CIAO DATE: 03/02
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2000 (Volume 11 Issue 2)
It has become conventional wisdom that internal regulations that distinguish between products on the basis of their production method are GATT-illegal, where applied to restrict imports (although possibly some such measures might be justified as 'exceptions' under Article XX). The aim of this article is to challenge this conventional wisdom, both from a jurisprudential and a policy perspective. First, we argue there is no real support in the text and jurisprudence of the GATT for the product/process distinction. The notion developed in the unadopted Tuna/Dolphin cases that processed-based measures are somehow excluded from the coverage of Article III (National Treatment) and are therefore violations of Article XI (quantitative restrictions) is inconsistent with the text of this provision and the basic structure of the GATT. The real question is whether, under the National Treatment standard of Article III, products may be considered 'unlike' due to process-based differences. We argue that regulatory distinctions objectively related to actual non-protectionist policies are consistent with Article III, whether product- or process-based measures similarly to product-based measures under Article III. One concern is based on the conflation of process-based measures with measures that distinguish products not according to how they are actually produced, but rather according to their country of origin. We believe that country-based measures are likely to be violations of Article III and/or Article I of the GATT.
States take unilateral measures every day. Their 'unilateral acts' only become contentious where one state seeks to impose its values on another state, and where that other state has not consented to the imposed values. Recently international tribunals have sought to determine when values may be imposed in environmental/natural resource disputes. In the Shrimp/Turtle case the WTO Appelate Body identified three international conditions which need to be satisfied: the concerned resource must be shared (community value), protective measures are required because the conservation of the species is recognized as a desirable objective (conservation value), and a consensual approach is desirable (consensus/cooperation value). This approach raises two questions: how are international values to be identified? What is the proper function of international courts and tribunals in seeking to give weight and effect to values once they have been identified? The debate about 'unilateral' acts reflects a broader debate about tension between different values (economic, social, political, environmental) and the hierarchical relationships between different values as reflected in international legal norms. The debate is further informed by the changing character of the international legal order, including the growth in the number of international instruments across subject matters, cross-fertilization between different subject-matter areas, and the increase in the number of international courts before which these tensions may be aired.
This article provides comments on a paper by Professors Robert L. Howse and Donald H. Regan entitled 'The Product/Process Distinction — An Illusory Basis for Disciplining 'Unilateralism' in Trade Policy'. The author suggests that, despite Howse and Regan's comment, there is a textual basis for the product/process distinction in the GATT/WTO, citing the word 'product', which occurs in various provisions of the WTO agreements, and cases interpreting such text; but, of course, this basis is subject to interpretation. He submits that an analogy between domestic and international cases does not work well, because the WTO institutional framework differs from that of a national court system. The question, according to this author, is how to prevent abuses if one abandons the product/process distinction or otherwise opens the possibility of trade-restricting measures tied to process of production. He concludes that the product/process distinction remains useful because it is a bright-line rule, but he agrees that such distinction should not be too rigid. The real question, still to be addressed, is how far to relax the distinction and in what areas.
'Unilateralism' is a sensitive issue in Europe. However, it is ill-defined and a serious effort is required to define this term of art. It needs to be contrasted to terms such as 'multilateralism', 'bilateralism', and 'international cooperation'. Moreover, the term 'unilateralism' is closely tied to the territorial limitations of state jurisdiction. This article focuses on the limits of unilateralism without denying that there may be exceptional instances where unilateral action in the above sense cannot be avoided. One of the most problematic categories of state action in terms of 'unilateralism' and 'extra-territoriality' appears to be that where a state (ab) uses a trade measure in order to exercise coercion or pressure on another state or its citizens with the purpose of 'convincing' that state or its citizens to take action outside the territorial jurisdiction of the former state. The European approach to unilateralism is characterized by extreme prudence and limited flexibility with regard to attempts by individual states to usurp the role of 'world policeman'.
