Chapter 4 The Legality of Unilateral Economic Sanctions Imposed to Redress Human Rights Violations

In: Unilateral Sanctions in International Law and the Enforcement of Human Rights
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Iryna Bogdanova
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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 and the rule of law.1242 That said, in the following discussion, human rights sanctions will be defined as economic restrictions – i.e. unilateral economic sanctions – imposed in order to promote human rights abroad and to punish grave human rights violations, as well as for other reasons related to an unsatisfactory human rights situation in other countries.1243

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 with Poland in response to the arrests and detention of political opposition. This was one of the first instances in which EU sanctions were employed for the protection of human rights.1249 Analysing the EU’s practise of using human rights sanctions, Clara Portela, a distinguished scholar of economic sanctions, notes: “The EU has an established track-record in supporting human rights with the imposition of sanctions.”1250

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 March 2021, the EU introduced economic sanctions against Chinese nationals and legal entities responsible for gross human rights violations in the xuar.1255 Among the targets sanctioned by the EU were the Xinjiang Production and Construction Corps (xpcc), which is defined in the relevant regulation as a “state-owned economic and paramilitary organisation.”1256 Among other things, this organisation is responsible for the use of forced labour: “the xpcc uses Uyghurs and people from other Muslim ethnic minorities as a forced workforce, in particular in cotton fields.”1257

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

Another recent example are the sanctions imposed in response to fraudulent presidential elections and the repression of political opposition in Belarus. A broad coalition of states joined the efforts to increase economic pressure on Alexander Lukashenko and his inner circle. The United States, the European Union, the United Kingdom and Canada imposed economic sanctions in August 2021 and then announced new sanctions against government officials, state-owned businesses and other organisations in December 2021.1262

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 and denied sufficient medical assistance, ultimately resulting in his death in pretrial detention1268 – as well as those individuals responsible for concealing the legal liability for this mistreatment or who financially benefitted from it.1269 Furthermore, other individuals liable for extrajudicial killings, torture or other gross violations of internationally recognised human rights may be targeted by unilateral US economic sanctions.1270

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

After lengthy consultations, the EU announced the adoption of the Magnitsky-style sanctions in December 2020.1277 This EU-level framework for human rights sanctions was preceded by the implementation of Magnitsky-type legislation in several EU Member States.1278 According to the EU’s Magnitsky-type sanctions, serious human rights violations and abuses encompass: (a) genocide; (b) crimes against humanity; and (c) the following serious human rights violations or abuses: (i) torture and other cruel, inhuman or degrading treatment or punishment, (ii) slavery, (iii) extrajudicial, summary or arbitrary executions and killings, (iv) the enforced disappearance of persons, (v) arbitrary arrests or detentions.1279 Other types of widespread, systematic violations, as well as violations that are otherwise of serious concern in light of the objectives of the EU’s common foreign and security policy, may trigger the imposition of human rights sanctions by the EU.1280

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 unilateral sanctions without the authorisation of the UN, such as those frequently imposed by the US and European states.”1283

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 the specific form of coercive measures, on the applicable treaty law, if any, and on customary international law rules relevant to the assessment of coercive measures, as well as on potential grounds for precluding the wrongfulness of such measures.”1291

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 clarity.1296 In fact, even the text of this declaration resembles the one quoted above.1297 The Charter of Economic Rights and Duties of States declares that relations among states shall be governed by a number of essential principles, including the principle of non-intervention and the principle of respect for human rights and international obligations.1298 Bearing in mind these two principles, it should be stressed that the rationale behind the idea of internationalisation of human rights is not only to obligate an individual state to respect and protect the human rights of everyone under its jurisdiction, but also to make such commitments binding under international law. Thus, considering that the predominant majority of present-day states have taken on various obligations under the numerous human rights treaties,1299 it might be untenable to argue that the use of economic pressure to coerce a state to fulfil its international human rights obligations would constitute a violation of the principle of non-intervention.

