Trade sanctions and human rights - Past, present, and future

Journal of International Economic Law

Volumn 6, Issue 4, 2003, Pages 797-839

  Vázquez, Carlos Manuel ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 0347595265     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/6.4.797     Document Type: Article

References (184)

1. Universal Declaration of Human Rights, 10 Dec. 1948, G.A. RES. 217A (III), U.N. GAOR, 3d Sess., pt. 1, at 71 [hereinafter Univ. Dec. Hum. Rts.], U.N. Doc. A/180; International Covenant on Civil and Political Rights, 16 Dec. 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, 993 U.N.T.S. 3.
2. Universal Declaration of Human Rights, 10 Dec. 1948, G.A. RES. 217A (III), U.N. GAOR, 3d Sess., pt. 1, at 71 [hereinafter Univ. Dec. Hum. Rts.], U.N. Doc. A/180; International Covenant on Civil and Political Rights, 16 Dec. 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, 993 U.N.T.S. 3.
3. Universal Declaration of Human Rights, 10 Dec. 1948, G.A. RES. 217A (III), U.N. GAOR, 3d Sess., pt. 1, at 71 [hereinafter Univ. Dec. Hum. Rts.], U.N. Doc. A/180; International Covenant on Civil and Political Rights, 16 Dec. 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, 993 U.N.T.S. 3.
4. See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 9 Dec. 1948, 78 U.N.T.S. 277; International Convention on Elimination of Racial Discrimination, 21 Dec. 1965, 660 U.N.T.S. 195, 5. I.L.M. 352 (1966); Convention on the Elimination of All Forms of Discrimination Against Women, 18 Dec. 1979, 1249 U.N.T.S. 13, 19 I.L.M. 33 (1980); Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 10 Dec. 1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985); Convention on the Rights of the Child, 20 Nov. 1989 [hereinafter Conv. on Rts. of the Child], 1577 U.N.T.S. 3, 28 I.L.M. 1448 (1989).
5. See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 9 Dec. 1948, 78 U.N.T.S. 277; International Convention on Elimination of Racial Discrimination, 21 Dec. 1965, 660 U.N.T.S. 195, 5. I.L.M. 352 (1966); Convention on the Elimination of All Forms of Discrimination Against Women, 18 Dec. 1979, 1249 U.N.T.S. 13, 19 I.L.M. 33 (1980); Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 10 Dec. 1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985); Convention on the Rights of the Child, 20 Nov. 1989 [hereinafter Conv. on Rts. of the Child], 1577 U.N.T.S. 3, 28 I.L.M. 1448 (1989).
6. See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 9 Dec. 1948, 78 U.N.T.S. 277; International Convention on Elimination of Racial Discrimination, 21 Dec. 1965, 660 U.N.T.S. 195, 5. I.L.M. 352 (1966); Convention on the Elimination of All Forms of Discrimination Against Women, 18 Dec. 1979, 1249 U.N.T.S. 13, 19 I.L.M. 33 (1980); Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 10 Dec. 1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985); Convention on the Rights of the Child, 20 Nov. 1989 [hereinafter Conv. on Rts. of the Child], 1577 U.N.T.S. 3, 28 I.L.M. 1448 (1989).
7. See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 9 Dec. 1948, 78 U.N.T.S. 277; International Convention on Elimination of Racial Discrimination, 21 Dec. 1965, 660 U.N.T.S. 195, 5. I.L.M. 352 (1966); Convention on the Elimination of All Forms of Discrimination Against Women, 18 Dec. 1979, 1249 U.N.T.S. 13, 19 I.L.M. 33 (1980); Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 10 Dec. 1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985); Convention on the Rights of the Child, 20 Nov. 1989 [hereinafter Conv. on Rts. of the Child], 1577 U.N.T.S. 3, 28 I.L.M. 1448 (1989).
8. See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 9 Dec. 1948, 78 U.N.T.S. 277; International Convention on Elimination of Racial Discrimination, 21 Dec. 1965, 660 U.N.T.S. 195, 5. I.L.M. 352 (1966); Convention on the Elimination of All Forms of Discrimination Against Women, 18 Dec. 1979, 1249 U.N.T.S. 13, 19 I.L.M. 33 (1980); Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 10 Dec. 1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985); Convention on the Rights of the Child, 20 Nov. 1989 [hereinafter Conv. on Rts. of the Child], 1577 U.N.T.S. 3, 28 I.L.M. 1448 (1989).
9. See Vienna Convention on the Law of Treaties, 23 May 1969 [hereinafter Vienna Convention], A/CONF. 39/27, art. 53.
10. UN Charter, art. 2, para 4 (establishing norm against the use of force); UN Charter, art. 51 (providing exception to norm against use of force in case of self-defense). The UN Charter prohibition on the use of force had been preceded by a similar prohibition in the Kellogg-Briand Fact. See General Treaty for the Renunciation of War (Kellogg-Briand Pact), 27 Aug, 1928, 46 Stat. 2343, 94 L.N.T.S. 57 (arts. I and II condemning recourse to war and prohibiting resolution of disputes except by peaceful means).
11. See Anthony Clark Arend and Robert J. Beck, International Law and the Use of Force: Beyond the UN Charter Paradigm (London; New York: Routledge, 1993) 34, 40-45 (discussing the primacy of peace over justice in the UN Charter).
12. UN Charter, art. 39. See also UN Charter, art. 42 (empowering the Security Council to 'take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security'); UN Charter, art. 2, para 4 (prohibiting nations from 'the threat or use of force against the territorial integrity or political independence of any state ... ').
13. Marian Nash, 'Contemporary Practice of the United States Relating to International Law', 92 Am. J. Int'l L. 251, 252 (1998) (section I of article discussing countermeasures under international law).
14. See Draft Articles on the Responsibilities of States for Internationally Wrongful Acts, Adopted by the International Law Commission at Its 53rd Session (2001) [hereinafter Draft Articles on State Responsibility], art. 49(2). The term 'countermeasure' is sometimes used to refer not only to reprisals (the non-performance by a state of an obligation owed to another state in response to the other state's violation of an international obligation owed to it) but also retorsion (an unfriendly act not amounting to a breach of an international obligation taken in response to another state's violation of an international obligation). See Oscar Schachter, International Law in Theory and in Practice (Kluwer, 1991) 185. I shall use the term here, as it is used in the Draft Articles, to refer only to reprisals.
15. See Draft Articles on the Responsibilities of States for Internationally Wrongful Acts, Adopted by the International Law Commission at Its 53rd Session (2001) [hereinafter Draft Articles on State Responsibility], art. 49(2). The term 'countermeasure' is sometimes used to refer not only to reprisals (the non-performance by a state of an obligation owed to another state in response to the other state's violation of an international obligation owed to it) but also retorsion (an unfriendly act not amounting to a breach of an international obligation taken in response to another state's violation of an international obligation). See Oscar Schachter, International Law in Theory and in Practice (Kluwer, 1991) 185. I shall use the term here, as it is used in the Draft Articles, to refer only to reprisals.
16. The extent to which State A is permitted under general international law to take countermeasures in response to State B's violation of the human rights of its own citizens is a matter of some debate. The International Law Commission's Draft Articles on State Responsibility would permit only the 'injured state' to take countermeasures, and they define 'injured state' to include, in the case of obligations owed to the international community as a whole, only states 'specially affected' by the violation. See Draft Articles on the Responsibilities of States for Internationally Wrongful Acts, Adopted by the International Law Commission at Its 53rd Session (2001), art. 42 (defining 'injured state'), art. 49 (entitling only an 'injured state' to take countermeasures). However, the Draft Articles may in this respect be more an attempt at the progressive development of international law than a codification of established law. Cf. David Bederman, 'Counterintuiting Countermeasures', 96 Am. J. Int'l L. 817 (2001) (considering other respects in which the Draft Articles' provisions on countermeasures amount to progressive development), An earlier version of the Draft Articles would have defined an 'injured state' to include all states in cases where 'the right [that was violated] has been created or is established for the protection of human rights and fundamental freedoms'. Art. 40, International Law Commission, Draft Articles on States Responsibility Adopted on First Reading, Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. Doc A/51/10 (1996), available at www.un.org/law/ilc/archives/statfra.htm The ILC's earlier position seems more consistent with the status of fundamental human rights norms as obligations ergs omnes. Because such obligations are owed to the international community as a whole, one would think that all states would have standing to take the measures available under international law to respond to violations. That appears to be the position of the Restatement (Third) of the Foreign Relations Law of the United States, which states in comment (a) to section 905 that '[t]he principles governing unilateral countermeasures apply as well when a state responds to a violation of an obligation to all states (erga omnes)'. That all states may take countermeasures in response to violations of human rights by other states - at least the most serious violations - appears to be the prevailing view among scholars as well. See Lorand Bartels, 'Article XX of GATT and the Problem of Extraterritorial Jurisdiction', 36 J. World Tr. 353, 362-63 and n 48 (2002); Jonathan I. Charney, 'NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo', 93 Am. J. Int'l L. 834, 835 (1999); Yoram Dinstein, 'The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 16, 17-18 (1992); Karin Oellers-Frahm, 'Comment: The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 28, 31 (1992); Pieter Jan Kuyper, 'International Legal Aspects of Economic Sanctions', in Petar Sarcevic and Hans van Houtte (eds), Legal Issues in International Trade (London; Boston: Graham & Trotman, 1990) 152; Bruno Simma, 'Self-Contained Regimes', 16 Netherlands Y.B. Int'l L. 111, 133 (1985). But see Prosper Weil, 'Towards Relative Normativity in International Law?', 77 Am J. Int'l L. 413, 432-33 (1983). The remainder of this article assumes that all states would be entitled to take countermeasures in response to serious violations of fundamental human rights by other states, in the absence of any specific limitation of this power in the GATT or other treaties.
