The debate on the lawfulness of unilateral economic sanctions imposed to redress gross human rights violations has a political character. The European Union, the United States, Canada, Australia and a number of other states have traditionally been among the staunchest supporters of unilateral human rights sanctions,1237 while the group of the developing countries supported by China and the Russian Federation lodge formal protests to such coercive measures on behalf of the international community.1238 The tension between these two standards emerged vividly in the numerous declarations adopted under the auspices of the UN, in which developing countries insisted on the illegality of unilateral economic sanctions and other states opposed this view.1239 Amidst this political debate, one strand of international law scholarship has recognised that the use of unilateral human rights sanctions has become an accepted customary international norm.1240 Whereas this position might be tenable on the theoretical level, the consistent opposition expressed by states pours cold water on this idea in practice.1241
There is no well-established and precise definition of human rights sanctions. As Clara Portela points out, human rights sanctions are frequently conflated with sanctions aiming at goals such as democracy, good governance
Starting from the 1970s, states occasionally levied unilateral economic sanctions to respond to grave and consistent patterns of human rights violations. Referring to US practice, scholars point out: “In the late 1970s, following a series of congressionally inspired initiatives and under the leadership of President Carter, human rights became a cause célèbre and priority goal of US sanctions policy.”1244 In this way human rights entered US foreign policy under the presidency of Jimmy Carter.1245 This development resulted in an increased use of economic sanctions to promote human rights and punish regimes responsible for severe human rights violations.1246 Describing US practice, Hufbauer and others observe: “Amendments both to the Foreign Assistance Act of 1962 and the Trade Act of 1974, passed in the 1970s and 1980s, mandated sanctions against countries that violated human rights, harbored international terrorists, or abetted drug production or distribution.”1247
When it comes to the EU, the practice of using unilateral sanctions dates back to the early 1980s (when it was the European Economic Community),1248 with the withdrawal of most-favourable-nation treatment in trade relations
The most recent examples of widely discussed economic sanctions imposed on human rights grounds include sanctions imposed against China for its treatment of a Muslim minority – the Uyghurs – in the Xinjiang Uyghur Autonomous Region (xuar), which spurred not only formal protests and allegations of genocide, but also resulted in economic sanctions being imposed by a number of states. The United States, for example, relied concurrently on several statutes to enact various types of economic restrictions targeting companies, as well as government officials who were involved in the mistreatment of Uyghurs and other ethnic minorities. In particular, in March 2021, several Chinese government officials were sanctioned in connection with serious human rights violations in the xuar.1251 In June 2021, the US Customs and Border Protection issued a withhold release order on silica-based products produced by Hoshine Silicon Industry Co. Ltd. and its subsidiaries.1252 The withhold release order is not an outright ban on importation, but it does require importers either to demonstrate that the imported goods do not violate Section 307 of the Tariff Act of 1930 – which prohibits the importation of merchandise produced by convict, forced and/or indentured labor under penal sanctions – or to re-export their shipments.1253 On the same day, the Department of Commerce’s Bureau of Industry and Security added five Chinese entities to the so-called Entity List for “accepting or utilizing forced labor” in the xuar, thus making the total number of sanctioned persons in relation to the human rights abuses of ethnic minorities in the xuar equal to fifty three.1254 Other restrictions were also put in place.
In response to the EU sanctions, China imposed unilateral sanctions on the EU policymakers, as well as on human rights activists.1258 These tensions culminated in the adoption of a European Parliament resolution that declared that the ratification of the EU-China Comprehensive Agreement on Investment – which was the result of seven years of negotiations and had recently been finalised – “has justifiably been frozen because of the Chinese sanctions in place.”1259
Canada also joined international efforts and imposed economic sanctions in response to human rights violations in the xuar.1260 In coordination with other states, the UK announced its sanctions against China on the same day as the United States, the European Union and Canada.1261
The effectiveness of human rights sanctions cannot be determined with precision. While emphasising that opposition to human rights sanctions is partly grounded in allegations that they are inconsistent with human rights, Clara Portela has also highlighted that “the imposition of sanctions, which often responds to demands by the democratic opposition in the target country, can help to protect activists from prolonged imprisonment or mistreatment by the authorities.”1263 A distinguished human rights activist Aryeh Neier has given the following assessment of the effectiveness of human rights sanctions: “many examples could be cited to show that sanctions do not work and that, in some instances, they are counterproductive. Yet when used strictly for purposes of promoting human rights and applied steadily over sustained periods, with adjustments that reflect changes in human rights practices, the record for economic sanctions seems to be generally positive.”1264 In his in-depth analysis of the role of economic sanctions in ending the apartheid regime in South Africa, Lee Jones persuasively shows that different types of sanctions had different impacts on the regime and these impacts changed over the years.1265 Yet, both Lee Jones and Aryeh Neier agree that economic sanctions played a role in ending apartheid and that this role was not marginal.1266
In 2012, the United States was the first country to pass a special law – the Sergei Magnitsky Rule of Law Accountability Act of 2012 (Magnitsky Act) – enabling economic sanctions to be imposed against perpetrators of certain categories of grave human rights violations that occurred in the Russian Federation.1267 To be more specific, these sanctions targeted the individuals responsible for the mistreatment of Sergei Magnitsky – a Russian citizen who uncovered a major corruption scheme and was subsequently arrested, tortured
In 2016, the application of the US Magnitsky-type sanctions was extended when Congress passed the Global Magnitsky Human Rights Accountability Act (Global Magnitsky Act).1271 According to this act, any foreign national who is responsible for extrajudicial killings, torture or other gross violations of internationally recognised human rights or who is responsible for acts of significant corruption may be sanctioned.1272
These sanctions are dubbed Magnitsky-style or Magnitsky-type sanctions and they have also been introduced by other states. In 2017, Canada introduced legislation allowing it to sanction perpetrators of grave human rights violations abroad.1273 Michael Nesbitt described Canada’s decision to introduce the Magnitsky-style human rights sanctions as follows: “Including the power to sanctions for gross and systematic human rights abuses is a more honest explanation of what Canada has done in the past – and arguably for what it will want to do in the future.”1274
In July 2020, the Global Human Rights Sanctions Regulations came into force in the United Kingdom.1275 The first wave of UK human rights sanctions targeted 25 Russian nationals involved in the mistreatment and death of Sergei Magnitsky, 20 Saudi nationals involved in the death of journalist Jamal Khashoggi, two high-ranking Burmese military generals involved in the systematic and brutal violence against the Rohingya people and two organisations involved in the forced labour, torture and murder taking place in North Korea’s gulags.1276
The Australian parliament voted in favour of Magnitsky-style sanctions, as well as other thematic sanctions on 2 December 2021.1281 This enables Australia to impose sanctions to address serious violations and abuses of human rights, activities undermining good governance or the rule of law (including serious corruption), and serious violations of international humanitarian law.1282
While one group of states is enacting legislation to impose unilateral human rights sanctions, other states, like China, argue that these measures violate international law. Angela Poh, who conducted a comprehensive analysis of China’s attitude towards economic sanctions and their use, observed: “The main themes of China’s sanctions rhetoric suggest that ‘Eurocentric values’ that prioritise democracy and human rights over sovereignty cannot be used as a basis for sanctions. Sanctions also cannot be used to intervene in the domestic affairs of other states. In addition, China is opposed to the use of
China, the Russian Federation and the majority of African states condemn the use of unilateral sanctions, arguing that these measures violate human rights. Since 1996, the UN General Assembly has regularly adopted resolutions entitled “Human rights and unilateral coercive measures” that condemn the use of unilateral sanctions and underline their incompatibility with the states’ human rights obligations.1284 The most recent of these resolutions was adopted in December 2020.1285 Developing states that sponsor these resolutions and vote in their favour frequently contend that developed countries use human rights as a pretext for imposing economic sanctions.1286
Further complicating matters, the mandate of the special rapporteur on the negative effects of unilateral coercive measures on the enjoyment of human rights was established in 2014.1287 The special rapporteur prepares annual reports on the negative impact of unilateral coercive measures on the enjoyment of human rights, with the first such report issued in 2015.1288
Thus, human rights sanctions have proved to be extremely controversial. In this regard, Jean-Marc Thouvenin observes that human rights may play a double role: on the one hand, economic sanctions are levied on human rights grounds; on the other hand, human rights obligations impose constraints on the right of states to use such measures.1289 However, this statement is not substantiated by a comprehensive analysis of the legality of human rights sanctions or the identification of particular human rights that might be violated as the result of economic sanctions.1290
While there is much to quibble about when it comes to the legality of human rights sanctions, I tend to agree with the conclusion of a thematic study prepared by the Office of the United Nations High Commissioner for Human Rights: “Whether unilateral coercive measures are legal or illegal under public international law cannot be easily answered in general. Much depends upon
In light of the above, the objective of this chapter is to unravel and connect the multiple threads in the complex issue of unilateral human rights sanctions and their legality under public international law.
1 Human Rights Sanctions and the Principle of Non-intervention
In chapter 2, we explored whether unilateral economic sanctions encroach on the principle of non-intervention embedded in the UN Charter.1292 Now we will review the interrelations between the unilateral economic sanctions imposed to redress human rights violations and the principle of non-intervention.
As has been stated before, the ambit of the principle of non-intervention evades precise definition.1293 Several UN declarations adopted to address the scope of the principle of non-intervention are so ambiguous that they undermine their very purpose. The adoption of the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty reveals that intervention is not confined to military intervention, yet it also entails other forms of intervention.1294 In particular, the declaration reaffirms that: “No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind.”1295 One cannot help noticing that this text is ambiguous, and it follows that the question of whether any form of economic coercion irrespective of its purpose meets the threshold for being an unlawful intervention remains unresolved. The Declaration on Principles of International Law concerning Friendly Relations has not provided any further
Mindful of the ongoing discussion on the legality of human rights sanctions, legal scholars take issue with the argument that coercive economic measures imposed to redress gross human rights violations are per se illegal. In her discussion of the prohibition on intervention and unilateral human rights sanctions, Sarah Cleveland concludes: “Customary international law traditionally has allowed states to use economic coercion for a wide range of purposes, and the relatively frequent use of economic sanctions by the United States and other developed nations since World War ii makes it difficult to conclude that a customary international norm exists against the practice.”1300 Cleveland further buttresses her conclusion by declaring that human rights “are matters of international concern which justify intervention by the international community.”1301 In discussing non-forcible influence and the principle of non-intervention in light of the icj jurisprudence, Professor Lori Damrosch points out that “there is an increasing trend not only toward the use of economic sanctions to promote human rights objectives, but also
Yet not all scholars share this optimism. For instance, Alexandra Hofer contends that the sharp divide between developed and developing countries with respect to the lawfulness of unilateral economic sanctions still exists.1303 Furthermore, the objectives underlying the imposition of these measures seem to be irrelevant for their opponents.
