31(3)(c)], would seem to refer to the parties to the particular dispute, not to the parties to the multilateral agreement."), and apparently, although not expressly addressing the issue,
82. Philippe Sands, Treaty, Custom and the Cross-fertilization of International Law, 1 Yale Human Rights and Development Law Journal (1998), 85 at 102
83. [Sands, Treaty, Custom].
84. Pauwelyn, Public International Law, as note 8 above, 575-576. One can agree with Pauwelyn that the same meaning should be given to the term "the parties" in Article 31(3)(c) and the term as used in Articles 31(3)(a) ("any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions") and 31(3)(b) ("any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation"). But this does not necessarily mean all of the parties to the agreement, despite the fact that, as Pauwelyn notes, this was the express understanding of the ILC with respect to Article 31(3)(b) (id., at 575 n. 202). Pauwelyn also notes that "party" is defined in the Vienna Convention as "a State which has consented to be bound by the treaty and for which the treaty is in force". But the argument is that the term "the parties" means "some of the parties to the treaty" (a subset of the definition of "party") not "all of the parties to the dispute" (a difference in its meaning). Which of these "some" parties are to be taken into account in any given interpretation is determined by the term "applicable". This may differ according to whether there is a legal dispute before a tribunal, or whether there is an "autointerpretation" affecting a certain number of other parties.
85. Pauwelyn also argues that the Appellate Body has supported his interpretation in European Communities - Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, adopted 22 June 1998, para. 84 [EC - Computer], when it said that "[t]he purpose of treaty interpretation under Article 31 of the Vienna Convention is to ascertain the common intentions of the parties. These common intentions cannot be ascertained on the basis of the subjective and unilaterally determined 'expectations' of one of the parties to a treaty". However, this passage could just as easily be interpreted as meaning "parties to the dispute". Indeed, the Appellate Body later (at para. 93) criticized the panel for taking into account the practice of only one party to the dispute, thus apparently violating Article 31(3)(b), and it also later (at para. 85) referred expressly to Article 31(3) before stating (at para. 89) that "a proper interpretation of Schedule LXXX should have included an examination of the Harmonized System and its Explanatory Notes". This amounts to an acceptance of the submission of the European Communities, which expressly stated (at para. 13) that, by virtue of Article 31(3)(c), the treaties constituting the Harmonized System and its Explanatory Notes (which were not concluded by all WTO Members) should "be relevant in interpreting the obligations of the European Communities under Schedule LXXX vis-à-vis WTO Members which are also Members of the World Customs Organization (the 'WCO')".
86. The panel in European Communities - Measures Affecting the Importation of Certain Poultry Products, WT/DS69/R, adopted as modified by the Appellate Body Report on 23 July 1998,
87. also clearly took the view that Article 31(3)(c) applies in cases where the relevant agreement is between only the parties to the dispute (paras 196-201), although the panel in United States - Restrictions on Imports of Tuna, unadopted, 16 June 1994, DS29/R
88. [US - Tuna (1994)],
89. speaking of Article 31(3)(b), equally clearly took the opposite view (at para. 5.19). Further, the view that Article 31(3)(b), and hence Article 31(3)(c), refers to a subset of the parties is supported by the fact that the International Court of Justice has accepted the practice of international organizations in the interpretation of their constituent instruments in which context "it has given little weight to the existence of dissenting minorities, abstentions, or qualified assents, as invalidating the interpretive value of the resolution itself" (Blaine Sloan, The United Nations Charter as a Constitution, 1 Pace Yearbook of International Law (1989), 61 at 110).
90. See note 35 above.
91. Cf. Vienna Convention, Articles 30 (Application of successive treaties relating to the same subject-matter) and 41 (Agreements to modify multilateral treaties between certain of the parties only).
92. See, e.g., Case 66/80, SpA International Chemical Corporation v. Amministrazione delle finanze dello Stato [1981] ECR 1191, at para. 11 ("the main purpose of the powers accorded to the court by Article 177 is to ensure that Community law is applied uniformly by national courts"). The principle of uniform application is an aspect of the Community law principles of supremacy (Case 6/64, Costa v. Enel [1964] ECR 585) and direct effect (Case 26/62, van Gend en Laos v. Nederlandse Administratie der Belastingen [1963] ECR 1).
93. International Law Commission, Draft Articles on State Responsibility Adopted on First Reading, Report of the International Law Commission on the Work of its Forty-Eighth Session, UN Doc. A/51/10 (1996), available at 〈www.un.org/law/ilc/archives/statfra.htm〉
94. [ILC, Draft Articles Adopted on First Reading].
95. See Article 41 (" 'Application of this Chapter' which refers to 'serious breach by a State of an obligation owed to the international community as a whole and essential for the protection of its fundamental interests'.") Article 43 ("The injured State"), Article 49 ("Invocation of responsibility by States other than the injured State"), Article 50 ("Object and limits of counter-measures") and Article 54 ("Countermeasures by States other than the injured State"), in International Law Commission, State responsibility: Draft articles provisionally adopted by the Drafting Committee on Second reading, A/CN.4/L.600, 11 August 2000 [Draft Articles],
96. and the discussion in the International Law Commission's Third Report on State Responsibility by Mr James Crawford, Special Rapporteur, A/CN.4/507, 15 March 2000
97. [ILC, Third Report on State Responsibility], which usefully summarizes the situation in Table 2 at p. 52, and the International Law Commission,
98. Fourth Report on State Responsibility by Mr James Crawford, Special Rapporteur, A/CN.4/517, 2 April 2001, at paras 59, 70-74 (on Article 54).
99. Cf also Brian D. Smith, State Responsibility and the Marine Environment: The Rules of Decision (Clarendon, 1988) at 95-9, who suggests two types of erga omnes obligations: those owed to the community at large (e.g. human rights), and those owed 'bilaterally' to all states 'individually', not as members of a community." Smith notes the general absence of an actio popularis in the former case, but argues that certain environmental obligations (e.g. on the high seas) may be enforced by states on the basis of their "individual" rights. Smith's analysis is approved by Stephen McCaffrey, Book Review: State Responsibility and the Marine Environment: The Rules of Decision. By Brian D Smith 83 American Journal of International Law 420 (1989) at 424-5.
100. Jacqueline Peel, New State Responsibility Rules and Compliance with Multilateral Environmental Obligations: Some Case Studies of How the New Rules Might Apply in the International Environmental Context, 10 Review of European Community and International Environmental Law 1 (2002), 82 at 92.
101. A separate but related question is which human rights must be respected as a matter of customary international law.
102. Article 40 in ILC, Draft Articles Adopted on First Reading, as note 39 above. This provision was formerly numbered Article 5.
103. Commentary to Article 40 in ILC, Draft Articles Adopted on First Reading, as note 39 above (commentary adopted without amendment from the commentary to the former Draft Article 5).
104. However, as James Crawford pointed out in ILC, Third Report on State Responsibility, as note 40 above, at para. 86, this qualification was not reflected in the text of the provision itself.
105. Barcelona Traction, Light and Power Co (Belgium/Spain) (Second Phase), [1970] ICJ Rep 3 (Feb. 5) [Barcelona Traction], at para, 33.
106. American Law Institute, Restatement, Third, the Foreign Relations Law of the United States (American Law Institute, 1987) [Restatement], § 702.
107. Article 8 of the Charter of Fundamental Rights of the European Union [2000] OJ C 364/1.
108. See ILC, Third Report on State Responsibility cited at note 40 above, at para. 115, referring to the possibility of allowing counter-measures in the case of genocide (although not necessarily in the case of torture). In the International Law Commission,
109. Third Report on State Responsibility by Mr James Crawford, Special Rapporteur, Addendum, A/CN.4/507/Add.4, 4 August 2000, at para. 398,
110. Crawford notes that, "the mere existence of conventional frameworks including monitoring mechanisms (e.g. in the field of human rights) has not been treated as excluding recourse to counter-measures". However, in James Crawford, "The Relationship between Sanctions and Countermeasures," 1999, available at 〈www.law.cam.ac.uk/RCIL/ILCSR/Statresp.htm〉 [Crawford, Sanctions],
111. he takes a more conservative position: "[a]ccepting, on the basis of the Barcelona Traction dictum, the proposition that there is a legal interest of states at large in respect of violations of certain obligations, to conceive that legal interest in the same way as the subjective rights of an individual state in a bilateral relationship with another state seems a fundamental error. It has the effect, among others, of turning human rights first into collective state rights, and then into individual state powers of reaction, and of doing so a priori - which is all rather problematic" (at 9). For the view that counter-measures should be available to enforce the jus cogens norms set out in Barcelona Traction, Light and Power Co (Belgium/Spain) (Second Phase), [1970] ICJ Rep 3 (Feb. 5),
112. see Karin Oellers-Frahm, Comment: The erga omnes Applicability of Human Right, 30 Archiv des Völkerrechts (1992), 28 at 31;
113. and Pieter Jan Kuyper, "International Legal Aspects of Economic Sanctions", in Petar Sarcevic and Hans van Houtte (eds), Legal Issues in International Trade (London, Graham & Trotman/Martinus Nijhoff, 1990), p. 152
114. [Kuyper, Sanctions],
115. For the broader view that counter-measures are available to enforce all human rights, see, e.g. Bruno Simma, Self-Contained Regimes, 16 Netherlands Yearbook of International Law (1985), 111 at 133;
116. Yoram Dinstein, The erga omnes Applicability of Human Rights, 30 Archiv des Völkerrechts (1992), 16 at 17-18
117. (arguing that all human rights are enforceable by counter-measures); and citing the Institute of International Law, Resolution on "The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States", 63 Yearbook of the Institute of International Law 2 (1989), 339 at 343,
118. Article 2 of which states that "... States, acting individually or collectively are entitled to take diplomatic, economic and other measures towards any other State that has violated the obligation set forth in Article 1, provided such measures are permitted under international law and do not involve the use of armed force in violation of the Charter of the United Nations". For the much rarer view that human rights obligations may never be enforced by counter-measures, see Prosper Weil, Towards Relative Normativity in International Law?, 77 American Journal of International Law (1983), 413 at 432-433.
119. Some further implications of this understanding will be addressed below in the context of the rules of public international law governing the exercise of extraterritorial jurisdiction.
120. It is therefore too broad to say, as does Richard J McLaughlin, Sovereignty Utility, and Fairness: Using US Takings Law to Guide the Evolving Utilitarian Balancing Approach to Global Environmental Disputes in the WTO, 78 Oregon Law Review (1999), 855 at 919, that "if a particular activity is prohibited as wrongful conduct under an existing rule of customary international law, a strong argument can be made that a GATT/WTO dispute settlement tribunal should automatically find a nation that imposes a restrictive trade measure to prevent that wrongful activity justified under the article XX chapeau", ("if a particular activity is prohibited as wrongful conduct under an existing rule of customary international law, a strong argument can be made that a GATT/WTO dispute settlement tribunal should automatically find a nation that imposes a restrictive trade measure to prevent that wrongful activity justified under the article XX chapeau. For example, if country A imposes a trade embargo on fisheries products from country B because country B allows serious and continuing trans-boundary pollution to damage productive fisheries habitat located in country A's territorial waters, there should be no question that country A was justified and need not rescind its trade measure or compensate country B as long as its claim is supported by reasonable scientific evidence.")
121. Several authors refer to the obligations of WTO Members to protect natural resources in arguing that trade measures for these purposes should be permitted under Article XX. These arguments are best understood as an indication that such obligations necessarily entail rights to act for these purposes by way of trade measures, not that such measures are available in the form of counter-measures to enforce the obligations of other WTO Members to protect resources. See, for instance, Thomas J Schoenbaum, International Trade and Protection of the Environment: The Continuing Search for Reconciliation, 91 American Journal of International Law (1997), 268 at 280
122. [Schoenbaum, Reconciliation];
123. similarly, Sands, Treaty, Custom, as note 34 above, 103-104;
124. (Article 4(5) of the 1989 Basel Convention, which requires parties to prohibit trade in hazardous goods with non-parties, reflects a "rule" of customary international law according to which such measures are to be deemed valid under Article XX.; James Cameron and Karen Campbell, "Challenging the Boundaries of the DSU through Trade and Environment Disputes", in James Cameron and Karen Campbell (eds), Dispute Resolution in the World Trade Organization (London, Cameron May, 1998), p. 216.
