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?

By Boutilier, Misha | University of Toronto Faculty of Law Review, Winter 2017 | Go to article overview

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?


Boutilier, Misha, University of Toronto Faculty of Law Review


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. …

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