The overall conclusion is that the mere fact that unilateral economic sanctions are connected to an objective such as the protection of human rights does not in itself exempt them from being contested. Furthermore, it remains unclear whether the principle of non-intervention prevents states from imposing unilateral actions, such as economic sanctions, to target regimes that abuse human rights. The answer to the latter question depends on whether human rights violations are recognised as matters of domestic or of international concern. In this regard, Mortimer Sellers, discussing the interrelation between economic sanctions targeting human rights violations and the principle of non-intervention in the internal affairs of states, concludes: “Even if economic sanctions were in some very broad sense ‘intervention’ or ‘interference,’ economic sanctions against human rights violations would not invade the exclusively ‘domestic’ jurisdiction of any state, because human rights are a universal, and not a purely domestic or national concern.”1304 However, this view is not supported by all states. As Angela Poh posits, China’s anti-sanctions rhetoric revolves around the idea that these measures cannot be used to intervene in the domestic affairs of other states and human rights should not be prioritised over sovereignty.1305
2 Economic Sanctions Targeting Human Rights Violations and the Draft Articles on Responsibility of States for Internationally Wrongful Acts
Countermeasures, including economic countermeasures, can be legal if certain preconditions are met, notably: if they are imposed as a response to a
Unilateral economic sanctions imposed on human rights grounds aim to remedy human rights violations abroad. Thus, the first precondition – the existence of a violation of an international obligation – can be ascertained. The establishment of the second precondition is problematic for human rights violations. In particular, it is debatable whether human rights violations whose victims are foreign nationals and that occur abroad may provide sufficient grounds for any other state to declare itself to be an injured state in the meaning of the Draft articles. It is worth recalling that the Draft articles define five categories of injured states for the purposes of invoking international responsibility:1308 a) a state to which a breached obligation is owed individually; b) a state belonging to a group of states to which a breached obligation is owed, if the breach particularly affects that state; c) a state belonging to a group of states to which a breached obligation is owed, if the breach is of such a character as to radically change the position of all the other states to which the obligation is owed with respect to the further performance of the obligation; d) a state particularly affected by the breach, if a breached obligation is owed to the international community as a whole; e) any state when a breached obligation is owed to the international community as a whole and the breach is of such a character as to radically change the position of all the other states to which the obligation is owed with respect to the further performance of the obligation. In this regard, James Crawford states: “Human rights obligations are not, in the first instance at least, owed to particular states, and it is accordingly difficult to see how a human rights obligation could itself be the subject of legitimate countermeasures.”1309 This conclusion can be further buttressed by the icj’s pronouncements in Reservations to the Convention on Genocide: “In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type, one cannot speak of individual advantages and disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.”1310 From a legal standpoint,
In light of the above, it should be stressed that economic sanctions for violations of human rights fall primarily into the category of third-party countermeasures or countermeasures imposed by non-injured states in the meaning of the Draft articles. Hence, the narrowly defined concept of direct injury prevents both states and individuals from invoking responsibility of the states responsible for human rights violations.1312 This conclusion holds even for violations of human rights that have gained a special status, either jus cogens or erga omnes.1313
Views on the legality of third-party countermeasures vary significantly. Below, I outline the arguments advanced in favour of the legality of third-party countermeasures imposed on human rights grounds.
Martin Dawidowicz reiterates that the legal position of third-party countermeasures has been and remains uncertain.1314 Nonetheless, Dawidowicz provides a number of the recent examples of such countermeasures imposed against Libya,1315 Syria1316 and Russia.1317 The inferences drawn from these recent examples echo his previous conclusion that there is an abundance of state practice which is not Western-dominated and which is supported by the
Christian Hillgruber argues that the lack of effective enforcement mechanisms embedded in the human rights treaties implies that states implicitly agree to rely upon countermeasures.1319 Hillgruber argues as follows: “Unless we wish to assume that the States wanted to create obligations under international law without any way of enforcing them, i.e. practically merely natural obligations, there is good reason to assume that human rights agreements implicitly grant each contracting State the right to respond to violations of the agreement by other States using any one of the entire range of ‘self-help’ instruments permitted under international law, i.e. by having recourse to reprisals.”1320 Furthermore, he claims that the permissibility of reprisals does not depend on the seriousness of a violation,1321 concluding with respect to the question of the obligation to take third-party countermeasures: “Reprisals by third States are possible responses to certain violations of international law, but are by no means obligatory.”1322
According to Andreas Paulus: “While there is much reason to be less than enthusiastic about the crude enforcement mechanism that is euphemistically termed ‘countermeasures’ by the ilc the permissibility of such countermeasures for the enforcement of obligations towards the international community as a whole is a necessary corollary of their legal nature.”1323 Criticising the Draft articles for the lack of legal certainty with respect to third-party countermeasures, Paulus has argued that “if countermeasures are permitted in cases of simple breach of a bilateral obligation, it is inconceivable to provide a lower threshold of protection to those obligations considered erga omnes or even jus cogens.”1324 However, Paulus has warned against the possible substitution of “community interests” with interests of individual states legitimised by philosophical speculations.1325 According to him, the identification of “community
These discussions reveal that the inconclusive text of the Draft articles has inspired a long-lasting scholarly debate on the legality of third-party countermeasures. Since unilateral human rights sanctions are third-party countermeasures in the sense outlined in the Draft articles, their legality is debatable.
Against this background, an argument advanced by Mortimer Sellers deserves our attention. Sellers argues in favour of using the term “sanction” to denote restrictive measures imposed on human rights grounds instead of “countermeasures.”1327 The distinction between the two terms, according to Sellers, is the following: “‘Sanction’ is best used of countermeasures undertaken primarily to enforce universal or public interests protected by international law, such as fundamental human rights. ‘Countermeasure’ (without further elaboration) indicates a legitimate measure taken under international law to protect one’s own particular interests. The difference is a matter of emphasis, but meaningful, and worth preserving.”1328
3 Economic Sanctions Targeting Human Rights Violations and the Immunities of Heads of States and Other High-Ranking Government Officials
In recent times, unilateral human rights sanctions have frequently targeted heads of states and other senior government officials. For instance, the Venezuela Defense of Human Rights and Civil Society Act of 2014 authorises the blocking of property belonging to, as well as the imposition of travel restrictions on, the current or former officials of the government of Venezuela, if these persons committed or were otherwise involved in human rights violations in Venezuela.1329 In a similar vein, the United States introduced unilateral sanctions against commanders of the Burmese Security Forces for serious human rights abuses.1330 More specifically, the Burmese military
High-ranking government officials of Iran are also subject to various restrictions for human rights violations. For example, Ansar-e Hizballah was designated “for being an official of the Government of Iran or a person acting on behalf of the Government of Iran (including members of paramilitary organizations) who is responsible for or complicit in, or responsible for ordering, controlling, or otherwise directing, the commission of serious human rights abuses against persons in Iran or Iranian citizens or residents, or the family members of the foregoing.”1332
The recent wave of the US sanctions against senior government officials has targeted the Saudi Arabian and Russian nationals. In particular, restrictive measures were imposed against the following individuals: Mohammed al Otaibi, former consul general of Saudi Arabia in Istanbul, for serious human rights abuses relating to the murder of Jamal Khashoggi at the consulate in Istanbul in October 2018, and Aslan Iraskhanov, head of the ministry of interior affairs for Grozny in the Chechen Republic of the Russian Federation, who is “credibly alleged to be responsible for the summary execution of 27 men” in his previous role as the head of the A.A. Kadyrov police unit.1333 Previously, Zimbabwe’s minister of state for national security, Owen Ncube was sanctioned for his involvement in gross violations of human rights.1334
In November 2019, the European Union renewed sanctions targeting 25 individuals in official positions deemed responsible for human rights violations and/or for undermining democracy and the rule of law in Venezuela.1337 In discussing the EU’s targeted economic sanctions imposed on human rights grounds, Clara Portela has observed: “The focus on officials from state authorities shows that individual designations are employed to denounce state-led or state-sponsored abuses perpetrated against the civilian population.”1338
Against this backdrop, the question that requires further elucidation is whether these restrictive measures impede immunities granted under international law to the heads of states and other high-ranking government officials. For our subsequent discussion, the distinction between the immunities of a head of state and the immunities of other high-ranking government officials should be drawn.
The immunity of a head of state encompasses immunity in a public capacity (in other words, “as a state”) as well as personal immunity.1339 In Arrest Warrant of 11 April 2000, the icj unequivocally concluded that “in international law it is firmly established that […] certain holders of high-ranking office in a State, such as the Head of State […] enjoy immunities from jurisdiction in other States, both civil and criminal.”1340 Without defining the exact scope of this immunity, the court strongly emphasised that the finding that certain actions encroach on immunity should be based on the assessment of whether such
The scope of the personal immunity of a head of state remains debatable.1345 Despite this, a few principles governing this personal immunity can be discerned. Personal immunity implies the inviolability of a head of state, covering their physical integrity,1346 as well as the inviolability of their premises in a foreign state – at least during official visits.1347
Some scholars argue that the immunity granted under international law is invoked only in the course of court proceedings and, for this reason, unilateral economic sanctions that are, as a rule, imposed by the executive or legislative branch cannot infringe on the privileges accorded by this immunity.1348 Although this is a tenable intellectual position, the counterargument is that if these immunity entitlements protect certain foreign holders of high-ranking government positions during court proceedings, the same standard of protection should also be guaranteed for executive decision-making. There is no unanimity on this subject.1349
The definition of the scope of the immunity of government officials poses even more vexed questions, namely: who is entitled to benefit from such immunity? And what is the scope of this immunity?