125. It has also been argued by Diller and Levy, as note 13 aabove, at 694 (Trade rules, which partake of both international contract law and treaty law, should be interpreted and implemented consistently with the treaties that create fundamental norms on human rights and labor standards. Such harmonization can be justified on two grounds. Firstly, the 'ordinary meaning' of the GATT regime in light of its object and purpose reveals that the treaty is not intended to override fundamental human rights protections like those involved in international prohibitions of extreme forms of child labor. Secondly, as an elaboration of Articles 55 and 56 of the UN Charter, the customary and Charter-based law of human rights and fundamental Labor standards, supplemented by treaty law, can be read into the obligations of UN members for purposes of Article 103 of the Charter. Under Article 103, the Charter obligations of UN members prevail in the event of a conflict with obligations under any other international agreement"), that the availability of trade measures to enforce jus cogens norms should be taken into account under Article XX. This would be consistent with the principles discussed above.
126. Marceau, as note 34 above, at 129. Marceau recognizes that these rights may take a number of different forms. Speaking of rights under multilateral environmental agreements (MEAs), she distinguishes between situations "(1) where the disputed measure is required by an MEA; (2) where the disputed measure is not required, but is explicitly permitted; and (3) where the disputed measure is taken in furtherance of the goals of an MEA". She further divides these situations into cases where both parties are party to the MEA and cases where one is a non-party. A similar "taxonomy" is found in Charnovitz, Taxonomy, as note 23 above, at 7-8.
127. The non-party problem is more acute in the case of those who consider the principles of treaty conflicts (e.g. Articles 30 and 41 of the Vienna Convention or the rules of lex specialis) to be applicable in WTO dispute settlement proceedings with respect to MEAs, which only apply when all relevant parties are party to all the applicable agreements. For an argument that these principles are of limited relevance in WTO dispute settlement see Lorand Bartels, Applicable Law in WTO Dispute Settlement Proceedings, 35 J.W.T. 3 (2001), 499,
128. although note, contra, Pauwelyn, Public International Law, as note 8 above especially at 564.
129. Marceau, as note 34 above, at 132-133. Additionally, Marceau argues (with reference to EC - Computer, as note 35 above, at para. 93) that, first, "compliance with the MEA is to be viewed as 'practice' of one Member" and, second, that "the GATT/WTO should be interpreted with a view to avoiding such conflicts of obligations" with the result that "a Panel should take into account that WTO Member's MEA obligations when interpreting the applicability of Article XX in that specific case". The first of these arguments must be clarified: the practice of one Member was held in that case to be relevant in determining the common intention of the parties, presumably in accordance with Article 31(3)(b), and so it can only be relevant if the practice was accepted by the other parties to the dispute (cf. above at note 35), either expressly or by acquiescence. The second argument has no basis in the Vienna Convention insofar as a non-party cannot be affected by the obligations of another State (see note 58 below). Marceau also argues that the MEA could be relevant as a factual matter in the case of measures explicitly permitted and in furtherance of the goals of an MEA. This is uncontroversial.
130. The term "legislative jurisdiction" is preferred here to the more unwieldy term "prescriptive jurisdiction".
131. Restatement, as note 46 above, § 401(a).
132. Cf. the definition of jurisdiction in the Draft Resolution of the Institute of International Law, The Extraterritorial Jurisdiction of States (Rapporteur: Maarten Bos), 65 Yearbook of the Institute of International Law 1 (1993), 1
133. as meaning "a State's authority to subject persons (natural or juridical) and things to its legal order" and the definition of the International Law Association, Interim Report on Extraterritorial Jurisdiction in Export Control Law, Report of the 64th Conference (Broadbeach, 1990), p. 318,
134. of "extraterritoriality", "as meaning the adoption of rules of law (including their adjudication and enforcement) that control conduct abroad, thereby undercutting or purporting to override the control exercised or exercisable by the foreign territorial sovereign". This power exists independently of a State's enforcement jurisdiction, which is the power "to employ judicial or non-judicial measures to induce or compel compliance or punish noncompliance with its laws or regulations" (enforcement jurisdiction) (e.g. Restatement, as note 46 above, § 431(1),
135. and its adjudicatory jurisdiction, which is the power to "exercise jurisdiction through its courts to adjudicate with respect to a person or thing" (Restatement, ibid., § 421(1)).
136. This approach was first proposed by Pietro Manzini, "Environmental Exceptions of Art XX GATT 1994 Revisited in the Light of the Rules of Interpretation of General International Law", in Paolo Mengozzi (ed.), International Trade Law on the 50th Anniversary of the Multilateral Trade System (Milan, Giuffrè, 1999), especially at pp. 839-840,
137. but has apparently not been taken up by others. Among those who have recognized the application of the rules governing legislative jurisdiction to Article XX are Bernard Jansen and Maurits Lugard, Some Considerations on Trade Barriers Erected for Non-Economic Reasons and WTO Obligations, 2 Journal of International Economic Law 3 (1999), 530 at 533, n. 6
138. ("A likely reason why the text of Article XX does not contain an express reference to jurisdictional limitations is because it assumes respect for and builds upon general principles of international law, including those on prescriptive jurisdiction"); Petros C. Mavroidis and Damien Neven, "Some Reflections on Extraterritoriality in International Economic Law: A Law and Economics Analysis", in Marianne Dony (ed.), Mélanges en Hommage à Michel Waelbroeck, Vol. II (Brussels, Bruylant, 1999);
139. and Kyle Bagwell, Petros C. Mavroidis and Robert W. Staiger, It's a Question of Market Access, 30 American Journal of International Law (2001) ("Our approach is probably consonant with the public international law concept of extraterritoriality. Amazingly, so far there has never been a discussion of this issue in WTO law, although the issue arose on a number of occasions").
140. See also Schoenbaum, Reconciliation, as note 51 above, at 279
141. (citing Ilona Cheyne, Environmental Unilateralism and the WTO/GATT System, 24 Georgia Journal of International and Comparative Law (1995), 433, who is more cautious)
142. and stating that "[t]hese international law jurisdictional doctrines should also apply to Article XX. Thus, the Tuna/Dolphin II panel's conclusion is essentially correct, and Article XX has extraterritorial, but not extrajurisdictional effect". Note also the EC argument in US - Shrimp, as note 8 above, at para. 73. ("the European Communities would not want to exclude the possibility, as a last resort, for a WTO Member, on its own, to take a 'reasonable' measure with the aim of protecting and preserving a particular global environmental resource. However, such a measure would only be justified under exceptional circumstances and if consistent with general principles of public international law on 'prescriptive jurisdiction'.") For a related argument (proposing a new WTO agreement on recognition and enforcement of judgments) see Antonio F. Perez, The International Recognition of Judgments: The Debate Between Private and Public Law Solutions, 19 Berkeley Journal of International Law (2001), 44, especially at 81. ("For example, those who believe that child labor unfairly subsidizes domestic production may be prepared to urge their national representatives and lobby foreign governments to expend scarce negotiating capital to secure either (1) substantive trade rules declaring such practices to be subsidies or (2) jurisdictional rules that facilitate domestic judgments against foreign producers engaging in such practices. These judgments would be enforceable under WTO law.") Perez does not however consider in detail the customary international rules on legislative jurisdiction.
143. The principle of pacta tertiis nec nocent nec prosunt is reflected in Article 34 of the Vienna Convention, which provides that "[a] treaty does not create either obligations or rights for a third State without its consent". This principle was stated by Judge Schücking (dissenting) in SS Wimbledon (UK, France, Italy and Japan/Germany), Merits, [1923] PCIJ (Ser
144. cited in Christine Chinkin, Third Parties in International Law, Oxford Monographs in International Law (Oxford, Clarendon, 1993), p. 72. The "non-discriminatory" nature of the rules noted at 26 ("the CITES rules normally apply independent of whether the exporting country is a CITES member or not"),
145. and Ann Rutgeerts, Trade and Environment - Reconciling the Montreal Protocol and the GATT, 33 J.W.T. 4 (1999), 61 at 69, is not relevant here, although it will be relevant under the Chapeau.
146. Montreal Protocol on Substances that Deplete the Ozone Layer, 19 September 1987, 1522 UNTS 293. In addition to the Montreal Protocol, restrictions on trade with non-parties are a feature also of the Convention on International Trade in Endangered Species of Wild Fauna and Flora of 1973 (CITES), 3 March 1973, 993 UNTS 243 and the Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, of 1989 (the Basel Convention), 22 March 1989, (1989) 28 ILM 657. Recognizing the potential for conflict, Article 104 of NAFTA (North American Free Trade Agreement, 17 December 1992, Canada-Mexico-US (1993) 32 ILM 605) singles out these three agreements, providing that the specific trade obligations in these agreements shall prevail in the event of any inconsistency.
147. O. Yoshida, Soft Enforcement of Treaties: The Montreal Protocol's Noncompliance Procedure and the Functions of Internal International Institutions, 10 Colorado Journal of International Environmental Law and Policy (1999), 95 at 99.
148. Rutgeerts, as note 58 above, at 79, noting also that none of the non-parties produce CFCs.
149. Frank Biermann, The Rising Tide of Green Unilateralism in World Trade Law. Options for Reconciling the Emerging North-South Conflict, 35 J.W.T. 3 (2001), 421 at 425 claims "near-universal status" for the main MEAs. As a result, he claims that "GATT is to be interpreted in such a way that trade restrictions required by quasi-universal multilateral environmental agreements fall under the purview of Article XX(b) and (g) of GATT as well as its chapeau".
150. See also Eva M. Kornicker Uhlmann, State Community Interests, Jus Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms, 11 Georgetown International Environmental Law Review (1998), 101 at n. 142.
151. Michael P. Scharf, Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States, 35 New England Law Review (2001), 363 at 377.
152. It may be mat such rights derive from the GATT notwithstanding the right of the regulating party to impose protective measures under Article XX. See below at text to notes 127-130.
153. It should perhaps also be said that, since SS Lotus (France/Turkey) [1927] PCIJ (Ser. A) No. 10, there has been a debate about whether States must justify their jurisdiction on a positive rule of international law or whether they may exercise jurisdiction unless prohibited by a positive rule of international law. In favour of the view that a positive law basis is required,
154. see, e.g. F.A. Mann, The Doctrine of Jurisdiction, 111 Recueil des Cours 1 (1964), 1 at 10-11
155. [Mann, Jurisdiction]
156. who says that "[t]he existence of the State's right to exercise jurisdiction is exclusively determined by public international law". Similarly, Robert Jennings, Extraterritorial Jurisdiction and the United States Anti-trust Laws, 33 British Yearbook of International Law (1957), p. 146 at 174,
157. states that "[a] State has a right to extraterritorial jurisdiction where its legitimate interests are concerned" and Article 3(1) of the Draft Resolution of the Institute of International Law, The Extraterritorial Jurisdiction of States (Rapporteur: Maarten Bos), 65 Yearbook of the Institute of International Law 1 (1993), p. 1,
158. provides that "[a] State asserting authority to exercise extraterritorial jurisdiction is under an obligation to justify it under international law". The same opinion is held by Meessen, Kollisionsrecht, as note 19 above, at 232; ("Eine irgendwie sinnvolle Inlandsbeziehung reicht aus. ... V[??012]lkerrechtswidrig ist es lediglich, an eine nicht sinnvolle, an eine unsinnige Inlandsbeziehung anzukn[??012]pfen.") Werner Meng, Extraterritoriale Jurisdiktion im öffentlichen Wirtschaftsrecht (Berlin/Heidelberg/New York, Springer, 1994), p. 547
159. [Meng, Extraterritoriale Jurisdiktion].
160. Cf., however, Derek Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Resources, 53 British Yearbook of International Law (1982), p. 1 at pp. 3-4,
161. noting some scepticism as to the necessity of a legal basis under public international law for the exercise of legislative jurisdiction (particularly in Michael Akehurst, Jurisdiction in International Law, 46 British Yearbook of International Law (1972-73), p. 145 at pp. 170-177),
162. although apparently concluding that an inconsistency of state practice particularly in civil jurisdiction does not remove the need for a rule (id., at 4) ("It is in any case wrong to assume - as seems to be the assumption of the savings clauses found in the decrees in the General Electric and Alcoa cases - that the exercise of extraterritorial jurisdiction is always permissible up to the point where there is an actual clash or possible clash with a foreign court"). There is no need to enter into this debate, other than to note that this latter view has been almost entirely abandoned in practice. Thus, even Jean-Gabriel Castel, Extraterritoriality in International Trade: Canada and United States of America Practices Compared (Toronto/Vancouver, Butterworths, 1988), p. 9, who maintains that "it is still correct to say that extraterritorial jurisdiction may be exercised as a matter of principle so long as no limitations are placed on it by prohibitive rules of international law" and that "[s]uch jurisdiction is not conferred by international law, only limited by it" promptly goes on to list the "five principles upon which jurisdiction over a criminal act can be justified".
163. In Barcelona Traction, as note 45 above, at 46, the ICJ denied that this principle could be applied to purely economic harm.
164. See discussion in Stanley J. Marcuss and Eric L. Richard, Extraterritorial Jurisdiction in United States Trade Law: The Need for a Consistent Theory, 20 Columbia Journal of Transnational Law (1981), 439 at 459, noting also the view of Akehurst, as note 65 above, at 237, that this qualification might not apply when the entire economic structure of the State is threatened.
