Foreign Trade in the Present and a New International Economic Order

Detlev CHR. Dicke

• Publisher: Taylor & Francis
• Year: 2019
• Print ISBN: 9780367153403
• eBook ISBN: 9780429710216
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Relations internationales

This book includes a collection of papers on surveys of topics under consideration in the Uruguay Round of trade negotiations, analysis of topics of traditional concern to developing countries, and a few theoretical papers on the role of law in the international trading system.

Declaration on the Progressive Development of Principles of Public International Law Relating to a New International Economic Order

The 62nd Conference of the International Law Association held in Seoul 1986:

Having received and considered the Fourth Report of the Committee on Legal Aspects of a New International Economic Order;

Deeply concerned about the development of international economic relations and about the status of international co-operation in this field;

Considering it urgent to contribute to the improvement of the prevailing situation by the adoption of a Declaration on the Progressive Development of Principles of Public International Law relating to a New International Economic Order;

Considering it appropriate that the Declaration should include principles in the sense of generally recognized legal principles as well as others that need acceptance by treaty or as customary international law in order to obtain binding force;

Bearing in mind the purposes and principles of the Charter of the United Nations relating to the achievement of international co-operation in solving international problems of an economic, social, cultural or humanitarian nature, particularly Articles 55 and 56, and the promotion and encouragement of respect for human rights and for fundamental freedoms for all without distinction;

Bearing in mind that, in accordance with the Charter of the United Nations, Article 13, the General Assembly is called upon to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification;

Recalling the right of peoples to self-determination, by virtue of which all people have the right to freely determine their political status and have an inalienable right to pursue freely their economic and social development and to exercise full and complete sovereignty over their natural resources, without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit and international law (UN General Assembly resolution 1803/XVII of 14 December 1962);

Recalling that the United Nations Conference on Trade and Development adopted on 15 June 1964 the 'General Principles to Govern International Trade Relations and Trade Policies Conducive to Development', and that in its resolution 45 (III) of 18 May 1972, it stressed the urgency to establish generally accepted norms to govern international economic relations systematically and recognized that it is not feasible to establish a just order and a stable world as long as a Charter to protect the rights of all countries, and in particular the developing States, is not formulated;

Recalling further the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (UN General Assembly resolution 2625/XXV of 24 October 1970), which besides classic principles of international law, proclaimed the duty of States to cooperate with one another in the economic, social and cultural fields as well as in the fields of science and technology;

Having in mind, in particular, the UN General Assembly resolutions 3201 (S-VI) and 3202 (S-VI) of 1 May 1974, containing the Declaration and Programme of Action on the Establishment of a New International Economic Order;

Considering that the Declaration should in particular contribute to overcoming the controversies between developed and developing countries which appeared in 1974 about the Charter of Economic Rights and Duties of States (UN General Assembly resolution 3281/XXIX of 12 December 1974), and which have been a cause of the stagnation in the North-South global negotiations since then;

Taking into account the UN General Assembly resolution entitled 'Progressive Development of the Principles and Norms of International Law relating to the New International Economic Order' (34/150 of 17 December 1979 and 40/67 of 11 December 1985);

Taking further into account the final Report of UNITAR on the Progressive Development of the Principles and Norms of International Law relating to the New International Economic Order, (UN Doc. A/39/504 Add. 1 of 23 October 1984) submitted to the General Assembly of the United Nations, and expressing its great appreciation for this Report;

Considering the provisions of the International Covenants on Human Rights and the resolutions of the UN General Assembly recognizing the right to development;

Considering that the affirmation and where appropriate further refinement of the following principles would secure their more effective application in the interest of the international community and promote the realization of the purposes of the United Nations:

• (a) The Rule of Public International Law in International Economic Relations
• (b) Pacta sunt servanda
• (c) The Principles of Equity and Solidarity and the Entitlement to Development Assistance
• (d) The Duty to Co-operate for Global Development
• (e) Permanent Sovereignty over Natural Resources, Economic Activities and Wealth
• (f) The Right to Development
• (g) The Principle of Common Heritage of Mankind
• (h) The Principle of Equality or Non-Discrimination
• (i) Participatory Equality of Developing Countries in International Economic Relations
• (j) Principles of Substantive Equality, including the Preferential and Non-Reciprocal Treatment of Developing Countries in International Economic Relations
• (k) The Right of Every State to Benefit from Science and Technology
• (l) The Principle of Peaceful Settlement of Disputes

