Just Trade

A New Covenant Linking Trade and Human Rights

Berta Esperanza Hernández-Truyol, Stephen Joseph Powell

• Publisher: NYU Press
• Year: 2009
• ISBN:
  9780814737446
• Topic: Jura
• Subtopic: Völkerrecht

Documents Annex: http://www.nyupress.org/justtradeannex/index.html

While modern trade law and human rights law constitute two of the most active spheres in international law, follow similar intellectual trajectories, and often feature the same key actors and arenas, neither field has actively engaged with the other. They co-exist in relative isolation at best, peppered by occasional hostile debates. It has come to be a given that pro-trade laws are not good for human rights, and legislation that protects human rights hampers vibrant international trade.

In a bold departure from this canon, Just Trade makes a case for reaching a middle-ground between these two fields, acknowledging their co-existence and the significant points at which they overlap. Using examples from many of the 35 nations of the Western Hemisphere, Berta Esperanza Hernández-Truyol and Stephen J. Powell combine their expertise to examine human rights policies involving conscripted child labor, sustainable development, promotion of health, equality of women, human trafficking, indigenous peoples, poverty, citizenship, and economic sanctions, never overlooking the very real human rights problems that arise from international trade. However, instead of viewing the two kinds of law as polar and sometimes hostile opposites, the authors make powerful suggestions for how these intersections may be navigated to promote an international marketplace that embraces both liberal trade and liberal protection of human rights.

1

Global Concepts
International Law Primer

1.1 Overview

This chapter provides an overview of the sources of international law and the practice of international rule formation. These principles are central to the making both of trade and of human rights agreements, as well as to the development and evolution of trade and human rights norms, and thus serve as a prerequisite for the reader unfamiliar with, or in need of a refresher lesson in, the basic rules of understanding international law.

1.2 International Law and International Law-Making: General Concepts

In this first chapter, we aim to introduce international law and international law-making. This information is important because both human rights and trade treaties are international agreements that must be concluded pursuant to, as well as comport with, established international norms. We do not anticipate that readers will need to develop an expertise in international law to engage our materials, but we find this basic introduction advisable in order to provide a foundation for all readers, especially those not versed in international law. This is a straightforward and basic introduction; readers with a background or training in the international field may well opt to skip this opening chapter and start with chapter 2.

History traces the development of rules governing relations between or among different peoples to the end of the Roman Empire when the independent and separate states that emerged needed to develop rules for interaction. The system that emerged was largely founded on the Roman system. In fact, the Roman Empire developed a set of rules—the jus gentium—to govern the relations between Roman and non-Roman citizens, in contrast to the jus civile, which applied exclusively among Roman citizens. The jus gentium system incorporated principles of equity in natural law that contemporary scholars analogize to the source of international law called “general principles of law recognized by civilized nations” contained in Article 38(1)(c) of the Statute of the International Court of Justice (ICJ).1 Thus, one can trace the roots of international law to the need that arose when the formerly unified Roman Empire splintered into diverse nation-states that had to interact on a basis of sovereign equality and mutual respect. Thereafter, increased trade, improvements in navigation, and the discovery of new lands accelerated the development of the new law of nations.2

The Thirty Years War (1618-48) in central Europe is a significant event in the history of international law as it signified the end of one imperial reign over all of Europe. Additionally, it marked the emergence of independent nation-states as the primary actors in the global setting. Such advent of independent sovereigns was key to the evolution of international legal principles as it exposed the need to create norms to govern interactions between and among equals.3

In The Law of Nations, Brierly defined international law as “the body of rules and principles of action which are binding upon civilized states in their relations with one another.”4 This definition reflected the early view that international law applies exclusively to states. The American Law Institute’s Restatement of the Law Third, Foreign Relations Law of the United States defines international law as “rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”5 This definition reveals that international law no longer is the exclusive province of states and international organizations, but also deals with their relationships with individuals and corporations.

Article 92 of the United Nations Charter, itself a treaty ratified by Member states, establishes the ICJ as the principal judicial organ of the United Nations. The provisions of the Statute of the ICJ, a treaty to which all members of the UN are parties, set out the principles that constitute the ICJ and pursuant to which it functions.