165. The adoption of criminal legislation in absentia on this jurisdictional basis was recently discussed in Arrest Warrant of 11 April 2000 (Congo/Belgium) [2002] ICJ Rep nyr (14 Feb), avalable at 〈www.icj-cij.org〉, although the case was decided on the grounds that Belgium had "failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law" (para. 78). While the Court expressly refused to rule on the question "whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his purported universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of national courts" (at para. 43), it did indicate that this was a valid jurisdictional basis when it said, in an obiter dictum, that "[p]rovided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity" (at para. 61). Judge Koroma comments in a Separate Opinion (at para. 5) that "the Judgment cannot be seen either as a rejection of the principle of universal jurisdiction, the scope of which has continued to evolve, or as an invalidation of that principle. In my considered opinion, today, together with piracy, universal jurisdiction is available for certain crimes, such as war crimes and crimes agaisnt humanity, including the slave trade and genocide. The Court did not rule on universal jurisdiction, because it was not indispensable to do so to reach its conclusion, nor was such submission before it". The existence of universal criminal jurisdiction is strongly approved in the Dissenting Opinion of Judge Van Den Wyngaert, and strongly denied in the Separate Opinion of President Guillaume.
166. For a relatively recent rejection of the effects doctrine (and all others apart from territory and nationality), see Submission by New Zealand - Item 1: The relationship between the provisions of the multilateral trading system and trade measures für environmental purposes, including those pursuant to multilateral environmental agreements (MEAs), WT/CTE/W/20, 15 February 1996, at paras 13-14., where it said that "[13] ... States have sovereign jurisdiction over activities within their territory and in certain circumstances over actions of their nationals outside their territory. Extraterritorial jurisdiction, however, does not extend to the activities of nationals of other States. [14] Absent specific language to the contrary in GATT/WTO or specific agreement otherwise between the parties concerned therefore, measures taken by an individual country to address the effects of other countries' nationals occurring outside its jurisdiction cannot be covered by existing GATT exceptions."
167. SS Lotus (France/Turkey) [1927] PCIJ (Ser. A) No. 10, at 18-19 ("[Jurisdiction] cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention"). This is, of course, referring to enforcement jurisdiction, but as this may not exceed legislative jurisdiction, the statement may be assumed to apply also to legislative jurisdiction.
168. Brian D. Smith, State Responsibility and the Marine Environment: The Rules of Decision (Oxford, Clarendon, 1988), p. 154, says that "[i]t was concluded generally that each state has the obligation to prevent harm to the marine environment of the exclusive zone of any other state and of the high seas beyond any of such zones. Moreover, it was demonstrated that this obligation, following general precepts, translates into a duty to exercise the full measure of the state's territorial and extraterritorial legal authority to accomplish such prevention". He also argues that the standard of responsibility differs according to the degree of control exercised extraterritorially (id., at p. 128, n. 109-110). This is confirmed by the European Court of Human Rights, which has imposed liability for acts within the "effective control" of a contracting party.
169. See, recently, Barkovic et al v. Belgium et al, ECHR Application No. 52207/99 (12 December 2001). Interestingly, the trigger for this is the obligation under Article 1 of the Convention to secure rights to persons "within the jurisdiction" of the contracting party. The Court seemed to understand this term primarily in terms of the scope with a party's "legislative jurisdiction" (see especially para. 59). This is not necessarily a good analogy as it fails to account for cover cases where a party has "effective control" that is illegal under the rules of legislative jurisdiction.
170. It has been said that an improper exercise of legislative jurisdiction amounts to an international wrong, e.g. by F.A. Mann, The Doctrine of International Jurisdiction Revisited after Twenty Years, 186 Recueil des Cours 3 (1984), 9 at 21
171. [Mann, Jurisdiction Revisited];
172. and Andrea Bianchi, "Comment on Harold G. Maier, 'Jurisdictional Rules in Customary International Law' ", in Karl M. Meessen (ed.), Extraterritorial Jurisdiction in Theory and Practice (London/The Hague/Boston, Kluwer Law International, 1996), p. 90,
173. and this is confirmed in Ian Brownlie, Principles of Public International Law (5th edn, Oxford, Clarendon, 1998), p. 318,
174. where he says that "[i]n principle excess of jurisdiction gives rise to state responsibility even in the absence of an intention to harm another state". A lower standard is identified for the establishment of jurisdiction than for its improper exercise in Karl M. Meessen, Völkerrechtliche Grundsätze des internationalen Kartellrechts (Baden-Baden, Nomos, 1975), p. 106
175. [Meessen, Kartellrecht],
176. and also at 104; and in Meng, Extraterritoriale Jurisdiktion, as note 65 above, at 458.,
177. who says that "[i]m Unterschied zur später zu erörternden Fragestellung des Kollisionsrechts geht es hier nicht um ein Optimum, sondern um ein zu beachtendes v[??013]lkerrechtliches Minimum. Dies Fragestellung umfa[??013]t der Begriff der Jurisdiktionshoheit. Gefragt ist nicht danach, was die Staaten regeln sollen, sondern was sie regeln d[??013]rfen und wie sie dies tun d[??013]rfen." Meessen's double Standard is criticized by Erik Nerep, Extraterritorial Control of Competition Law with Special Regard to US Antitrust Law, Vol. 2 (Stockholm, Norstedt, 1983), p. 531,
178. but supported by many others, including Harold Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection between Public and Private International Law, 76 American Journal of International Law (1982), 280 at 299;
179. and Werner Meng, Völkerrechtliche Zulässigkeit und Grenzen der wirtschaftsverwaltungsrechtlichen Hoheitsakte mit Auslandswirkung, 44 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 4 (1984), 675 at 729
180. [Meng, Zulässigkeit].
181. § 403 of the Restatement, as note 46 above, sets out a balancing test to be undertaken by the courts of the regulating State. This test has been criticized by Bowett, as note 65 above, at 21-22, on the grounds that it will inevitably be biased towards an exercise of jurisdiction by the regulating State, may not lead to a uniform approach, entails difficulties in having the views of the affected party being adequately represented, is not accepted in practice, and is not appropriately dealt with by courts. See also the criticisms of this approach in Mann, Jurisdiction Revisited, as note 71 above, at 30-31, 88-91;
182. and the Observations of Karl Zemanek, in Institute of International Law, as note 65 above, at 160.
183. Brownlie, as note 71 above, p. 313; Meessen, Kollisionsrecht, as note 19 above, at 232. Meessen also gives an example of proportionality in the context of export controls on strategic goods, where he draws a distinction between "rules directly addressing (re)exporters in a foreign state (direct extraterritoriality) and rules obliging domestic exporters [to] make their foreign trading partners comply with domestic regulation (indirect extraterritoriality)" and argues that "[d]irect extraterritoriality seems prohibited whenever means of indirect extraterritoriality are sufficiently effective",
184. in Karl M. Meessen, "Extraterritorial Jurisdiction in Export Control Law", in Karl M. Meessen (ed.), International Law of Export Control (London/Dordrecht/Boston, Graham & Trotman/Martinus Nijhoff, 1992), pp. 13-14.
185. See also the discussion, at text to note 143 below, of the doctrine of proportionality in US - Shrimp, as note 8 above.
186. Nerep, as note 71 above, pp. 605-621; Meessen, Kollisionsrecht, as note 19 above, at 236. Scharf, as note 63 above, at 375, specifically addresses this limitation in the context of the jurisdiction of the International Criminal Court over nationals on non-parties.
187. Joachim Kaffanke, Nationales Wirtschaftsrecht und internationale Wirtschaftsordnung: Anwendungsgrenzen nationalen Rechts bei internationalen Sachverhalteu (Baden-Baden, Nomos, 1990), Part 6, passim;
188. Meessen, Kollisionsrecht, as note 19 above, at 236; Bowett, as note 65 above, at 16.
189. Bowett, as note 65 above, at 15-16
190. Scharf, as note 63 above, at 376-377.
191. Mann, Jurisdiction, as note 65 above, at 36-37.
192. This is Mann's English translation in Jurisdiction Revisited, as note 71 above, at 28,
193. of the German term used by Meessen in Kartellrecht, as note 71 above,
194. to summarize the various formulations of the principle in Mann, Jurisdiction, as note 65 above.
195. Mann, Jurisdiction, as note 65 above, at 49.
196. Jennings, as note 65 above, at 152.
197. E.g. Brownlie, as note 71 above, p. 313. ("The two generally recognized bases for jurisdiction of all types are the territorial and nationality principles, but the application of these principles is subject to the operation of other principles ... Extra-territorial acts can only lawfully be the object of jurisdiction if certain general principles are observed: (i) that there should be a substantial and bona fide connection between the subject-matter and the source of the jurisdiction; (ii) that the principle of non-intervention in the domestic or territorial jurisdiction of other states should be observed; (iii) that a principle based on elements of accommodation, mutuality, and proportionality should be applied"). The difference in approach is explained in Smith, as note 70 above, at 141. Notable exceptions among common law lawyers include Alan V. Lowe, The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution, 34 International and Comparative Law Quarterly (1985), 730
198. and Joel Trachtman, "Externalities and Extraterritoriality: The Law and Economics of Prescriptive Jurisdiction", in Jagdeep S. Bhandari and Alan O. Sykes (eds), Economic Dimensions in International Law (Cambridge, Cambridge University Press, 1998) (adopting a law and economics approach).
199. Mann, Jurisdiction Revisited, as note 71 above, at 29 (emphases added). Mann does not therefore see the "meaningful connection" purely in terms of "factual links or similar criteria", as was alleged by Bianchi, as note 71 above, at 90. Bianchi is, however, correct in his approach of seeking to define the appropriate connection by reference to international law.
200. Mann, Jurisdiction, as note 65 above, at 49. See also Brownlie, as note 71 above, at 313 (stating that "extraterritorial acts can only lawfully be the object of jurisdiction if certain general principles are observed (i) that there should be a substantial and bona fide connection between the subject-matter and the source of the jurisdiction ..."). Mann repeated his qualification in Jurisdiction Revisited, as note 71 above, at 28, when he commented that "the Tentative Draft No. 2 of the Revised Foreign Relations Law of the United States adopted the principle of reasonableness - a suggestion which appears unobjectionable, so long as it is understood that mere political, economic, commercial or social interests are to be disregarded when it comes to the weighing which every test of reasonableness implies".
201. On "existence values", see Daniel Esty, Greening the GATT: Trade, Environment and the Future (Washington, DC, Institute for International Economics, 1994), p. 107, n. 7
202. [Esty, Greening],
203. noting the issue and citing Richard Blackhurst and Arvind Subramanian, "Promoting Multilateral Cooperation on the Environment", in Kim Anderson and Richard Blackhurst (ed.), The Greening of World Trade Issues (London, Harvester, 1992), p. 247.
204. On "psychological spill-overs", see Richard L. Revesz, Federalism and Environmental Regulation: Lessons for the European Union and the International Community, 82 Virginia Law Review (1997), 1331, ("There is no analytical reason for treating existence values, also known sometimes as non-use values, differently from physical spillovers")
205. quoted also in Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 Yale Law Journal (1999), 677 at 691,
206. and Richard B. Stewart, International Trade and Environment: Lessons from the Federal Experience, 49 Washington & Lee Law Review (1992), 1329.
207. See also Robert Howse and Donald Regan, The Product/Process Distinction - An Illusory Basis for Disciplining "Unilateralism" in Trade Policy, 11 European Journal of International Law 2 (2000), 249 at 279 ("... one must recognise that it is the country's [ie the importer's] business (if it chooses) to avoid encouraging or being associated with what it regards as harmful of wicked behaviour, regardless of where the physical effects are felt.").
208. For a discussion of "economic" and "psychological spill-overs" as a justification for trade restrictions, see Halina Ward, Common but Differentiated Debates: Environment, Labour and the World Trade Organization, 45 International and Comparative Law Quarterly (1996), 592 at 609-617.
209. Ward also notes that "psychological spill-overs" may be given content by reference to international human rights norms (at 617). The use of trade measures to enforce one's values on others has been much criticized from a policy perspective as "eco-imperialisni", e.g. by Jagdish Bhagwati, "Trade and the Environment: The False Conflict?", in Zaelke et al. (eds), Trade and the Environment: Law, Economics, and Policy (Washington, DC, Center for International Environmental Law, 1993), pp. 170-174.
210. The potential for protectionism was emphasized in GATT Secretariat, Trade and Environment, GATT/1529, 3 February 1992 (also at 〈http://www.ciesin.org/docs/008-082/008-082.htm〉).
211. John O. McGinnis and Mark L. Movsesian, The World Trade Constitution, 114 Harvard Law Review (2000), 511 at 595-596.