17. The extent to which State A is permitted under general international law to take countermeasures in response to State B's violation of the human rights of its own citizens is a matter of some debate. The International Law Commission's Draft Articles on State Responsibility would permit only the 'injured state' to take countermeasures, and they define 'injured state' to include, in the case of obligations owed to the international community as a whole, only states 'specially affected' by the violation. See Draft Articles on the Responsibilities of States for Internationally Wrongful Acts, Adopted by the International Law Commission at Its 53rd Session (2001), art. 42 (defining 'injured state'), art. 49 (entitling only an 'injured state' to take countermeasures). However, the Draft Articles may in this respect be more an attempt at the progressive development of international law than a codification of established law. Cf. David Bederman, 'Counterintuiting Countermeasures', 96 Am. J. Int'l L. 817 (2001) (considering other respects in which the Draft Articles' provisions on countermeasures amount to progressive development), An earlier version of the Draft Articles would have defined an 'injured state' to include all states in cases where 'the right [that was violated] has been created or is established for the protection of human rights and fundamental freedoms'. Art. 40, International Law Commission, Draft Articles on States Responsibility Adopted on First Reading, Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. Doc A/51/10 (1996), available at www.un.org/law/ilc/archives/statfra.htm The ILC's earlier position seems more consistent with the status of fundamental human rights norms as obligations ergs omnes. Because such obligations are owed to the international community as a whole, one would think that all states would have standing to take the measures available under international law to respond to violations. That appears to be the position of the Restatement (Third) of the Foreign Relations Law of the United States, which states in comment (a) to section 905 that '[t]he principles governing unilateral countermeasures apply as well when a state responds to a violation of an obligation to all states (erga omnes)'. That all states may take countermeasures in response to violations of human rights by other states - at least the most serious violations - appears to be the prevailing view among scholars as well. See Lorand Bartels, 'Article XX of GATT and the Problem of Extraterritorial Jurisdiction', 36 J. World Tr. 353, 362-63 and n 48 (2002); Jonathan I. Charney, 'NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo', 93 Am. J. Int'l L. 834, 835 (1999); Yoram Dinstein, 'The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 16, 17-18 (1992); Karin Oellers-Frahm, 'Comment: The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 28, 31 (1992); Pieter Jan Kuyper, 'International Legal Aspects of Economic Sanctions', in Petar Sarcevic and Hans van Houtte (eds), Legal Issues in International Trade (London; Boston: Graham & Trotman, 1990) 152; Bruno Simma, 'Self-Contained Regimes', 16 Netherlands Y.B. Int'l L. 111, 133 (1985). But see Prosper Weil, 'Towards Relative Normativity in International Law?', 77 Am J. Int'l L. 413, 432-33 (1983). The remainder of this article assumes that all states would be entitled to take countermeasures in response to serious violations of fundamental human rights by other states, in the absence of any specific limitation of this power in the GATT or other treaties.
18. The extent to which State A is permitted under general international law to take countermeasures in response to State B's violation of the human rights of its own citizens is a matter of some debate. The International Law Commission's Draft Articles on State Responsibility would permit only the 'injured state' to take countermeasures, and they define 'injured state' to include, in the case of obligations owed to the international community as a whole, only states 'specially affected' by the violation. See Draft Articles on the Responsibilities of States for Internationally Wrongful Acts, Adopted by the International Law Commission at Its 53rd Session (2001), art. 42 (defining 'injured state'), art. 49 (entitling only an 'injured state' to take countermeasures). However, the Draft Articles may in this respect be more an attempt at the progressive development of international law than a codification of established law. Cf. David Bederman, 'Counterintuiting Countermeasures', 96 Am. J. Int'l L. 817 (2001) (considering other respects in which the Draft Articles' provisions on countermeasures amount to progressive development), An earlier version of the Draft Articles would have defined an 'injured state' to include all states in cases where 'the right [that was violated] has been created or is established for the protection of human rights and fundamental freedoms'. Art. 40, International Law Commission, Draft Articles on States Responsibility Adopted on First Reading, Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. Doc A/51/10 (1996), available at www.un.org/law/ilc/archives/statfra.htm The ILC's earlier position seems more consistent with the status of fundamental human rights norms as obligations ergs omnes. Because such obligations are owed to the international community as a whole, one would think that all states would have standing to take the measures available under international law to respond to violations. That appears to be the position of the Restatement (Third) of the Foreign Relations Law of the United States, which states in comment (a) to section 905 that '[t]he principles governing unilateral countermeasures apply as well when a state responds to a violation of an obligation to all states (erga omnes)'. That all states may take countermeasures in response to violations of human rights by other states - at least the most serious violations - appears to be the prevailing view among scholars as well. See Lorand Bartels, 'Article XX of GATT and the Problem of Extraterritorial Jurisdiction', 36 J. World Tr. 353, 362-63 and n 48 (2002); Jonathan I. Charney, 'NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo', 93 Am. J. Int'l L. 834, 835 (1999); Yoram Dinstein, 'The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 16, 17-18 (1992); Karin Oellers-Frahm, 'Comment: The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 28, 31 (1992); Pieter Jan Kuyper, 'International Legal Aspects of Economic Sanctions', in Petar Sarcevic and Hans van Houtte (eds), Legal Issues in International Trade (London; Boston: Graham & Trotman, 1990) 152; Bruno Simma, 'Self-Contained Regimes', 16 Netherlands Y.B. Int'l L. 111, 133 (1985). But see Prosper Weil, 'Towards Relative Normativity in International Law?', 77 Am J. Int'l L. 413, 432-33 (1983). The remainder of this article assumes that all states would be entitled to take countermeasures in response to serious violations of fundamental human rights by other states, in the absence of any specific limitation of this power in the GATT or other treaties.
19. The extent to which State A is permitted under general international law to take countermeasures in response to State B's violation of the human rights of its own citizens is a matter of some debate. The International Law Commission's Draft Articles on State Responsibility would permit only the 'injured state' to take countermeasures, and they define 'injured state' to include, in the case of obligations owed to the international community as a whole, only states 'specially affected' by the violation. See Draft Articles on the Responsibilities of States for Internationally Wrongful Acts, Adopted by the International Law Commission at Its 53rd Session (2001), art. 42 (defining 'injured state'), art. 49 (entitling only an 'injured state' to take countermeasures). However, the Draft Articles may in this respect be more an attempt at the progressive development of international law than a codification of established law. Cf. David Bederman, 'Counterintuiting Countermeasures', 96 Am. J. Int'l L. 817 (2001) (considering other respects in which the Draft Articles' provisions on countermeasures amount to progressive development), An earlier version of the Draft Articles would have defined an 'injured state' to include all states in cases where 'the right [that was violated] has been created or is established for the protection of human rights and fundamental freedoms'. Art. 40, International Law Commission, Draft Articles on States Responsibility Adopted on First Reading, Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. Doc A/51/10 (1996), available at www.un.org/law/ilc/archives/statfra.htm The ILC's earlier position seems more consistent with the status of fundamental human rights norms as obligations ergs omnes. Because such obligations are owed to the international community as a whole, one would think that all states would have standing to take the measures available under international law to respond to violations. That appears to be the position of the Restatement (Third) of the Foreign Relations Law of the United States, which states in comment (a) to section 905 that '[t]he principles governing unilateral countermeasures apply as well when a state responds to a violation of an obligation to all states (erga omnes)'. That all states may take countermeasures in response to violations of human rights by other states - at least the most serious violations - appears to be the prevailing view among scholars as well. See Lorand Bartels, 'Article XX of GATT and the Problem of Extraterritorial Jurisdiction', 36 J. World Tr. 353, 362-63 and n 48 (2002); Jonathan I. Charney, 'NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo', 93 Am. J. Int'l L. 834, 835 (1999); Yoram Dinstein, 'The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 16, 17-18 (1992); Karin Oellers-Frahm, 'Comment: The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 28, 31 (1992); Pieter Jan Kuyper, 'International Legal Aspects of Economic Sanctions', in Petar Sarcevic and Hans van Houtte (eds), Legal Issues in International Trade (London; Boston: Graham & Trotman, 1990) 152; Bruno Simma, 'Self-Contained Regimes', 16 Netherlands Y.B. Int'l L. 111, 133 (1985). But see Prosper Weil, 'Towards Relative Normativity in International Law?', 77 Am J. Int'l L. 413, 432-33 (1983). The remainder of this article assumes that all states would be entitled to take countermeasures in response to serious violations of fundamental human rights by other states, in the absence of any specific limitation of this power in the GATT or other treaties.
20. The extent to which State A is permitted under general international law to take countermeasures in response to State B's violation of the human rights of its own citizens is a matter of some debate. The International Law Commission's Draft Articles on State Responsibility would permit only the 'injured state' to take countermeasures, and they define 'injured state' to include, in the case of obligations owed to the international community as a whole, only states 'specially affected' by the violation. See Draft Articles on the Responsibilities of States for Internationally Wrongful Acts, Adopted by the International Law Commission at Its 53rd Session (2001), art. 42 (defining 'injured state'), art. 49 (entitling only an 'injured state' to take countermeasures). However, the Draft Articles may in this respect be more an attempt at the progressive development of international law than a codification of established law. Cf. David Bederman, 'Counterintuiting Countermeasures', 96 Am. J. Int'l L. 817 (2001) (considering other respects in which the Draft Articles' provisions on countermeasures amount to progressive development), An earlier version of the Draft Articles would have defined an 'injured state' to include all states in cases where 'the right [that was violated] has been created or is established for the protection of human rights and fundamental freedoms'. Art. 40, International Law Commission, Draft Articles on States Responsibility Adopted on First Reading, Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. Doc A/51/10 (1996), available at www.un.org/law/ilc/archives/statfra.htm The ILC's earlier position seems more consistent with the status of fundamental human rights norms as obligations ergs omnes. Because such obligations are owed to the international community as a whole, one would think that all states would have standing to take the measures available under international law to respond to violations. That appears to be the position of the Restatement (Third) of the Foreign Relations Law of the United States, which states in comment (a) to section 905 that '[t]he principles governing unilateral countermeasures apply as well when a state responds to a violation of an obligation to all states (erga omnes)'. That all states may take countermeasures in response to violations of human rights by other states - at least the most serious violations - appears to be the prevailing view among scholars as well. See Lorand Bartels, 'Article XX of GATT and the Problem of Extraterritorial Jurisdiction', 36 J. World Tr. 353, 362-63 and n 48 (2002); Jonathan I. Charney, 'NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo', 93 Am. J. Int'l L. 834, 835 (1999); Yoram Dinstein, 'The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 16, 17-18 (1992); Karin Oellers-Frahm, 'Comment: The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 28, 31 (1992); Pieter Jan Kuyper, 'International Legal Aspects of Economic Sanctions', in Petar Sarcevic and Hans van Houtte (eds), Legal Issues in International Trade (London; Boston: Graham & Trotman, 1990) 152; Bruno Simma, 'Self-Contained Regimes', 16 Netherlands Y.B. Int'l L. 111, 133 (1985). But see Prosper Weil, 'Towards Relative Normativity in International Law?', 77 Am J. Int'l L. 413, 432-33 (1983). The remainder of this article assumes that all states would be entitled to take countermeasures in response to serious violations of fundamental human rights by other states, in the absence of any specific limitation of this power in the GATT or other treaties.
