FROM SEAL WELFARE TO HUMAN RIGHTS: CAN UNILATERAL SANCTIONS IN RESPONSE TO MASS ATROCITY CRIMES BE JUSTIFIED UNDER THE ARTICLE XX(A) PUBLIC MORALS EXCEPTION CLAUSE?

Author:Boutilier, Misha
 
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I INTRODUCTION 103 II BACKGROUND ON GATT AND HUMAN RIGHTS SANCTIONS 104 I. Background on GATT Dispute Resolution 104 II. Frequency and Utility of Sanctions to Promote Human 107 Rights III. Sanctions under GATT 109 III THE DECISIONS IN EC--SEAL PRODUCTS 110 I. Factual Background and Litigation History 110 II. Panel Decision 111 III. Appellate Body Decision 112 IV WOULD THE SANCTIONS FALL WITHIN THE SCOPE OF 113 "PUBLIC MORALS"? I. Defining "Public Morals" 113 II. Overcoming the Outwardly-Directed Objection 116 V WOULD THE SANCTIONS PASS THE NECESSITY TEST? 121 I. Importance of the Public Moral Interest 121 II. Overcoming the Challenge of Demonstrating Effectiveness 121 III. Restrictive Impact on Trade 124 IV. Overall Balancing 124 VI WOULD THE SANCTIONS PASS THE CHAPEAU TEST? 125 I. Singling Out Serious Human Rights Abusers Is Justifiable 125 II. Careful Tailoring of Exceptions and Procedural 126 Safeguards VII CONCLUSION 128 I INTRODUCTION

The relationship between the World Trade Organization (WTO) international trade regime and human rights has attracted considerable scholarly attention. (1) One specific aspect of this relationship is the potential to use the Article XX(a) public morals exception clause in the General Agreement on Tariffs and Trade (2) (GATT) to justify human rights sanctions. (3) This concern is especially strong in the case of gross human rights abuses, such as the mass atrocity crimes of genocide, war crimes, and crimes against humanity. (4) The recent decisions of the Panel (5) and the Appellate Body (6) in European Communities--Measures Prohibiting the Importation and Marketing of Seal Products (EC--Seal Products) mark a significant development in WTO jurisprudence on Article XX(a) and the necessity and chapeau tests. This essay will examine whether, when combined with previous WTO jurisprudence, EC--Seal Products opens the door to using the Article XX(a) public morals exception to justify imposing trade sanctions on WTO members engaged in mass atrocity crimes when the processes and production methods for the sanctioned products do not involve human rights abuses. It will begin by both providing background information on GATT and human rights sanctions, and summarizing the decisions in EC--Seal Products. It will then consider whether sanctions in response to mass atrocity crimes fall within the scope of "public morals," and will finally analyze whether and under what conditions they could pass the necessity and chapeau tests.

This essay argues that the Article XX(a) public morals exception permits states to impose unilateral sanctions on WTO members engaged in mass atrocity crimes even where the processes and production methods of the sanctioned products do not involve human rights abuses. Public moral concern about human rights abuses falls within the existing definition of public morals and the consumer complicity rationale from EC--Seal Products negates both the external-internal distinction and the argument that the human rights abuses must be tied to the product's processes and production methods. The sanctions could pass the necessity test if they are well-supported by the evidence, since public moral concern about mass atrocity crimes would rank quite highly and EC--Seal Products suggests that formulating the objective in terms of preventing consumer complicity would make it easier to demonstrate effectiveness. Likewise, the sanctions could pass the chapeau test if any exceptions were carefully-tailored for humanitarian purposes, provided that the sanctions contained appropriate procedural safeguards and the target country stood out internationally for human rights violations.