212. In Mann, Jurisdiction Revisited, as note 71 above, at 26.
213. Meng, Extraterritoriale Jurisdiktion, as note 65 above, at 542-544.
214. Meng also notes the failure of two more sophisticated methods: a "dynamic" approach based on the subjective importance of the interests protected to the regulating state (citing Kaffanke, as note 75 above, and W J. Habscheid and W. Rudolf, Territoriale Grenzen der staatlichen Rechtsetzung, 11 Berichte der Deutschen Gesellschaft für Völkerrecht (1973), 7) and a "conflicts" based approach taking into account the interests of other states, of which he considers the Restatement, as note 46 above, is the prime example.
215. Mann, Jurisdiction, as note 65 above, at 98 ("It is a much more difficult and elusive question whether the traditional test of the territoriality of jurisdiction is appropriate and sufficient for purposes of the law of restrictive trade practices. In most cases it may well be adequate").
216. Mann's reliance on the territorial basis of jurisdiction to reject any extraterritorial antitrust jurisdiction was noted in Meessen, Kartellrecht, as note 71 above, at 62;
217. see also Kaffanke, as note 75 above, at 84. One might observe that Mann's conservatism led him consistently to reject the exercise of jurisdiction on unjustified territorial grounds (e.g. his disapproval of service of process on transit passengers in Mann, Jurisdiction Revisited, as note 71 above, at 24)
218. and national grounds (e.g. his disapproval of the fiscal jurisdiction claimed by the United States over its citizens abroad in Mann, Jurisdiction, as note 65 above, at 101) and his reluctance to accept new legal concepts such as economic sovereignty (see note 90 below), or functional sovereignty (see note 91 below), meant that he could never extend the bases of jurisdiction.
219. Meng, Extraterritoriale Jurisdiktion, as note 65 above, at 547, says that "the objective criteria [for the concept of sufficient connection] must be derived from the basis of state jurisdiction itself: territorial sovereignty, personal sovereignty and sovereignty over the state order" (translation by author: "die objektiven Kriterien hierzu [Begriff der hinreichenden Anknüpfung] müssen aus der Grundlage staatlicher Jurisdiktion selbst abgeleitet werden: der Territorial-, Personal- und der Ordnungshoheit"). This last concept includes economic sovereignty (id., at 566). Another example of reasoning deductively from a concept of "economic sovereignty" is found in Lowe, as note 82 above, at 740-746.
220. Unlike Meng, Meessen, Kartellrecht, as note 71 above, at 113, advocated the effects principle, not so much on the basis that a State needs to protect its economic sovereignty, but rather on the "functional" grounds that the home State has no interest in regulating its economic actors abroad, and therefore the affected State is justified in filling the vacuum.
221. See also Rutsel Silvestre Martha, The Jurisdiction to Tax in International Law (Deventer, Kluwer Law & Taxation, 1989), pp. 116-133, who argues in favour of fiscal jurisdiction over the continental shelf and the exclusive economic zone on the basis of a "functional sovereignty" granted by way of treaty. It is interesting to note that the universality basis of jurisdiction has traces of this notion of "functional sovereignty". As Scharf, as note 63 above, at 370 notes, this basis of jurisdiction was applied not only because the crime of piracy was particularly heinous, but also because it was a crime over which no State had territorial jurisdiction.
222. Meessen, Kollisionsrecht, as note 19 above ("sinnvolle Inlandsbeziehung"). The same bias is demonstrated in the reference to "linking points" in Lowe, as note 82 above, at 734-736.
223. Meng, Extraterritoriale Jurisdiktion, as note 65 above at 543 (with references), lists the following additional formulations, many of which suffer from this bias as well: "effet territorial", "Binnenbeziehung", "Beziehung zum Inland", "hinreichend starke Inlandbeziehung", "Minimum von beachtlicher Beziehung", "substantial and bona fide connection", "close, substantial, direct and weighty contact", "hinreichend handgreiflicher Fall", and "un lien".
224. A State may also have an interest in having its judgments enforced in another jurisdiction: Perez, as note 57 above.
225. Martti Koskenniemi, The Politics of International Law, 1 European Journal of International Law (1990), 4 at text to n. 54, noting that "cases dealing with the determination of the allowable reach of a state's extraterritorial jurisdiction" are an example of the fact that "legal practice tends to construct the foreign sovereign's exemption from local jurisdiction by balancing the two sovereigns" interests vis-à-vis each other".
226. US - Gasoline, as note 9 above, p. 29.
227. See Barcelona Traction, as note 45 above.
228. The degree of "legal interest" required in the context of judicial enforcement is quite different from the "legal interest" necessary to establish a basis for the exercise of legislative jurisdiction. This point was well expressed by the Court itself in South West Africa (Ethiopia/South Africa; Liberia/South Africa) (Second Phase), [1966] ICJ Rep 6 (Jul 18), which is the leading case on the subject of legal interest. In the course of denying the applicants standing in that case, the Court said that: "[h]umanitarian considerations may constitute the inspirational basis for rules of law, just as, for instance, the preambular parts of the United Nations Charte constitute the moral and political basis for the specific legal provisions thereafter set out. Such considerations do not, however, in themselves amount to rules of law. All States are interested - have an interest - in such matters. But the existence of an 'interest' does not of itself entail that this interest is specifically juridical in character". In this case the ICJ denied the applicants standing on the grounds that "... such rights or interests, in order to exist, must be clearly vested in those who claim them, by some text or instrument, or rule of law" (at 28) and "...the argument amounts to a plea that the Court should allow the equivalent of an "actio popularis', or right resident in any member of a community to take legal action in vindication of a public interest. But although a right of this kind may be known to certain municipal systems of law, it is not known to international law as it stands at present: nor is the Court able to regard it as imported by the 'general pirnciples of law' referred to in Article 38, paragraph 1 (c), of its Statute" (at 47).
229. See also the Counter-Memorial of Australia in East Timor (Portugal/Australia), [1995] ICJ Rep 90 (Jun 30) at paras 261-2, available at 〈www.icj-cij.org〉.
230. Indeed, the interest with which we are concerned is perhaps even less than the more minimal "interest of a legal nature" required under Article 62 of the ICJ Statute of third parties seeking to intervene in a case. The ICJ found for the first time that an intervening party (the Philippines) had failed to meet this standard in Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) - Application by the Philippines for Permission to Intervene [2001] ICJ Rep nyr (Oct. 23), available at 〈www.icj-cij.org〉.
231. See notes 71-77 above.
232. In their Joint Separate Opinion in Arrest Warrant of 11 April 2000 (Congo/Belgium) [2002] ICJ Rep nyr (14 Feb), available at 〈www.icj-cij.org〉, at para. 48, Judges Higgins, Kooijmans and Buergenthal distinguish extraterritorial criminal jurisdiction from extraterritorial civil jurisdiction. They refer in this context to the United States Alien Torts Claims Act which, they say, "has not attracted the approbation of States generally".
233. See ibid, at para. 59, stating that "[a] State contemplating bringing criminal charges based on univesal jurisdiction must first offer to the national State of the prospective accused person the opportunity itself to act upon the charges concerned". See note 91 above.
234. Petersmann, International Trade Law, as note 15 above, at 69, n. 50, says that, "the term 'extrajurisdictional application' is misleading in so far as the import restrictions were applied within the jurisdiction of the United States to products imported into the United States". This statement has been quoted or referred to, inter alia, by Cheyne, as note 57 above, at 457, n. 117, ("Ultimately, although this deserves a fuller discussion than is possible in this paper, the question should be asked whether unilateral trade restrictions are in fact the exercise of jurisdiction over activities outside the state. The acts considered by these GATT panels were concerned with entry into and sale within the territorial jurisdiction of the state."),
235. and Steve Charnovitz, Environmental Trade Sanctions and the GATT: An Analysis of the Pelly Amendment on Foreign Environmental Practices, 9 American University Journal of International Law and Policy (1994), 751 at 788, n. 228.
236. See also Charnovitz, Menu Exception, as note 18 above, at 720, n. 179, where he suggests that "[t]he use of the term 'extrajurisdictional' is somewhat ironic because states surely have jurisdiction to control what is imported into their territory under the territorial principle",
237. Steve Charnovitz, Dolphins and Tuna: An Analysis of the Second GATT Panel Report, 24 Environmental Law Reporter (1994), 10567 at n. 76
238. [Charnovitz, Dolphins] ("There are two reasons why imposing of a tariff or import restriction does not constitute extraterritorial application. First, both are imposed on the U.S. border, which is within U.S. jurisdiction. Second, both apply only to persons who choose to export to the United States and thus they can be avoided.");
239. Andre Nollkaemper, " 'Rethinking States' Rights to Promote Extra-territorial Environmental Values", in Friedl Weiss, Erik Denters and Paul de Waart (eds), International Economic Law with a Human Face (The Hague/Dordrecht/London, Kluwer Law International, 1998), p. 188 ("under general international law, import policies and corresponding measures at the border or in the national market are a prerogative of sovereign states, and as such lawful. It does not therefore appear to be helpful to include such measures because of their underlying policy reason in a category of measures that are considered unlawful because they subject to jurisdiction non-nationals or nationals for activities undertaken abroad.");
240. Belina Anderson, Unilateral Trade Measures and Environmental Protection Policy, 66 Temple Law Review (1993), 751 at 754-755 ("Under customary international law, a nation state's power to regulate trade flows from its authority to exercise jurisdiction over the property, persons, acts, or events located or occurring within its territory. When a nation state exercises its legislative, adjudicative, or enforcement authority beyond its borders, either over citizens of other countries or over its own nationals, it exercises 'extraterritorial jurisdiction.' Of course, any trade regulation affects trading partners and, thus, has extraterritorial ramifications. However, the important distinction is that exercises of extraterritorial jurisdiction command or compel results beyond a nation state's borders, but trade measures merely induce or influence results beyond its borders. Thus, characterizations of trade measures as examples of 'extraterritorial jurisdiction' blur this crucial legal distinction and confound the trade/environment debate"),
241. who also cities Richard A. Bilder, The Role of Unilateral State Action in Preventing International Environmental Injury, 14 Vauderbilt Journal of Transnational Law (1981), 51 at 62 (referring to "broad state prerogatives in matters of importation"),
242. and Paul Demaret, "Environmental Policy and Commercial Policy: The Emergence of Trade-Related Environmental Measures (TREMs) in the External Relations of the European Community", in Marc Maresceau (ed.), The European Community's Commercial Policy After 1992: The Legal Dimension (Dordrecht, Martinus Nijhoff, 1993), p. 375 ("it is sometimes said that the unilateral measures under discussion constitute an exercise in extraterritorial legislative jurisdiction. That view seems erroneous ... Regulating imports or, for that matter, exports certainly falls within the Community's territorial jurisdiction"). One rare exception to the above is Manzini, as note 57 above, at 834, although he provides no rationale for his assumption that trade measures may be considered extraterritorial.
243. Howse and Regan, us note 85 above, at 274. It might be added that these authors perceive the consistent rejection by WTO practice and jurisprudence of process and production methods (PPMs) to be something peculiar to WTO law (and lacking foundation there as well). In fact, as will emerge from the following discussion, this practice is quite consonant with general public international law principles limiting the ability of States to regulate matters occurring outside their territory. Howse and Regan also distinguish the Belgian Family Allowances case (Belgian Family Allowances, adopted on 7 November 1952, BISD 1S/59), where Belgium wrongly conditioned most-favoured-nation treatment on the existence of a certain type of domestic social security legislation, by describing this as a "country-based" measure and hence - at least potentially - coercive and impermissible. Responding directly to this point,
244. Bernhard Jansen, The Limits of Unilateralism from a European Perspective, 11 European Journal of International Law 2 (2000), 309 at 311-112,
245. and John H. Jackson, Comments on Shrimp/Turtle and the Product/Process Distinction, 11 European Journal of International Law 2 (2000), 303 at 303-304 emphasize the similarity between the two situations (Jackson arguing that the use of the term "product" in the GATT text justifies the distinction between product and process).
246. Note in this context the comment by the panel in United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R, 15 May 1998 at p. 277 [US - Shrimp (Panel)] that "[w]e agree with the United States that none of the parties cited or discussed the 1952 Belgian Family Allowances case, but in our view a reference to that case is relevant to our findings because, even though it did not relate to Article XX, it addressed a situation similar to this case, where a country had imposed conditions on access to its market based on the existence in the exporting countries of a family allowance system meeting specific requirements".