21. The extent to which State A is permitted under general international law to take countermeasures in response to State B's violation of the human rights of its own citizens is a matter of some debate. The International Law Commission's Draft Articles on State Responsibility would permit only the 'injured state' to take countermeasures, and they define 'injured state' to include, in the case of obligations owed to the international community as a whole, only states 'specially affected' by the violation. See Draft Articles on the Responsibilities of States for Internationally Wrongful Acts, Adopted by the International Law Commission at Its 53rd Session (2001), art. 42 (defining 'injured state'), art. 49 (entitling only an 'injured state' to take countermeasures). However, the Draft Articles may in this respect be more an attempt at the progressive development of international law than a codification of established law. Cf. David Bederman, 'Counterintuiting Countermeasures', 96 Am. J. Int'l L. 817 (2001) (considering other respects in which the Draft Articles' provisions on countermeasures amount to progressive development), An earlier version of the Draft Articles would have defined an 'injured state' to include all states in cases where 'the right [that was violated] has been created or is established for the protection of human rights and fundamental freedoms'. Art. 40, International Law Commission, Draft Articles on States Responsibility Adopted on First Reading, Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. Doc A/51/10 (1996), available at www.un.org/law/ilc/archives/statfra.htm The ILC's earlier position seems more consistent with the status of fundamental human rights norms as obligations ergs omnes. Because such obligations are owed to the international community as a whole, one would think that all states would have standing to take the measures available under international law to respond to violations. That appears to be the position of the Restatement (Third) of the Foreign Relations Law of the United States, which states in comment (a) to section 905 that '[t]he principles governing unilateral countermeasures apply as well when a state responds to a violation of an obligation to all states (erga omnes)'. That all states may take countermeasures in response to violations of human rights by other states - at least the most serious violations - appears to be the prevailing view among scholars as well. See Lorand Bartels, 'Article XX of GATT and the Problem of Extraterritorial Jurisdiction', 36 J. World Tr. 353, 362-63 and n 48 (2002); Jonathan I. Charney, 'NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo', 93 Am. J. Int'l L. 834, 835 (1999); Yoram Dinstein, 'The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 16, 17-18 (1992); Karin Oellers-Frahm, 'Comment: The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 28, 31 (1992); Pieter Jan Kuyper, 'International Legal Aspects of Economic Sanctions', in Petar Sarcevic and Hans van Houtte (eds), Legal Issues in International Trade (London; Boston: Graham & Trotman, 1990) 152; Bruno Simma, 'Self-Contained Regimes', 16 Netherlands Y.B. Int'l L. 111, 133 (1985). But see Prosper Weil, 'Towards Relative Normativity in International Law?', 77 Am J. Int'l L. 413, 432-33 (1983). The remainder of this article assumes that all states would be entitled to take countermeasures in response to serious violations of fundamental human rights by other states, in the absence of any specific limitation of this power in the GATT or other treaties.
22. The extent to which State A is permitted under general international law to take countermeasures in response to State B's violation of the human rights of its own citizens is a matter of some debate. The International Law Commission's Draft Articles on State Responsibility would permit only the 'injured state' to take countermeasures, and they define 'injured state' to include, in the case of obligations owed to the international community as a whole, only states 'specially affected' by the violation. See Draft Articles on the Responsibilities of States for Internationally Wrongful Acts, Adopted by the International Law Commission at Its 53rd Session (2001), art. 42 (defining 'injured state'), art. 49 (entitling only an 'injured state' to take countermeasures). However, the Draft Articles may in this respect be more an attempt at the progressive development of international law than a codification of established law. Cf. David Bederman, 'Counterintuiting Countermeasures', 96 Am. J. Int'l L. 817 (2001) (considering other respects in which the Draft Articles' provisions on countermeasures amount to progressive development), An earlier version of the Draft Articles would have defined an 'injured state' to include all states in cases where 'the right [that was violated] has been created or is established for the protection of human rights and fundamental freedoms'. Art. 40, International Law Commission, Draft Articles on States Responsibility Adopted on First Reading, Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. Doc A/51/10 (1996), available at www.un.org/law/ilc/archives/statfra.htm The ILC's earlier position seems more consistent with the status of fundamental human rights norms as obligations ergs omnes. Because such obligations are owed to the international community as a whole, one would think that all states would have standing to take the measures available under international law to respond to violations. That appears to be the position of the Restatement (Third) of the Foreign Relations Law of the United States, which states in comment (a) to section 905 that '[t]he principles governing unilateral countermeasures apply as well when a state responds to a violation of an obligation to all states (erga omnes)'. That all states may take countermeasures in response to violations of human rights by other states - at least the most serious violations - appears to be the prevailing view among scholars as well. See Lorand Bartels, 'Article XX of GATT and the Problem of Extraterritorial Jurisdiction', 36 J. World Tr. 353, 362-63 and n 48 (2002); Jonathan I. Charney, 'NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo', 93 Am. J. Int'l L. 834, 835 (1999); Yoram Dinstein, 'The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 16, 17-18 (1992); Karin Oellers-Frahm, 'Comment: The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 28, 31 (1992); Pieter Jan Kuyper, 'International Legal Aspects of Economic Sanctions', in Petar Sarcevic and Hans van Houtte (eds), Legal Issues in International Trade (London; Boston: Graham & Trotman, 1990) 152; Bruno Simma, 'Self-Contained Regimes', 16 Netherlands Y.B. Int'l L. 111, 133 (1985). But see Prosper Weil, 'Towards Relative Normativity in International Law?', 77 Am J. Int'l L. 413, 432-33 (1983). The remainder of this article assumes that all states would be entitled to take countermeasures in response to serious violations of fundamental human rights by other states, in the absence of any specific limitation of this power in the GATT or other treaties.
23. The extent to which State A is permitted under general international law to take countermeasures in response to State B's violation of the human rights of its own citizens is a matter of some debate. The International Law Commission's Draft Articles on State Responsibility would permit only the 'injured state' to take countermeasures, and they define 'injured state' to include, in the case of obligations owed to the international community as a whole, only states 'specially affected' by the violation. See Draft Articles on the Responsibilities of States for Internationally Wrongful Acts, Adopted by the International Law Commission at Its 53rd Session (2001), art. 42 (defining 'injured state'), art. 49 (entitling only an 'injured state' to take countermeasures). However, the Draft Articles may in this respect be more an attempt at the progressive development of international law than a codification of established law. Cf. David Bederman, 'Counterintuiting Countermeasures', 96 Am. J. Int'l L. 817 (2001) (considering other respects in which the Draft Articles' provisions on countermeasures amount to progressive development), An earlier version of the Draft Articles would have defined an 'injured state' to include all states in cases where 'the right [that was violated] has been created or is established for the protection of human rights and fundamental freedoms'. Art. 40, International Law Commission, Draft Articles on States Responsibility Adopted on First Reading, Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. Doc A/51/10 (1996), available at www.un.org/law/ilc/archives/statfra.htm The ILC's earlier position seems more consistent with the status of fundamental human rights norms as obligations ergs omnes. Because such obligations are owed to the international community as a whole, one would think that all states would have standing to take the measures available under international law to respond to violations. That appears to be the position of the Restatement (Third) of the Foreign Relations Law of the United States, which states in comment (a) to section 905 that '[t]he principles governing unilateral countermeasures apply as well when a state responds to a violation of an obligation to all states (erga omnes)'. That all states may take countermeasures in response to violations of human rights by other states - at least the most serious violations - appears to be the prevailing view among scholars as well. See Lorand Bartels, 'Article XX of GATT and the Problem of Extraterritorial Jurisdiction', 36 J. World Tr. 353, 362-63 and n 48 (2002); Jonathan I. Charney, 'NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo', 93 Am. J. Int'l L. 834, 835 (1999); Yoram Dinstein, 'The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 16, 17-18 (1992); Karin Oellers-Frahm, 'Comment: The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 28, 31 (1992); Pieter Jan Kuyper, 'International Legal Aspects of Economic Sanctions', in Petar Sarcevic and Hans van Houtte (eds), Legal Issues in International Trade (London; Boston: Graham & Trotman, 1990) 152; Bruno Simma, 'Self-Contained Regimes', 16 Netherlands Y.B. Int'l L. 111, 133 (1985). But see Prosper Weil, 'Towards Relative Normativity in International Law?', 77 Am J. Int'l L. 413, 432-33 (1983). The remainder of this article assumes that all states would be entitled to take countermeasures in response to serious violations of fundamental human rights by other states, in the absence of any specific limitation of this power in the GATT or other treaties.
24. The extent to which State A is permitted under general international law to take countermeasures in response to State B's violation of the human rights of its own citizens is a matter of some debate. The International Law Commission's Draft Articles on State Responsibility would permit only the 'injured state' to take countermeasures, and they define 'injured state' to include, in the case of obligations owed to the international community as a whole, only states 'specially affected' by the violation. See Draft Articles on the Responsibilities of States for Internationally Wrongful Acts, Adopted by the International Law Commission at Its 53rd Session (2001), art. 42 (defining 'injured state'), art. 49 (entitling only an 'injured state' to take countermeasures). However, the Draft Articles may in this respect be more an attempt at the progressive development of international law than a codification of established law. Cf. David Bederman, 'Counterintuiting Countermeasures', 96 Am. J. Int'l L. 817 (2001) (considering other respects in which the Draft Articles' provisions on countermeasures amount to progressive development), An earlier version of the Draft Articles would have defined an 'injured state' to include all states in cases where 'the right [that was violated] has been created or is established for the protection of human rights and fundamental freedoms'. Art. 40, International Law Commission, Draft Articles on States Responsibility Adopted on First Reading, Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. Doc A/51/10 (1996), available at www.un.org/law/ilc/archives/statfra.htm The ILC's earlier position seems more consistent with the status of fundamental human rights norms as obligations ergs omnes. Because such obligations are owed to the international community as a whole, one would think that all states would have standing to take the measures available under international law to respond to violations. That appears to be the position of the Restatement (Third) of the Foreign Relations Law of the United States, which states in comment (a) to section 905 that '[t]he principles governing unilateral countermeasures apply as well when a state responds to a violation of an obligation to all states (erga omnes)'. That all states may take countermeasures in response to violations of human rights by other states - at least the most serious violations - appears to be the prevailing view among scholars as well. See Lorand Bartels, 'Article XX of GATT and the Problem of Extraterritorial Jurisdiction', 36 J. World Tr. 353, 362-63 and n 48 (2002); Jonathan I. Charney, 'NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo', 93 Am. J. Int'l L. 834, 835 (1999); Yoram Dinstein, 'The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 16, 17-18 (1992); Karin Oellers-Frahm, 'Comment: The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 28, 31 (1992); Pieter Jan Kuyper, 'International Legal Aspects of Economic Sanctions', in Petar Sarcevic and Hans van Houtte (eds), Legal Issues in International Trade (London; Boston: Graham & Trotman, 1990) 152; Bruno Simma, 'Self-Contained Regimes', 16 Netherlands Y.B. Int'l L. 111, 133 (1985). But see Prosper Weil, 'Towards Relative Normativity in International Law?', 77 Am J. Int'l L. 413, 432-33 (1983). The remainder of this article assumes that all states would be entitled to take countermeasures in response to serious violations of fundamental human rights by other states, in the absence of any specific limitation of this power in the GATT or other treaties.
