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Human Rights Related Trade Measures under International Law (International Studies in Human Rights)
By Cassimatis, A.
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Publisher: BRILL
Number Of Pages: 476
Publication Date: 2007-12-31
ISBN-10 / ASIN: 9004163425
ISBN-13 / EAN: 9789004163423
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There is an old schoolyard saying: “Sticks and stones may break my bones but
words will never harm me.” If all the talk about human rights violations seems
sometimes to have little measurable effect, is it in the area of punitive trade measures
that violating States are more likely to say “ouch!” and be dissuaded from
continuing along the path of either active violations of human rights or passive
toleration of them in their countries? A good case can be made for trade sanctions
as an instrument for bringing about a greater observance of human rights. But, as
in so many things, they are not a panacea; there can be undesirable consequences,
and innocent people can become “collateral casualties”.
Perhaps it is not a question of finding a single solution to the problem of
enforceability of human rights. Each measure should be examined in the light of
its positive and negative aspects and of other possible measures available, whether
as alternatives or in combination with trade measures.
Dr Cassimatis has written an important and timely study. He addresses the
broad issue of the legality of the adoption of human rights related trade measures
by single State, or by a group of States, in order to coerce another State to live
up to its international obligations to protect the human rights of its people. In his
(essentially three) propositions he draws certain conclusions: first, from the situation
where the proposed measures are unaffected by the sanctioning State’s obligations
under the WTO agreement, other trade treaties, or general international
law; second, where they are so affected but where there is significant discretionary
room for such measures; and finally, from the discernment of criteria against which
to measure the merits of the proposed trade measures.
The last of these three propositions is reminiscent – to me at least – of the
debate surrounding the legality of the use of force against Iraq. For some, the
actions of the United States and its allies in March 2003 were in clear violation of
international law, in particular of the UN Charter. For them no further argument is
needed. For others, including myself, a more elastic view of the Charter based on
an exegesis of the provisions of the Charter led to the conclusion that the use of
force was not of itself illegal but required justification also in terms of its effects.
This position is based on just war theory, and a theology dating back to Saint
Augustine, as to which there is renewed interest in current scholarly writing. One
could support the legitimacy, in itself, of the resort to force, but question the prudence
of that resort, and, of course, the actual conduct of operations in the light of
international humanitarian law.
It is similar in the case of the imposition of trade sanctions, whether they are
expressly mandated under the provisions of the applicable treaty or lie within the
discretion of States allowed under general international law. Might the imposition
of sanctions cause more harm than good? Is their imposition just, having regard to
their impact on the people of the sanctioned State? Might there be, in some cases,
hidden agenda in the mind of the sanctioning State?
The imposition of trade sanctions related to human rights concerns must also
be considered in the light of human rights conventions and the applicable monitoring
and enforcement mechanisms, of which there are many. At the political level,
the UN Human Rights Council has powers to investigate and condemn serious and
systematic human rights abuses, but its effectiveness in securing respect for its
work so far does not appear to be significantly greater than that of its predecessor,
the Human Rights Commission. Demonstrations of blind political loyalties and
the practice of bloc voting continue to cast doubt on its integrity. The treaty-based
bodies of the UN system, such as the Human Rights Committee and the Committee
Against Torture, as well as the work of the High Commissioner for Human
Rights, have important roles to play in exposure of abuses and the calling of States
to account for them, but there is increased evidence of a disdain by certain States
for these procedures and of a blatant attitude of contempt for world opinion. The
present situation in the Darfur region of Sudan is but one of many cases that cry
out for international action.
These questions do not always admit of an easy or clear answer. Dr Cassimatis
offers us a clear understanding of the legal framework, and helps us to define
our questions with greater precision, pointing us in the right direction for solutions.
But the wider questions remain to be explored. These would be the topic of another
book.
Ivan Shearer
Emeritus Professor of Law, University of Sydney
Vice-Chairman, (UN) Human Rights Committee
New York, March 2007
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