247. For definitions see note 56 above.
248. Mann, Jurisdiction, as note 65 above, at 128 ("it is hardly possible for it [the State] to enjoy enforcement jurisdiction, when it is without legislative jurisdiction"),
249. commented on Meessen, Kartellrecht, as note 71 above, at 103 ("Diese These kann sch[??020]rfer formuliert werden: Enforcement jurisdiction setzt stets das Vorhandensein von legislative jurisdiction voraus."); Nerep, as note 71 above, p. 459 ("There may thus be cases in which there is legislative jurisdiction without enforcement jurisdiction, but not vice versa.").
250. Mann, ibid., at 14.
251. See also Maier, Remarks, as note 128 above, at 373-374, and at note 14 above., who comments that "Mann was, I think, correct in that conclusion, but most formal governmental protests do not arise on the basis of general statutory assertions. Such assertions may stimulate some general diplomatic exchange, but real conflicts occur when representatives of another government notify the State Department that they object to a specific order or action. In those circumstances, the issues of jurisdiction are sharply joined."
252. Mann, ibid., at 15.
253. See also Meessen, Kollisionsrecht, as note 19 above, at 233, noting that the general tolerance of States for conflicting legislation in private international law and international criminal law is not mirrored in international economic law. The situation appears to be different in general international law:
254. cf International Law Commission, Second Report an State Responsibility by Mr James Crawford, Special Rapporteur, A/CN.4/498, 17 March 1999, at para. 78, which concludes after reviewing the authorities (in the context of a discussion on obligations of conduct and obligations of result) that "whether the enactment of inconsistent legislation constitutes of itself a breach of international law depends on the content and importance of the primary rule".
255. Cf. Werner Meng, "Extraterritorial Effects of Legislative, Judicial and Administrative Acts", in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 2 (Amsterdam/New York/Oxford, Elsevier, 1995), p. 156, noting that "acts of State may have a factual extraterritorial effect if they order the performance of an obligation abroad. Even if this obligation can only be enforced inside the acting State's territory, the consequences of such enforcement, such as the confiscation of assets, may be so weighty that the addressees abroad cannot reasonably afford to disregard the order without suffering considerable hardship".
256. § 431, comment (c) of the Restatement, as note 46 above. Read in the light of the principle underlying the prohibition on excessive extraterritorial legislation, there seems to be no reason to limit this to the denial of rights to specifically named individuals. The enforcement of legislation by non-judicial means could just as easily be seen to apply to a class of importers designated by their activities, as is indicated by the fact that the practice of cargo preferences (imports and/or exports made conditional on transport by national vessels) has been considered to raise questions of excessive extraterritorial jurisdiction. See Institute of International Law, as note 56 above, at 20. A related question is whether visa restrictions under the Helms-Burton Act are extraterritorial:
257. Peter L. Fitzgerald, Pierre Goes Online: Blacklisting and Secondary Boycotts in US Trade Policy, 31 Vanderbilt Journal of Transnational Law (1998), 1 at 14, n. 48.
258. Restatement, as note 46 above § 401(a). See alternative definitions of jurisdiction at note 56 above.
259. Meng, Extraterritoriale Jurisdiktion, as note 65 above, at 76. Meng further distinguishes, id., at 74, between "extraterritorial regulation" (Anordnung), being legislation that specifically mandates or forbids certain conduct abroad by creating rights and duties abroad, and "extraterritorial connection" (Anknüpfung).
260. This first type of jurisdiction is reflected in Willis Reese, Legislative Jurisdiction, 78 Columbia Law Review (1978), 1587, who begins his article (which is concerned with domestic law) by stating that "[legislative jurisdiction ... is the power of a state to apply its law to affect or create legal interests". Reese's understanding of jurisdiction is specifically criticized by Martha, as note 91 above, at 65, who notes that "this definition begs the question, since to 'apply law', as we have seen, presupposes the existence of law ... Thus, legislative jurisdiction ... should be defined as the State's right under international law to make (create) legal rules (norms of law)".
261. Meng, Extraterritoriale Jurisdiktion, as note 65 above, at 86 (translation by author: "Die Persuasionswirkung muß differenziert werden von einer sonstigen Auswirkung. Jede Auslandsregelung will Persuasionswirkung im Ausland haben. Reine Auslandsanknüpfungen sind dagegen nicht notwendig von diesem Willen getragen. Persuasion ist bewußt darauf ausgerichtet, den Adressaten zum gewünschten Verhalten oder Unterlassen zu bewegen. Der Begriff ist zwar weiter als der des Zwanges Interventionsverbotes. Persuasion ist deswegen auch nicht automatisch ein ausreichendes Mittel der Einmischung nach diesem Verbot. Persuasion muß aber bewußt und gewollt ausgeübt werden. Alle anderen tatsächlichen Auswirkungen einer Maßnahme sind keine extraterritoriale Jurisdiktion.")
262. Id., at 76-77 (translation by author): ("Nicht mehr zur extraterritorialen Jurisdiktion gehören alle innerstaatlichen Regelungen, welche lediglich innerstaatliche Anknüpfungspunkte und Rechtsfolgen, aber faktische Auswirkungen auf das Ausland haben. Das Verbot etwa der Einfuhr von Waren, welche unter Verletzung ökologischer Standards produziert oder gewonnen wurden, kann einen ausländischen Exporterlös erheblich beeinflussen. Ein Exportverbot für Kriegswaffen kann durchaus erhebliche militärische Auswirkungen im Ausland haben, indem es die militärische Schlagkraft anderer Staaten reduziert. Eine Diskontsatzerhöhung durch die Deutsche Bundesbank kann Kapital aus dem Ausland wegen der erwarteten Zinserhöhung anziehen und damit Investitionsströme von anderen Staaten ablenken. Jede inländische Subvention kann die Wettbewerbsfähigkeit der Empfänger auf den Weltmärkten zu Lasten ausländischer Unternehmen verbessern ... All dies sind Auslaudsauswirkungen territorialer Jurisdiktion. Sie entstehen zwar ebenfalls durch die zunehmenden grenzüberschreitenden Verflechtungen staatlicher Ordnungen, insbesondere der Wirtschaftsordnung. Sie sind aber, abgesehen von vertraglichen Verpflichtungen, keine völkerrechtliches Problem, sondern Ergebnis einer Kausalkette, welche durch die tatsächliche Verflechtung von Lebensbereichen über die Grenze gegründet ist. Solche Auswirkungen mögen geradezu das Regelungsziel einer bestimmten Jurisdiktion - Maßnahme sein, anderseits können sie auch ein nicht beabsichtigter und vielleicht nicht einmal vorhergesehener Effekt der Regelung sein").
263. Similar points are made by Hans-Jürgen Schlochauer, Die Extraterritoriale Wirkung von Hoheitsakten nach dem Öffentlichen Recht der Bundesrepublik Deutschland und nach Internationalem Recht (Frankfurt am Main Vittorio Klostermann, 1962), pp. 11-12.
264. See references at note 74 above.
265. Gray (Otherwise Formosa) v. Formosa [1963] 259.
266. Lepre v. Lepre [1965] 52, at 64 ,
267. referred to in Mann, Jurisdiction, as note 65 above, at 12.
268. See also Mann, Jurisdiction, as note 65 above, at 104-105, 105-106, when he says that "[t]he price at which an exporter sells to the United States may, it is true, be regulated by the latter's import restrictions or tariffs or subsidies, and these may make it even impossible for the exporter to do business with the United States. But it is an entirely different matter if the United States tells the foreign exporter what prices he may or may not charge and how he has to calculate them, and if the United States imposes liabilities upon him in case he disregards its directions ... if State A were entitled to prescribe the terms on which the subjects of State B have to export their goods, State B would be entitled to prescribe the terms on which the subjects of State A have to import the same goods. The resulting confusion would be wholly opposed to the 'interacting interests' of the family of nations". It should not matter that the means chosen for this purpose is a tariff or subsidy.
269. Note that Meng, Zulässigkeit, as note 71 above, at 740, claims that such a measure would be legitimate under the rules on legislative jurisdiction, although wrong as a matter of trade policy.
270. Mann, Jurisdiction Revisited, as note 71 above, at 25.
271. By customs duties one must assume, as with the reference to tariffs cited earlier, that Mann meant duties not based on process and production methods. Consequently, Mann argued that a rule mandating minimum prices for the sale of whisky abroad would be unjustified even when applied to the nationals of that state (id., at 25-26). This reasoning found practical application in the Hong Kong case of American President Lines, Ltd v. China Mutual Trading Co. Ltd and the Hong Kong Kowloon Wharf and Go-down Co. Ltd [1953] AMC 1510, cited and discussed in Stanley J. Marcuss and Eric L. Richard, Extraterritorial Jurisdiction in United States Trade Law. The Need for a Consistent Theory, 20 Columbia Journal of Transnational Law (1981), 439 at 466-467 (the Court held that goods unloaded from the ships of an American shipping company and held by a Hong Kong bailee had been "discharged" and were no longer subject to US jurisdiction). The authors also discuss the US Export Administration Act of 1979, which attempted to impose nationality on certain goods, and note that international law generally does not permit this, except for the case of cultural property (at 480-481).
272. Military and Paramilitary Activities in and against Nicaragua (Nicaragua/US), Merits, [1986] ICJ Rep 14 (Jun. 27) [Nicaragua, Merits], at 138 (the Court), and at 253 (Oda J, Dissenting Opinion).
273. Contra, however, Barbara Stark, Conceptions of International Peace and Environmental Rights: "The Remains of the Day", 59 Tennessee Law Review (1992), 651 at 667, stating that '[b]ecause a state has no obligation to provide aid to another, bilateral aid can and has been conditioned on respect for certain human rights by the recipient state'. Similarly, "because a state has no obligation to trade with another state, it can certainly refrain from doing so on human rights grounds. Once trade has been entered into, however, a state is not free to terminate the relationship because of subsequent human rights violations, however repugnant, of its trading partner. Violating the human rights of its own people does not justify counter-measures". Stark does not however address the relevant part of the Nicaragua judgment, and her conclusions may therefore be doubted.
274. Article XXIII(1) of GATT, see note 1 above.
275. European Communities - Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, at paras. 135-136.
276. United States - Sections 301-310 of the Trade Act of 1974, WT/DS152/R, adopted 27 January 2000, at para. 7.81 ("Indirect impact on individuals is, surely, one of the principal reasons. In treaties which concern only the relations between States, State responsibility is incurred only when an actual violation takes place. By contrast, in a treaty the benefits of which depend in part on the activity of individual operators the legislation itself may be construed as a breach, since the mere existence of legislation could have an appreciable 'chilling effect' on the economic activities of individuals.") [US - Section 301].
277. Japan made but did not press a similar claim in United States - Anti-Dumping Act of 1916 (Complaint by Japan), WT/DS162/R, 29 May 2000, at para. 618, n. 435.
278. European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, at para. 187.
279. Cf. also United States - Trade Measures Affecting Nicaragua, L/6053, unadopted, 13 October 1986, where the panel did not exclude the possibility that the non-violation remedy could apply to measures justified under the Security Exceptions in Article XXI of GATT.
280. It must be conceded that the case of product-bused measures presents an anomaly insofar as the targeted product may be a non-like-product for the purposes of Article III of GATT, and hence a trade restriction on the sale of such products would not violate GATT in the first place: Howse and Regan, as note 85 above, at 279. ("... a product-based restriction would raise no eyebrows even if it were imposed for the purpose of not encouraging certain production processes with objectionable effects occurring entirely in the producing countries - for example, a prohibition on the domestic sale of foie gras, whether imported or domestically produced.") The only conceivable way around this result would be to extend the logic of US - Tuna (1991), as note 26 above, at para. 5.14, which stated that - as measures not based on products as such - PPM-based measures must be treated under Article XI, to non-PPM based measures targeted at PPMs. This panel only said that a process-based restriction could not be considered under Article III, and therefore had to be treated as a quantitative restriction under Article XI. It did not say that a product based restriction had to be considered under Article III. It could therefore be argued that where the product is a "like-product", and the measure restricting trade in this product requires justification under Article XX, the same principles should apply as in the case of measures directly affecting extraterritorial activities. It should also be noted that, in fact, the logical problem identified by Howse and Regan does not arise to the extent that such measures tend to be phrased as restrictions on imports rather than restrictions on sale and hence in violation of Article XI
281. (cf. Charnovitz, Dolphins, as note 101 above, at text to note 78
282. Cf. Rodolphe Muñoz, Case C-1/96, The Queen v. Minister of Agriculture, Fisheries and Food, ex parte Compassion in World Farming Limited, Judgment of 19 March 1998 [1998] ECR I-1251, 36 Common Market Law Review (1999), 831, who considers (at 839) that Article 30 EC must apply to extraterritorial trade measures because it applies to Article 29 EC (export restrictions), which, according to Muñoz, are all extraterritorial. It follows from the proposals here that not all export restrictions are relevantly extraterritorial.