25. The extent to which State A is permitted under general international law to take countermeasures in response to State B's violation of the human rights of its own citizens is a matter of some debate. The International Law Commission's Draft Articles on State Responsibility would permit only the 'injured state' to take countermeasures, and they define 'injured state' to include, in the case of obligations owed to the international community as a whole, only states 'specially affected' by the violation. See Draft Articles on the Responsibilities of States for Internationally Wrongful Acts, Adopted by the International Law Commission at Its 53rd Session (2001), art. 42 (defining 'injured state'), art. 49 (entitling only an 'injured state' to take countermeasures). However, the Draft Articles may in this respect be more an attempt at the progressive development of international law than a codification of established law. Cf. David Bederman, 'Counterintuiting Countermeasures', 96 Am. J. Int'l L. 817 (2001) (considering other respects in which the Draft Articles' provisions on countermeasures amount to progressive development), An earlier version of the Draft Articles would have defined an 'injured state' to include all states in cases where 'the right [that was violated] has been created or is established for the protection of human rights and fundamental freedoms'. Art. 40, International Law Commission, Draft Articles on States Responsibility Adopted on First Reading, Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. Doc A/51/10 (1996), available at www.un.org/law/ilc/archives/statfra.htm The ILC's earlier position seems more consistent with the status of fundamental human rights norms as obligations ergs omnes. Because such obligations are owed to the international community as a whole, one would think that all states would have standing to take the measures available under international law to respond to violations. That appears to be the position of the Restatement (Third) of the Foreign Relations Law of the United States, which states in comment (a) to section 905 that '[t]he principles governing unilateral countermeasures apply as well when a state responds to a violation of an obligation to all states (erga omnes)'. That all states may take countermeasures in response to violations of human rights by other states - at least the most serious violations - appears to be the prevailing view among scholars as well. See Lorand Bartels, 'Article XX of GATT and the Problem of Extraterritorial Jurisdiction', 36 J. World Tr. 353, 362-63 and n 48 (2002); Jonathan I. Charney, 'NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo', 93 Am. J. Int'l L. 834, 835 (1999); Yoram Dinstein, 'The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 16, 17-18 (1992); Karin Oellers-Frahm, 'Comment: The erga omnes Applicability of Human Rights', 30 Archiv des Völkerrechts 28, 31 (1992); Pieter Jan Kuyper, 'International Legal Aspects of Economic Sanctions', in Petar Sarcevic and Hans van Houtte (eds), Legal Issues in International Trade (London; Boston: Graham & Trotman, 1990) 152; Bruno Simma, 'Self-Contained Regimes', 16 Netherlands Y.B. Int'l L. 111, 133 (1985). But see Prosper Weil, 'Towards Relative Normativity in International Law?', 77 Am J. Int'l L. 413, 432-33 (1983). The remainder of this article assumes that all states would be entitled to take countermeasures in response to serious violations of fundamental human rights by other states, in the absence of any specific limitation of this power in the GATT or other treaties.
26. General Agreement on Tariffs and Trade, 30 Oct. 1947, 55 U.N.T.S. 194, T.I.A.S. No. 1700 [hereinafter GATT 1947].
27. GATT 1947, art. XI.
28. GATT 1947, art. I.
29. GATT 1947, art. III.
30. General Agreement on Tariffs and Trade: Multilateral Trade Negotiations Final Act Embodying the Results of the Uruguay Round of Trade Negotiations, Annex 1A, 15 Apr. 1994, 33 I.L.M. 1125, 1154 (1994) [hereinafter GATT 1994].
31. See generally Schachter, above n 8, 190-91 (1991) (addressing the relationship between the Vienna Convention and the traditional international law of countermeasures). See also Peter Malanczuk, Akehurst's Modern Introduction to International Law (7th edn, London; New York: Routledge, 1997) 271-72.
32. Vienna Convention, art. 30.
33. For more on whether international law includes a norm requiring states to ban the importation of products made in a manner that violates jus cogens norms, see below text accompanying nn 92-98.
34. Gary C. Hufbauer et al., Economic Sanctions Reconsidered: History and Current Policy (2nd edn, Washington, DC: Institute for International Economics, 1990) 246-48 (concluding that sanctions against South Africa were effective, citing three other scholars who hold the same view); Richard W. Parker, 'The Cost Effectiveness of Economic Sanctions', 32 Law & Pol'y Int'l Bus. 21 n 27 (2000).
35. Gary C. Hufbauer et al., Economic Sanctions Reconsidered: History and Current Policy (2nd edn, Washington, DC: Institute for International Economics, 1990) 246-48 (concluding that sanctions against South Africa were effective, citing three other scholars who hold the same view); Richard W. Parker, 'The Cost Effectiveness of Economic Sanctions', 32 Law & Pol'y Int'l Bus. 21 n 27 (2000).
36. See, e.g., Ryan Goodman, 'Norms and National Security: The WTO as a Catalyst for Inquiry', 2 Chi. J. Int'l L. 101, 104 (2001) (citing concerns expressed in Congress that Chinese accession to WTO would make it more difficult for the US to sanction China for human rights violations).
37. See, e.g., Sarah H. Cleveland, 'Human Rights Sanctions and International Trade: A Theory of Compatibility', 5 JIEL 133 (2002), at 188-89 [hereinafter 'Human Rights Sanctions and International Trade'].
38. Final Act Embodying the Results of the Uruguay Round of Trade Negotiations, Annex 2, Understanding on Rules and Procedures Governing the Settlement of Investment Disputes (the Dispute Settlement Understanding), 15 Apr. 1994, 33 I.L.M. 1143 (1994) [hereinafter DSU].
39. See, e.g., Kal Raustiala, 'Compliance and Effectiveness in International Regulatory Cooperation', 32 Case W. Res. J. Int'l L. 387, 438 (2000) (stating that the DSU 'provides one of the most effective sticks in international law').
40. See, e.g., Louis Henkin, 'Human Rights and State "Sovereignty"', 25 Ga. J. Int'l & Comp. L. 31, 41 (1996) (observing that '[e]nforcement has always been seen as the weak link in the international legal system, and it is surely the weak link of international human rights law'); Harold Hongju Koh, 'How Is International Human Rights Law Enforced?', 74 Ind. L.J. 1397, 1398 (1999) (noting the common view that human rights enforcement is weak).
41. See, e.g., Louis Henkin, 'Human Rights and State "Sovereignty"', 25 Ga. J. Int'l & Comp. L. 31, 41 (1996) (observing that '[e]nforcement has always been seen as the weak link in the international legal system, and it is surely the weak link of international human rights law'); Harold Hongju Koh, 'How Is International Human Rights Law Enforced?', 74 Ind. L.J. 1397, 1398 (1999) (noting the common view that human rights enforcement is weak).
42. See generally ICCPR, arts. 28-47.
43. See GATT 1947, preamble.
44. Although art. XXI(c) to GATT 1947 provides an exception for trade sanctions authorized by the UN Security Council, and although the Security Council did authorize certain sanctions against the apartheid regime in South Africa, South Africa was subjected to sanctions by GATT members such as the United States that went beyond what was authorized by the Security Council. In 1977, the Security Council called for an 'embargo on shipments of arms, munitions, and military equipment' to or from South Africa. U.N. S.C. RES. 418 (1977). In 1985, the Security Council called for suspension of investment, guaranteed export loans, new nuclear contracts, and export of certain computer equipment, while prohibiting trade in South African Krugerands. U.N. S.C. Res. 569 (1985). The 1986 US prohibitions against trading in agricultural products, minerals and steel with South Africa were not authorized by the Security Council resolutions. The Comprehensive Anti-Apartheid Act (Anti-Apartheid Act or the Act), Pub. L. No. 99-440, 100 Stat. 1086 (1986). Eight years after the imposition of US sanctions, apartheid ended when F.W. de Klerk ceded the reins of the South Africa government to Nelson Mandela.
45. Although art. XXI(c) to GATT 1947 provides an exception for trade sanctions authorized by the UN Security Council, and although the Security Council did authorize certain sanctions against the apartheid regime in South Africa, South Africa was subjected to sanctions by GATT members such as the United States that went beyond what was authorized by the Security Council. In 1977, the Security Council called for an 'embargo on shipments of arms, munitions, and military equipment' to or from South Africa. U.N. S.C. RES. 418 (1977). In 1985, the Security Council called for suspension of investment, guaranteed export loans, new nuclear contracts, and export of certain computer equipment, while prohibiting trade in South African Krugerands. U.N. S.C. Res. 569 (1985). The 1986 US prohibitions against trading in agricultural products, minerals and steel with South Africa were not authorized by the Security Council resolutions. The Comprehensive Anti-Apartheid Act (Anti-Apartheid Act or the Act), Pub. L. No. 99-440, 100 Stat. 1086 (1986). Eight years after the imposition of US sanctions, apartheid ended when F.W. de Klerk ceded the reins of the South Africa government to Nelson Mandela.
46. Eric Altbach, 'USTR to Defend Massachusetts' Burma Law', JEI Report, 22 Aug. 1997, available at 1997 WL 9040487 (citing a 1997 letter to then US Trade Representative Charlene Barshefsky in which human rights organizations argued that if the WTO had existed in the 1980s, 'state sanctions against South Africa which helped bring peaceful democracy to that country would never have been possible').
47. See Amnesty International Report 2001 (reporting that in China during the calendar year 2000 'the crackdown on religious groups and ethnic minorities continued unabated. Hundreds of followers of "heretical" religious or spiritual movements were arrested and reportedly tortured. At least 93 Falun Gong followers were believed to have died in custody and hundreds of Buddhist nuns and monks remained in detention in Tibet. Ethnic Uighurs labelled as 'separatists' or 'terrorists' were executed mostly after secret or summary trials where convictions were based on confessions extracted under torture. Thousands remained in prison.'); set also Agence France Presse, 19 May 2001 (observing that 'China's controversial "one child [per couple]" policy continues to result in serious human rights violations 20 years after it became law.').
48. See Amnesty International Report 2001 (reporting that in China during the calendar year 2000 'the crackdown on religious groups and ethnic minorities continued unabated. Hundreds of followers of "heretical" religious or spiritual movements were arrested and reportedly tortured. At least 93 Falun Gong followers were believed to have died in custody and hundreds of Buddhist nuns and monks remained in detention in Tibet. Ethnic Uighurs labelled as 'separatists' or 'terrorists' were executed mostly after secret or summary trials where convictions were based on confessions extracted under torture. Thousands remained in prison.'); set also Agence France Presse, 19 May 2001 (observing that 'China's controversial "one child [per couple]" policy continues to result in serious human rights violations 20 years after it became law.').
49. But cf. U.S.-China Relations Act, Pub. L. No. 106-286, 114 Stat. 880 (2000) (instituting permanent normal trading relations with China, thereby ending Congress's annual review of China's MFN status).
50. Though it has still not ratified the ICCPR, China continues to make such promises. See 'China vows to ratify UN rights covenants before United States', Agence France-Presse, 14 Jun. 2000.
51. Pending ratification, China has an obligation not to defeat the object and purpose of the treaty. See Vienna Convention on the Law of Treaties, 23 May 1969, art. 18.
52. See GATT 1994, art. I.
53. Joost Pauwelyn, 'The Role of Public International Law in the WTO', 95 Am. J. Int'l L. 535, 553 (2001). Pauwelyn does add in a footnote, however, that the absence of judicial enforcement mechanisms does not mean that the norm will not be complied with, or even that its enforcement regime is less effective. Id, at 553 n 119.
54. See, e.g., Joel Trachtman, 'The International Economic Law Revolution', 17 U. Pa. J. Int'l Econ. L. 33, 58 (1996). Cf. James Thuo Gathii, 'Re-Characterizing the Social in the Constitutionalization of the WTO: A Preliminary Analysis', 7 Wid. L. Symp. J. 137, 143 (2001) (noting critically that 'it is arguable that the peripheral place social issues occupy in trade analysis will result in the perpetuation of a hierarchy that places the pro-trade agenda ahead of social issues').