The icj’s jurisprudence may shed light on the nature and scope of the immunity of government officials. The icj has acknowledged that heads of governments, as well as ministers of foreign affairs, are entitled to immunities.1352 While ministers of foreign affairs are entitled to immunity guarantees, certain other categories of government officials cannot benefit from these guarantees. The icj affirms that “there are no grounds in international law upon which it could be said that the officials concerned [the procureur de la République and the Head of National Security] were entitled to personal immunities.”1353 The reason for this conclusion is the essentially internal nature of their functions.1354 However, the icj also acknowledges that “other persons representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matter falling within their purview.”1355 This pronouncement has
The scope of the immunity of high-ranking government officials is not well defined in customary international law. That said, given the icj judgement in Arrest Warrant of 11 April 2000, it is beyond dispute that the ability to travel internationally is covered by such immunities.1357 Furthermore, the court acknowledged that senior government officials enjoy jurisdictional immunity throughout their term of office, even if there are allegations that they might be responsible for grave violations of human rights.1358
This entails that unilateral human rights sanctions in the form of travel restrictions may encroach on the immunity of the high-ranking government officials and thus constitute a violation of international obligations of the state that imposes them. However, these immunities are guaranteed only to a subset of high-ranking government officials, whose functions are not of an essentially internal nature. Given that the scope of the immunity of high-ranking government officials remains ambiguous, the consistency of the other types of unilateral human rights sanctions, such as asset freezes, with immunity guarantees remains undefined.
Of particular importance for our discussion is the question of whether unilateral restrictive measures can impede immunities granted under international law and still be justified on the human right grounds. In other words, can human rights considerations trump immunities?
In answering these questions, the following conclusion of Peter-Tobias Stoll on the intricacies of the relations between human rights and immunity is worthy of consideration: “the argument has been made that human rights norms may trump the customary rules of State immunity in cases where they may be considered to form part of jus cogens, as would be the case, for instance,
In the previous chapter, we discussed whether a violation of peremptory norms (jus cogens) entails legal consequences for the application of immunities granted to the states, as well as high-ranking government officials under international law.1360 Our analysis confirmed the view expressed by Peter-Tobias Stoll.
The analysis of the pertinent icj jurisprudence demonstrates that human rights considerations cannot trump immunities. In Jurisdictional Immunities of the State, the icj was confronted with the question of whether the entitlement to the immunity from jurisdiction can be overridden if the claim that gives rise to a dispute is a violation of jus cogens.1361 Ruling on this contentious matter, the court distinguished between the substantive jus cogens norms and the procedural norms of state immunity and thus concluded that these two sets of norms are not in conflict.1362 The court further concluded that “whether a State is entitled to immunity before the courts of another State is a question entirely separate from whether the international responsibility of that State is engaged and whether it has an obligation to make reparation.”1363
In the same way, the icj underlined the difference between immunity and impunity by explicitly stressing that: “Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While
The European Court of Human Rights was reluctant to depart from the traditional tenets of international law, acknowledging that “the recent judgment of the icj in Germany v. Italy […] – which must be considered by this Court as authoritative as regards the content of customary international law – clearly establishes that, by February 2012, no jus cogens exception to State immunity had yet crystallised.”1365
These judgements, along with other court decisions, have sparked a debate among scholars about whether immunity entitlements can be curtailed by a human rights exception.1366 While these theoretical discussions have not triggered changes in the practice of international courts, which are dominated by the procedural-substantive divide, the possibility of justifying unilateral economic sanctions that impede immunity entitlements on human rights grounds seems unfeasible.
4 Economic Sanctions Imposed on Human Rights Grounds and wto Law
Starting from the early 2000s, legal scholars fiercely debated the relationship between human rights and international trade law.1367 Thus, this discussion is hardly novel. To a large extent, the interest in the wto on the part of human rights scholars can be explained by its effective dispute settlement system and the possibility of retaliating against a state that is not abiding by its
However that may be, there is a need to re-examine the relationship between unilateral human rights sanctions and international trade law. This enquiry is warranted for a number of reasons. First of all, states frequently rely upon unilateral human rights sanctions.1370 Second, the overwhelming bulk of the literature on the subject dates back to the times when wto jurisprudence on the public morals and the national security exceptions was non-existent.1371 As a result, the possibility of justifying economic sanctions targeting human rights violations under these exceptions was not analysed in light of recent wto jurisprudence. Third, in January 2019, Venezuela – facing a barrage of unilateral economic sanctions imposed by the US, including human rights sanctions – brought the first-ever complaint against unilateral human
Human rights sanctions can take various forms. For the subsequent analysis, I rely upon the classification of unilateral human rights sanctions introduced by Sarah Cleveland.1374 In her view, these coercive measures might be classified as “tailored,” “semi-tailored” and “general” trade sanctions.1375 Tailored sanctions are imposed for human rights violations that occur in the process of production or use of goods.1376 An example of such a restriction is Section 307 of the US Tariff Act that prohibits the import of the goods produced with the convict, forced or indentured labour.1377 Semi-tailored sanctions are directed against goods that are more broadly associated with human rights violations,1378 for instance, an import prohibition on products if the proceeds are used to finance military operations against ethnic minorities. The broadest category is general sanctions, which, according to Sarah Cleveland, are “the most common form of human rights trade measures.”1379 This subgroup includes economic sanctions employed to remedy human rights violations that are not related to international trade, such as genocide, the denial of basic human rights to certain groups of the population, the use of torture, etc. The concern that general sanctions can be used as a form of disguised protectionism is not groundless. Thus, their use should be strictly regulated.
General sanctions can take various forms: import and export bans on goods and services, restrictions on traffic in transit and goods in transit, asset freezes and other financial restrictions, visa restrictions, etc. Additionally, the termination of foreign development aid has been frequently employed by states to
Discussing the reasons behind unilateral human rights sanctions, Sarah Cleveland contends that these sanctions seek not only to punish rogue states for their human rights violations, but also to assist “in the international definition, promulgation, recognition, and domestic internalization of human rights norms.”1384 In another publication, Cleveland argues: “Unilateral human rights sanctions are employed by countries for a variety of reasons. They may be used to punish a foreign state for its human rights practices, to deprive a rogue state of needed goods or foreign currency, to express the sending state’s outrage at human rights atrocities, to prevent a state’s own markets from contributing to human rights violations, to morally distance a state from human rights violators, and to generate pressure for the adoption of multilateral action.”1385
In chapter 2, we discussed the fact that unilateral economic sanctions violate various obligations embedded in the wto Agreements.1386 Assuming that general economic sanctions imposed on human rights grounds may take the same form as the unilateral economic sanctions discussed in chapter 2, there is no need to re-examine their wto inconsistency, and we can rely upon the analysis presented before. The subsequent analysis focuses on the discussion of the possibility to justify unilateral economic sanctions imposed on human rights grounds. The public morals exception and the national security exception are
4.1 Justification under the Public Morals Exception
The public morals exception reads as follows: “Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: (a) necessary to protect public morals.”1387 The gatt 1994 and the gats stipulate a similar public morals exception.1388 Hence, in the following analysis, I will refer to the gatt 1994, but the findings are also valid for the possibility of justifying human rights sanctions under the gats exception.
According to well-established wto jurisprudence, a wto-inconsistent measure can be justified under the general exceptions on the condition that this measure falls under one of the listed exceptions and meets the requirements of the chapeau of Article xx of the gatt 1994.1389 Thus, the analysis proceeds as follows: at the outset, the prerequisites required for a measure to be “necessary to protect public morals” are determined, and the possibility of human rights sanctions to comply with these prerequisites is discussed. Subsequently, the requirements of the chapeau of Article xx of the gatt 1994 are enumerated, and compliance with these requirements is assessed.
Before we proceed, the question of whether the public morals exception justifies inwardly directed or outwardly directed measures calls for further clarification.1390 The text of the public morals exception does not prescribe any distinction, and wto jurisprudence does not provide a straightforward
4.1.1 The Definition of “Public Morals”
The majority of bilateral trade agreements signed after 1927 incorporated a moral exception clause, which was commonly drafted as “prohibitions or restrictions imposed on moral or humanitarian grounds.”1394 Hence, it is not a coincidence that the public morals exception was incorporated into the gatt 1947 and then integrated into the gatt 1994. Discussing the negotiating history of the gatt’s moral clause, Steve Charnovitz provides numerous examples of the state practise that existed before the negotiations1395 and acknowledges that “the moral exception was a response to the fact that many governments were banning imports and exports for moral or humanitarian reasons.”1396
The final text of the public morals exception excludes any reference to trade restrictions imposed on “humanitarian grounds.” Charnovitz illustrates the
The negotiating history of the clause sheds little light on the meaning of the ambiguous term “public morals,”1398 of which the wto adjudicators adopted an all-embracing and amorphous definition. The panel in US – Gambling asserted that “the term ‘public morals’ denotes standards of right and wrong conduct maintained by or on behalf of a community or nation.”1399 Furthermore, the panel observed that various factors might be considered to define the exact scope of “public morals.” It was admitted that public morals “can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values.”1400
The panel acknowledged a wto Member’s right to determine “public morals” within its territory: “Members should be given some scope to define and apply for themselves the concepts of ‘public morals’ and ‘public order’ in their respective territories, according to their own systems and scales of values.”1401 This approach was reiterated when, in response to Canada’s argument that similar moral concerns should be addressed in the same way, the ab pronounced: “Members may set different levels of protection even when responding to similar interests of moral concern.”1402 The wto adjudicators upheld these conclusions in their subsequent jurisprudence.1403
A wto Member that invokes the public morals exception is obliged to prove that the trade-restrictive measures introduced address the public morals of a particular society. To prove this, the Member can demonstrate that the objective of such measures reflects “standards of right and wrong conduct” in a particular society and that the trade restrictions are being implemented in order to achieve such an objective linked to public morality. To demonstrate this, factual evidence can be presented. For example, the panel in ec – Seal Products has assessed “the texts of the statutes, the legislative history, and other evidence regarding the structure and operation of the measure at issue.”1405 In other words, a wto Member cannot simply introduce public morals as a defence without showing that this had been a domestic concern in the process of legislation, administration and adjudication of the measure challenged.1406
The all-encompassing definition of “public morals” allows wto Members to argue that human rights sanctions pursue “public morals” objectives. A wto Member can rely upon its obligations under human rights treaties, as well as domestic human rights standards to demonstrate that human rights considerations constitute “public morals.” In this context, Gabrielle Marceau suggests that if a wto Member justifies its human rights measures under the public morals clause, a panel can examine this Member’s participation in the relevant human rights treaties.1407 According to Gabrielle Marceau, such an examination has three goals: “1. As evidence of the ‘importance of the values and common interests’ protected by the measure; 2. As evidence of the efficacy of the chosen measure; and 3. As evidence of the good faith and consistent behaviour of the concerned member.”1408 Other scholars support this conclusion.1409
4.1.2
The ab developed an analytical framework to assess if a disputed measure is “necessary to protect public morals.” This analytical framework consists of two steps: the member must demonstrate that the measure in question has been adopted “to protect public morals” and that it is “necessary.”1410
4.1.2.1 The “Design Step” of the Analysis
The ab was confronted with a need to interpret the meaning of “to protect” in ec – Seal Products. In this dispute, Canada argued that the requirement “to protect” entails that a risk to public morals must exist and a measure, which is designed “to protect public morals,” shall address this risk.1411 The EU opposed this view.1412 The ab ruled that “to protect” in Article xx(a) does not require the existence of a risk to public morals.1413
wto adjudicators consider a wide range of evidence in assessing whether a disputed measure is “designed” or “capable of” protecting public morals. This evidence includes “the texts of statutes and/or regulations, the measure’s legislative history, the measure’s objective, and other evidence regarding its content, structure, and expected operation.”1417
Economic sanctions targeting human rights violations may be “designed to” protect or “capable of” protecting public morals if certain prerequisites are met. A wto Member can demonstrate that protection of human rights is a matter of significant concern for its population. To support this assertion, a wto Member can describe its participation in international human rights conventions and its internal laws and practices that exemplify the role of human rights considerations in a particular society.
