The Conditions for Conditionality:
- T
HE LEGAL LIMITS AND LEGITIMACY ISSUES OF
HUMAN RIGHTS CONDITIONALITY CLAUSES IN TRADE
REGIMES
Name: Mari Gjefsen
Student number: 10846913 Words: 12 825
Date: 30 July 2015
T
ABLE OF
C
ONTENTS
1. Introduction ... 3
2. Human rights conditionality clauses and the issues they raise ... 5
2.1. The definition, the content and the enforcement of human rights conditionality clauses ... 6
2.2. The issues conditionality raises: forced obligations and arbitrary enforcement ... 9
3. Conditionality and the history of international law ...11
3.1. The “natural law” of non-Western inferiority: Vitoria, the civilizing mission and the universal human rights clause ...12
3.2. The emergence of conditionality clauses and the link with domestic interests and power relations ...13
4. The condition for legitimacy: a non-hegemonic standard of sovereignty determined by re-conceptualizing universality and the use of force...16
4.1. Universality as limitation of the scope of internal sovereignty ...17
4.2. Prohibition of use of economic force as a limitation of the scope of external sovereignty 20 4.2.1. The normative relations between trade and human rights and the consequence for the legitimacy of conditionality ...22
5. The conditions for legality ...25
5.1. General International Law ...25
5.2. CAFTA-DR ...27
5.3. The EU ...28
5.4. The WTO ...29
5.4.1. The Enabling Clause ...30
6. The legitimacy of the law and how it should be improved ...33
6.1.The first solution: increased procedural safeguards ...36
6.2. The second solution: increased flexibility ...36
6. 3. The preferred solution: prohibiting the use of economic force ...37
7. Conclusion ...39
1. I
NTRODUCTION
Human rights conditionality clauses make preferential trade concessions dependent on compliance with human rights. If violations of human rights occur, the trading partner is entitled to suspend or terminate the concessions. International human rights law is a field where effective enforcement mechanisms are scarce,1 and introducing economic incentives to
adhere to the law can form a substantial contribution to prevent violations.
Respecting human rights is a guiding principle for the external action of the European Union, 2
and a central priority in USA’s trade policy. 3 From their perspective, the legitimacy of
conditionality originates from the interest to fulfill these policy objectives. Legitimacy under EU and US law is, however, not a sufficient justification for the developing countries that must fulfill conditions in order to receive trade benefits. For them, and arguably for the international community as a whole, the use of conditionality must also be justified through standards common to all.
In this connection, the EU and the US (“the donors”) rely on the universality of human rights as a justification for conditionality. Since means taken to protect universal rights justifies more interfering policies towards other states than what is normally accepted under international law, reliance on universality entitles the donors to escape allegations of interference with the sovereignty of weaker states. I argue that universality is not a sufficient justification for the use of human rights conditionality. Despite the fact that universalism has been used as a
legitimation to serve Western interests throughout the history of international law, little has been done to clarify the concept and its limits. In its current form, universality is thus too vague a concept to serve as a justification alone. In the current state of international law, where there are also no clear limitations on the use of non-military force, strong states have a room for exercising power on weak states that is much too wide.
At the same time as the donors defend the use of conditionality through relying on the universality of human rights, the existing conditionality regimes allow for arbitrary
enforcement. The current conditionality regimes thus enable the donors to apply the clauses in a manner that serves domestic interests rather than compliance with human rights. Seen in a historical perspective and through the lenses of developing states, the picture is significantly
1 Petersmann, Time for a United Nations `Global Compact` for Integrating Human Rights into the Law of
Worldwide Organizations, EJIL 2002/13, p. 627 – 628.
2 Article 21 of the Treaty of the European Union (“TEU”). See also Egan, & Pech, Respect for Human Rights
as a General Objective of the EU`s External Action, Working Paper No. 161, 2015, p. 1 – 27.
similar to colonial justifications of Western conquests. The rules apply to all, but benefit only the strong.