55. See, e.g., Joel Trachtman, 'The International Economic Law Revolution', 17 U. Pa. J. Int'l Econ. L. 33, 58 (1996). Cf. James Thuo Gathii, 'Re-Characterizing the Social in the Constitutionalization of the WTO: A Preliminary Analysis', 7 Wid. L. Symp. J. 137, 143 (2001) (noting critically that 'it is arguable that the peripheral place social issues occupy in trade analysis will result in the perpetuation of a hierarchy that places the pro-trade agenda ahead of social issues').
56. However, the claim can at best be that human rights norms (and others not backed by efficacious compulsory adjudicatory mechanisms) are second-class norms along the dimension of the states' commitment to compliance. In other respects, human rights norms - at least some human rights - are thought to have a higher normative status than other norms of the international legal system. For example, some human rights norms have the status of jus cogens. See below text accompanying n 92.
57. See DSU, art. 1 and GATT 1994, art. XXIII para 1 (provisions functioning jointly to limit jurisdiction of the WTO dispute settlement body to disputes arising under GATT Agreements listed in Appendix 1 to the DSU); DSU, art. 22 and GATT 1994, art. XXIII para 2 (provisions functioning jointly to limit measures available if losing party does not comply with panel recommendation to 'compensation' and 'suspension of concessions').
58. Robert E. Hudec, Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Salem, NH: Butterworth Legal Publishers, 1993) 285-87 (calculating that complaining party received full or partial satisfaction of complaints in ninety percent of dispute settlement cases brought under GATT 1947), cited in John H. Jackson, William J. Davey, and Alan O. Sykes, Jr, Legal Problems of International Economic Relations: Cases, Materials and Text on the National and International Regulation of Transnational Economic Relations (3rd edn, St. Paul, MM: West Pub Co, 1995) 339.
59. Robert E. Hudec, Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Salem, NH: Butterworth Legal Publishers, 1993) 285-87 (calculating that complaining party received full or partial satisfaction of complaints in ninety percent of dispute settlement cases brought under GATT 1947), cited in John H. Jackson, William J. Davey, and Alan O. Sykes, Jr, Legal Problems of International Economic Relations: Cases, Materials and Text on the National and International Regulation of Transnational Economic Relations (3rd edn, St. Paul, MM: West Pub Co, 1995) 339.
60. See Carolyn B. Gleason and Pamela D. Walther, 'The WTO Dispute Settlement Implementation Procedures: A System in Need of Reform', 31 Law & Pol'y Int'l Bus. 709, 721-38 (2000) (citing five cases of non-compliance with WTO DSB panel decisions between 1994 and 2000, including the notorious failures to comply in the EU - Bananas and Beef Hormone cases). Of course, it is possible that more marginal cases are being brought today because of the enhanced dispute settlement system, and that the less marginal cases are being settled (or that less marginal violations of the GATT are being successfully deterred by the stronger dispute settlement system). If so, then the similarity in the rates of compliance with the decisions in adjudicated cases may not be an accurate reflection of the effectiveness of the dispute settlement system. See Rufus H. Yerxa and Demetrios J. Marantis, 'Assessing the New WTO Dispute System: A U.S. Perspective', 32 Int'l Law. 795, 808 (1998) (stating that '[t]he WTO Secretariat has recently pointed out that the new DSU is helping to create a more effective deterrent to WTO violations').
61. See Carolyn B. Gleason and Pamela D. Walther, 'The WTO Dispute Settlement Implementation Procedures: A System in Need of Reform', 31 Law & Pol'y Int'l Bus. 709, 721-38 (2000) (citing five cases of non-compliance with WTO DSB panel decisions between 1994 and 2000, including the notorious failures to comply in the EU - Bananas and Beef Hormone cases). Of course, it is possible that more marginal cases are being brought today because of the enhanced dispute settlement system, and that the less marginal cases are being settled (or that less marginal violations of the GATT are being successfully deterred by the stronger dispute settlement system). If so, then the similarity in the rates of compliance with the decisions in adjudicated cases may not be an accurate reflection of the effectiveness of the dispute settlement system. See Rufus H. Yerxa and Demetrios J. Marantis, 'Assessing the New WTO Dispute System: A U.S. Perspective', 32 Int'l Law. 795, 808 (1998) (stating that '[t]he WTO Secretariat has recently pointed out that the new DSU is helping to create a more effective deterrent to WTO violations').
62. Compare Cuban Liberty and Democratic Solidarity Act of 1996 (Helms-Burton Act), Pub. L. No. 104-116 (1996) (Title IV mandating that US
63. See 'U.S. Actions estimated to cost Soviets $1.5-2 Million Annually', Aviation Week & Space Tech., 19 Oct. 1983, at 18 (stating that, in response to the imposition of martial law in Poland, the US suspended its aviation treaty with the USSR exchanging landing rights); see also Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford; New York: Oxford University Press, 1989) 230-42 (arguing that sanctions for human rights violations may include withdrawal of landing rights previously granted to the violating state by treaty). I am assuming here that the human rights regime is not a 'self-contained regime'. If it were, then the only enforcement measures available for human rights violations would be those specifically set forth in human rights treaties, such as complaints before the relevant treaty bodies. See generally Bruno Simma, 'Self-Contained Regimes', 16 Neth. Y.B. Int'l. L.111 (1985) (discussing and rejecting argument that the international law of human rights is a self-contained regime). If the human rights system were a self-contained regime, then trade sanctions would be unavailable quite apart from anything in the WTO Agreements.
64. See 'U.S. Actions estimated to cost Soviets $1.5-2 Million Annually', Aviation Week & Space Tech., 19 Oct. 1983, at 18 (stating that, in response to the imposition of martial law in Poland, the US suspended its aviation treaty with the USSR exchanging landing rights); see also Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford; New York: Oxford University Press, 1989) 230-42 (arguing that sanctions for human rights violations may include withdrawal of landing rights previously granted to the violating state by treaty). I am assuming here that the human rights regime is not a 'self-contained regime'. If it were, then the only enforcement measures available for human rights violations would be those specifically set forth in human rights treaties, such as complaints before the relevant treaty bodies. See generally Bruno Simma, 'Self-Contained Regimes', 16 Neth. Y.B. Int'l. L.111 (1985) (discussing and rejecting argument that the international law of human rights is a self-contained regime). If the human rights system were a self-contained regime, then trade sanctions would be unavailable quite apart from anything in the WTO Agreements.
65. See 'U.S. Actions estimated to cost Soviets $1.5-2 Million Annually', Aviation Week & Space Tech., 19 Oct. 1983, at 18 (stating that, in response to the imposition of martial law in Poland, the US suspended its aviation treaty with the USSR exchanging landing rights); see also Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford; New York: Oxford University Press, 1989) 230-42 (arguing that sanctions for human rights violations may include withdrawal of landing rights previously granted to the violating state by treaty). I am assuming here that the human rights regime is not a 'self-contained regime'. If it were, then the only enforcement measures available for human rights violations would be those specifically set forth in human rights treaties, such as complaints before the relevant treaty bodies. See generally Bruno Simma, 'Self-Contained Regimes', 16 Neth. Y.B. Int'l. L.111 (1985) (discussing and rejecting argument that the international law of human rights is a self-contained regime). If the human rights system were a self-contained regime, then trade sanctions would be unavailable quite apart from anything in the WTO Agreements.
66. See Mary Ellen O'Connell, 'Re-Leashing the Dogs of War', 97 Am. J. Int'l L. 446, 453 (2003) (noting that, before Kosovo, states 'took the position, time and again, that force could not be used for humanitarian purposes without Security Council authorization').
67. Id (noting that, after Kosovo, 'the United Kingdom and Belgium spoke officially in terms of developing a doctrine of humanitarian intervention'); Louis Henkin, 'NATO's Kosovo Intervention: Kosovo and the Law of "Humanitarian Intervention'", 93 Am. J. Int'l L. 824, 828 (1999) ('The NATO action in Kosovo, and the proceedings in the Security Council, may reflect a step toward a change in the law ... ').
68. I borrow the terms 'tailored' and 'general' sanctions from Sarah Cleveland. 'Human Rights Sanctions and International Trade', above n 20, at 138. For simplicity's sake, I shall not discuss her intermediate category of semi-tailored sanctions.
69. GATT 1994, art. XX. This language is known as the article's chapeau.
70. See, e.g., Sanctions against South Africa, above n 26; see also U.K. S.C. Res. 841, U.K. Doc. S/RES/841 (1993) (imposing sanctions against Haiti for human rights violations).
71. Trade and Development Act of 2000, Pub.L. 106-200, Title IV, § 411(a), 114 Stat. 298, amending 19 U.S.C. § 1307 (West Supp. 2000). This statute involves what is known as a PPM - that is, a trade restriction based on the process by which a product was made. The initials stand for 'Processes and Production Methods.' See Steve Charnovitz, 'The Law of Environmental "PPMs" in the WTO: Debunking the Myth of Illegality', 27 Yale J. Int'l L. 59, 59 (2002) [hereinafter 'The Myth of Illegality'].
72. See ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Convention 182), 17 June 1999, 38 I.L.M. 1207, available at http://www.ilo.org (accessed 9 June 2002); Univ. Dec. Hum. Rts. art. 4 (clarifying human rights provisions in the UN Charter by declaring that 'no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.'); Conv. on Rts. of the Child, art. 32(1) (prohibiting economic exploitation of children); Geneva Dec. of the Rts. of the Child (1924).
73. See Protocol Modifying Part II and Article XXVI of the General Agreement on Tariffs and Trade, signed at Geneva, 14 Sept. 1948, 62 U.N.T.S. 104 (publishing text of Interpretive Note to Article III).
74. An argument along these lines is developed in Robert Howse and Donald Regan, 'The Product/Process Distinction - An Illusory Basis for Disciplining "Unilateralism" in Trade Policy', 11 Eur. J. Int'l L. 249 (2000), in the context of environmental PPMs. The authors reserve judgment on whether their conclusions would apply outside the context of environmental PPMs. See id. at 283-84.
75. See, e.g., Francesco Francioni, 'Environment, Human Rights, and the Limits of Free Trade', in Francesco Francioni (ed), Environment, Human Rights and International Trade above n 20, at 17-18.
76. See Charnovitz, 'The Myth of Illegality', above n 46, at 92 (stating that, '[w]hatever the validity of the [Howse and Regan] legal analysis, any optimism that future WTO panels will tolerate originneutral PPMs in the context of Article III would be unfounded.').
77. Id at 91 and n 170 (noting that the Appellate Body in the Asbestos case 'makes clear that a determination of "likeness" goes beyond the physical characteristics of the product' and includes 'such criteria as the end-uses of the product, consumers' tastes and habits in respect to the product, and the tariff classification of the product').
78. For a critique of the product-process distinction, see Howse and Regan, above n 49. For a response, see John H. Jackson, 'Comments on Shrimp/Turtle and the Product/Process Distinction', 11 Eur. J. Int'l L. 303 (2000).
