Restrictions on international trade imposed by States in response to alleged violations of human rights in other States have been the source of controversy for many years. It
has been contended that such trade measures violate international law. Arguments as to the illegality of such measures have included that they:
- Constitute unlawful intervention or interference in the internal affairs of sovereign States;
- Involve impermissible exercises of extra-territorial jurisdiction; and
- Violate treaty obligations such as those imposed under the Marrakesh Agreement Establishing the World Trade Organization ("WTO Agreement").
This dissertation addresses the question - when (if ever) will it be in
accordance with international law for a State or group of States to adopt trade measures in order to "coerce" another State (the "target State") to comply with its international obligations to ensure respect for human rights? My thesis can be summarised as three propositions:
1. In relation to human rights related trade measures that are not subject to the rules contained in the WTO Agreement or similar rules in other treaties, international law is generally permissive. International rules prohibiting intervention and the exercise of extra-territorial jurisdiction are not generally violated by human rights related trade measures. Legal restrictions on the resort to such trade measures may arise under human rights treaties and related rules of general
international law, but the extent of these restrictions is limited by the scope of the particular human rights obligations;
2. In relation to human rights related trade measures that are subject to the rules contained in the WTO Agreement or similar rules in other treaties, there is less scope to lawfully impose human rights related trade measures. The scope to lawfully impose such measures, however, remains significant. Notwithstanding concerns about possible negative consequences for the multilateral trading system that might flow from recognition of an entitlement to impose human rights related trade measures, there is significant legal support for interpreting the WTO Agreement consistently with such an entitlement. In addition, the jurisprudence of panels and the WTO
Appellate Body provides a basis for concluding that concerns expressed about negative consequences are overstated;
3. Distinct criteria against which to assess the merits of proposals for varying the entitlement of States to impose human rights related trade measures can be derived from international human rights standards and conceptions of the international rule of law. Fidelity to international human rights standards and rule of law criteria will minimise the extent to which legal justification might be provided for trade measures that invoke human rights concerns but which are predominantly motivated by a desire to protect producers within the States imposing the measures from economic competition from producers in the target State.