Furthermore, the respondent state can explain how the domestic regulation introducing the measure being challenged, as well as the operation of the measure, contribute to achieving the stated goals. For instance, a complete import ban imposed against a state that commits grave human rights violations can protect the citizens of a sending state from being exposed to the risk of buying goods from a rogue state, i.e. of buying morally objectionable goods. Similar
4.1.2.2 The Necessity Test
The ab explicitly emphasised that the assessment of a measure’s necessity imposes a stricter standard than the evaluation of a measure’s design.1418 Earlier jurisprudence had introduced the following necessity test: “a necessity analysis involves a process of ‘weighing and balancing’ a series of factors, including the importance of the objective, the contribution of the measure to that objective, and the trade-restrictiveness of the measure.”1419 Moreover, a measure being challenged ought to be compared with possible alternatives.1420
Concerning the first analytical step, the panel in Brazil – Taxation clarified that “the more vital or important those interests or values are, the easier it would be to accept as ‘necessary’ a measure otherwise found to be inconsistent with the gatt 1994.”1421 A determination of a measure’s contribution is a subsequent step. The ab emphasised that panels enjoy a certain latitude in conducting contribution analysis1422 and that such an analysis “can be done either in quantitative or in qualitative terms.”1423 Regarding the trade restrictiveness of a questioned measure, the ab pronounced that “if a Member chooses to adopt a very restrictive measure, it will have to ensure that the measure is carefully designed so that the other elements to be taken into account in weighing and balancing the factors relevant to an assessment of the ‘necessity’ of the measure will ‘outweigh’ such restrictive effect.”1424 Moreover, a complainant
Unilateral economic sanctions imposed to remedy grave human rights violations have an important objective. Since it is undeniable that the protection of human rights would be acknowledged as a valid objective, human rights sanctions meet the first requirement of the necessity analysis.
Assessing the measure’s contribution to the objective pursued is the next step in the necessity analysis. Although panels enjoy a certain latitude in choosing an appropriate framework for the contribution analysis, the measure must contribute to the desired outcome. Unilateral human rights sanctions imposed to restrict market access (for example, a complete import ban) can effectively prevent such access and guarantee that the country’s residents are not exposed to the risk of buying morally objectionable goods and/or services. To reach this conclusion, we assume that the benchmark for the contribution analysis is the effective restriction of market access to goods and/or services that are actually “morally objectionable.” This argument may establish that there is a certain degree of contribution, if a complete import ban is introduced.
As in the previous example, the benchmark for the analysis of the contribution made by a partial import ban is the restriction of market access to “morally objectionable” goods and/or services. In this regard, the question that needs to be tackled is why certain goods/services that originate in a state that abuses human rights are “morally objectionable,” while other goods/services are not. A wto Member can argue that targeted categories of goods/services arouse
Export bans on goods and/or services face greater hurdles when it comes to demonstrating their contribution to the protection of public morals. The argument that can be advanced is that such restrictions protect public morals by denying exports to a regime that disobeys the human rights of its nationals. The weak point of this reasoning is that the exact contribution of export restrictions to the protection of public morals remains uncertain. Import bans, by contrast, can effectively restrict market access and thus prevent residents from being exposed to “morally objectionable” goods or services. The same logic does not apply to export bans. Furthermore, export bans may even contribute to a further deterioration of the human rights conditions in the targeted country.
The next stage of the analysis is a determination of trade restrictiveness. The trade restrictiveness of unilateral human rights sanctions depends on whether there is a complete or a partial ban. It is reasonable to assume that a complete import/export ban, as the most trade-restrictive measure available to the wto Members, must make a significant contribution to achieving the objectives pursued in order to be justified. Partial import or export bans are less trade restrictive.
An examination of alternative measures is the last step of the analysis. A complaining party bears the burden of proving that alternative measures, which guarantee the same level of protection and are less trade restrictive, are available. The complaining party may suggest such alternatives as labelling schemes that inform the consumers about the origin of goods/services and thus leave the question of whether or not to buy such products in the hands of consumers.
In light of the above, a subset of unilateral human rights sanctions such as a complete import ban on goods or services, or to a lesser degree a partial import ban, may be potentially justified as “necessary” for the protection of public morals. A few clarifications are warranted here. First of all, a wto Member that intends to justify such measures under the public morals exception would be required to demonstrate that human rights constitute public morals in a particular society. This would be a fact-intensive exercise. Second, given that the goods or services whose importation might be restricted are not related to particular human rights violations, it might be burdensome to argue that any good from a particular state is “morally objectionable.” Hence, any final finding on the possibility to justify general import bans hinges on numerous factual circumstances. Furthermore, the analysis above reveals that the requirements
4.1.3 Analysis under the Chapeau of Article xx
The test under the chapeau consists of three subsequent analytical steps.1428 The first step is to identify whether the conditions are the same in the countries between which a measure allegedly discriminates. In the ab’s view, “‘conditions’ relating to the particular policy objective under the applicable subparagraph are relevant for the analysis under the chapeau.”1429 A respondent bears the burden of proving that the conditions prevailing in different countries are not the same.1430 The second step is to assess whether there is discrimination. Discrimination exists “when countries in which the same conditions prevail are differently treated.”1431 Finally, adjudicators must decide whether the discrimination is arbitrary or unjustifiable. This analysis “should focus on the cause of the discrimination, or the rationale put forward to explain its existence.”1432 According to the ab: “One of the most important factors in the assessment of arbitrary or unjustifiable discrimination is the question of whether the discrimination can be reconciled with, or is rationally related to, the policy objective with respect to which the measure has been provisionally justified under one of the subparagraphs of Article xx.”1433
If human rights sanctions are imposed against a state which persistently violates human rights, then the situation prevailing in that particular state might be unprecedented. Put differently, a wto Member which introduces such restrictions may argue that the scale and gravity of human rights violations occurring in a particular state demonstrates that the conditions in the countries between which a measure allegedly discriminates are not the same. Consequently, the application of such human rights sanctions does not “constitute a means of arbitrary or unjustifiable discrimination” under the chapeau of Article xx.
4.2 Justification under the National Security Exception
General human rights sanctions do not target goods and/or services related to human rights violations. For this category of restrictions, the national security exception may be the most feasible way of justifying them.
Below, I discuss the first two panel reports, in which the respondents invoked the national security exception enshrined in the wto Agreements, in particular the gatt 1994 and the trips Agreement. In light of the panels’ findings, the possibility of justifying human rights economic sanctions under the national security exception is analysed.
4.2.1 The wto Tribunals’ Jurisdiction over the National Security Exception
The right of the wto tribunals to adjudicate the national security exception has been debated extensively.1434 In Russia – Traffic in Transit, the Russian Federation contended that the panel does not have jurisdiction over matters related to the national security interests.1435 It was argued that the panel had no right to engage in the examination of the measures at issue and should limit its findings to the mere acknowledgement that Article xxi of the gatt 1994 had been invoked.1436 Against this, Ukraine claimed that the security exception is an affirmative defence, which does not modify rules on jurisdiction.1437 A number of third parties submitted their own views on whether the
Against this background, the panel started its analysis by ascertaining its jurisdiction to entertain the legal claims before it. The starting point of the panel’s analysis was the reiteration of the principle that international courts and tribunals “possess inherent jurisdiction which derives from the exercise of their adjudicative function.”1441 As a result, the panels are entitled to decide their substantive jurisdiction.1442 In line with this preliminary assertion, the panel delved into the relevant provisions of the dsu, only to conclude that the invocation of the security clause falls squarely within its terms of reference.1443
Yet, the matter did not rest there. Emphasising the “self-judging” nature of the clause, the Russian Federation maintained that the panel is deprived of its jurisdiction ratione materiae over the trade measures justified by this exception.1444 The panel engaged in an interpretative exercise, which confirmed that some elements of the security clause are susceptible to judicial review.1445 To buttress this interpretative outcome, the panel made ample use of the negotiating history of the International Trade Organization.1446
The conclusion that flows logically from the panel’s findings is that neither is the panel deprived of the jurisdiction to review the invocation of the security exception, nor is the clause non-justiciable.1447
In Saudi Arabia – iprs, the respondent invoked the national security exception prescribed by Article 73(b)(iii) of the trips Agreement and argued that,
4.2.2 The Scope of the “Self-Judging” Nature of the National Security Clause
In the majority of the disputes involving the national security clause, the crux of the discussion is the scope of latitude granted to wto Members under the national security exceptions.1451 The determination of this scope inevitably entails a discussion of the self-judging nature of the clause. The views advanced in this debate are diverse, ranging from the belief that the invocation of the security exception deprives panels and the ab of the power to adjudicate the merits of the dispute1452 to a detailed analysis of the standards that must be developed to review its application.1453
The panel in Russia – Traffic in Transit sheds some light on the matter. In a way reminiscent of the efforts of wto adjudicators to balance the trade and non-trade objectives of Article xx, the panel made laudable efforts to strike
4.2.2.1 Objective Elements of the National Security Exception
Nothing in this Agreement shall be construed: […]
- (b)to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests
- (iii)taken in time of war or other emergency in international relations; […]
The Russian Federation contended that the prerequisite “taken in time of war or other emergency in international relations” requires a subjective assessment of a wto Member and thus “cannot be doubted or re-evaluated by any other party or judicial bodies.”1457 Legal scholars had expressed this view before. For instance, Olivia Swaak-Goldman asserted that “the panel should not transpose its perception of the conflict for that of the invoking member, but it should examine whether from that member’s perspective there is a situation that constitutes a time of war or other emergency in international relations.”1458
Confronted with the need to interpret Article xxi(b)(iii), the panel raised the question whether the wording “which it considers” qualifies the prerequisites enumerated in subparagraphs (i)-(iii).1460 By relying upon the general rule of interpretation along with the negotiating history of the Charter of the International Trade Organization, the panel concluded that these subparagraphs establish objective elements that are amenable to objective determination.1461 The arguments expressed in support of this position are discussed below.