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 toward acceptance of the legitimacy of such sanctions when employed for that purpose.”1302

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 previous violation of an international obligation and if they are relied upon by an injured state.1306 These requirements were discussed in more detail in chapter 2.1307

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, this view may hold. However, it should be noted that both the historical record and empirical research affirm that grave human rights violations pose a threat to peace and long-term stability in individual countries, regions and even on a global scale.1311 Hence, it can be argued that obligations under international human rights treaties are owed, at least partially, to the other states signatories to those treaties, at least to the extent to which such obligations are aimed at protecting peace and stability by providing human rights guarantees.

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 required opinio juris; thus, he argues in favour of the legality of third-party countermeasures.1318

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 interests” and “universal values” requires a collective legitimate decision-making procedure.1326

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 official Maung Maung Soe was designated as the chief of the Burmese Army’s Western Command, which was responsible for human rights atrocities committed against Rohingya population.1331

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

It is not only the United States that enacts such unilateral sanctions against the heads of states and senior government officials. Other states do so as well. In 2011, Switzerland decided to freeze the assets of the then-head of state Colonel Gadaffi as well as the assets of the Libyan Central Bank.1335 In 2018, Switzerland imposed sanctions on Venezuela in alignment with the EU sanctions, including restrictions on the government officials responsible for grave human rights violations.1336

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 actions hinder the performance of the duties by the holder of the high-ranking office.1341 In Certain Questions of Mutual Assistance in Criminal Matters, the icj reiterated this view: “Thus the determining factor in assessing whether or not there has been an attack on the immunity of the Head of State lies in the subjection of the latter to a constraining act of authority.”1342 According to the icj jurisprudence, the issuance of an arrest warrant hinders the ability of the minister of foreign affairs to travel abroad and perform his duties and thus violates his entitlement to immunity,1343 while the issuance of witness summons addressed to the acting head of state during his official visit to the state that issued these summons does not encroach on his immunities.1344

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

Bearing in mind our discussion of the scope of the immunities guaranteed to an acting head of state, we may conclude that unilateral human rights sanctions which entail travel restrictions on an acting head of state present a significant risk of infringing immunities accorded under international law. When it comes to restrictions such as the freezing of personal assets, there is no unanimity about whether these restraints can be covered by the rules on immunity from execution.1350 Hence, the compatibility of asset freezes with immunity guarantees remains undefined.1351

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 been interpreted by commentators as “expand[ing] the categories of high-ranking officials benefiting from immunity ratione personae.”1356

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, with regard to the prohibition of torture. Indeed, the peremptory nature of those norms may be considered to suggest that they should be given effect, and it is often concluded that this entails that State immunity does not apply in the cases at hand. However, as has been observed by the ECtHR and the ilc Working Group, there are hardly any cases where immunity has indeed been denied on those grounds. This line of argument draws a line between a human rights standard and the potential legal consequences of its violation, including a denial of State immunity. Seen from this perspective, the potential peremptory character of the former does not at once have an impact on State immunity.”1359

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 jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law.”1364

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 membership obligations.1368 In the course of this debate, the wto consistency of unilateral human rights sanctions was also discussed.1369

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 rights sanctions before the wto.1372 Due to the political pressure exerted on Venezuela, it decided not to proceed with its request to establish a panel, even though the request had been submitted.1373

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 promote human rights in the developing and least developed countries.1380 Foreign development aid is a voluntary commitment on the part of a particular state, and thus its termination is an act of retorsion.1381 In the context of international trade relations, developed states, for example the EU Member States, provide additional market access advantages for the developing and in particular the least developed countries under the condition that those states comply with various human rights obligations.1382 Otherwise, the preferences granted would be withdrawn.1383

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 reviewed, while the invocation of these two exceptions by the wto Members to justify their unilateral human rights sanctions is shown to be highly likely.