Unilateralism is a notion devoid of legal meaning per se, but provides a prism or conceptual tool through which international activities may be apprehended and subsequently allocated their place in the international legal order. Unilateralism is nonetheless harnessed by the law and at times its applications infringe the law. Having first questioned the novelty of the unilateralism/environment debate, this article proceeds to consider two aspects of unilateral behaviour of particular interest today: the 'policy forging' facet and the 'implementation or enforcement' facet of unilateral acts. The first deals with the manner in which unilateral acts shape legal outcomes in the environmental context, whilst consideration of the second facet concentrates on how legally required outcomes are avoided, mitigated or re-interpreted by legal arguments (such as the state of necessity), which are vehicled by, or manifest themselves in the form of, unilateral acts.
National actions to protect the environment can be more or less unilateral, ranging from those that promote purely national policies at one extreme to those that promote international norms at the other. Although the preference for international action to protect the environment is understandable, sometimes unilateral action can play a catalytic role in the development of an international regime. Moreover, often effective multilateral action is impossible, so the choice is not between unilateralism and multilateralism, but between unilateralism and inaction. Rather than condemning unilateralism outright, we need to evaluate each particular unilateral action (or inaction) to determine whether, on balance, it advances or detracts from desired ends.
Realization of UN Charter values has required adaptation of its procedures in the face of Cold War politics and conflicts of national self-interest. Security Council machinery has never worked quite as planned. 'Recommendations' for the use of force have substituted when Article 43 agreements were not forthcoming and direct enforcement action was unavailable. 'Abstentions' by permanent members of the Council have been counted as 'concurrences' to allow decisions to go forward. In an era with an expanded account of human rights and human security, it should not surprise us that there is an impetus to permit effective action: in humanitarian emergencies through an expanded reading of Chapter VIII, with new latitude for regional action, and in meeting the dangers of weapons of mass destruction and terrorism through a broader account of Article 51 self-defence and unilateral enforcement of standing Council resolutions.
The focus of this article is to examine, in the light of the evolution of UN peace maintenance, the justification and validity of non-Security Council authorized military interventions, such as that of NATO in Kosovo, based on claims to unilateral enforcement of UN resolutions and objectives. The function of resolutions of the Security Council authorizing military force is inter alia that of 'precluding wrongfulness'. The article examines justification of unauthorized unilateral action on the basis of implied authorizations, implied powers doctrine, legitimization ex post facto and emerging norms on the humanitarian intervention, and concludes that in the absence of express Council authorization, this remains an act of usurpation of Council powers and a resort to force prohibited under international law. Ultimately, the debate does not revolve around a choice between protection of human rights on the one hand and state sovereignty on the other, but over the means utilized. Far from assuming a static view of the international legal system, the choice of collectively authorized over unilateral measures is an attempt to escape regression to unilateral decisions involving community interests. Moreover, the insistence on strengthening multilateral institutions, such as the UN, by addressing current concerns, far from representing a last-ditch nostalgic return to Wilsonian and liberal idealism stems from the need to protect the diversity of cultures and claims.
There can be no doubt that the NATO action in Kosovo can (and must) be seen as legitimate, while, on the other hand, the jamming of the Security Council by China and Russia cannot. The actual lawfulness of the initiative, however, is more debatable, even though arguments based both on the UN Charter and on the law of state responsibility can be made in its favour and indeed become persuasive when seen together with, and in light of, Resolution 1244 (1999) of the Security Council. Nevertheless, it is essential that new 'community' mechanisms be found in the future in order to avoid being restricted to a choice between the 'Zorro' principle (as applied in Kosovo) and the Munich policy. A revival of Resolution 'Dean Acheson' (1950) and a deepening of the notion of 'state crime' and its consequences provide, among others, possibilities for limiting the need for legitimate but legally dubious unilateral uses of force.
The contributions by Gerson and Anderson in the previous issue of EJIL suggest that multilateralism's critics are not merely hard-headed political realists but include both ends of the political spectrum and a wide number of scholars emerging within the international legal academy — including critical legal scholars, feminists, constructivists, liberal theorists, public choice theorists and those within law and economics. International lawyers, who have for too long defined themselves by our opposition to unilateralism, need to define the role and limits of multilateralism as well as of unilateralism. Both multilateral and unilateral processes for law-making and law enforcement may harm mankind and undermine the rule of law. Both Gerson and Anderson are, in radically different ways, warning us against multilateralism that fails to develop an organic relationship between the international and the domestic.