Article 38 of the Statute sets out the four sources of international law:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations; [and]

d. … judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Treaties and custom are deemed to be primary sources of law. General principles of law and judicial decisions and treatises are secondary sources.

The Restatement also identifies the sources of international law: custom, international agreement, “general principles common to the major legal systems of the world.”6 While treaties and custom are primary sources, general principles are supplementary rules.

Customary law comprises the “general and consistent” practice of states followed from a sense of legal obligation. Such practice may include diplomatic acts, official policy statements, and other governmental acts. Until recently, international law was mostly customary law, with agreements being limited to particular arrangements between states, but rarely used for general law-making. Although customary law evolves from the practice of states, for such practice to become a rule of law states must abide by the conduct out of a sense of legal obligation —opinion juris sive necessitatis. A practice that states follow but have no sense of obligation to do so does not constitute a customary norm.

The practice of states can be found in both what states say and what they do (commission) or fail to do (omission) under circumstances in which failure to act may indicate acceptance of the acts of another state that have an impact on another state’s legal rights. In addition, for state practice to become customary law, the state practice must be general and consistent over time, with no major alterations or deviations. Significantly, although the general, consistent practice of states results in a binding customary norm, such principles may not be binding on states that are “persistent objectors” (i.e., states that during the development of the norm object to it).7

Two observations are appropriate regarding custom and persistent-objector status. One, a state cannot be insulated, as a persistent objector, from being bound by a peremptory norm (jus cogens) as such norms hold a superior status and permit no derogation.8 Significant for this project is that not all customary human rights norms are jus cogens—the prohibitions against genocide; slavery and the slave trade; causing disappearances of persons; torture and cruel, inhuman, and degrading treatment; prolonged arbitrary detention; and systematic racial discrimination constitute peremptory norms.9 Two, a new state coming into the international legal world will be bound by existing custom, without the opportunity to become a persistent objector. That status is only available to states in existence at the time that the norm is being created. This reality has subjected customary international norms to criticism by newly emerging states that are bound by existing rules although they had no part in their development and are given no opportunity to opt out of their application. In Article I, § 8, the U.S. Constitution refers to the “law of nations,” and U.S. Supreme Court case law has made clear that customary law is part of U.S. law.10

Treaties, the first listed source in Article 38 of the Statute of the ICJ, are very significant in the international realm and are, in modern times, the most frequently used tool for international law-making. Whereas custom is grounded in the practice of states, treaties are rooted in the consent of states. It is important to observe that the requisite technicalities for a document to be labeled a treaty are different in the international realm and under U.S. constitutional law, although one instrument may satisfy the requirements of both. Thus, what is properly called a treaty in international law may or may not qualify as a treaty under the U.S. domestic system.

In the international realm, the Vienna Convention on the Law of Treaties is the principal source of the law of treaties. At Article 2(1)(a), it defines a “treaty” as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” Article II, § 2, of the U.S. Constitution provides that “the President … shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Thus, under the Constitution, an international agreement, concluded by the United States with another nation, in written form, and governed by international law—factors sufficient to make the instrument a treaty pursuant to the Vienna Convention requirements—is not a “treaty” in the domestic sense unless two-thirds of the Senate gives its advice and consent to the document. We will further address treaties and U.S. law later in the chapter, but first we need further to develop the concept of treaties in the international realm.

In the international sphere, in order to decide what constitutes an “international agreement,” one must first analyze the text. Ultimately, whether an instrument is a treaty depends on the intent of the parties. Thus, when there is doubt as to whether an instrument is a treaty, one analyzes the negotiating history, the formalities observed, and the expectations induced. The more formal the process, and the more formal the law-making authority of the government involved, the stronger the case for finding an “agreement.”

Treaties share critical characteristics as parliamentary and contractual instruments. For example, in terms of “who” can enter into a treaty, treaties are similar to domestic laws because only sovereigns can make treaties. On the other hand, like contracts, treaties apply only to those who are signatories.