283. In extreme cases such export might amount to "indirect aggression" or a violation of a conventional obligation: Paul Rubenstein, State Responsibility for Failure to Control the Export of Weapons of Mass Destruction, 23 California Western International Law Journal (1993), 319.
284. For a strong criticism of phrases such as "extraterritorial application of domestic law" and "extraterritorial reach", in favour of the term "intraterritorial exercise of jurisdiction with extraterritorial effects", see Nerep, as note 71 above, p. 465 ff.
285. See, e.g., UNGA Resolution, Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba, A/Res/53/4, 14 October 1998, stating that "The General Assembly, Determined to encourage strict compliance with the purposes and principles enshrined in the Charter of the United Nations, Reaffirming, among other principles, the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation, which are also enshrined in many international legal instruments, Recalling the statements of the heads of State or Government at the Ibero-American Summits concerning the need to eliminate the unilateral application of economic and trade measures by one State against another that affect the free flow of international trade, Concerned about the continued promulgation and application by Member States of laws and regulations, such as that promulgated on 12 March 1996 known as the 'Helms-Burton Act', the extraterritorial effects of which affect the sovereignty of other States, the legitimate interests of entities or persons under their jurisdiction and the freedom of trade and navigation, ...". The secondary boycott has also been considered to infringe the sovereignty of third parties directly:
286. see, e.g. International Law Commission, Third Report on Unilateral Acts of States by Victor Rodriguez-Cedeño, Special Rapporteur, UN Doc A/CN.4/505, 17 February 2000, at para. 58. "Another issue which merits further comment, even though it has already been referred to, is the adoption by one or more States of unilateral measures based on internal legal acts which have no basis in pre-existing agreements or in any rule of international law. This would be the case, for example, of the trade blockade imposed unilaterally by one State, in particular the previously discussed Helms-Burton Act, whereby one State seeks to impose obligations on other States, a step which, according to general opinion, is contrary to international law."
287. For this assumption, see Thomas W. Walde, Managing the Risk of Sanctions in the Global Oil & Gas Industry: Corporate Response Under Political, Legal and Commercial Pressures, 36 Texas International Law Journal 1 (2001), 183 at 218; and , who says that "[e]conomic sanctions imposed by one country against another (primary boycotts without extraterritorial claim) are not contrary to international law". It might indeed be possible to argue that, given that the rules on legislative jurisdiction relate to private activities, a "country-based" trade measure which simply prohibits the importation of a product originating in a certain country is not "made applicable" to any particular extraterritorial activity of private parties, and is therefore not an exercise of extraterritorial legislative jurisdiction in the required sense.
288. Harold Maier, Remarks, in Second Annual International Business Law Symposium: Trading with Cuba: The Cuban Democracy Act and Export Rules, 8 Florida Journal of International Law (1993), 335 at 374
289. [Maier, Remarks], who commented with respect to the Arab League boycott that: "There are a lot of things wrong with what the Arab states did in that case, but extraterritoriality is not one of them. There was, in fact, nothing extraterritorial about their acts. All they said was, 'We in this country will not deal with you if you do these things abroad.' They made no effort to say, 'You cannot do it, but if you do we will punish you.' ... There are a lot of things wrong with that approach, but it did not raise a jurisdictional problem because they made no effort to apply Arab League law to any activities that were going on in another country. Maier also considers secondary boycotts not to raise extraterritoriality issues, which does not conform to state practice.
290. A similar argument is made in the context of environmental trade restrictions by Chris Wold, Multilateral Environmental Agreements and the GATT: Conflict and Resolution?, 26 Environmental Law 3 (1996), 841.
291. Andreas Lowenfeld, Congress and Cuba: The Helms-Burton Act, 90 American Journal of International Law (1996), 419 at 429, states that "a primary boycott does not usually raise issues of international law, because the boycotting state is exercising its jurisdiction in its own territory or over its own nationals". Lowenfeld's reference here to the territorial principle suffers from the problem that the boycott is presumably directed at activities occurring primarily (although perhaps not exclusively) outside of the territory of the party imposing the boycott, but his interpretation is certainly correct as far as the nationality basis of primary boycotts is concerned.
292. It might be added that the rules on legislative jurisdiction, like the rules on counter-measures, provide something of & lex specialis to the general rule that economic coercion is generally considered to be lawful: as noted, e.g. by Richard D. Porotsky, Economic Coercion and the General Assembly: a Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo Against Cuba, 28 Vanderbilt Journal of Transnational Law (1995), 901;
293. and Pieter Jan Kuyper, Sanctions, cited at note 48 above, at 149-150 (noting the non-intervention qualification);
294. and cf. Nicaragua, Merits, as quoted at note 118 above. This statement is generally read in the context of the question of the legality of economic coercion. To read it as permitting all trade measures would, however, lead to the result that even secondary boycotts would be permissible, which seems not to be the case according to the rules on legislative jurisdiction (although cf. the view of Maier at note 128 above). Perhaps this statement may be reconciled with the foregoing by reading it as establishing that there is no rule of customary international law prohibiting states from terminating trade relations unless this violates the rules of international law, which includes rules governing the exercise of legislative jurisdiction (an issue that was not before the Court).
295. Omer Yousif Elagab, The Legality of Non-Forcible Countermeasures in International Law (Oxford, Clarendon Press, 1988), pp. 212-213, notes that, "the issue of the legality will depend on the operation of particular rules of international law in particular contexts. For instance, in their protests against the sanctions imposed by the United States in connection with the Siberian gas pipeline, none of the aggrieved European Governments referred to these sanctions as 'economic coercion'. Instead, they were challenged for being inconsistent with the principle of jurisdiction". Elagab concludes, "the lawfulness of counter-measures on any given occasion may be determined by applying the conditions of the legality of counter-measures to the particular circumstances of that occasion. This may be done without any reference to the category of economic coercion".
296. By contrast, some authors have considered the measures in these cases to be counter-measures: see, for this approach to the Tuna cases, Mary Ellen O'Connell, Using Trade to Enforce International Environmental Law: Implications for United States Law, 1 Indiana Journal of Global Legal Studies (1994), 273 at 285; and for an apparently similar view of Shrimp,
297. see Thomas J. Schoenbaum, The Decision in the Shrimp-Turtle Case, 9 Yearbook of International Environmental Law (1998), 36 at 39. ("If the United States had been able to demonstrate a continued and reasonable pattern of attempts to engage the countries concerned in negotiations as well as a failure by at least some of the countries to negotiate in good faith, unilateral trade action, which treated non-cooperating countries alike and provided due process conditions, might have been approved by the WTO as a countermeasure under international law. ... These conditions could have been satisfied in a case where the countries were parties to both ... (CITES) and the UN Convention on the Law of the Sea, yet were disregarding their obligations under international law to protect turtles.") The distinction between the enactment of measures as a "primary right" and in the form of counter-measures is drawn below.
298. US - Tuna (1991), as note 26 above, at para. 3.32.
299. Id., at para. 5.27 (Article XX(b)) and para. 5.31 (Article XX(g)). The panel further held that the measures were not "necessary" to the objective of protecting animal health under Article XX(b) because they were unrelated to a negotiated agreement and also because the quota by which the measure was made effective was based on the indeterminate factor (how many dolphins had been caught by US fishermen in a given period) (at para. 5.28) and that both the extrajurisdictional nature of the measure and this last factor meant that the measures did not "relate to" (in the sense of being "primarily aimed at") the conservation of exhaustible natural resources within the meaning of Article XX(g) (at para. 5.33).
300. See Richard H Steinberg, Trade-Environment Negotiations in the EU, NAFTA, and WTO: Regional Trajectories of Rule Development, 91 American Journal of International Law (1997), 231 at 235, n. 20;
301. Benedict Kingsbury, The Tuna-Dolphin Controversy, The World Trade Organization, and the Liberal Project to Reconceptualize International Law, 5 Yearbook of International Environmental International Law (1994), 1, at 20, n. 47. According to Ward, as note 85 above, at 608, the two Tuna panel reports give an unqualified negative answer to the question "whether it should be legitimate for an importing State that suffers [transboundary environmental] damage to keep out imports of the offending products". But these reports say nothing about whether the United States would have been entitled to protect its own environment, regardless of whether such damage is caused by a production method or by the product itself.
302. US - Tuna (1994), as note 35 above, at paras. 5.27, 5.38-9, respectively. Cf. Cheyne, as note 57 above, at 453, who states that "[the panel] appears to accept that Article XX(g) can have extraterritorial reach, but only insofar as international law permits governments to exercise jurisdiction over their nationals and vessels outside their territory". The panel referred to these examples of extraterritorial jurisdiction under general international law (para. 5.17) but did not express a view as to other bases of jurisdiction either generally or with respect to Article XX.
303. See references at note 101 above, and Esty, Greening, as note 85 above, at 106, n. 5, who proposes that "[a] better distinction - but clearly not consistent with the tuna-dolphin panel report - would recognize that harms to the global commons while outside the territory of any nation and therefore extraterritorial in a strict sense are not beyond the jurisdiction of countries who indivisibly share these resources; thus these actions to protect the global commons are not extrajurisdictional. For example, protecting dolphins on the high seas would be extraterritorial but not extrajurisdictional". This comes close to a correct approach, though it makes no express reference to the body of customary international law dealing precisely with this issue.
304. US - Shrimp (Panel), as note 102 above, at para. 3.36.
305. Id., at para. 7.53.
306. US - Shrimp, as note 8 above, at para. 133. The panel in US - Shrimp (Panel), as note 102 above, expressly refused to deal with this question even though it was raised by the United States (at paras 50-51).
307. That this principle extends to measures having a substantial environmental effect on the territory of the state imposing the measure accepted by Louis Herikin, Observations, in Institute of International Law, as note 65 above, at 167.
308. Cf. Philippe Sands, "Unilateralism", Values, and International Law, 11 European Journal of International Law 2 (2000), 291 at 297-298, quoting the relevant passage and stating that "[i]n many respects the case turns on this finding of fact, since it provides the basis for concluding that the United States has a sufficient interest in the resources and - unstated but implicit - an interest in the treatment by the four Asian states of the migratory turtle resources".
309. US - Shrimp, as note 8 above, at para. 121.
310. 14J Id., at para. 161. Similarly, the Appellate Body said later that "[i]t may be quite acceptable for a government, in adopting and implementing a domestic policy, to adopt a single standard applicable to all its citizens throughout that country. However, it is not acceptable, in international trade relations, for one WTO Member to use an economic embargo to require other Members to adopt essentially the same comprehensive regulatory program, to achieve a certain policy goal, as that in force within that Member's territory, without taking into consideration different conditions which may occur in the territories of those other Members". Id., at para. 164.
311. US - Tuna (1991), as note 26 above, at para. 5.27 (Article XX(b)) and see also at para. 5.32 (Article XX(g)).
312. US - Tuna (1994), as note 35 above, at para. 5.26 (Article XX(g)) and see paras. 5.38-5.39 (Article XX(b)).
313. As noted above at note 130, international law probably does not prohibit the use of economic coercion.
314. US - Tuna (1994), as note 35 above, at para. 5.17, observing that "under general international law, states are not in principle barred from regulating the conduct of their nationals with respect to persons, animals, plants and natural resources outside of their territory".
315. See notes 73 and 75 above.
316. E.g., Roessler, as note 14 above, at 50; Paul J. Yechout, In the Wake of Tuna II: New Possibilities for GATT-Compliant Environmental Standards, 5 Minnesota Journal of Global Trade (1996), 247 at 275; Wold, as note 128 above, at text to n. 262 says that "Tuna/Dolphin II ... rejected Tuna/Dolphin I's extrajurisdictional prohibition" and interprets the Tuna II ruling to be "that a measure not be used to force another country to change its policies and practices". Wold then reasons that a trade restriction based on a CITES detriment finding would be extrajurisdictional in the sense that it protects a species beyond the jurisdiction of an importing country, it would not be coercive because it does not seek to alter the exporting country's policies (at text to n. 265). This argument suffers from a misunderstanding of the panel report, according to which the coercive effect of the measure was the result of the "extrajurisdictionality".
317. For a view of counter-measures as "unilateral", see Cesare P.R. Romano, The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 New York University Journal of International Law and Politics (1999), 709 at 736;
318. Linos-Alexander Sicilianos, The Relationship Between Reprisals and Denunciation or Suspension of a Treaty, 4 European Journal of International Law (1993), 341 at text to n. 36;
319. and Elisabeth Zoller, Peacetime Unilateral Remedies: An Analysis of Counter-Measures (Los Angeles, Transnational Publs, 1984);
320. also Restatement, as note 46 above, § 905, Reporter's Note 1. Both the first and third of the above categories appear to be comprehended by the statement in Principle 12 of the Rio Declaration that "[unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided".
321. (United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, A/CONE151/5/Rev 1, 13 June 1992).