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 answer. The wto adjudicators examined the public morals clause in several disputes, such as USGambling and ChinaPublications and Audiovisual Products, and the regulations scrutinised in these disputes intended to protect the morals of the persons residing inside the state that introduced them.1391 In ecSeal Products, the import restrictions imposed had an impact on the protection of animal welfare outside of the European Union.1392 Despite this, the parties to that dispute agreed that there was a “sufficient nexus” between the import ban, the public moral concerns and the activities addressed by the measure, and thus the ab did not elaborate on the issue.1393 Notwithstanding the apparent significance of the question at hand, I argue that similar to the import ban in ecSeal Products, unilateral economic sanctions imposed on human rights grounds might be implemented to protect the public morals of the wto Member that imposed these restrictions. For this reason, any further discussion of the issue can be omitted.

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 obscurity that emerged from this omission: “On the one hand, one might argue that ‘public morals’ subsumes both ‘moral’ and ‘humanitarian’ grounds. On the other hand, one might argue that ‘humanitarian’ grounds were intentionally left out of ‘public morals.’ The issue is an important one since humanitarian aims are more likely to be outwardly-directed than inwardly-directed.”1397

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 USGambling 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

As a result, wto Members have been granted significant latitude to define their “public morals.” Nonetheless, this latitude “does not excuse a responding party in dispute settlement from its burden of establishing that the alleged public policy objective at issue is indeed a public moral objective according to its value system.”1404

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 ecSeal 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 An Analytical Framework for Assessing Whether Economic Sanctions Targeting Human Rights Violations Are “Necessary to Protect Public Morals”

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 ecSeal 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

The panel in ColombiaTextiles examined whether restrictions were adopted “to protect public morals.” At first, the panel assessed whether the policy objective pursued was covered by the policies to protect “public morals.”1414 The subsequent analysis focused on whether the measure itself is designed to achieve the declared public policy goal. In this context, the panel analysed the measure’s “design, architecture and revealing structure.”1415 On appeal, the ab agreed with the sequence of the analytical steps, yet clarified that the requirement “to protect” should not be excessively restrictive.1416

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 arguments could be relied upon to justify a partial import ban. If export restrictions are imposed, a responding state can argue that these exports contribute to an ongoing human rights violation and thus that the measure addresses the concerns of its population with respect to grave human rights violations occurring abroad.

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 BrazilTaxation 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 may demonstrate that less trade-restrictive alternatives were available.1425 If a complainant determines such alternatives, a respondent is required to prove that those alternatives were not available.1426 The final determination of whether a wto-inconsistent measure is “necessary” to protect public morals not only requires a review of the four criteria mentioned above, but also entails a holistic weighing and balancing exercise.1427

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 strong public feelings, and thus are “morally unacceptable.” It ought to be noted that establishing any such finding would be a fact-intensive exercise.

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 of the necessity test under the public morals exception might be too strict to allow export bans on human rights grounds.

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.

Our analysis reveals that only a subset of human rights economic sanctions may be potentially justified under the public morals exception. More specifically, import bans on goods/services may be potentially justified, the ability to justify export restrictions under the public morals exception is hampered by the stringent requirements of the necessity test developed in wto jurisprudence. Yet any such justification would require the existence of strong public opinion rejecting “morally objectionable” goods/services that originate in a state that abuses human rights.

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 RussiaTraffic 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 panel had jurisdiction.1438 The overwhelming majority showed little sympathy for the argument that the invocation of the security clause falls outside the jurisdiction of the wto tribunals.1439 The United States argued that the panel has jurisdiction to rule over the security exception, although the clause is non-justiciable.1440

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, based on Articles 3.4, 3.7 and 11 of the dsu, the panel should decline to make any findings or recommendations on the subject matter of that dispute.1448 The panel cited the existing jurisprudence, in addition to examining Saudi Arabia’s claims against the background of the factual circumstances that triggered the dispute,1449 and expressed disagreement with the argument cited above, thus confirming that it cannot decline to exercise its jurisdiction and that the matter is justiciable.1450

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 RussiaTraffic 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 a balance between trade and national security.1454 In doing so, the panel distinguished between the objective and subjective elements of the security clause, as well as identifying the scope of the reviewability of the subjective elements.1455 The panel in Saudi Arabia – iprs relied upon the same analytical framework to review the invocation of the national security exception enshrined in the trips Agreement.1456 My analysis starts with a discussion of the objective elements of the clause and proceeds with the review of the subjective elements as well as their reviewability.