4.2.2.1.1 The Logical Structure of the Provision and the Principle of Effective Interpretation (Effet Utile)
The panel pronounced that the subparagraphs (i)–(iii) “operate as limitative qualifying clauses” that restrain the discretion granted to wto Members under the national security clause.1462 Any other interpretation, in the panel’s view, runs counter to the principle of effective interpretation.1463 The panel’s reference to the principle of effective interpretation, effet utile, is embedded in the somewhat rhetorical question: “And what would be the use, or effet utile, and added value of these limitative qualifying clauses in the enumerated subparagraphs of Article xxi(b), under such an interpretation [i.e. an interpretation leaving their determination exclusively to the discretion of the invoking Member]?”1464
The principle of effective interpretation, as elaborated by the wto adjudicators, requires giving meaning and effect to all the terms of the treaty. In one of its early cases, the ab noted: “One of the corollaries of the ‘general rule of interpretation’ in the vclt is that interpretation must give meaning and effect to all the terms of a treaty. An interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility.”1465
4.2.2.1.2
The panel relied upon the general rule of interpretation to support the findings that the existence of such circumstances as “war” and “emergency in international relations” is an objective fact amenable to objective determination.1466 Furthermore, the chronological concurrence “taken in time of” is also an objective fact.1467
The panel equated the term “war” with an armed conflict,1468 while defining “emergency in international relations” as “a situation of armed conflict, or of latent armed conflict, or of heightened tension or crisis, or of general instability engulfing or surrounding a state.”1469
The views on the scope of the expression “other emergency in international relations” advanced by legal scholars long before the panel’s pronouncements are very similar. In Michael Hahn’s view, its meaning can range from a “hostile interaction between States involving the use of force to ‘something more’ than purely strained relations.”1470 Hannes Schloemann and Stefan Ohlhoff argued that “the situation in question must exceed ordinary political tensions between states, if not actually involve some kind of military threat.”1471 Raj Bhala warned against equating the expression “other emergency in international relations” with the acts of self-defence.1472 The rationale underlying his warning has been captured in the following claim: “If the drafters of gatt meant to include only self-defense cases, then they would have said so expressly and, perhaps, even referenced the language in Article 51 of the UN Charter.”1473 Moreover, Bhala suggested the concept of a credible threat as a benchmark,1474 claiming that “it is the implicit concept of a credible threat judged from the objective standpoint of a reasonable, similarly-situated government, coupled with the articulation of specific types of dangers that track one or more of the three clauses of the security exception.”1475 Panagiotis
To buttress its conclusions, the panel considered the object and purpose of the gatt 1994 and the wto Agreement. As the panel has aptly pointed out: “It would be entirely contrary to the security and predictability of the multilateral trading system established by the gatt 1994 and the wto Agreements, including the concessions that allow for departures from obligations in specific circumstances, to interpret Article xxi as an outright potestative condition, subjecting the existence of a Member’s gatt and wto obligations to a mere expression of the unilateral will of that Member.”1477
4.2.2.1.3 Negotiating History of the Charter of the International Trade Organization
The panel has made ample use of the negotiating history of the Charter of the International Trade Organization.1478 It is noteworthy that it reveals the contracting parties’ intent to agree to a political escape clause that is midway between a catch-all exception and a blanket ban on the use of trade restrictions in times of political turmoil.1479 More specifically, the delegate for the United States reassured the delegate for the Netherlands about the need for a balanced approach towards the scope of the national security exception, stating: “I think there must be some latitude here for security measures. It is really a question of a balance. We have got to have some exceptions. We cannot make it too tight, because we cannot prohibit measures which are needed purely for security reasons. On the other hand, we cannot make it so broad that, under the guise of security, countries will put on measures which really have a commercial purpose. We have given considerable thought to it and this is the best we could produce to preserve that proper balance.”1480 Ironically,
Overall, the Charter’s negotiating history as it is reflected in the panel report substantiates the panel’s findings that the balance of the security exception lies in a combination of objective and subjective elements with the objective parts being enumerated in the subparagraphs (i)–(iii). The panel in Saudi Arabia – iprs endorsed this interpretation and relied upon the analytical framework developed in Russia – Traffic in Transit.
4.2.2.2 The Subjective Elements of the National Security Clause and the Scope of Their Reviewability
4.2.2.2.1 The Subjective Standard of Necessity – “Which It Considers Necessary”
The panel interpreted the wording “which it [a wto Member] considers necessary” as granting unfettered discretion to the wto Members to decide the necessity of the measures imposed to protect essential security interests.1482
wto adjudicators frequently rely on the technique of cross-referencing,1483 including instances of identical and similar treaty language.1484 The technique of cross-referencing is not restricted to the text of a single agreement, and thus adjudicators make use of the legal rules of the other agreements as well.1485 In the present dispute, Ukraine, as well as the European Union, advanced an argument that the wording “which it considers” shall be interpreted similarly to the interpretation of the language “if that party considers” made in another dispute.1486 The language “if that party considers” contained in Article 22.3 of the dsu was interpreted as granting “a certain margin of appreciation, but that a decision by a Member was nevertheless subject to review by the
In addressing this legal claim, the present panel distinguished between the latter interpretation and the wording of “which it considers” in Article xxi(b)(iii), arguing: “The arbitrator’s decision regarding the scope of review under Article 22.3 of the dsu was based on the fact that the discretion accorded to the complaining party under the relevant subparagraphs of that provision was subject to the obligation in the introductory words to Article 22.3 of the dsu, which provides that ‘[i]n considering what concessions or other obligations to suspend, the complaining party shall apply the following principles and procedures.’ There is no equivalent obligation anywhere in the text of Article xxi that expressly conditions the discretion accorded to an invoking Member under the chapeau of Article xxi(b).”1488
Our enquiry into the wto jurisprudence, where similar treaty language was interpreted, demonstrates that the self-judging standards are interpreted differently by the wto tribunals. For instance, on another occasion, the panel ruled that although a wto Member can be entrusted with a right to determine certain elements of the legal obligation, the exercise of this right is not unconstrained. The panel reached this conclusion in the ec – Hormones dispute, in which it had to interpret the wording “deemed appropriate by the Member.” The panel pronounced that although the wording gives broad discretion to identify an appropriate level of protection, yet “in choosing a measure to achieve that appropriate level of protection Members have agreed to observe the provisions of Articles 2, 5.1 to 5.3 and 5.6.”1489
By contrast, in ec – Bananas iii the ab recognised a wto Member’s right “to be largely self-regulated.” This interpretation was developed as a part of a broader argument that each wto Member should be able to exercise its legal right to initiate a dispute when it considers such an action necessary.1490
4.2.2.2.2
The parties to the dispute disagreed on whether the determination of “essential security interests” is completely the wto Member’s prerogative or whether the panel is entitled to review the correctness of such determination.1491
The panel defined what interests might fall under the definition of “essential security interests” as “interests relating to the quintessential functions of the state, namely, the protection of its territory and its population from external threats, and the maintenance of law and public order internally.”1492 Yet, this definition should not lead us astray: the panel left the right to define what might constitute “essential security interests” to wto Members.1493 It has been pointed out that such determination “will depend on the particular situation and perceptions of the state in question, and can be expected to vary with changing circumstances.”1494
Since the exercise of this discretion is prone to politicisation and abuse, the panel emphasised that it is subject to the principle of good faith.1495 It implies an obligation to articulate such essential security interests sufficiently enough in order to demonstrate their veracity.1496
4.2.2.2.3 Relations between the Trade-Restrictive Measures and Essential Security Interests – “for the Protection of”
The panel set out the standard of “a minimum requirement of plausibility” between the essential security interests defined by the wto Member and the measures implemented.1497 Put differently, the measure should not be “implausible as measures protective of these interests.”1498 This standard of “implausible as measures protective of these interests” is comparable with the requirement “the measure is incapable of protecting public morals” as it was elucidated in the context of the public morals exception.1499
4.2.3
In their rulings on the national security exception, the panels acknowledged their jurisdiction to adjudicate its invocation and interpreted the scope of its self-judging nature. A few of their pronouncements should be recalled here. First and foremost, the prerequisite “taken in time of war or other emergency in international relations” sets an objective standard, which is amicable to review. Second, the term “emergency in international relations” was interpreted as “a situation of armed conflict, or of latent armed conflict, or of heightened tension or crisis, or of general instability engulfing or surrounding a state.”1500 Third, the expression “taken in time of” implies that there should be a temporal nexus between the measures undertaken and the existence of the emergency in international relations. Finally, the necessity requirement under the national security exception was reduced to “a minimum requirement of plausibility” between “essential security interests” and the trade-restrictive measures enacted.
In light of this, the national security exception might potentially justify unilateral human rights sanctions only if the human rights violations that provoked the imposition of the trade-restrictive measures constitute a situation of “emergency in international relations,” which gives rise to a threat or instability “engulfing or surrounding a state.” Conceivably, only gross human rights violations which occur in geographical proximity to the state that imposes the restrictive measures could meet such a high threshold.
The panel in Russia – Traffic in Transit referred to the UN Resolutions to substantiate the factual findings on the existence of tensions between Ukraine and the Russian Federation. In this connection, it should be noted that the conclusions of the Security Council on whether human rights violations could threaten international or regional peace and security vary significantly.1501 As the analysis presented in the next chapter demonstrates, in some instances grave human rights violations have been recognised as a “threat to regional peace and security,” on other occasions as a “threat to international peace and security.”1502 There were a number of instances where any pronouncement on the significantly deteriorating situations of human rights violations on the part of the Security Council was vetoed by its permanent members. This inconsistency in the practice of the Security Council increases uncertainty about the
Regarding the subjective elements of the national security clause, in particular, the minimum requirement of plausibility, it seems implausible for a state to argue that human rights violations occurring in a distant state might endanger its “essential security interests” and thus, raise serious national security concerns. In light of these considerations, I conclude that only a subset of unilateral human rights sanctions can be justified under the national security exception.