79. See Steve Charnovitz, 'The Moral Exception in Trade Policy', 38 Va. J. Int'l L. 689, 697 (1998) [hereinafter 'The Moral Exception']. But cf. Sarah H. Cleveland, 'Human Rights Sanctions and the World Trade Organization', in Francesco Francioni (ed), Environment, Human Rights and International Trade (Oxford; Portland, OR: Hart Pub., 2001) 238-39 [hereinafter 'Human Rights Sanctions and the WTO'] (stating that ' [t]he [prison labour] provision plausibly might be interpreted to allow restrictions on goods made under prison-like conditions, such as certain forms of forced or bonded labour, including certain forms of exploitative child labour').
80. See Steve Charnovitz, 'The Moral Exception in Trade Policy', 38 Va. J. Int'l L. 689, 697 (1998) [hereinafter 'The Moral Exception']. But cf. Sarah H. Cleveland, 'Human Rights Sanctions and the World Trade Organization', in Francesco Francioni (ed), Environment, Human Rights and International Trade (Oxford; Portland, OR: Hart Pub., 2001) 238-39 [hereinafter 'Human Rights Sanctions and the WTO'] (stating that ' [t]he [prison labour] provision plausibly might be interpreted to allow restrictions on goods made under prison-like conditions, such as certain forms of forced or bonded labour, including certain forms of exploitative child labour').
81. See Charnovitz, 'The Moral Exception', above n 54, at 695.
82. United States - Restrictions on Imports of Tuna, unadopted, 3 September 1991, DS21/R, BISD 39S/153. Steve Charnovitz has usefully distinguished three categories of PPMs. See generally Charnovitz, 'The Myth of Illegality', above n 46. I shall limit my discussion here to the least problematic of these, which he calls 'how-produced' PPMs. These consist of restrictions on imports based on the method by which the product was produced. The other two categories are the 'government policy' standard and the 'producer characteristics' standard, which respectively consist of restrictions based upon laws or regulations of a foreign government regarding the production process, or its enforcement of them, and restrictions based on the identity of the producer or importer. Some of the cases discussed in this section actually involved these broader types of PPMs. I shall discuss them here as if they involved how-produced PPMs and limit my discussion to objections made by the panels and/or Appellate Body that would apply to how-produced PPMs.
83. United States - Restrictions on Imports of Tuna, unadopted, 3 September 1991, DS21/R, BISD 39S/153. Steve Charnovitz has usefully distinguished three categories of PPMs. See generally Charnovitz, 'The Myth of Illegality', above n 46. I shall limit my discussion here to the least problematic of these, which he calls 'how-produced' PPMs. These consist of restrictions on imports based on the method by which the product was produced. The other two categories are the 'government policy' standard and the 'producer characteristics' standard, which respectively consist of restrictions based upon laws or regulations of a foreign government regarding the production process, or its enforcement of them, and restrictions based on the identity of the producer or importer. Some of the cases discussed in this section actually involved these broader types of PPMs. I shall discuss them here as if they involved how-produced PPMs and limit my discussion to objections made by the panels and/or Appellate Body that would apply to how-produced PPMs.
84. See, e.g., id at 93. A second panel in the Tuna/Dolphin dispute took a somewhat different approach to the jurisdictional question. United States - Restrictions on Imports of Tuna, unadopted, 16 June 1994, DS29/R.
85. See, e.g., Steve Charnovitz, 'Dolphins and Tuna: An Analysis of the Second GATT Panel Report', 24 Env. L. Rptr. 10567 at n 76 (1994).
86. Lorand Bartels offers additional reasons for reaching the same conclusion in Bands, above n 9, at 376-90.
87. Restatement (Third) of Foreign Relations Law § 421 (1986) (listing grounds for jurisdiction to adjudicate); Restatement (Third) of Foreign Relations Law § 431 (1986) (listing grounds for jurisdiction to enforce).
88. Restatement (Third) of Foreign Relations Law § 421 (1986) (listing grounds for jurisdiction to adjudicate); Restatement (Third) of Foreign Relations Law § 431 (1986) (listing grounds for jurisdiction to enforce).
89. This sort of argument was raised by defenders of the Helms-Burton law. See, e.g., Malcom Wilkey, 'Helms-Burton: Its Fundamental Basis, Validity, and Practical Effect', ABA Int'l Law News at 17 (Spring 1997) (arguing that Helms-Burton is not an example of extraterritoriality, 'but the essence of the principle of sovereignty' to control access to national borders). The argument was not widely accepted in that context, however. See, e.g., Organization of American States, Inter-American Juridical Committee, Opinion Examining the Helms-Burton Act, 27 Aug. 1996, 35 I.L.M. 1322 (1996).
90. This sort of argument was raised by defenders of the Helms-Burton law. See, e.g., Malcom Wilkey, 'Helms-Burton: Its Fundamental Basis, Validity, and Practical Effect', ABA Int'l Law News at 17 (Spring 1997) (arguing that Helms-Burton is not an example of extraterritoriality, 'but the essence of the principle of sovereignty' to control access to national borders). The argument was not widely accepted in that context, however. See, e.g., Organization of American States, Inter-American Juridical Committee, Opinion Examining the Helms-Burton Act, 27 Aug. 1996, 35 I.L.M. 1322 (1996).
91. I do not consider here what the right test is to distinguish measures that are extraterritorial in the relevant sense from those that are not. For example, I do not think that the denial of foreign aid to countries that fail to meet certain unilaterally imposed standards would violate international-law limits on legislative jurisdiction. On the other hand, a law making it a crime for non-nationals to do certain things abroad that do not have an effect in the regulating state or threaten its security interests would violate such limits, see note 63 below, even though such a law would only be enforced against persons who set foot in the regulating state. What exactly distinguishes the first case from the second, and whether, in the absence of the GATT, a denial of access to the US market to products made in violation of unilaterally imposed standards would be closer to the first or the second, are extremely complex questions. For an extended discussion and a proposed test, see Bartels, above n 9, at 376-90.1 merely note that the PPMs discussed in the text implicate concerns about extraterritoriality and that it seems unlikely that a treaty the purpose of which was to limit the ability of states to impose trade restrictions would bless trade restrictions raising extraterritoriality concerns of that nature.
92. Restatement (Third) of Foreign Relations Law § 402(1)(c) (1986). See also id at § 402(2) (permitting extraterritorial regulation on the basis of nationality); § 402(3) (permitting extraterritorial regulation over conduct directed against a state's security); § 404 (recognizing universal jurisdiction over limited class of offenses).
93. Lorand Barrels similarly argues that Article XX should be interpreted in the light of international law principles of legislative jurisdiction. See Bartels, above n 9. He goes on to argue that those principles permit a state to prescribe rules where it has a 'legitimate interest', id at 374, and that all states have a legitimate interest in promoting respect for human rights, id at 374. He concludes that Article XX permits a state to impose PPMs for the purpose of promoting respect for human rights in other states, id at 402. As Dr Barrels recognizes, id at 371 and n 82, this approach to legislative jurisdiction is probably not the prevailing one. It seems to me that the existence of a particular norm of human rights has little bearing, if any, on whether State A has jurisdiction to prescribe rules of conduct for persons in State B. Given that human rights instruments contemplate that states will protect the human rights of persons 'within their territory and subject to their jurisdiction', see International Covenant on Civil and Political Rights, art. 2(1), to argue that the existence of a human rights norm itself provides a basis for extraterritorial legislative jurisdiction seems like bootstrapping. Dr Bartels' argument is also in tension with the fact that a small class of human rights - encompassing 'certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism' - is recognized to give rise to the jurisdiction of states to prescribe when none of the more traditional bases of jurisdiction to prescribe is met. See Restatement (Third) of the Foreign Relations Law of the United States, § 404 (1987). I do not consider here the content of the international law principles on legislative jurisdiction, but I am assuming them to be along the lines set forth in the Restatement (Third), above, § 402-04.1 consider below the different argument that Article XX permits states to bar the importation of products made in violation of international human rights norms on the theory that, in such circumstances, states are not prescribing rules of conduct for persons in other states, but merely giving effect to independently binding rules.
94. See Jagdish Bhagwati, 'WTO Afterword: The Question of Linkage', 96 Am. J. Int'l L. 126, 134 (2002) (implying that Shrimp/Turtle overturned Tuna/Dolphin).
95. Appellate Body Report Concerning United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, para 133, 12 Oct. 1998 [hereafter Shrimp-Turtle AB/R].
96. I b i d.
97. See Cleveland, 'Human Rights Sanctions and the WTO', above n 54, at 235 n 175 (quoting Shrimp-Turtle AB/R at para 131: 'it is not claimed that all populations of these [turtle] species migrate to, or traverse ... waters subject to United States jurisdiction.').
98. See Shrimp-Turtle AB/R, para 26 (summarizing the argument made by the United States on appeal, that the US law in question was substantially related to the preservation of the sea turtle species).
99. It is true that the emergence of an international law of human rights reflects the understanding that all nations have an interest in the observance of the fundamental human rights of all persons, but Articles XX(a) and (b) sweep more broadly than that, as they clearly permit measures to protect the morals or health of persons even in circumstances not implicating international human rights. For example, they would permit an Israeli ban on non-kosher meat products. See Bartels, above n 9, at 356. I consider below the more limited argument that Article XX should permit outwardly directed measures designed to promote compliance in other countries with internationally recognized human rights norms.
100. Charnovitz 'The Moral Exception', above n 54, at 742; see also Cleveland, 'Human Rights Sanctions and International Trade', above n 20, at 157-58; Janelle M. Diller and David A. Levy, 'Child Labor, Trade and Investment: Toward the Harmonization of International Law', 91 Am. J. Int'l L. 663, 682-83 (1997) [hereinafter 'Child Labor']; Salman Bal, 'International Free Trade Agreements and Human Rights: Reinterpreting Article XX of the GATT', 10 Minn. J. Global Trade 62, 108 (2001).
101. Charnovitz 'The Moral Exception', above n 54, at 742; see also Cleveland, 'Human Rights Sanctions and International Trade', above n 20, at 157-58; Janelle M. Diller and David A. Levy, 'Child Labor, Trade and Investment: Toward the Harmonization of International Law', 91 Am. J. Int'l L. 663, 682-83 (1997) [hereinafter 'Child Labor']; Salman Bal, 'International Free Trade Agreements and Human Rights: Reinterpreting Article XX of the GATT', 10 Minn. J. Global Trade 62, 108 (2001).
102. Charnovitz 'The Moral Exception', above n 54, at 742; see also Cleveland, 'Human Rights Sanctions and International Trade', above n 20, at 157-58; Janelle M. Diller and David A. Levy, 'Child Labor, Trade and Investment: Toward the Harmonization of International Law', 91 Am. J. Int'l L. 663, 682-83 (1997) [hereinafter 'Child Labor']; Salman Bal, 'International Free Trade Agreements and Human Rights: Reinterpreting Article XX of the GATT', 10 Minn. J. Global Trade 62, 108 (2001).
103. Charnovitz 'The Moral Exception', above n 54, at 742; see also Cleveland, 'Human Rights Sanctions and International Trade', above n 20, at 157-58; Janelle M. Diller and David A. Levy, 'Child Labor, Trade and Investment: Toward the Harmonization of International Law', 91 Am. J. Int'l L. 663, 682-83 (1997) [hereinafter 'Child Labor']; Salman Bal, 'International Free Trade Agreements and Human Rights: Reinterpreting Article XX of the GATT', 10 Minn. J. Global Trade 62, 108 (2001).