Having taken note of the fact that the proposed Declaration should not be seen as an exhaustive list of existing and evolving legal principles relating to a New International Economic Order, but as a selection of the most important of such principles on which a consensus can be expected;

Approves the Declaration on the Progressive Development of Principles of Public International Law relating to a New International Economic Order, recommended in the Committee's Fourth Report as follows;

I. Specific Part (list of principles)

1. The rule of public international law in international economic relations.

States have a duty to abstain from measures of economic policy, incompatible with their international obligations. The rule of law in international economic relations should be strengthened to this effect.

2. Pacta sunt servanda.

Treaties and binding decisions, taken by international economic organizations have to be fulfilled in good faith by the parties concerned. Provided however that a fundamental change of circumstances may be invoked by either party as a ground for terminating or withdrawing from the treaty subject to the conditions that:

(i) the change must be of circumstances which existed at the time the treaty was concluded;

(ii) the change must be a fundamental one;

(iii) the change must also be one not foreseen by the parties at the time of the conclusion of the treaty;

(iv) the existence of those circumstances must have constituted an essential basis of the consent of the parties to be bound by the treaty; and

(v) the effect of the change must be radical to transform the extent of the obligations still to be performed under the treaty.

Provided further that either party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from its subject to the conditions that:

(i) such impossibility results from the permanent disappearance of an object indispensable for the execution of the treaty; and

(ii) where such impossibility is of a temporary nature, it may be invoked only as a ground for suspending, not terminating, the operation of the treaty.

3. The principles of equity and solidarity.

3.1. Principle of equity.

Without ensuring the principle of equity there is no true equality of nations and states in the world community consisting of countries of different levels of development. A New International Economic Order should therefore be developed by the United Nations and international organizations, by treaties and by State practice in conformity with the principle of equity, which means that this development should aim at a just balance between converging and diverging interests and in particular between the interests of developed and developing countries.

The principle is also an integral element in the interpretation of the law by international courts or arbitration tribunals and may be applied by them to supplement the law.

3.2. Principle of solidarity.

The principle of solidarity reflects the growing interdependence of economic development, the growing recognition that States have to be made responsible for the external effects of their economic policies and the growing awareness that underdevelopment or wrong development of national economies is also harmful to other nations and endangers the maintenance of peace. Without prejudice to more specific duties of co-operation, all States whose economic, monetary and financial policies have a substantial impact on other States, should conduct their economic policies in a manner which takes into account the interests of other countries by appropriate procedures of consultation. In the legitimate exercise of their economic sovereignty, they should seek to avoid any measure which causes substantial injury to other States, in particular to the interests of developing States and their peoples.

3.3. Development assistance.

Every State has the primary responsibility to promote the economic, social and cultural development of its people, but is entitled to seek development assistance from the international community in order to overcome temporary or structural obstacles for the implementation of this task. In view of Articles 55 and 56 of the Charter of the United Nations and in view of the principles of equity and solidarity, all relevant international organizations and all States shall take joint and separate action for the implementation of this principle.

4. The duty to co-operate for global development.

4.1. The duty to co-operate in international economic relations implies the progressive development of this duty in proportion to the growing economic interdependence between States and should lead therefore in particular to a reinforced co-operation in the fields of international trade, international monetary and financial relations, transnational investments, the transfer of technology, the regulation of the activities of transnational corporations and of transnational restrictive business practices, the supply of food, energy and commodities, the international protection of the natural environment, the right to development and the co-ordination of the various activities with a view to a coherent implementation of a new international economic order.

4.2. States should co-operate in facilitating more rational and equitable economic relations and in encouraging structural changes in the context of a balanced world economy in harmony with needs and the interests of all countries, especially developing countries, and should take appropriate measures to this end.

4.3. All States should contribute in particular to the liberalization of world trade from governmental and private restrictive practices and an improvement in the welfare and living standards of all peoples, particularly those of developing countries, taking duly into account the close inter-relationship between the well-being of the developed countries and the growth and development of the developing countries, as well as the fact that the prosperity of the international community as a whole depends upon the prosperity of its constituent parts.