The article deals with the effects of invalid reservations to human rights treaties on the position of the reserving state. Although some actions of monitoring bodies established by human rights treaties support the 'Strasbourg approach', a deeper consideration of practice points in the opposite direction. Consequently, it is not easy to reconstruct a customary norm whereby an invalid reservation to human rights treaties should be considered as not being formulated at all. In addition, the 'Strasbourg approach' needs to be reconciled with the consent principle, the bedrock of treaty obligations. On this basis, some possible solutions to the problem of the effects of invalid reservations to human rights treaties are suggested. Naturally, a special regime for invalid reservations to human rights treaties (and for treaties protecting other fundamental values) is a desirable prospect for the progressive development of international law. Finally, on a de iure condendo level of reasoning and among the possible new models of discipline that cannot be as stringent as the 'Strasbourg approach', the author puts forward a proposal.
The Lome IV Convention, which expired on 29 February 2000, provided for non-reciprocal trade preferences in favour of ACP states. Such a trade regime is incompatible in principle with WTO rules and it could only be maintained because the WTO granted a waiver from the obligations of Article I GATT. The successor regime, the so-called Partnership Agreement between the Community, its Member States and the ACP States, provides for a preparatory period from 2000 to 2007, during which the non-reciprocal trade preferences in favour of the ACP will be maintained. A new WTO waiver will therefore be necessary until 2007. During the preparatory period, economic partnership agreements (EPA) will be negotiated between the Community and subgroups of ACP states, which will provide for reciprocal liberalization of substantially all trade. They will constitute free trade areas in the sense of Article XXIV GATT and a waiver will no longer be needed. For those ACP states not classified as least developed countries (LDC) and which are not in a position to negotiate an EPA, alternative trade arrangements will need to be developed. The only viable alternative to an EPA would appear to be the integration of these countries into the Community's Generalized System of Preferences (GSP), which is authorized under WTO rules. For all LDCs, ACP states or otherwise, the Community will grant duty-free imports for essentially all products from 2005 at the latest. This differential treatment of LDCs is covered by the so-called Enabling Clause of the GATT of 1979 and a waiver is not required.
The rejuvenation of international law in the last decade has its source in two developments. On the one hand, 'critical legal scholarship' has infiltrated the discipline and provided it with a new sensibility and self-consciousness. On the other hand, liberal international lawyers have reached out to International Relations scholarship to recast the ways in which rules and power are approached. Meanwhile, the traditional debates about the source and power of norms have been invigorated by these projects. This review article considers these developments in the light of a recent contribution to international legal theory, Michael Byers' Custom, Power and the Power of Rules. The article begins by entering a number of reservations to Byers' imaginative strategy for reworking customary law and his distinctive approach to the enigma of opinio juris. The discussion then broadens by placing Byers' book in the expanding dialogue between International Relations and International Law. Here, the article locates the mutual antipathy of the two disciplines in two moments of intellectual hubris: Wilson's liberal certainty in 1919 and realism's triumphalism in the immediate post-World War II era. The article then goes on to suggest that, despite a valiant effort, Byers cannot effect a reconciliation between the two disciplines and, in particular, the power of rules and the three theoretical programmes against which he argues: realism, institutionalism and constructivism. Finally, Byers' book is characterized as a series of skirmishes on the legal theory front; a foray into an increasingly rich, adversarial and robust dialogue about the way to approach the study of international law and the goals one might support within the discipline. Here, the article dwells on Byes' doubts about critical legal scholarship and argues that Byers has misunderstood the nature of power and drawn an unsustainable distinction between arguments about rules and rules themselves.
The volume under review contains a collection of contributions dealing with the role of law in international politics. In the process of globalization, law is torn between resistance to and the embrace of political change. This volume explores this situation in challenging, sometimes provocative articles. Three themes stand out: the relationship between legal and political theory, the search for legal regulation of globalization and the role of the Security Council. In all of these areas, international lawyers should not be blind to the political environment of international law, but nevertheless insist on legal accountability as a precondition for the legitimacy of the exercise of political power.