5 Conclusion
Unilateral human right sanctions are prone to similar legal contestations as unilateral economic sanctions imposed in pursuit of other objectives. These sanctions, despite being used as a tool to achieve the important societal objective of punishing human rights violations, may run counter a number of obligations under public international law. To illustrate this, I discussed the possible unlawfulness of unilateral human rights sanctions under the UN Charter, the legality of third-party countermeasures imposed to redress human rights violations and the relationship between unilateral human rights sanctions that target senior government officials and immunities accorded to these same officials under international law.
In the last part of this chapter, we examined the possibility of justifying unilateral human rights sanctions under the two exceptions enshrined in the wto Agreements, namely the public morals exception and the national security exception. According to this analysis, these two exceptions might justify only a tiny fraction of unilateral human rights sanctions. Moreover, the possibility of justifying such unilateral restrictions under the public morals exception and the national security exception hinges on various contributory factors, meaning that some of these restrictions might violate the wto obligations of the state that imposes them. Thus, we can conclude that the legality of unilateral human rights sanctions under public international law remains debatable.
This trend is clearly reflected in the adoption of domestic laws that impose sanctions on foreign nationals involved in human right violations. For more details, see chapter 1, subsection 1.6 The increased use of unilateral economic sanctions and a new geo-economic world order.
Hofer (n 22).
Alexandra Hofer analyses numerous declarations adopted by the UN bodies that criticise unilateral sanctions. ibid.
Cleveland (n 551); Buhm Suk Baek, ‘Economic Sanctions Against Human Rights Violations’ (2008) Cornell Law School Inter-University Graduate Student Conference Papers <
Opposition to unilateral economic sanctions has also been expressed by the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights Idriss Jazairy. unhrc (n 407); Jazairy (n 407).
“[…] the imposition of sanctions in response to human rights breaches can hardly be dissociated from that addressing democratic backsliding. The same is true for sanctions imposed in pursuance of termination of violent conflict.” Portela (n 24) 14.
“Unilateral human rights sanctions are employed by countries for a variety of purposes. They may be used to punish a foreign state for its human rights practices, to deprive a rogue state of needed goods or foreign currency, to express the sending state’s outrage at human rights atrocities, to prevent a state’s own markets from contributing to human rights violations, to morally distance a state from human rights violators, and to generate pressure for the adoption of multilateral action.” Cleveland (n 27) 135.
Hufbauer and others (n 28) 13.
“[…] Congress has, since the mid-1970s, pressured presidents to place more weight on human rights in modulating U.S. relations with foreign governments.” David Skidmore and William Gates, ‘After Tiananmen: The Struggle over U.S. Policy toward China in the Bush Administration’ (1997) 27(3) Presidential Studies Quarterly 514, 518.
Martin (n 98) 101–111.
Hufbauer and others (n 28) 135.
“No autonomous EU sanctions, as defined above, were observed in the time period before 1981 and the most important institutional factor at the start of sanctions policy was the European Political Co-operation (epc) “London Report” in October 1981.” Joakim Kreutz, ‘Hard Measures by a Soft Power? Sanctions Policy of the European Union 1981–2004’ (2005) Bonn International Center for Conversion, paper 45 1, 7.
ibid 21–22.
Portela (n 24) 6.
US Department of the Treasury. Press Release. Treasury Sanctions Chinese Government Officials in Connection with Serious Human Rights Abuse in Xinjiang. (22 March 2021)
US Customs and Border Protection. Press Release. The Department of Homeland Security Issues Withhold Release Order on Silica-Based Products Made by Forced Labor in Xinjiang. (24 June 2021)
ibid.
US Department of Commerce. Press Release. Commerce Department Adds Five Chinese Entities to the Entity List for Participating in China’s Campaign of Forced Labor Against Muslims in Xinjiang. (24 June 2021)
Council Implementing Regulation (EU) 2021/478 of 22 March 2021 implementing Regulation (EU) 2020/1998 concerning restrictive measures against serious human rights violations and abuses (oj l); Council Decision (cfsp) 2021/481 of 22 March 2021 amending Decision (cfsp) 2020/1999 concerning restrictive measures against serious human rights violations and abuses (oj l).
ibid.
ibid.
Stuart Lau, ‘China Slaps Retaliatory Sanctions on EU Officials’ politico (22 March 2021)
European Parliament, Resolution of 20 May 2021 on Chinese countersanctions on EU entities and meps and mps (2021/2644(rsp)).
Global Affairs Canada. News release. Canada joins international partners in imposing new sanctions in response to human rights violations in Xinjiang. (22 March 2021)
Foreign, Commonwealth & Development Office. Press release. UK sanctions perpetrators of gross human rights violations in Xinjiang, alongside EU, Canada and US. (22 March 2021)
Michael Volkov, ‘United States, European Union, United Kingdom and Canada Coordinate Further Sanctions Against Belarus’ jd Supra (21 December 2021).
Portela (n 24) 6.
Neier (n 140) 877.
ibid.; Neier (n 140).
Sergei Magnitsky Rule of Law Accountability Act of 2012 (n 186).
Magnitskiy and Others v. Russia App no 32631/09 and 53799/12 (n 185).
Sergei Magnitsky Rule of Law Accountability Act of 2012 (n 186). Section 404. Para. (1).
ibid Section 404.
The Global Magnitsky Human Rights Accountability Act. (n 189).
ibid.
Justice for Victims of Corrupt Foreign Officials Act (n 194).
Michael Nesbitt, ‘Canada’s Unilateral Sanctions Regime under Review: Extraterritoriality, Human Rights, Due Process, and Enforcement in Canada’s Special Economic Measures Act’ (2016) 48(2) Ottawa Law Review 507, 565–566.
The Global Human Rights Sanctions Regulations 2020 (n 193).
Foreign & Commonwealth Office. Press Release. UK announces first sanctions under new global human rights regime. (6 July 2020)
Council Decision (cfsp) 2020/1999 (n 199); Council Regulation (EU) 2020/1998 (n 199).
Lithuania introduced Magnitsky sanctions by incorporating an “Magnitsky Amendment” to Article 133 of the Law on the Legal Status of Aliens, which was adopted in November 2017. Republic of Lithuania Law on the Legal Status of Aliens 29 April 2004 No. ix–2206. Estonia added to the existing “Law on Obligation to Leave and Prohibition of Entry,” a provision to ban foreigners when there is a good reason to believe that they have participated in or contributed to a human rights violation abroad, involving death, serious injury or other criminal misconduct on political grounds. ‘Amendments to the Law on Amending the Obligation to Leave and Prohibition on Entry Act 262 se, Adopted 08.12.2016.’
Article 1, 1(a)-1(c), Council Decision (cfsp) 2020/1999 (n 199).
Article 1, 1(d) ibid.
Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021.
ibid.
Poh (n 401) 76.
Hofer (n 22) 187.
Human rights and unilateral coercive measures. unga Resolution 75/181. UN Doc a/res/75/181 (28 December 2020).
These statements have been made before the UN General Assembly’s Third Committee. Hofer (22).
Human Rights Council, Resolution 27/21, UN Doc a/hrc/res/27/21 (3 October 2014).
unhrc (n 407).
Jean-Marc Thouvenin, ‘International Economic Sanctions and Fundamental Rights: Friend or Foe?’ in Norman Weiß and Jean-Marc Thouvenin (eds.), The Influence of Human Rights on International Law (Springer 2015).
ibid.
Human Rights Council, Thematic study of the Office of the United Nations High Commissioner for Human Rights on the impact of unilateral coercive measures on the enjoyment of human rights, including recommendations on actions aimed at ending such measures. UN Doc a/hrc/19/33 (11 January 2012).
For more details, see subsection 2.2 Unilateral economic sanctions as a violation of the principle of non-intervention.
Maziar Jamnejad and Michael Wood describe the principle of non-intervention as: “One of the most potent and elusive of all international principles.” Jamnejad and Wood (n 427).
unga Res 2131.
ibid.
unga Res 2625.
The relevant part of the text reads: “No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.” ibid.
Chapter 1 Fundamentals of international economic relations Charter of Economic Rights and Duties of States, unga Res 39/163 (17 December 1984) UN Doc a/res/39/163.
Information on the ratification of 18 international human rights treaties is available here:
Cleveland (n 551) 53.
ibid 54.
Lori Fisler Damrosch, ‘Politics Across Borders: Nonintervention and Nonforcible Influence Over Domestic Affairs’ (1989) 83 American Journal of International Law 1, 46.
Hofer (n 22).
Mortimer Newlin Stead Sellers, ‘Economic Sanctions against Human Rights Violations’ in Laura Picchio Forlati and Linos-Alexander Sicilianos (eds.), Economic Sanctions in International Law (Brill Academic Publishers 2004) 489.
Poh (n 401).
Article 49 ilc, ‘Draft articles’ (n 90).
For more details, see subsection 3.1 Unilateral economic sanctions as countermeasures.
Article 42 ilc, ‘Draft articles’ (n 90).
Crawford (n 353) 692.
Reservations to the Convention on Genocide, Advisory Opinion: icj Reports 1951, p 15 23.
For more details, see chapter 5, subsection 3.4 Grave human rights violations as a threat to international peace and security.
Dawidowicz, ‘Public Law Enforcement without Public Law Safeguards?’ (n 372) 336.
This article was published before the Draft articles were adopted, yet the argument still holds. Byers (n 1171) 238.
Dawidowicz, ‘Third-Party Countermeasures’ (n 372) 3.
Restrictive measures against Libya included asset freezes as well as an expansion from the League of Arab States. Furthermore, as Dawidowicz points out: “these actions were taken prior to the enforcement measures adopted by the Security Council against Libya under Chapter vii UN Charter and therefore required independent justification.” ibid 6.
The European Union implemented numerous unilateral restrictive measures, which later were introduced by other states that aligned its unilateral restrictions with the European ones. Syria was suspended from the League of Arab States in November 2011. Furthermore, the League of Arab States introduced a number of restrictions against Syria. ibid 6–9.
The European Union, Australia, Canada, Japan, Switzerland and the United States have adopted unilateral restrictive measures against the Russian Federation for its role in the destabilisation of Ukraine. ibid 9–11.
ibid 11–15; Dawidowicz, ‘Public Law Enforcement without Public Law Safeguards?’ (n 372).
Hillgruber (n 503) 273–278.
ibid 274. This conclusion sounds even stronger in relation to the crime of genocide. The Genocide Convention prescribes in Article 1 a general obligation to “prevent and punish” the crime of genocide. Thus, Christian Hillgruber argues that third-party countermeasures are covered by this general obligation.
ibid 277.
ibid 291.
Andreas Paulus, ‘Whether Universal Values Can Prevail over Bilateralism and Reciprocity’ in Antonio Cassese (ed), Realizing Utopia: The Future of International Law (Oxford University Press 2012) 90–91.
ibid 101.
ibid 91.