4.4. Without prejudice to other duties of co-operation, the criterion of interdependence justifies regional co-operation in various forms between States with a particular high degree of interdependence and specific forms of co-operation between developed and developing countries or groups of them, who are in a particular relationship of interdependence.

5. Permanent sovereignty over natural resources, economic activities and wealth.

5.1. Permanent sovereignty over natural resources, economic activities and wealth ('Permanent sovereignty') is a principle of international law.

5.2. Permanent sovereignty, which emanates from the principle of self-determination, is inalienable. A State may, however, accept obligations with regard to the exercise of such sovereignty, by treaty or by contract, freely entered into. This paragraph is without prejudice to economic integration between States.

5.3. Permanent sovereignty implies the national jurisdiction of a State over natural resources, economic activities and wealth without exempting it from the application of the relevant principles and rules of international law.

5.4. States have a right to regulate, exercise authority, legislate and impose taxes in respect of natural resources enjoyed and economic activities exercised and wealth held in their own territories by foreign interests subject only to any applicable requirements of international law. Except as expressly agreed by treaty or contract or provided by domestic law, no State is required to give preferential treatment to any foreign investment.

5.5. A State may nationalise, expropriate, exercise eminent domain over or otherwise transfer property or rights in property within its territory and jurisdiction subject to the principle of international law requiring a public purpose and non-discrimination, to appropriate compensation as required by international law, and to any applicable treaty, and without prejudice to legal effects flowing from any contractual undertaking.

6. The right to development.

6.1. The right to development is a principle of public international law in general and of human rights law in particular, and is based on the right of self-determination of peoples.

6.2. By virtue of the right to development as a principle of human rights law, individuals and peoples are entitled to the results of the efforts of States, individually and collectively, to implement Articles 55 and 56 of the United Nations Charter in order to achieve a proper social and international order for the implementation of the human rights set forth in the Universal Declaration of Human Rights, through a comprehensive economic, social, cultural and political process based upon their free and active participation.

6.3. The right to development as a principle of public international law implies the co-operation of States for the elaboration of civil, cultural, economic, political and social standards, embodied in the Charter of the United Nations and the International Bill of Human Rights, based upon a common understanding of the generally recognized human rights and of the principles of public international law concerning friendly relations and co-operation among States. These standards should be taken into account by States in the formulation, adoption and implementation of administrative, legislative policy and other measures for the realization of the right to development at both national and international levels.

7. The principle of common heritage of mankind.

7.1. The concept of the common heritage of mankind as a basic principle has entered into the corpus of public international law, to be specified by internationally agreed regimes for such areas, resources and values, the rational management of which is essential to mankind as a whole.

7.2. States should respect the principle of common heritage of mankind as set out in paragraphs 7.3. to 7.5. with regard to the resources of outer space and celestial bo...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface and Acknowledgements
• Welcome Address
• The Spanish Position in the GATT Uruguay Round
• Introduction
• Foreign Trade Policy and the Function of Rules for Trade Policy Making
• Perspectives after Punta del Este
• The Possibilities for National Measures of Implementation to Strengthen the Legal Quality of International Rules on Foreign Trade
• Discussion
• Preferential Treatment of Developing Countries In International Trade - Past Experiences and Future Perspectives
• Non-Reciprocal Treatment
• The Legal Framework for Stable, Remunerative and Equitable Commodity Prices in International Trade
• Discussion
• The Developing Countries and the Uruguay Round Negotiations on Antidumping Code
• Proposals for Reforming the GATT-Antidumping Code
• Grey Area Trade Policies
• Grey Area Trade Restrictions and International Law
• Developing Countries and Liberalization of Agricultural Trade
• International Regulation of Subsidies and Economic Development
• Subsidies, Countervailing Duties and Developing Countries
• Discussion
• Uruguay Round Negotiations on Services: Issues and Recent Developments
• National Treatment in Trade in Services and Developing Countries
• Protection of Intellectual Property Rights and Foreign Trade (Uruguay Round)
• The United Nations Draft Code of Conduct on Transfer of Technology: Problems and Prospects
• Discussion
• UNCTAD and Trade Liberalization
• Proposals for Improvements in the GATT Dispute Settlement System: A Survey and Comparative Analysis
• Discussion
• List of Participants
• Annex 1 Declaration on the Progressive Development of Principles of Public International Law Relating to a New International Economic Order
• Annex 2 International Trade Law Resolution