322. International Law Commission, First Report on Unilateral Acts of States by Victor Rodríguez-Cedeño, Special Rapporteur, UN Doc A/CN.4/486, 5 March 1998, at paras 105-106. He continued (at paras 107-108), "[t]hese acts, which create rights for the State which performs them, appear to create new obligations for third States, a situation that would be incompatible with the well-established principle of international law reflected in Article 34 of the Vienna Convention on the Law of Treaties ... The obligation of the third State, which seems to flow from the right which the author of the unilateral act establishes, actually exists prior to the formulation of that act. These are therefore declarative acts which reflect the existence of pre-existing norms, whether under international agreements or under customary law, as in the case of the rules for the establishment of the exclusive economic zone, which, while being of customary origin, are contained in international instruments".
323. International Law Commission, Fourth Report on Unilateral Acts of States by Victor Rodríguez-Cedeño, Special Rapporteur, UN Doc A/CN.4/519, 30 May 2001
324. [ILC, Fourth Report on Unilateral Acts], at para. 42.
325. These examples are taken from Pierre-Marie Dupuy, The Place and Role of Unilateralism in Contemporary International Law, 11 European Journal of International Law 1 (2000), 19 at 20, who additionally includes in his definition of "unilateral acts" those acts aimed at exercising sovereign rights (such as the delimitation by a state of its territorial waters). Interestingly, this example seems to exclude for Dupuy the right to take counter-measures as a "unilateral act".
326. In a related context, see Crawford, Sanctions, as note 48 above, stating that "... the Security Council, although it authorises coercive responses, does not impose 'sanctions' in the strict sense. Its powers are described not in terms of responses to internationally wrongful acts but to situations which it characterises as threats to or breaches of the peace".
327. Cf., however, Laurence Boisson de Chazournes, Unilateralism and Environmental Protection: Issues of Perception and Reality of Issues, 11 European Journal of International Law 2 (2000), 315 at 316, who states that "the unilateral measures which will be analyzed in the context of this paper should be distinguished from those which are exercised by a state or several states acting jointly pursuant to an authorization provided for by international law, be it customary or conventional. This is the case with measures such as retorsion, reprisals or sanctions, also covered under the heading of counter-measures, which are exercised in reaction to a violation of international law ...". It might be considered that in this second case the measure is "authorised" by general international law, but its character is unquestionably one pertaining to the law of state responsibility and not the law of treaties.
328. The term "primary right", complementing the term "primary obligation", while not common, does appear occasionally in the literature on state responsibility: e.g. Stephen C. McCaffrey, Current Development: The Thirty-Fourth Session of the International Law Commission, 77 American Journal of International Law (1983), 323 at 333 (noting disagreement among members of the ILC on "whether self-defense fell within the scope of the legal consequences of an internationally wrongful act or whether it was a primary right, falling outside the scope of the topic").
329. ILC, Fourth Report on Unilateral Acts, as note 152 above, at para. 41 ("A unilateral act in the form of a countermeasure may be a conventional act despite its unquestionably unilateral character, as in the case of the denunciation or suspension of a treaty by a State which considers that another State has breached its international commitments thereunder.")
330. LC, Third Report on State Responsibility, as note 40 above,
331. International Law Commission, Third Report on State Responsibility by Mr James Crawford, Special Rapporteur, Addendum, A/CN.4/507/Add.3, 18 July 2000, at para. 325. ("There is thus clear distinction between action taken within the framework of the law of treaties (as codified in the Vienna Convention), and conduct raising questions of State responsibility (which are excluded from the Vienna Convention). The law of treaties is concerned essentially with the content of primary rules and with the validity of attempts to alter them; the law of responsibility takes as given the existence of the primary rules (whether based on a treaty or otherwise) and is concerned with the question whether conduct inconsistent with those rules can be excused and, if not, what the consequences of such conduct are. Thus it is coherent to apply Vienna Convention rules as to the materiality of breach and the severability of provisions of a treaty in dealing with issues of suspension, and the rules proposed in the Draft articles as to proportionality etc, in dealing with countermeasures.")
332. See also Sicilianos, as note 150 above. Cf. in this context also Gabcikovo Nagymaros Project (Hungary/Slovakia), [1997] ICJ Rep 7 (25 Sep.).
333. Andreas Ziegler, "WTO Rules Supporting Environmental Protection", in Friedl Weiss, Erik Denters and Paul de Waart (eds), International Economic Law with a Human Face (The Hague/Dordrecht/London, Kluwer Law International, 1998), p. 211, notes the sometimes artificial (but necessary, in the light of the Tuna cases) distinction between measures for the direct protection of the non-domestic environment and measures for the indirect protection of the non-domestic environment (which depend upon a change in the environmental policies of other WTO Members).
334. Cf. Karl Zenianek, The Unilateral Enforcement of International Obligations, 47 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1987), 32 at 35-36.
335. The term "self-contained regime" originates from Diplomatic and Consular Staff (US/Iran), [1980] ICJ Rep 3 (May 24), at 38, where the ICJ said that "[r]ules of diplomatic, law ... constitute a self-contained regime, which, on the one hand, lays down the receiving State's obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other hand, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse. These means are, by their nature, entirely efficacious". The classic case of a self-contained regime is the European Community (cf. Case 232/78, Commission of the European Communities v. French Republic [1979] ECR 2729, prohibiting the use of counter-measures between the Member States).
336. See, generally, Bruno Simma, Self-Contained Regimes, 16 Netherlands Yearbook of International Law (1985), 111
337. [Simma, Self Contained Regimes],
338. James Crawford has written that "resort to counter-measures will be excluded in response to violations of treaties which generally exclude the application of general rules of international law, or which contain their own provisions for authorizing collective measures", in International Law Commission, Third Report on State Responsibility by Mr James Crawford, Special Rapporteur, Addendum, A/CN.4/507/Add.4, 4 August 2000, at para. 398. It must be conceded that the term "self-contained regime" is defective to the extent that the rules of customary international law on counter-measures can be applied within the system to the extent that the system does not contract out of general international law, on which, cf. Article 37 of the Draft Articles, which provides that "[t]he provisions of these draft articles do not apply where and to the extent that the legal consequences of an internationally wrongful act of a State have been determined by other rules of international law relating specifically to that act".
339. With respect to the WTO see Pauwelyn, Public International Law, as note 8 above, at 542, and specifically with respect to the application of counter-measures authorized by the Dispute Settlement Body,
340. see both Joost Pauwelyn, Enforcement and Countermeasures in the WTO: Rules are Rules Toward a More Collective Approach, 94 American Journal of International Law 2 (2000), 335, especially at 341
341. and Petros C. Mavroidis, Remedies in the WTO Legal System: Between a Rock and a Hard Place, 11 European Journal of International Law 4 (2000), 763, passim
342. [Mavroidis, Remedies],
343. Article 23 of the DSU provides as follows: "1. When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and abide by, the rules and procedures of this Understanding. 2. In such cases, Members shall: (a) not make a determination to the effect that a violation has occurred, that benefits have been nullified or impaired or that the attainment of any objective of the covered agreements has been impeded, except through recourse to dispute settlement in accordance with the rules and procedures of this Understanding, and shall make any such determination consistent with the findings contained in the panel or Appellate Body report adopted by the DSB or an arbitration award rendered under this Understanding; (b) follow the procedures set forth in Section 21 of this Understanding to determine the reasonable period of time for the Member concerned to implement the recommendations and rulings; and (c) follow the procedures set forth in Section 22 of the Understanding to determine the level of suspension of concessions or other obligations and obtain DSB authorization in accordance with those procedures before suspending concessions or other obligations under the covered agreements in response to the failure of the Member concerned to implement the recommendations and rulings within that reasonable period of time".
344. US - Section 301, as note 121 above, at para. 7.43.
345. Ibid.
346. See Mavroidis, Remedies, as note 160 above, at 766.
347. See also International Law Commission, Third Report on State Responsibility by Mr James Crawford, Special Rapporteur, Addendum, A/CN.4/507/Add.3, 18 July 2000, at para. 343, stating that "[u]nder the WTO, special permission has to be obtained for retaliatory measures, and this again would exclude any residual right to take counter-measures under general international law for breaches of the WTO and related agreements". Whether in response to a WTO violation a WTO Member may suspend a non-WTO obligation is another question.
348. For an argument in favour, see Javier Fernández Pons, "Self-Help and the World Trade Organization", in Paolo Mengozzi (ed.), International Trade Law on the 50th Anniversary of the Multilateral Trade System (Milan, Giuffrè, 1999)
349. [Fernández Pons, Self-Help], p. 88,
350. and also, as he notes, by authors who have otherwise rejected the application of the "fall-back" doctrine, such as Laurence Boisson de Chazournes, Les contre-mesures en droit international économique (Paris, Pedone, 1992), pp. 183-184, 186
351. [Boisson de Chazournes, Contre-mesures].
352. Simma, Self-Contained Regimes, as note 160 above, at 128-129.
353. Ibid.
354. Gabriella Venturini, "Comments", in Paolo Mengozzi (ed.), International Trade Law on the 50th Anniversary of the Multilateral Trade System (Milan, Giuffrè, 1999), p. 148.
355. Michael J Hahn, Die einseitige Aussetzung von GATT-Verpflichtungen als Repressalie (Dissertation, Heidelberg, 1996), p. 283. ("F[??034]r den Fall ..., da[??034] durch das Streitbeilegungsverfahren die Wahrung der Rechte einzelner Vertragsparteien nicht gesichert werden kann, lebt die Befugnis der einzelnen Vertragspartei wieder auf. Ein solches Versagen des Verfahrens liegt vor, wenn die CONTRACTING PARTIES trotz entsprechenden Antrags kein Panel einrichten, den nicht offensichtlich fehlerhaften Panelbericht nicht annehmen oder beantragte Durchsetzurigsma[??034]nahmen nach Artikel XXIII:2 nicht gestatten.")
356. This was arguably the situation under GATT: thus, it was argued by Petros Mavroidis, Das GATT als "Self-Contained" Regime, 6 Recht für Internationale Wirtschaft (1991), 497, that because retaliation could take place outside of the GATT system the GATT did not constitute a self-contained regime.
357. Cf. Pieter Jan Kuyper, The Law of GATT as a Special Field of International Law: Ignorance, Further Refinement or Self-Contained System of International Law?, 25 Netherlands Yearbook of International Law (1994), 227 at 251-252, noting the intention to create a "self-contained regime" but expressing doubts as to whether that was achieved (especially noting the opposing views of the EC (counter-measures excluded) and the United States (countermeasures permitted because the system had broken down).
358. The issue is canvassed in some detail in Fernández Pons, Self-Help, at note 164 above, who takes the view that counter-measures were permitted,
359. but who notes also the contrary views of Ernst-Ulrich Petersmann, The Dispute Settlement System of the World Trade Organization and the Evolution of the GATT Dispute Settlement System since 1948, 31 Common Market Law Review (1994), 1157 at 1185,
360. and Boisson de Chazournes, Contre-mesures, as note 164 above, at 183-184.
361. Fernández Pons, Self-Help, as note 164 above, at 76. Indeed, Fernández Pons himself recognizes that the qualitative difference between the WTO system and the practice of blocking panel reports under the GATT 1947, which "entailed the exclusion of the possibility of imposing counter-measures 'within' the special regime and ... motivated the pretence of justifying such measures 'outside' the system if the special remedies failed, applying the mentioned 'fall-back' doctrine" (id., at 75). If the WTO keeps counter-measures "within" the system, this would appear to leave no room for any "fall-back doctrine".
362. This point was made in Charnovitz, Taxonomy, as note 23 above, at 8. A recent and controversial example of a recognition of a pre-existing right is UN Security Council Resolution 1373 (2001) of 27 September 2001, in which, referring to the equally applicable Article 51 of the UN Charter, the Security Council "[r]eaffirm[s] the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001)".
363. See Petersmann, International Trade Law, as note 15 above, at 70 (not drawing any distinction between protective rights and counter-measures), who is ("The general international law principles of State responsibility for serious transboundary pollution and the right to self-protection and reprisals in response to such pollution ... are recognized by all GATT contracting parties and, as indicated in Article 31 para 3(c) of the Vienna Convention on the Law of Treaties, are to be taken into account in the interpretation of GATT law") cited with approval by Cheyne, as note 57 above, at 455-456.
364. Fernández Pons, Self-Help, as note 164 above, at 95,
365. quoting Denis Alland, Justice privée et ordre juridique international - Étude théorique des contre-mesures en droit international public (Paris, Pedone, 1994), pp. 289-290 who writes that secondary consequences for wrongful acts in a special regime do not operate "... lorsque la non ex[??034]cution d'une obligation appartenant [??034] lui-m[??034]me vient en r[??034]action [??034] la non-observation d'une obligation extérieure [??034] ce regime".