4.2.2.1 Objective Elements of the National Security Exception
The security exception of Article xxi(b)(iii) of the gatt 1994 reads as follows:

Nothing in this Agreement shall be construed: […]

  1. (b)to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests
    1. (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

Ukraine opposed this position, arguing that “the phrase ‘taken in time of war or other emergency in international relations’ is to be given an objective meaning by a panel, and that a wto Member invoking Article xxi(b)(iii) cannot unilaterally determine whether such circumstances exist.”1459

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 General Rule of Interpretation

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 Delimatsis and Thomas Cottier proposed the following criteria for defining the situations of emergency in international relations: “the threat should be imminent or the security measure should reflect a rapid response and action in order to deal with a dangerous situation that arose suddenly and recently. Measures taken in response to a terrorist attack perfectly fit this definition.”1476

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, this statement stands in sharp contrast to the views expressed recently by the United States.1481

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 RussiaTraffic 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 Arbitrators regarding whether the Member had considered the necessary facts objectively.”1487

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 ecHormones 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 ecBananas 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 Subjective Standard of “Essential Security Interests”

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 Can Economic Sanctions for Human Rights Violations Be Justified under the National Security Exception?

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 RussiaTraffic 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 possibility of justifying economic sanctions for human rights violations under the national security exception.

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.

1237

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.

1238

Hofer (n 22).

1239

Alexandra Hofer analyses numerous declarations adopted by the UN bodies that criticise unilateral sanctions. ibid.

1240

Cleveland (n 551); Buhm Suk Baek, ‘Economic Sanctions Against Human Rights Violations’ (2008) Cornell Law School Inter-University Graduate Student Conference Papers <https://scholarship.law.cornell.edu/lps_clacp/11>.

1241

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).

1242

“[…] 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.

1243

“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.

1244

Hufbauer and others (n 28) 13.

1245

“[…] 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.

1246

Martin (n 98) 101–111.

1247

Hufbauer and others (n 28) 135.

1248

“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.

1249

ibid 21–22.

1250

Portela (n 24) 6.

1251

US Department of the Treasury. Press Release. Treasury Sanctions Chinese Government Officials in Connection with Serious Human Rights Abuse in Xinjiang. (22 March 2021) https://home.treasury.gov/news/press-releases/jy0070.

1252

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) https://www.cbp.gov/newsroom/national-media-release/department-homeland-security-issues-withhold-release-order-silica.

1253

ibid.

1254

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) https://www.commerce.gov/news/press-releases/2021/06/commerce-department-adds-five-chinese-entities-entity-list.

1255

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).

1256

ibid.

1257

ibid.

1258

Stuart Lau, ‘China Slaps Retaliatory Sanctions on EU Officials’ politico (22 March 2021) https://www.politico.eu/article/china-slaps-retaliatory-sanctions-on-eu-officials/.

1259

European Parliament, Resolution of 20 May 2021 on Chinese countersanctions on EU entities and meps and mps (2021/2644(rsp)). https://www.europarl.europa.eu/doceo/document/TA-9-2021-0255_EN.html.

1260

Global Affairs Canada. News release. Canada joins international partners in imposing new sanctions in response to human rights violations in Xinjiang. (22 March 2021) https://www.canada.ca/en/global-affairs/news/2021/03/canada-joins-international-partners-in-imposing-new-sanctions-in-response-to-human-rights-violations-in-xinjiang.html.

1261

Foreign, Commonwealth & Development Office. Press release. UK sanctions perpetrators of gross human rights violations in Xinjiang, alongside EU, Canada and US. (22 March 2021) https://www.gov.uk/government/news/uk-sanctions-perpetrators-of-gross-human-rights-violations-in-xinjiang-alongside-eu-canada-and-us.