II BACKGROUND ON GATT AND HUMAN RIGHTS SANCTIONS

  1. BACKGROUND ON GATT DISPUTE RESOLUTION

    The modern international trade law regime has grown considerably since its birth in 1947. The original General Agreement on Tariffs and Trade was adopted as a response to the shock of the Great Depression and the Second World War and aimed to ensure the preservation of tariff concessions. (7) While the creation of GATT did start the development of a legal regime, it was primarily a political club of capitalist countries that aimed to solve trade problems cooperatively. (8) The international trade regime law expanded dramatically in 1994 when the Uruguay Round of trade negotiations resulted in the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement). The WTO Agreement introduced four new agreements that expanded the range of trade law from merely trade in goods to encompass services, (9) intellectual property, (10) measures to protect animal or plant life or health," and other technical product regulations and standards. (12) The WTO Agreement also included a new Dispute Settlement Understanding (13) that strengthened and streamlined the dispute settlement process. This agreement established a new Appellate Body to hear appeals against trade panel rulings and took away members' right to block the establishment of panels or the adoption of dispute rulings. (14)

    The Dispute Settlement Understanding outlines a straightforward process for WTO dispute resolution. A member who believes that its rights under the WTO Agreement have been violated must initially engage in consultations with the party whose measures are in dispute. If these consultations do not lead to agreement, the complaining member can then request the establishment of a Panel. The Panel is tasked with making an objective assessment of the facts and applying the relevant WTO agreements to the facts. Following the Panel's decision, either the complainant or the respondent may appeal the decision to the Appellate Body on a matter of law. Following the Appellate Body decision or if there is no appeal from the Panel decision, the report of the Appellate Body or the Panel goes to the Dispute Settlement Body, the General Council of the WTO. Unless there is a negative consensus of member states that favours rejection of the report, the Dispute Settlement Body automatically adopts the report. (15)

    The Appellate Body jurisprudence has established a process of infringement and justification under GATT that mirrors the rights infringement and justification approach used in many domestic constitutional orders. (16) The first step is that the complainant must establish that the actions taken by the respondent have infringed one or more of the complainant's rights under GATT. The provisions that are most frequently litigated in GATT include Article I (most-favoured nation), Article III(4) (national treatment), and Article XI (quantitative restrictions). (17) If the complainant establishes that the respondent's measure violates one of these provisions, the burden then shifts to the respondent to justify that infringement under Article XX of GATT. This involves a two-part test. First, the respondent must provisionally justify the measure by ensuring that it fits under one of the Article XX exceptions. Second, the respondent must demonstrate that the measure satisfies the requirements of the introductory clauses of Article XX. (18) These introductory clauses are known by the French word "chapeau" because they are placed at the head of Article XX.

    For the Article XX(a), the provisional justification stage has two components. Both these components derive from the text of Article XX(a), which refers to measures "necessary to protect public morals." (19) The respondent must first show that the measure falls within the scope of "public morals." (20) The respondent must then demonstrate that the measure is "necessary to protect" the public moral interest. This second component is known as the necessity test because of the reference to necessity in the text of Article XX(a). (21) The necessity test requires the Panel to balance the relative importance of the interest that the measure is intended to protect, the measure to which it contributes to the realization of its objective, and the measure's restrictive effects on international trade. (22) To pass this test, the respondent must first establish a prima facie case that the measure is necessity by adducing evidence and arguments, potentially including arguments about why alternative measures would not be equally effective. (23) While there is no requirement for the complainant to raise alternatives, neither is the respondent obligated to identify all conceivable less trade-restrictive alternatives and show that they are not equally effective. (24) If the complainant does elect to raise a WTO-consistent alternative measure, the respondent must demonstrate why that alternative measure would be impractical or would not achieve the respondent's chosen level of protection. (25) The necessity test is thus a proportionality test that incorporates qualitative cost-benefit analysis. (26)

    In contrast to the necessity test, the chapeau test focuses on the manner in which the measure is applied. The chapeau test bars measures that are provisionally justified under one or more of the Article XX general exceptions but are applied in a way "which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade." (27) The chapeau test thus prohibits three outcomes: "arbitrary discrimination," "unjustifiable discrimination," and a "disguised restriction" on international trade. (28) Discrimination includes both distinctions between domestic and imported products, and distinctions between products from different supplier countries. (29) While the necessity analysis establishes that a measure falls within one of the Article XX exceptions, the chapeau test focuses on the application of that measure and aims to prevent members from abusing or misusing the Article XX exceptions to the substantive GATT rules. (30) It involves a delicate balancing act between the respondent's right to invoke an exception and...

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