366. Fernández Pons, Self-Help, as note 164 above, at 97, expressly disagreeing on this point with Boisson de Chazournes, Contre-mesures, as note 164 above, at 184 ("le régime du GATT ne permet pa qu'un fait générateur ne relevant pas du champ d'application de l'Accord général, au titre d'un exercice de contre-mesures.").
367. Fernández Pons rightly, in the opinion of this author, rejects the attempt made by Kees Jan Kuilwijk, Castro's Cuba and the US Helms-Burton Act: An Interpretation of the GATT Security Exemption, 31 J.W.T. 3 (1997), 49 at 54, to treat Article XXI(b)(iii) as referring to "situations which are serious enough to permit States under general international law to resort to the use of economic reprisals".
368. Cf. also Michael J Hahn, Vital Interests and the Law of GATT: An Analysis of GATT's Security Exception, 12 Michigan Journal of International Law (1991), 558 at 594
369. [Halm, Vital Interests], for whom an identification with Article XXI(b)(iii) is not a right, as seems indicated by Kuilwijk, but a "minimum threshold".
370. Fernández Pons, Self-Help, as note 164 above, at 97.
371. United Nations Conference on Trade and Employment, Final Act and Related Documents, UN Document E/Conf.2/78, April 1948.
372. International Trade Organization, Sixth Committee (Organization), Report of Sub-Committee I (Article 94), E/CONF.2/C.6/93, 2 March 1948, at 3.
373. Ibid., at 4-5.
374. Whether subsequent disappointment with the operation of the United Nations may have changed this intention is, of course, another question.
375. Jeffrey L Dunoff, Resolving Trade-Environment Conflicts: The Case for Trading Institutions, 27 Cornell International Law Journal (1994), 607 at 610-611.
376. The link between free trade and peace was noted also by Kant ("The spirit of trade cannot coexist with war") in Immanuel Kant, "To Perpetual Peace: A Philosophical Sketch (1793)", in Ted Humphrey (ed.), Perpetual Peace and other Essays (1983), at 125;
377. and John Stuart Mill (trade is "the principal guarantee of the peace of the world") in John Stuart Mill, "Principles of Political Economy (1884)", in John M. Robson (ed.), Collected Works of John Stuart Mill, Vol. 3 (Toronto, University of Toronto Press, 1965), p. 594.
378. Namibia Advisory Opinion, as note 8 above, at para. 96 (the treaty was the mandate; the right was the right under the law of treaties to terminate for material breach);
379. quoted also in Fernández Pons, Self-Help, as note 164 above, at 98, n. 108.
380. For further discussion see John Norton Moore, Enhancing Compliance with International Law: A Neglected Remedy, 39 Virginia Journal of International Law 4 (1999), 881 at 965-968.
381. As Pauwelyn notes in Public International Law, as note 8 above, at 542,
382. the ICJ made the same point with respect to the law of state responsibility in Ellectronica Sicula SPA (US/Italy), [1989] ICJ Rep 15 (July 20), at para. 50.
383. See note 160 above.
384. Fernández Pons, Self-Help, as note 164 above, at 98-99.
385. Fernández Pons cites the cases of various GATT Contracting Parties imposing sanctions against South Africa in 1960, the German ban on landings of Icelandic fish in 1974, and the US embargo against Uganda in 1978 (which was also referred to in International Law Commission, Third Report on State Responsibility by Mr James Crawford, Special Rapporteur, Addendum, A/CN.4/507/Add.4, 4 August 2000, at para. 391). However, he neglects to mention a number of early cases in which Article XXI was invoked, and none of his examples is more recent than 1978.
386. Early cases in which Article XXI was invoked include Peru's import ban against Czechoslovakia in 1955; Ghana's ban on imports from Portugal in 1961 in response to Portugal's continuing colonization of Angola; the US ban on trade with Cuba since 1962; import bans by certain states of the German Federal Republic on Icelandic fish; and Sweden's footwear import quota in the mid-1970s, all noted (with references) in Antonio F. Perez, WTO and UN Law: Institutional Comity in National Security, 23 Yale Journal of International Law (1998), 301 at 334 and (with the exception of the examples of Peru and Sweden) in Hahn, Vital Interests, as note 174 above.
387. In particular, the case of the German landing ban supports Fernández Pons' argument. This case concerned measures taken as counter-measures in response to a failure of Iceland to participate in a case before the International Court of Justice. In a meeting of the GATT Council, Germany rejected the applicability of Article XXI, on the following grounds: "[t]he representative of Germany remarked with respect to the relationship between the general rules of international law and GATT rules that if the ban on direct landings was justified as a counter-measure under generally recognized rules of international law it could not be illegal under the GATT. The General Agreement did not represent an isolated legal system. Rather, it was embedded in the general rules of international law. Otherwise, any State could constantly violate the economic interests of its neighbouring State which would be forced to renounce any counter-measure it wanted to take" (GATT Council, Minutes of Meeting held on 3 and 7 February 1975, C/M/103, 18 February 1975). Similar points regarding the non-applicability even of Article XXI were made by Egypt, in relation to its embargo (and secondary embargo) on Israel (BISD 17S/39, 1970) and by the United States before the panel in United States - Imports of Sugar from Nicaragua, L/5607, unadopted, 13 March 1984, when it claimed that "it was neither invoking any exceptions under the provisions of the General Agreement nor intending to defend its actions in GATT terms" (at para. 3.10). The panel noted this statement, and "therefore did not examine whether the reduction in Nicaragua's quota could be justified under any such provision" (at para. 4.4). However, the United States did agree to a panel (with terms of reference limited to an assessment of non-violation nullification and impairment of benefits) in United States - Trade Measures Affecting Nicaragua, L/6053, unadopted, 13 October 1986.
388. Ministerial Declaration on Dispute Settlement, adopted on 29 November 1982, L/5424, BISD 29S/9.
389. This Declaration has its origins in the animosity engendered by the sanctions imposed by various GATT Contracting Parties on Argentina in 1982. The development of the crisis within the GATT Council is discussed in Veijo Heiskanen, "International Sanctions and GATT Obligations", in Kari Hakapää et al. (eds), Essays on International Law (Helsinki, Finnish Branch of the International Law Association, 1987), pp. 70-74.
390. GATT Council, Minutes of Meeting held on 29 May 1985, C/M/188, 24 June 1985. E.g. Austria ("his country continued to believe that economic measures were inadequate means to reach political aims, except when such measures were imposed as a result of a UN Security Council decision"); Spain ("Spain had consistently held that it was not acceptable to have recourse to economic measures as an instrument of political pressure. He referred in particular to paragraph 7(iii) of the 1982 Ministerial Declaration"); Sweden ("the increased number of politically motivated trade measures in recent years was a matter for concern as they tended to erode GATT rules"); Portugal ("his delegation opposed the use of restrictive economic measures for political ends and considered action of this nature to be contrary to the spirit of GATT and to the 1982 Ministerial Declaration").
391. GATT Council, Minutes of Meeting held on 18 February 1992, C/M/254, 18 February 1992. E.g. India ("trade measures for non-economic reasons should be taken only within the framework of a decision by the UN Security Council, in the absence of which there was a serious risk that such measures would be unilateral and arbitrary, and would undermine the multilateral trading system"); Pakistan ("pursuant to the 1982 Ministerial Declaration (BISD 29S/9), contracting parties had undertaken to abstain from taking restrictive trade measures of a non-economic character not consistent with the General Agreement").
392. See also Nicaragua - Measures Affecting Imports from Honduras and Colombia - Statements by Nicaragua, WT/DSB/COM/5/Rev.1, 30 May 2000,
393. responding to Nicaragua - Measures Affecting Imports from Honduras and Colombia - Request for Consultations by Colombia, WT/DS188/1, 20 January 2000.
394. GATT Council, Minutes of Meeting held on 2 November 1982, C/M/162, 19 November 1982.
395. United States - The Cuban Liberty and Democratic Solidarity Act - Request for the Establishment of a Panel by the European Communities, WT/DS38/2, 4 October 1996.
396. The panel's authority lapsed as of 22 April 1998 (WT/DS38/6). For discussion of the case, see John H. Jackson and Andreas F. Lowenfeld, Helms-Burton, the US, and the WTO, ASIL Insight (March 1997), available at 〈www.asil.org〉.
397. The same shift in emphasis was evident in the United States' national security claims in United States - Trade Measures Affecting Nicaragua, L/6053, unadopted, 13 October 1986,
398. compared to its human rights based claims before the ICJ in Nicaragua, Marits, as note 130 above.
399. See Trade measures taken by the European Community Against the Socialist Federal Republic of Yugoslavia - Communication from the European Communities, L/6948, 2 December 1991, p. 2, where the Community stated that "[t]hese measures are taken by the European Community upon consideration of its essential security interests and based on GATT Article XXI".
400. See Council Regulation (EEC) No 3300/91 of 11 November 1991, suspending the trade concessions provided for by the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia [1991] OJ L315/1. The Council's claim of rebus sic stantibus was accepted in Case C-162/96, A Racke GmbH & Co and Hauptzollamt Mainz [1998] ECR I-3655.
401. Cf. Jean-Pierre Puissochet, The Court of Justice and international action by the European Community: The example of the embargo against the former Yugoslavia, 20 Fordham International Law Review (1997), 1557;
402. Pieter Jan Kuyper, "Trade Sanctions, Security and Human Rights and Commercial Policy", in Marc Maresceau (ed.), The European Community's Commercial Policy After 1992: The Legal Dimension (Dordrecht, Martinus Nijhoff, 1993).
403. See Eckart Klein, Sanctions by International Organizations and Economic Communities, 30 Archiv des Völkerrechts (1992), 101 at 108-109 (position unclear both under Article 48(2) of the UN Charter and under EC law);
404. and Sebastian Bohr, Sanctions by the United Nations Security Council and the European Community, 4 European Journal of International Law (1993), 256 at 265 ("[a]s a preliminary conclusion it can be asserted that the EC is not bound by public international law to implement sanctions adopted by the Security Council").
405. It is argued that the Community has not succeeded to the Member States' obligations under the UN Charter by Kathrin Osteneck, Die völkerrechtliche Verpflichtung der EG zur Umsetzung von UN-Sanktionen, 1 Zeitschrift für Europarechtliche Studien (1998), 103.
406. Report of the Meeting held on 6 April 1995 - Note by the Secretariat, WT/CTE/M/2, 8 May 1995, at para. 71. Hong Kong had earlier said that, "[r]egarding a point made by the representative of India and earlier by the representative of Canada on the use of trade sanctions to support an MEA, it was a basic fact that, under GATT, governments signed away this right vis-à-vis other contracting parties. Given that there was no right to use trade sanctions, it followed that resort to trade sanctions would have to 2nd coverage under the exception rules of the GATT".
407. See note 118 above.
408. Barcelona Traction, as note 45 above, at 47 ("on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality")
409. and Nicaragua, Merits, as note 130, at para. 267 ("... where human rights are protected by international conventions, that protection takes the form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves"). See also note 48 above.
410. The EC's policy was set out in the Communication from the Commission on the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries, COM(95) 216 final, 23 May 1995.
411. For discussion, see, inter alia, Frank Hoffmeister, Menschenrechts- und Demokratieklauseln in den vertraglichen Außenbeziehungen der Europäischen Gemeinschaft (Berlin, Springer, 1998);
412. Barbara Brandtner and Allan Rosas, Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice, 9 European Journal of International Law (1998), 468;
413. Barbara Brandtner and Allan Rosas, "Trade Preferences and Human Rights", in Philip Alston (ed.), The EU and Human Rights (Oxford, Oxford University Press, 1999);
414. Eibe Riedel and Martin Will, "Human Rights Clauses in External Agreements of the EC", in Philip Alston (ed.), The EU and Human Rights (Oxford, Oxford University Press, 1999);
415. and Elena Fierro, Legal Basis and Scope of the Human Rights Clauses in EC Bilateral Agreements: Any Room for Positive Interpretation?, 7 European Law Journal 1 (2001), 41.
416. Article 33 of the ILO Constitution provides that "[i]n the event of any Member failing to carry out within the time specified the recommendations, if any, contained in the report of the Commission of Inquiry, or in the decision of the International Court of Justice, as the case may be, the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance therewith". See Ward, as note 85 above, at 622, for discussion on whether the ILO is competent to impose trade sanctions. Recently, the International Labour Organization has called for its members to "review their relations" with Myanmar under this provision. Citing this resolution, the International Confederation of Trade Unions and the European Trade Union Confederation have called for trade sanctions to be imposed under this mandate (Open letter on Burma from Bill Jordan (General Secretary) and Emilio Gabaglio (ETUC) to Pascal Lanry, EU Trade Commissioner, 5 November 2001, available at 〈www.icftu.org〉).