1262

Michael Volkov, ‘United States, European Union, United Kingdom and Canada Coordinate Further Sanctions Against Belarus’ jd Supra (21 December 2021). https://www.jdsupra.com/legalnews/united-states-european-union-united-2693437/.

1263

Portela (n 24) 6.

1264

Neier (n 140) 877.

1265

Jones (n 135) chapter 2.

1266

ibid.; Neier (n 140).

1267

Sergei Magnitsky Rule of Law Accountability Act of 2012 (n 186).

1268

Magnitskiy and Others v. Russia App no 32631/09 and 53799/12 (n 185).

1269

Sergei Magnitsky Rule of Law Accountability Act of 2012 (n 186). Section 404. Para. (1).

1270

ibid Section 404.

1271

The Global Magnitsky Human Rights Accountability Act. (n 189).

1272

ibid.

1273

Justice for Victims of Corrupt Foreign Officials Act (n 194).

1274

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.

1275

The Global Human Rights Sanctions Regulations 2020 (n 193).

1276

Foreign & Commonwealth Office. Press Release. UK announces first sanctions under new global human rights regime. (6 July 2020) https://www.gov.uk/government/news/uk-announces-first-sanctions-under-new-global-human-rights-regime.

1277

Council Decision (cfsp) 2020/1999 (n 199); Council Regulation (EU) 2020/1998 (n 199).

1278

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.’

1279

Article 1, 1(a)-1(c), Council Decision (cfsp) 2020/1999 (n 199).

1280

Article 1, 1(d) ibid.

1281

Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021. https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/s1326_third-senate/toc_pdf/2116121.pdf;fileType=application%2Fpdf.

1282

ibid.

1283

Poh (n 401) 76.

1284

Hofer (n 22) 187.

1285

Human rights and unilateral coercive measures. unga Resolution 75/181. UN Doc a/res/75/181 (28 December 2020).

1286

These statements have been made before the UN General Assembly’s Third Committee. Hofer (22).

1287

Human Rights Council, Resolution 27/21, UN Doc a/hrc/res/27/21 (3 October 2014).

1288

unhrc (n 407).

1289

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).

1290

ibid.

1291

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).

1292

For more details, see subsection 2.2 Unilateral economic sanctions as a violation of the principle of non-intervention.

1293

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).

1294

unga Res 2131.

1295

ibid.

1296

unga Res 2625.

1297

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.

1298

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.

1299

Information on the ratification of 18 international human rights treaties is available here: https://indicators.ohchr.org.

1300

Cleveland (n 551) 53.

1301

ibid 54.

1302

Lori Fisler Damrosch, ‘Politics Across Borders: Nonintervention and Nonforcible Influence Over Domestic Affairs’ (1989) 83 American Journal of International Law 1, 46.

1303

Hofer (n 22).

1304

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.

1305

Poh (n 401).

1306

Article 49 ilc, ‘Draft articles’ (n 90).

1307

For more details, see subsection 3.1 Unilateral economic sanctions as countermeasures.

1308

Article 42 ilc, ‘Draft articles’ (n 90).

1309

Crawford (n 353) 692.

1310

Reservations to the Convention on Genocide, Advisory Opinion: icj Reports 1951, p 15 23.

1311

For more details, see chapter 5, subsection 3.4 Grave human rights violations as a threat to international peace and security.

1312

Dawidowicz, ‘Public Law Enforcement without Public Law Safeguards?’ (n 372) 336.

1313

This article was published before the Draft articles were adopted, yet the argument still holds. Byers (n 1171) 238.

1314

Dawidowicz, ‘Third-Party Countermeasures’ (n 372) 3.

1315

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.

1316

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.

1317

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.

1318

ibid 11–15; Dawidowicz, ‘Public Law Enforcement without Public Law Safeguards?’ (n 372).

1319

Hillgruber (n 503) 273–278.

1320

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.

1321

ibid 277.

1322

ibid 291.

1323

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.

1324

ibid 101.

1325

ibid 91.

1326

Paulus (n 1323).

1327

Sellers (n 1304) 481–482.

1328

ibid 482.