Paulus (n 1323).
Sellers (n 1304) 481–482.
ibid 482.
Venezuela Defense of Human Rights and Civil Society Act of 2014, Public Law 113–278, Dec. 18, 2014, 128 Stat. 3011 Section 5.
President of the United States of America. Executive Order 13818 of December 20, 2017. Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption. (n 210).
ibid.
President of the United States of America. Executive Order 13553 of September 28, 2010. Blocking Property of Certain Persons With Respect to Serious Human Rights Abuses by the Government of Iran and Taking Certain Other Actions.
‘Public Designations of Current and Former Foreign Government Officials Due to Involvement in Gross Violations of Human Rights Under Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act’ (United States Department of State, 10 December 2019) <
‘Public Designation of Owen Ncube, Due to Involvement in Gross Violations of Human Rights, under Section 7031(c) of the fy 2019 Department of State, Foreign Operations, and Related Programs Appropriations Act’ (United States Department of State, 25 October 2019) <
‘Switzerland Freezes Gaddafi Assets’ (swi swissinfo.ch) <
‘Sanktionen Gegenüber Venezuela’ (seco – Staatssekretariat für Wirtschaft) <
‘Venezuela: Council Renews Sanctions until 14 November 2020’ (Council of the European Union) <
Portela (n 24) 18.
Fox and Webb (n 762) 544.
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment (n 804) [51].
ibid [53]-[55].
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment (n 804) [170].
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment (n 804).
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment (n 804).
On the various approaches to the personal immunity of a head of state, see Fox and Webb (n 762) 550.
“Apart from physical attacks or interference, State practice is less certain as to the extent of the respect to be afforded to a Head of State, with protection, where afforded more attributable to courtesy or comity than obligation under international law.” ibid 552.
Watts (n 801).
Ruys (n 11).
For a more detailed discussion, see chapter 2, section 6. Unilateral economic sanctions and the immunities of states and state officials.
For a more detailed discussion, see chapter 2, section 6. Unilateral economic sanctions and the immunities of states and state officials.
Ruys (n 11); Ronzitti (n 11); Thouvenin and Grandaubert (n 771).
“The Court would observe at the outset that in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.” Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment (n 804) [51].
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment (n 804) [194].
ibid.
The icj observed: “The Court notes, however, that with increasing frequency in modern international relations other persons representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matters falling within their purview. This may be true, for example, of holders of technical ministerial portfolios exercising powers in their field of competence in the area of foreign relations, and even of certain officials.” Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment (n 1069) [47].
Fox and Webb (n 762) 565.
“In the performance of these functions, he or she is frequently required to travel internationally, and thus must be in a position freely to do so whenever the need should arise.” Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment (n 804) [53].
“The Court accordingly concludes that the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.” ibid [54].
Stoll (n 750).
The dispute was initiated by Germany as a challenge to the decisions of Italian courts, in which compensation was granted to the victims of the atrocities committed by the German armed forces that occurred in 1943–1945. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment (n 786).
ibid [93].
ibid [100].
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment (n 804) [60].
Jones and Others v. the United Kingdom, Applications no 34356/06 and 40528/06 (ECtHR, 14 January 2014) [198].
Costelloe (n 1155) 246–259; Ingrid Wuerth, ‘International Law in the Post-Human Rights Era’ (2017) 96 Texas Law Review 279; Dapo Akande and Sangeeta Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ (2010) 21 European Journal of International Law = Journal europeen de droit international 815; Alexander Orakhelashvili, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts: A Reply to Dapo Akande and Sangeeta Shah’ (2011) 22 European Journal of International Law 849.
The World Trade Forum held in 2001 was devoted to a discussion of the interlinkages between the two regimes – human rights law and international trade law. Frederick M Abbott, Christine Breining-Kaufmann and Thomas Cottier, International Trade and Human Rights: Foundations and Conceptual Issues (The University of Michigan Press 2006).
Writing in 2002 about human rights and multilateral trading system, Thomas Cottier argued that human rights scholars and activists linked human rights with international trade only recently and that this was not the case in the 1980s and early 1990s. Thomas Cottier, ‘Trade and Human Rights: A Relationship to Discover’ (2002) 5 Journal of International Economic Law 111. It is reasonable to assume that such a development could have been influenced by the outcomes of the Uruguay Round, the creation of a new institution – the wto – and a substantial formalisation of the dispute settlement system. In a decentralised and fragmented system of public international law, a state might have various, at times overlapping or contradictory obligations. Taking into consideration the relatively weak enforcement of human rights norms and an effective wto dispute settlement system, states might be more inclined to comply with international trade norms than their human rights obligations. Yet, at the same time, some scholars, such as Gabrielle Marceau, argue that there can be no conflict between the trade rules and international human rights obligations. Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’ (2002) 13 European Journal of International Law 753.
Cleveland (n 551); Cleveland (n 27); Carlos Manuel Vasquez, ‘Trade Sanctions and Human Rights – Past, Present, and Future’ (2003) 6 Journal of International Economic Law 797; Robert L Howse and Jared M Genser, ‘Are EU Trade Sanctions on Burma Compatible with WTO Law’ (2007) Michigan Journal of International Law 165; Jeroen Denkers, The World Trade Organization and Import Bans in Response to Violations of Fundamental Labour Rights (Intersentia 2008).
According to the database in Economic Sanctions Reconsidered, approximately 20 per cent of economic sanctions included in that database were imposed on human rights grounds. Hufbauer and others (n 28).
The first panel report in which the public morals clause was interpreted dates back to 2005. Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, wt/ds285/r, adopted 20 April 2005, as modified by Appellate Body Report wt/ds285/ab/r, dsr 2005:xii, p 5797. The invocation of the national security exception was discussed in a panel report that dates back to 2019. Panel Report, Russia – Measures Concerning Traffic in Transit (n 7).
Iryna Bogdanova, ‘WTO Dispute on the US Human Rights Sanctions Is Looming on the Horizon’ (ejil: Talk!, 31 January 2019) <
The United States did not engage in consultations and contended that it is not obliged to do so, given that it does not recognise the current Venezuelan government as legitimate. In response, Venezuela proceeded with the request to establish a panel. The United States refused to agree to the agenda proposed for the meeting and, as a result, the meeting was postponed. In the next dsb meeting, which took place on 11 April 2019, the issue was not on the agenda.
Cleveland (n 27).
ibid.
ibid 138.
ibid 138–139.
ibid 140.
ibid 142.
For more information about the US policies in the 1990s, see Cleveland (n 551) 38–40.
Ruys (n 4).
“[…] additional tariff preferences (normally duty free treatment), were made available to developing countries committing to ratify and implement a list of human rights and good governance conventions.” Lorand Bartels, ‘The WTO Legality of the EU’s GSP + Arrangement’ (2007) 10(4) Journal of International Economic Law, 869.
James Yap, ‘Beyond ‘Don’t Be Evil’: The European Union GSP + Trade Preference Scheme and the Incentivisation of the Sri Lankan Garment Industry to Foster Human Rights’ (2013) 19(2) European Law Journal, 283.
Cleveland (n 551) 6.
Cleveland (n 27) 135.
For a more detailed discussion, see section 7. Unilateral economic sanctions and wto law.
Article xx(a) gatt 1994.
The gats stipulates the similar exception “(a) necessary to protect public morals or to maintain public order.”
This sequence of analysis was introduced by the ab in its first report. Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, wt/ds2/ab/r, adopted 20 May 1996, dsr 1996:i, p 3.
Definitions of inwardly directed and outwardly directed trade measures are arbitrary and imprecise. For instance, Steve Charnovitz framed these definitions in the following way: “This Article will employ the term ‘outwardly-directed’ to describe trade measures used to protect the morals of foreigners residing outside one’s own country. Conversely, trade measures used to protect the morals of persons in one’s own country will be described as ‘inwardly-directed.’” In the meantime, Charnovitz recognised the arbitrariness of this distinction. Steve Charnovitz, ‘The Moral Exception in Trade Policy’ (1998) 38 Virginia Journal of International Law 689, 695–696.
Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, wt/ds285/ab/r, adopted 20 April 2005, dsr 2005:xii, p 5663 (and Corr1, dsr 2006:xii, p 5475); Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, wt/ds363/ab/r, adopted 19 January 2010, dsr 2010:i, p 3.
Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 822).
ibid [5.173].
Charnovitz (n 1390) 708–709.
The examples include anti-slavery treaties, the narcotics regime, international regime regulating trade in liquor and regime regulating traffic in obscene publications. ibid 710–716.
ibid 710.
ibid 716–717.
Charnovitz (n 1390); Mark Wu, ‘Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals Clause Doctrine’ (2008) 33 The Yale Journal of International Law 215.
Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (n 1371) [6.465].
ibid [6.461].
ibid.
Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 822) [5.200].
Panel Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, wt/ds363/r and Corr1, adopted 19 January 2010, as modified by Appellate Body Report wt/ds363/ab/r, dsr 2010:ii, p 261; Panel Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 825); Panel Report, Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear, wt/ds461/r and Add1, adopted 22 June 2016, as modified by Appellate Body Report wt/ds461/ab/r, dsr 2016:iii, p 1227; Panel Reports, Brazil – Certain Measures Concerning Taxation and Charges, wt/ds472/r, Add1 and Corr1 / wt/ds497/r, Add1 and Corr1, adopted 11 January 2019, as modified by Appellate Body Reports wt/ds472/ab/r / wt/ds497/ab/r.
Panel Reports, Brazil – Certain Measures Concerning Taxation and Charges (n 1403) [7.558].
Panel Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 825) [7.378] and fn 627 thereto.
Thomas Cottier, ‘The Implications of EC – Seal Products for the Protection of Core Labour Standards in WTO Law’ in Henner Gött (ed), Labour Standards in International Economic Law (Springer 2018).
Marceau (n 1368).
ibid 791.
“Human rights law is most likely to be raised by a party to a dispute as evidence supporting an assertion of fact.” Rachel Harris and Gillian Moon, ‘“Gatt” Article xx and Human Rights: What Do We Know from the First 20 Years?’ (2015) 16 Melbourne Journal of International Law 432.
Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 822) [5.169]; Panel Report, Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear (n 1403) [7.293].
“Canada ‘extrapolate[s] that the test to be applied’ in determining whether a measure falls within the scope of application of Article xx(a) includes three elements: (i) ‘identification of a public moral’; (ii) ‘identification of a risk to that public moral’; and (iii) ‘establishing that a nexus exists between the challenged measure and the protection of the public moral against that risk in the sense that the measure is capable of making a contribution to the protection of that public moral.’” Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 822) [2.28].