104. It does not necessarily eliminate the concern, however. In particular, such import restrictions may interfere with the discretion of other states to the extent the relevant human rights instrument 'leaves it to the States panics concerned to choose their method of implementation in their territories'. See UN Committee on Civil and Political Rights, General Comment 3 to Article 2 of the ICCPR (29 July 1981), available at 〈http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General+comment+3.En? OpenDocument〉
105. Additionally, some scholars have argued that, to permit states to bar imports made in contravention of human rights norms is improper because it would add a sanction to the human rights norms that states did not agree to when they ratified the instruments recognizing the relevant norm. The claim is that, when states adhered to such instruments, they did so with the understanding that the rights they were recognizing would be enforced in the way specified in the instrument, This argument apparently assumes either that the human rights instruments establish self-contained regimes, cf. above n 40, or that general international law does not generally permit states to take countermeasures in response to another state's violation of the human rights of its own citizens, cf. above n 9. To the extent either assumption is correct, the argument discussed in the text would indeed be subject to this further criticism.
106. See above n 70 (noting that this provision would permit an Israeli ban on the importation of non-kosher meat products).
107. In other respects, however, Article XX(b) covers less than human rights, as the international law of human rights addresses matters beyond human life and health.
108. With apologies to Steve Charnovitz, I use the term 'inwardly directed' in the remainder of this article to include measures by a state designed to protect the morals and health of persons or things that are its legitimate concern under international-law principles of prescriptive jurisdiction. 'Outwardly directed' measures are those that seek to protect the morals or health of persons not subject to the regulating state's prescriptive jurisdiction under international law. As to the content of the relevant limits, see above notes 63 and 64. It is worth recalling here that, under international law, states have universal jurisdiction with respect to a small set of human rights norms, such as those regarding genocide, war crimes, and the slave trade. See id.
109. Cleveland, 'Human Rights Sanctions and the WTO', above n 54, at 237.
110. Charnovitz, 'The Moral Exception', above n 54, at 705.
111. I b i d.
112. International Convention for the Abolition of Import and Export Prohibitions and Restrictions, art. 4, para 2, 8 Nov. 1927, 46 Stat. 2461, League of Nations Doc. C.I.A.P. 1927.
113. Charnovitz, 'The Moral Exception', above n 54, at 707.
114. Id at 717.
115. Charnovitz, 'The Moral Exception', above n 54, at 713-17.
116. A ban on the slave trade (one of Charnovitz's examples) would clearly fall within Article XX(a) because it serves to protects the morals of persons in the importing state (see Charnovitz, 'The Moral Exception', above n 54, at 714-15). The fact that it also protects the lives and health of prospective slaves abroad does not make the measure invalid. Some scholars have claimed that a ban on the importation of the products of child labor can be regarded as inwardly directed as well because it is designed to avoid domestic support for or complicity in the underlying human rights violation. See, e.g., Cleveland, 'Human Rights Sanction and International Trade', above n 20, at 138-39. In my view, however, there are pertinent distinctions between the two. If owning a product made abroad with child labour is immoral, it is immoral because it supports or encourages child labour abroad. Owning slaves, on the other hand, is immoral because of its effects on persons within the country.
117. A ban on the slave trade (one of Charnovitz's examples) would clearly fall within Article XX(a) because it serves to protects the morals of persons in the importing state (see Charnovitz, 'The Moral Exception', above n 54, at 714-15). The fact that it also protects the lives and health of prospective slaves abroad does not make the measure invalid. Some scholars have claimed that a ban on the importation of the products of child labor can be regarded as inwardly directed as well because it is designed to avoid domestic support for or complicity in the underlying human rights violation. See, e.g., Cleveland, 'Human Rights Sanction and International Trade', above n 20, at 138-39. In my view, however, there are pertinent distinctions between the two. If owning a product made abroad with child labour is immoral, it is immoral because it supports or encourages child labour abroad. Owning slaves, on the other hand, is immoral because of its effects on persons within the country.
118. So read, the provision would permit a state to impose standards necessary to protect the morals or health of their citizens or others subject to their legislative jurisdiction, even if those standards have nothing to do with internationally recognized human rights, but would allow measures intended to protect the morals or health of persons not subject to their legislative jurisdiction only if the predicate for the PPM is a violation of an internationally recognized human right.
119. For a discussion of the others, see Cleveland, 'Human Rights Sanctions and International Trade', above n 20, at 157-81.
120. Report of the Appellate Body in European Communities - Measures Affecting Asbestos and Asbestos-Containing Products (AB-2000-11) at para 170 (measure is 'necessary' under Article XX(b) 'only if there were no alternative measure consistent with the General Agreement, or less inconsistent with which, ... could reasonably be expected ... to achieve [the relevant] policy objectives').
121. Id. at 241.
122. See generally Gary C. Hufbauer, Economic Sanctions Reconsidered: History and Current Polity, above n 18; Hufbauer, The Costs of U.S. Trade Barriers (Washington, DC: Institute for International Economics, 1993); Richard Parker, 'The Problem with Scorecards: How (and How Not) to Measure the Cost-Effectiveness of Economic Sanctions', 21 Mich. J. Int'l L. 235 (2000).
123. See generally Gary C. Hufbauer, Economic Sanctions Reconsidered: History and Current Polity, above n 18; Hufbauer, The Costs of U.S. Trade Barriers (Washington, DC: Institute for International Economics, 1993); Richard Parker, 'The Problem with Scorecards: How (and How Not) to Measure the Cost-Effectiveness of Economic Sanctions', 21 Mich. J. Int'l L. 235 (2000).
124. See generally Gary C. Hufbauer, Economic Sanctions Reconsidered: History and Current Polity, above n 18; Hufbauer, The Costs of U.S. Trade Barriers (Washington, DC: Institute for International Economics, 1993); Richard Parker, 'The Problem with Scorecards: How (and How Not) to Measure the Cost-Effectiveness of Economic Sanctions', 21 Mich. J. Int'l L. 235 (2000).
125. See McCulloch v Maryland, 17 U.S. (4 Wheat) 316, 324 (1819) (interpreting 'necessary' in that clause to mean 'appropriate'). Cf. Cleveland, 'Human Rights Sanctions and International Trade', above n 20, at 164.
126. See McCulloch v Maryland, 17 U.S. (4 Wheat) 316, 324 (1819) (interpreting 'necessary' in that clause to mean 'appropriate'). Cf. Cleveland, 'Human Rights Sanctions and International Trade', above n 20, at 164.
127. Cf. McCulloch, 17 U.S. at 324-25 (using the term 'proper' to clarify the meaning of 'necessary').
128. See Diller and Levy, 'Child Labor', above n 71, at 678.
129. See generally id.
130. See Joseph Brierly, The Law of Nations (6th edition, 1963) (offering the classic definition of international law as 'the body of rules and principles of action which are binding upon civilized states in their relations with one another').
131. ILO Convention No. 182 Concerning the Prohibition and Immediate Action for 'the Elimination of the Worst Forms of Child Labour (Convention 182), 17 June 1999, available at http://www.ilo.org (accessed 9 June 2002). International law may only ban the use of certain forms of child labor. See id (banning the use of the worst forms of child labor). References to child labor in the text should be understood as references to the forms of child labor prohibited by international law.
132. Louis Henkin, 'Act of State Today: Recollections in Tranquility', 6 Colum. J. Transnat'l L. 175, 181 (1967) (observing that states may acquiesce in or even applaud another state's violation of international law).
133. UN Charter, art. 25.
134. See Schachter above n 8, at 198.
135. See Francesco Francioni, 'Environment, Human Rights and the Limits of Free Trade', in Environment, Human Rights and International Trade at 17 (arguing that '[i]mport restrictions based on human right considerations are, by definition, almost always based on the manner in which products are made.').
136. Cleveland, 'Human Rights Sanctions and the WTO', above n 54, at 142 (emphasis omitted).
137. See 50 U.S.C. § 1702(a)(1) (authorizing the President in times of a declared emergency to: '(A) investigate, regulate, or prohibit (i) any transactions in foreign exchange, (ii) transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof, (iii) the importing or exporting of currency or securities, by any person, or with respect to any property, subject to the jurisdiction of the United States; (B) investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States; and (C) when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals, confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States; and all right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms directed by the President, in such agency or person as the President may designate from time to time, and upon such terms and conditions as the President may prescribe, such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes.').
138. Exec. Order No. 13,047, 62 Fed. Reg. 28301 (20 May 1997).
139. See Antonio F. Pérez, 'WTO and U.K. Law: Institutional Comity in National Security', 23 Yale J. Int'l L. 301, 304 (1998) [hereinafter 'WTO and U.N. Law']. The challenge was eventually withdrawn.
140. This was the United States position when Helms-Burton was challenged. See id. at 305.
141. The related arguments advanced by Jeffrey Dunoff and Joel Trachtman are subject to similar objections. Dunoff has argued that cases presenting questions involving the linkage of trade to such non-trade matters as human rights should be dismissed by WTO panels as involving political questions. See Jeffrey Dunoff, 'The Death of the Trade Regime', 10 Eur. J. Int'l L. 733 (1999). If what he has in mind is that any challenge to a measure that is defended on the basis of a non-trade value such as human rights should be dismissed on this basis, his solution is similar to a dismissal of the claim under Article XXI(b) on the ground that the panel lacks the power to review the invocation of this self-judging provision, and thus raises the same threat to the system. Joel Trachtman appears to believe that human rights sanctions are GATT-inconsistent but he suggests that a state that wishes to impose such sanctions would be justified in engaging in a form of civil disobedience, at least temporarily. See Joel P. Trachtman, Unilateralism and Multilateralism in U.S. Human Rights Laws Affecting International Trade, paper prepared for World Trade Forum, 14-16 Aug. 2001 (21 May 2002). Disobedience is the same as violation, and it would pose the same threat to the integrity and continuing viability of the WTO regime as abuses of the security exception. Moreover, reliance on such disobedience is problematic because as a practical matter it can only be employed by economically powerful states that do not fear retaliation in the form of counter-measures. Nevertheless, for reasons discussed below, reserving Article XXI(b) as a safety valve for addressing the most egregious human rights violations might be the least bad option.
142. The related arguments advanced by Jeffrey Dunoff and Joel Trachtman are subject to similar objections. Dunoff has argued that cases presenting questions involving the linkage of trade to such non-trade matters as human rights should be dismissed by WTO panels as involving political questions. See Jeffrey Dunoff, 'The Death of the Trade Regime', 10 Eur. J. Int'l L. 733 (1999). If what he has in mind is that any challenge to a measure that is defended on the basis of a non-trade value such as human rights should be dismissed on this basis, his solution is similar to a dismissal of the claim under Article XXI(b) on the ground that the panel lacks the power to review the invocation of this self-judging provision, and thus raises the same threat to the system. Joel Trachtman appears to believe that human rights sanctions are GATT-inconsistent but he suggests that a state that wishes to impose such sanctions would be justified in engaging in a form of civil disobedience, at least temporarily. See Joel P. Trachtman, Unilateralism and Multilateralism in U.S. Human Rights Laws Affecting International Trade, paper prepared for World Trade Forum, 14-16 Aug. 2001 (21 May 2002). Disobedience is the same as violation, and it would pose the same threat to the integrity and continuing viability of the WTO regime as abuses of the security exception. Moreover, reliance on such disobedience is problematic because as a practical matter it can only be employed by economically powerful states that do not fear retaliation in the form of counter-measures. Nevertheless, for reasons discussed below, reserving Article XXI(b) as a safety valve for addressing the most egregious human rights violations might be the least bad option.