1329

Venezuela Defense of Human Rights and Civil Society Act of 2014, Public Law 113–278, Dec. 18, 2014, 128 Stat. 3011 Section 5.

1330

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).

1331

ibid.

1332

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.

1333

‘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) <https://www.state.gov/public-designations-of-current-and-former-foreign-government-officials-due-to-involvement-in-gross-violations-of-human-rights-under-section-7031c-of-the-department-of-state-foreign-operations-and/>.

1334

‘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) <https://www.state.gov/public-designation-of-owen-ncube-due-to-involvement-in-gross-violations-of-human-rights-under-section-7031c-of-the-fy-2019-department-of-state-foreign-operations-and-related-programs-appropriati/>.

1335

‘Switzerland Freezes Gaddafi Assets’ (swi swissinfo.ch) <https://www.swissinfo.ch/eng/switzerland-freezes-gaddafi-assets/29581082>.

1336

‘Sanktionen Gegenüber Venezuela’ (seco – Staatssekretariat für Wirtschaft) <https://www.seco.admin.ch/seco/de/home/seco/nsb-news.msg-id-70265.html>.

1337

‘Venezuela: Council Renews Sanctions until 14 November 2020’ (Council of the European Union) <http://www.consilium.europa.eu/en/press/press-releases/2019/11/11/venezuela-council-renews-sanctions-until-14-november-2020/>.

1338

Portela (n 24) 18.

1339

Fox and Webb (n 762) 544.

1340

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment (n 804) [51].

1341

ibid [53]-[55].

1342

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment (n 804) [170].

1343

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment (n 804).

1344

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment (n 804).

1345

On the various approaches to the personal immunity of a head of state, see Fox and Webb (n 762) 550.

1346

“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.

1347

Watts (n 801).

1348

Ruys (n 11).

1349

For a more detailed discussion, see chapter 2, section 6. Unilateral economic sanctions and the immunities of states and state officials.

1350

For a more detailed discussion, see chapter 2, section 6. Unilateral economic sanctions and the immunities of states and state officials.

1351

Ruys (n 11); Ronzitti (n 11); Thouvenin and Grandaubert (n 771).

1352

“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].

1353

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment (n 804) [194].

1354

ibid.

1355

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].

1356

Fox and Webb (n 762) 565.

1357

“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].

1358

“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].

1359

Stoll (n 750).

1360

For a more detailed discussion, see chapter 3, subsection 2.1 Jus cogens.

1361

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).

1362

ibid [93].

1363

ibid [100].

1364

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment (n 804) [60].

1365

Jones and Others v. the United Kingdom, Applications no 34356/06 and 40528/06 (ECtHR, 14 January 2014) [198].

1366

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.

1367

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).

1368

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.

1369

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).

1370

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).

1371

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).

1372

Iryna Bogdanova, ‘WTO Dispute on the US Human Rights Sanctions Is Looming on the Horizon’ (ejil: Talk!, 31 January 2019) <https://www.ejiltalk.org/wto-dispute-on-the-us-human-rights-sanctions-is-looming-on-the-horizon/>.

1373

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.

1374

Cleveland (n 27).

1375

ibid.

1376

ibid 138.

1377

ibid 138–139.

1378

ibid 140.

1379

ibid 142.

1380

For more information about the US policies in the 1990s, see Cleveland (n 551) 38–40.

1381

Ruys (n 4).

1382

“[…] 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.

1383

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.

1384

Cleveland (n 551) 6.

1385

Cleveland (n 27) 135.

1386

For a more detailed discussion, see section 7. Unilateral economic sanctions and wto law.

1387

Article xx(a) gatt 1994.

1388

The gats stipulates the similar exception “(a) necessary to protect public morals or to maintain public order.”

1389

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.

1390

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.

1391

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.

1392

Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 822).

1393

ibid [5.173].

1394

Charnovitz (n 1390) 708–709.

1395

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.

1396

ibid 710.

1397

ibid 716–717.

1398

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.

1399

Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (n 1371) [6.465].

1400

ibid [6.461].

1401

ibid.