“Contrary to Canada’s arguments, the European Union submits that there is no requirement to assess the ‘risk’ to public morals in order to determine whether a measure falls within the scope of Article xx(a). Instead, such examination must be undertaken as part of the ‘necessity’ analysis because, where the risks that a measure purports to address are shown to be ‘inexistent or negligible,’ the measure will be found ‘unnecessary.’ Relying on a statement by the Appellate Body in Korea – Various Measures on Beef, the European Union argues that ‘all that must be shown in order to establish that a measure falls within the scope of Article xx(a) is that the measure is designed to protect public morals.’” ibid [2.140].
“However, the notion of risk in the context of Article xx(b) is difficult to reconcile with the subject matter of protection under Article xx(a), namely, public morals. While the focus on the dangers or risks to human, animal, or plant life or health in the context of Article xx(b) may lend itself to scientific or other methods of inquiry, such risk-assessment methods do not appear to be of much assistance or relevance in identifying and assessing public morals. We, therefore, do not consider that the term ‘to protect,’ when used in relation to ‘public morals’ under Article xx(a), required the Panel, as Canada contends, to identify the existence of a risk to EU public moral concerns regarding seal welfare.” ibid [5.198].
Panel Report, Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear (n 1403) [7.297].
ibid [7.343].
It was noted: “With respect to the analysis of the ‘design’ of the measure, the phrase ‘to protect public morals’ calls for an initial, threshold examination in order to determine whether there is a relationship between an otherwise gatt-inconsistent measure and the protection of public morals. If this initial, threshold examination reveals that the measure is incapable of protecting public morals, there is not a relationship between the measure and the protection of public morals that meets the requirements of the ‘design’ step.” Appellate Body Report, Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear, wt/ds461/ab/r and Add1, adopted 22 June 2016, dsr 2016:iii, p 1131 [5.68].
ibid [5.80].
“We do not see the examination of the ‘design’ of the measure as a particularly demanding step of the Article xx(a) analysis. By contrast, the assessment of the ‘necessity’ of a measure entails a more in-depth, holistic analysis of the relationship between the measure and the protection of public morals.” ibid [5.70].
Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, wt/ds332/ab/r, adopted 17 December 2007, dsr 2007:iv, p 1527 [5.169].
ibid.
Panel Reports, Brazil – Certain Measures Concerning Taxation and Charges (n 1403) [7.525].
Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 822) [5.210].
ibid [5.211].
Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (n 1391) [310].
The panel in Brazil – Taxation pointed out that “a complaining party must also demonstrate that the proposed alternative is less trade-restrictive, and contributes to the achievement of the pursued objective to an equal or greater extent than the challenged measure.” Panel Reports, Brazil – Certain Measures Concerning Taxation and Charges (n 1403) [7.532].
Panel Report, Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear (n 1403) [7.326].
In this respect, the weighing and balancing exercise can be understood as “a holistic operation that involves putting all the variables of the equation together and evaluating them in relation to each other after having examined them individually, in order to reach an overall judgment.” Panel Reports, Brazil – Certain Measures Concerning Taxation and Charges (n 1403) [7.534].
Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 822).
ibid [5.300].
“If a respondent considers that the conditions prevailing in different countries are not “the same” in relevant respects, it bears the burden of proving that claim.” ibid [5.301].
Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, wt/ds58/ab/r, adopted 6 November 1998, dsr 1998:vii, p 2755 [165].
Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres (n 1419) [226].
Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 822) [5.306].
The gatt 1947 and wto disputes in which Members expressed their desire to invoke this exception reveal that it was a contentious matter for the contracting parties. Panel Report, Russia – Measures Concerning Traffic in Transit (n 7).
“Neither the Panel nor the wto has jurisdiction over the matters related to the measures necessary for the protection of Member’s national security interests. This is explicitly reflected in the wording of Article xxi of the gatt, leaving the necessity, the form, design and the structure of such measures within the sole discretion of the Member invoking the Article.” ibid Addendum Annex C-3, [59].
ibid Annex C-3, [61].
ibid Annex C-1, [37]-[39].
Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) Annex-D.
Nine third-party Members were in favour of the panel’s jurisdiction to rule over the issue. ibid Annex D.
The distinction between justiciable and non-justiciable legal claims is deeply rooted in US constitutional law and dates back to Chief Justice Marshall’s opinion in Marbury v. Madison. For more details, see Iryna Bogdanova, ‘Adjudication of the gatt Security Clause: To Be or Not to Be, This Is the Question’ (2019) wti Working Paper 01/2019 <
Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.53].
ibid.
ibid [7.56].
ibid [7.57].
ibid [7.102].
ibid [7.83] – [7.100].
ibid [7.103].
Panel Report, Saudi Arabia – Measures concerning the Protection of Intellectual Property Rights, wt/ds567/r and Add., circulated to wto Members on 16 June 2020 [appealed on 28 July 2020] [7.8].
ibid, [7.10] – [7.22].
ibid, [7.23].
Yoo and Ahn (n 820).
“As the textual analysis of Article xxi (b) above indicates, invocation of the national security exception is a matter left to the discretion of a sanctioning member. Moreover, realpolitik demands that Members retain this sovereign prerogative even if additional multilateral checks against abuse are adopted in the future. National legislators believe that one of the surest ways to damage the wto would be for it to attempt to encroach on this prerogative. Accordingly, as a practical matter, it is likely that a wto panel, like the gatt panel in the United States-Nicaragua case, would interpret its terms of reference narrowly to exclude a ruling on the substantive Article xxi arguments.” Raj Bhala, ‘National Security and International Trade Law: What the gatt Says, and What the United States Does’ (1998) 19 University of Pennsylvania Journal of International Economic Law 263, 279.
Wesley Cann, Jr, ‘Creating Standards and Accountability for the Use of the wto Security Exception: Reducing the Role of Power-Based Relations and Establishing a New Balance Between Sovereignty and Multilateralism’ (2001) 26 Yale Journal of International Law 413.
Iryna Bogdanova, ‘The WTO Panel Ruling on the National Security Exception: Has the Panel “Cut” the Baby in Half?’ (ejil:Talk! 12 April 2019)
ibid.
Panel Report, Saudi Arabia – Measures concerning the Protection of Intellectual Property Rights (n 1448) [7.241] – [7.242].
“A statement by that Member that the measures taken are the actions which it considers necessary for the protection of its essential security interests taken in time of war or other emergency in international relations, as the case may be, is sufficient for that Member to benefit from the exception set out in Article xx(b) of the gatt. This assessment by a Member cannot be doubted or re-evaluated by any other party or judicial bodies, as the measures in question are not ordinary trade measures regularly assessed by the wto panels.” Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) Annex C-4, [31].
Olivia Q Swaak-Goldman, ‘Who Defines Members’ Security Interest in the WTO?’ (1996) 9 Leiden Journal of International Law 361, 369.
Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) Annex C-1, [47].
ibid [7.63].
ibid [7.101].
ibid [7.65].
ibid.
ibid.
Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline (n 1389) p. 23.
Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.71] and again reiterated [7.77].
ibid [7.70] and again reiterated [7.77].
ibid [7.72].
ibid [7.76].
Michael J Hahn, ‘Vital Interests and the Law of GATT: An Analysis of GATT’s Security Exception’ (1991) 12 Michigan Journal of International Law 558, 589.
Hannes L Schloemann and Stefan Ohlhoff, ‘“Constitutionalization” and Dispute Settlement in the WTO: National Security as an Issue of Competence’ (1999) 93 The American Journal of International Law 424, 446.
Bhala (n 1452).
ibid 274.
ibid 275.
ibid.
Panagiotis Delimatsis and Thomas Cottier, ‘Article XIV bis GATS: Security Exceptions’ in Rüdiger Wolfrum, Peter-Tobias Stoll, Clemens Feinäugle (eds.), Max Planck Commentaries on World Trade Law: WTO – Trade in Services (Martinus Nijhoff Publishers 2008) 329–348.
Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.79].
The panel analysed the preparatory work of the ito Charter, which began in 1945. Before doing so, the panel referenced a number of ab reports, in which the ab relied upon the preparatory work as a supplementary means of treaty interpretation. For more, see Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) footnote 157.
ibid [7.89] – [7.93].
ibid [7.93].
‘Russia – Measures Concerning Traffic in Transit (ds512), Third Party Executive Summary of the United States’; ‘Russia – Measures Concerning Traffic in Transit (ds512), Third-Party Oral Statement of the United States of America.’
Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.146] – [7.147].
Isabelle Van Damme concludes that cross-referencing is a common interpretive technique for the wto tribunals and points out that: “The use of cross-referencing is not solely a means of contextualizing the treaty language. It also serves to maintain consistency and coherence. Cross-referencing allows for the ‘synchronizing’ of the meaning of different treaty provisions and guarantees mutually consistent interpretations.” Isabelle Van Damme, ‘Treaty Interpretation by the WTO Appellate Body’ (2010) 21 European Journal of International Law 605, 628.
Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford University Press 2009) Chapter 6.
Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.147].
The decision by the Arbitrator, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Arbitration by the European Communities under Article 22.6 of the dsu, wt/ds27/arb/ecu, 24 March 2000, dsr 2000:v, p 2237.
Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.147].
Panel Report, ec Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, wt/ds26/r/usa, adopted 13 February 1998, as modified by Appellate Body Report wt/ds26/ab/r, wt/ds48/ab/r, dsr 1998:iii, p 699 [8.164].
“In ec – Bananas iii, the Appellate Body found that Members are expected to be ‘self-regulating’ in deciding whether to initiate a wto dispute, taking into account the wording of Article xxiii:1 of the gatt and Article 3.7 of the dsu.” Graham Cook, A Digest of WTO Jurisprudence on Public International Law Concepts and Principles (First published, University Press 2015) 16.4 Self-Judging Standards.
Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.129].
ibid [7.130].
ibid [7.131].
ibid.
ibid [7.132]–[7.133].
ibid [7.134].
ibid [7.138].
ibid.
The ab clarified that the requirement “to protect public morals” should not be excessively restrictive: “If this initial, threshold examination reveals that the measure is incapable of protecting public morals, there is not a relationship between the measure and the protection of public morals that meets the requirements of the ‘design’ step.” Appellate Body Report, Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear (n 1403) [5.68].
Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.76].
For a more detailed discussion, see chapter 5, subsection 3.4 Grave human rights violations as a threat to international peace and security.
ibid.