143. Cleveland, 'Human Rights Sanctions and International Trade', above n 20, at 185.
144. Id at 186.
145. Id at 185.
146. See Cleveland, 'Human Rights Sanctions and the WTO', above n 54, at 257.
147. Cf. John H. Jackson, 'World Trade Rules and Environmental Policies: Congruence or Conflict', 49 Wash. & Lee. L. Rev. 1227, 1254, n 68 (1992).
148. An argument along these lines was suggested by Mary Ellen O'Connell in the context of environmental PPMs. See Mary Ellen O'Connell, 'Using Trade to Enforce International Environmental Law: Implications for United States Law', 1 Ind. J. Global Stud. 273 (1994). See also Javier Fernández Pons, 'Self-Help and the World Trade Organization', in Paolo Mengozzi, (ed), International Trade Law on the 50th Anniversary of the Multilateral Trading System (Milan: A. Giuffrè, 1999) at 94-104.
149. An argument along these lines was suggested by Mary Ellen O'Connell in the context of environmental PPMs. See Mary Ellen O'Connell, 'Using Trade to Enforce International Environmental Law: Implications for United States Law', 1 Ind. J. Global Stud. 273 (1994). See also Javier Fernández Pons, 'Self-Help and the World Trade Organization', in Paolo Mengozzi, (ed), International Trade Law on the 50th Anniversary of the Multilateral Trading System (Milan: A. Giuffrè, 1999) at 94-104.
150. Cleveland, 'Human Rights Sanctions and International Trade', above n 20, at 152. See also Diller and Levy, 'Child Labor', above n 71, at 695 (observing that 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').
151. Cleveland, 'Human Rights Sanctions and International Trade', above n 20, at 152. See also Diller and Levy, 'Child Labor', above n 71, at 695 (observing that 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').
152. See Cleveland, 'Human Rights Sanctions and the WTO', above n 54, at 236-37.
153. Id at 237.
154. As noted above, however, it is not clear that general international law recognizes the right of all states to take countermeasures in response to all violations of international human rights norms. See above n 9.
155. Lord McNair, The Law of Treaties (Oxford: Clarendon, 1961) 463 n 3 (citing The Lusitania, A.D. 1923-4 No. 196).
156. Joseph T. Latronica writes in Am. Jur. 2d on Treaties that 'repeals by implication are never favored, and a later treaty or statute will not be regarded as repealing an earlier enactment by implication unless the two are absolutely incompatible and the latter cannot be enforced without antagonizing the earlier'. See 74 Am. Jur. 2d Treaties § 21 (2001), citing Johnson v Browne, 205 U.S. 309(1907); U.S. v Lee Yen Tai, 185 U.S. 213 (1902); John T. Bill Co. v U.S., 104 F.2d 67 (C.C.P.A. 1939).
157. Joseph T. Latronica writes in Am. Jur. 2d on Treaties that 'repeals by implication are never favored, and a later treaty or statute will not be regarded as repealing an earlier enactment by implication unless the two are absolutely incompatible and the latter cannot be enforced without antagonizing the earlier'. See 74 Am. Jur. 2d Treaties § 21 (2001), citing Johnson v Browne, 205 U.S. 309(1907); U.S. v Lee Yen Tai, 185 U.S. 213 (1902); John T. Bill Co. v U.S., 104 F.2d 67 (C.C.P.A. 1939).
158. Joseph T. Latronica writes in Am. Jur. 2d on Treaties that 'repeals by implication are never favored, and a later treaty or statute will not be regarded as repealing an earlier enactment by implication unless the two are absolutely incompatible and the latter cannot be enforced without antagonizing the earlier'. See 74 Am. Jur. 2d Treaties § 21 (2001), citing Johnson v Browne, 205 U.S. 309(1907); U.S. v Lee Yen Tai, 185 U.S. 213 (1902); John T. Bill Co. v U.S., 104 F.2d 67 (C.C.P.A. 1939).
159. Joseph T. Latronica writes in Am. Jur. 2d on Treaties that 'repeals by implication are never favored, and a later treaty or statute will not be regarded as repealing an earlier enactment by implication unless the two are absolutely incompatible and the latter cannot be enforced without antagonizing the earlier'. See 74 Am. Jur. 2d Treaties § 21 (2001), citing Johnson v Browne, 205 U.S. 309(1907); U.S. v Lee Yen Tai, 185 U.S. 213 (1902); John T. Bill Co. v U.S., 104 F.2d 67 (C.C.P.A. 1939).
160. As framed by Lord McNair, the pertinent rule is that 'express terms [are necessary] to alter an existing rule of law'. McNair, above n 109, at 463 (capitalization and italicization omitted).
161. Pérez, 'WTO and U.K. Law', 23 Yale J. Int'I L. at 306 (summarizing the alternative views).
162. GATT 1994 art. XXIII(1)(b).
163. McNair, above, at 383.
164. This option thus resembles Joel Trachtman's suggestion that civil disobedience may be the best solution to this problem. See n 105 above.
165. For example, seemingly exorbitant interpretations of the concept of self-defense' have been invoked and arguably accepted by the international community. On the other hand, some scholars cite such exorbitant claims, and outright violations, as evidence that the UN Charter's norms concerning the use of force have lost their force. See Michael J. Glennon, 'How War Left the Law Behind', N.Y. Times (21 Nov. 2002), at A33; Thomas M. Franck, 'Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States', 64 Am. J. Int'l L. 809 (1970). The danger, of course, is that exorbitant invocations of the national security exception will give rise to similar claims that the WTO is dead.
166. For example, seemingly exorbitant interpretations of the concept of self-defense' have been invoked and arguably accepted by the international community. On the other hand, some scholars cite such exorbitant claims, and outright violations, as evidence that the UN Charter's norms concerning the use of force have lost their force. See Michael J. Glennon, 'How War Left the Law Behind', N.Y. Times (21 Nov. 2002), at A33; Thomas M. Franck, 'Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States', 64 Am. J. Int'l L. 809 (1970). The danger, of course, is that exorbitant invocations of the national security exception will give rise to similar claims that the WTO is dead.
167. The discussion in this Part should be understood to be relevant to the questions examined in Part II as well. To the extent the text and negotiating history fail to resolve those questions, it may well be appropriate to prefer the interpretation that produces the best outcome, all things considered. Although the Vienna Convention does not list policy as a relevant factor in treaty interpretation, policy analysis might well be relevant under the rubric of context, as well as under rules of interpretation such as the rule of effectiveness. But cf. McNair, above n 116, at 383 (criticizing the rule of effectiveness). Of course, policies often clash, and it will often be impossible to ascertain what the best policy is on a given question or which among the various eligible interpretations would produce the best outcome.
168. See Doha WTO Ministerial Declaration, para 30, 14 Nov. 2001, WTO Doc. No. WT/MIN(01)/DEC/1, available at http://www.wto.org (accessed 19 May 2002) (calling for study of improvements and clarifications in DSU procedures by 2003).
169. See, e.g., Patricia Stirling, 'The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World Trade Ortganization', 11 Am. U.J. Int'l L. & Pol'y 1 (1996).
170. See José E. Alvarez, 'Foreword', 96 Am. J. Int'l L. 1, 2 & n 4 (2002) (attributing term to Joel Trachtman).
171. The lack of institutional expertise in the WTO on human rights is an additional argument against the proposal. It is discussed below in connection with the third option.
172. Cf. Robert Howse, 'From Politics to Technocracy - and Back Again: The Fate of the Multilateral Trading Regime', 96 Am. J. Int'l L. 94, 114 (2002) (noting proposals to make adherence to labor and environmental codes a condition of membership in the WTO).
173. See Treaty on European Union, 2 Oct. 1997, art. 49, O.J. (C 340) 145 (1997) (referring to art. 6(1), which calls for respect of human rights).
174. See Frank J. Garcia, 'Trade, Constitutionalism and Human Rights: An Overview', in Human Rights, Terrorism and Trade, 96 Am. Soc'y Int'l L. Proc. 121, 132 (16 Mar. 2002).
175. Cf. above text accompanying nn 28-32.
176. Recourse by Ecuador to Article 22.2 of the DSU, Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/52, 9 Nov. 1999, available at http://www.wto.org.
177. It might perhaps be argued that the increased interdependence that comes with globalization would correct the power imbalance problem, as, in an increasingly interdependent world, even rich and powerful nations would be dependent on other states for some essential goods and services. But, if so, the arbitrariness problem would remain, or even become worse. In any event, it is more likely that even with increased interdependence powerful nations will remain less vulnerable to economic coercion because they are more likely to produce most of their essential goods and because they have other means of making their influence felt (e.g., funding international organizations; foreign aid; military power), while weaker nations will remain vulnerable to powerful states and become vulnerable to economic coercion by equally weak states.
178. It is true that the trade system itself relies on trade sanctions as its mechanism for enforcing rights under the trade agreements. But, in this context, trade sanctions are employed in the service of trade liberalization. The possibility of such sanctions should not deter states from specializing; it should reassure them that other states will adhere to their trade commitments.
179. See Matthew Craven, 'Humanitarianism and the Quest for Smarter Sanctions', 13 Eur. J. Int'l L. 43 (2002); see also Gary C. Hufbauer and Barbara Oegg, 'Targeted Sanctions: A Policy Alternative?', 32 Law & Pol'y Int'l Bus. 11 (2000).
180. See Matthew Craven, 'Humanitarianism and the Quest for Smarter Sanctions', 13 Eur. J. Int'l L. 43 (2002); see also Gary C. Hufbauer and Barbara Oegg, 'Targeted Sanctions: A Policy Alternative?', 32 Law & Pol'y Int'l Bus. 11 (2000).
181. See, e.g., Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (1st edn, New York: W.W. Norton, 1999).
182. See Univ. Dec. Hum. Rts. art. 25 (declaring that everyone 'has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control').
183. James Thuo Gathii argues that, because trade liberalization inevitably creates both winners and losers, the trade regime must 'account for and deal with both the negative and positive distributional impacts that frequently result from the rules of international trade'. James Thuo Gathii, 'Re-Characterizing the Social in the Constitutionalization of the WTO: A Preliminary Analysis', 7 Wid. L. Symp. J. 137, 148 (2001). The trade regime currently leaves it to the Member States to determine whether and how to alleviate the adverse impact of trade liberalization on certain sectors of society.
184. See Loukas A. Mistelis, 'Regulatory Aspects: Globalization, Harmonization, Legal Transplants, and Law Reform - Some Fundamental Observations', 34 Int'l Law. 1055, 1069 (2000) (arguing that human rights create the 'necessary healthy environment for economic activity').