1402

Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 822) [5.200].

1403

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.

1404

Panel Reports, Brazil – Certain Measures Concerning Taxation and Charges (n 1403) [7.558].

1405

Panel Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 825) [7.378] and fn 627 thereto.

1406

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).

1407

Marceau (n 1368).

1408

ibid 791.

1409

“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.

1410

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].

1411

“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].

1412

“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].

1413

“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].

1414

Panel Report, Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear (n 1403) [7.297].

1415

ibid [7.343].

1416

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].

1417

ibid [5.80].

1418

“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].

1419

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].

1420

ibid.

1421

Panel Reports, Brazil – Certain Measures Concerning Taxation and Charges (n 1403) [7.525].

1422

Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 822) [5.210].

1423

ibid [5.211].

1424

Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (n 1391) [310].

1425

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].

1426

Panel Report, Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear (n 1403) [7.326].

1427

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].

1428

Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 822).

1429

ibid [5.300].

1430

“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].

1431

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].

1432

Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres (n 1419) [226].

1433

Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (n 822) [5.306].

1434

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).

1435

“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].

1436

ibid Annex C-3, [61].

1437

ibid Annex C-1, [37]-[39].

1438

Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) Annex-D.

1439

Nine third-party Members were in favour of the panel’s jurisdiction to rule over the issue. ibid Annex D.

1440

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 <http://www.wti.org/research/publications/1208/adjudication-of-the-gatt-security-clause-to-be-or-not-to-be-this-is-the-question/>.

1441

Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.53].

1442

ibid.

1443

ibid [7.56].

1444

ibid [7.57].

1445

ibid [7.102].

1446

ibid [7.83] – [7.100].

1447

ibid [7.103].

1448

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].

1449

ibid, [7.10] – [7.22].

1450

ibid, [7.23].

1451

Yoo and Ahn (n 820).

1452

“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.

1453

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.

1454

Iryna Bogdanova, ‘The WTO Panel Ruling on the National Security Exception: Has the Panel “Cut” the Baby in Half?’ (ejil:Talk! 12 April 2019) www.ejiltalk.org/the-wto-panel-ruling-on-the-national-security-exception-has-the-panel-cut-the-baby-in-half/#more-17087.

1455

ibid.

1456

Panel Report, Saudi Arabia – Measures concerning the Protection of Intellectual Property Rights (n 1448) [7.241] – [7.242].

1457

“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].

1458

Olivia Q Swaak-Goldman, ‘Who Defines Members’ Security Interest in the WTO?’ (1996) 9 Leiden Journal of International Law 361, 369.

1459

Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) Annex C-1, [47].

1460

ibid [7.63].

1461

ibid [7.101].

1462

ibid [7.65].

1463

ibid.

1464

ibid.

1465

Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline (n 1389) p. 23.

1466

Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.71] and again reiterated [7.77].

1467

ibid [7.70] and again reiterated [7.77].

1468

ibid [7.72].

1469

ibid [7.76].

1470

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.

1471

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.

1472

Bhala (n 1452).

1473

ibid 274.

1474

ibid 275.

1475

ibid.

1476

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.

1477

Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.79].

1478

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.

1479

ibid [7.89] – [7.93].

1480

ibid [7.93].

1481

‘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.’

1482

Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.146] – [7.147].

1483

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.

1484

Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford University Press 2009) Chapter 6.

1486

Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.147].

1487

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.

1488

Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.147].

1489

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].

1490

“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.

1491

Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.129].

1492

ibid [7.130].

1493

ibid [7.131].

1494

ibid.

1495

ibid [7.132]–[7.133].

1496

ibid [7.134].

1497

ibid [7.138].

1498

ibid.

1499

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].

1500

Panel Report, Russia – Measures Concerning Traffic in Transit (n 7) [7.76].

1501

For a more detailed discussion, see chapter 5, subsection 3.4 Grave human rights violations as a threat to international peace and security.

1502

ibid.

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Unilateral Sanctions in International Law and the Enforcement of Human Rights

The Impact of the Principle of Common Concern of Humankind

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