Having first defined treaties and then described some basic characteristics, it is important to turn to the rules applicable to treaties that are set out in the Vienna Convention. The Convention is considered a codification of existing customary law.11 Therefore, non-signatories may be bound to its terms. For example, the United States has signed, but the Senate has not given its advice and consent to, the Vienna Convention. Yet the U.S. State Department has acknowledged that the United States is bound to its terms as they reflect binding customary norms.12

Because this is a volume on trade and human rights, it is important to emphasize that the Vienna Convention’s definition of treaty limits those instruments to written agreements concluded between states. This definition excludes agreements between a state and a private entity, although, through interpretation, the definition has been modified in practice to include agreements between a state and an international organization because such organizations are considered subjects of international law. In all cases, it is only the trade compacts concluded between and among states that qualify as treaties.

It is also important to note at this juncture that not all agreements between states are necessarily treaties. To be treaties, the agreements must be governed by international law. Thus, an agreement between State A and State B for the purchase by State A of State B’s beef using a standard form contract of the meat trade will not be deemed a treaty. Similarly, the purchase of a building or a piece of land by a state, when the contract is subject to the law of the municipality or a third state, will not be deemed a treaty.

1.3 International Law-Making: Specific Provisions

Let us now turn to some provisions of the Vienna Convention to ascertain what determines whether an instrument is a “treaty.” Part II of the Convention lays out the requirements for the “Conclusion and Entry into Force of Treaties” with Section 1 addressing the conclusion of treaties and Section 2 addressing reservations.

Regarding conclusion of treaties, Article 6 of the Vienna Convention provides that all states have the capacity to enter into a treaty. To be a state in international law, an entity must satisfy four requirements: it must have (a) defined territory; (b) permanent population; (c) a government capable of controlling the territory; and (d) a government with the ability to enter into international relations.13 One significant article in the first section of the Convention is Article 18, which imposes on signatories an obligation not to act in a way that “would defeat the object and purpose of a treaty.”

Section 2, “Reservations,” articulates an important concept in treaty-making. Reservations are “unilateral statement[s] … made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State” (art. 2(d)). Thus, reservations allow states unilaterally to modify the terms of a treaty or the legal effect of the terms of a treaty. However, the Vienna Convention prohibits reservations that are “incompatible with the object and purpose of the treaty” (art. 19(c)). To ascertain incompatibility, the analysis scrutinizes the reservation in light of the purpose of the treaty. Reservations that frustrate the purpose of a treaty are invalid, even if in theory a state can object to whatever it wants based on its sovereignty.

Articles 20-23 detail the rules regarding reservations, including, respectively, states’ acceptance of and objection to reservations, the legal effect of reservations, withdrawals of reservations and objections thereto, and procedural requirements in making or accepting reservations, including that they be in writing. A state decides whether it deems the reserving party a party to Convention. In essence, these details emphasize that contracting states want to keep alive the “basics” of the Convention. With bilateral agreements, for instance, a reservation is the equivalent of a counteroffer to a contract in U.S. domestic law. While going into further detail on reservations is outside the scope of this chapter, it is important to note that the processes of making reservations and of objecting to or accepting reservations leads to complicated analyses about what states are bound by what terms of a treaty. The complexity is underscored when parties to multilateral instruments make multiple reservations.

Part III of the Vienna Convention focuses on the “Observance, Application, and Interpretation” processes. Article 26 sets out a basic principle of international law: pacta sunt servanda, which means that parties are bound by treaties and have an obligation to perform their terms in good faith. Parties cannot invoke internal law as grounds to fail to comply with a treaty obligation (art. 27). Treaties are not retroactive (art. 28), are binding on parties within their entire territory (art. 29), and their terms are to be interpreted in good faith in accordance with “the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose” (art. 31(1)). Article 32 allows use of the travaux preparatoires—preparatory works—developed during negotiations to assist in the interpretation of treaties. Significantly, the allowance of the use of travaux preparatoires might be a disadvantage to states that did not participate in negotiation of the treaty but became signatories later, as their voices are absent from the travaux.

Two other parts round out the substantive provisions of the Vienna Convention: Part IV addresses “Amendment and Modification of Treaties” and Part V focuses on the “Invalidity, Termination, and Suspension of the Operation of Treaties.” Part V specifically articulates error (art. 48), fraud (art. 49), corruption of a state representative (art. ...