Can weak states rely on the law to address these issues with conditionality? I argue that they cannot. The current legal framework regulating conditionality is not developed in a manner that limits stronger states to use their economic upper hand to maintain their interests vis-à-vis weak states. Neither regional, nor global regimes of international law contain sufficient safeguards to protect the beneficiaries. These shortcomings are not inherent to the applicable law. By developing a non-hegemonic standard of state sovereignty, with legal limits on both internal and external sides of the concept, it is possible to develop international law into a direction that also secures the interests of the beneficiaries to a conditionality regime.4 This
standard can be used to set a more definite legal yardstick for human rights conditionality clauses and their application, both in general international law and in regional regimes. A non-hegemonic standard of international law is a standard without an inherent bias towards securing interests of strong states only. Rather, it also contains mechanisms to secure the needs and interests of weaker states. Such a standard does not shield weaker states from influence and it does not put the end to conditionality. What it does is to set a legal limit for how conditionality can play out. By setting such a limit, the legitimacy of conditionality can be strengthened because the standard in international law will correspond better with a non-Eurocentric standard of legitimacy.
For the purpose of this thesis, I am focusing on the human rights conditionality clauses in the Dominican Republic-Central America Free Trade Agreement (“CAFTA – DR”) concluded between the USA and Central-American Countries, and the European Union`s Generalized System of Preferences Plus (“GSP+”). While these are not the only trade regimes where human rights conditionality is found, they are representative examples for the different types of conditionality used in trade relations with developing countries.5 Further, these are also the
only regimes where (attempts of) enforcement is found.
4 For a general assessment of the role of hegemony in international law, see Rajagopal, Counter-hegemonic
International Law, in: International Law and the Third World: Reshaping Justice, Falk, Rajagopal, & Stevens, 2008, p. 63 – 80.
5 One of the preconditions to qualify for the GSP+ is that the country is “vulnerable”, cf. Article 9 (1) a) of
Regulation (EU) No 978/2012 of the European Parliament and the Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008 (“The GSP Regulation”). As set out in Annex VII to the regulation, this vulnerability requirement is based on the degree of diversification in the state`s economy. This is considered to be a stricter requirement than the one set to give ordinary GSP preferences under The Enabling Clause set out by the WTO Member States, which only require that the beneficiary is a developing country.
I have excluded conditionality regimes where human rights clauses are coupled with other, more politicized requirements6 or are a part of a development cooperation regime.7 In such
agreements, conditionality operates within a more complex picture that distorts the focus from the human rights as a condition as opposed to more politicized and thus openly more interest-based requirements.8
After this introduction, part 2 explains what conditionality clauses are and which issues they raise for the beneficiaries. In part 3, I set out the historical context of conditionality clauses. Then, in part 4, I explain the guidelines for determining a legitimate standard of state autonomy that should be applied to conditionality clauses. Part 5 goes through the legal framework
regulating conditionality in the different legal orders of international law, including the regional orders of the CAFTA-DR and the EU legal order. Part 6 will explain the shortcomings in these systems seen in light of the non-hegemonic sovereignty standard, and then raise some suggestions on how these shortcomings can be addressed. This will form the basis of my conclusion in part 7.
2. H
UMAN RIGHTS CONDITIONALITY CLAUSES AND THE ISSUES THEY
RAISE
This section sets out the definition of human rights conditionality clauses (“HRCCs”), their content and the possibilities to enforce them. This overview shows that these clauses refer to existing instruments in international law, but that they offer less discretion to the beneficiary than what is found in general international law. Further, there is little practice of invoking these clauses, and the practice there is raises the issue of selective enforcement.
6 The US’ GSP regime does for example contain conditions that are clearly motivated by specific national
interests; communist countries, countries that has not enforced arbitral awards where US has been involved or that has expropriated property belonging to US citizens without compensation are for example not eligible to be beneficiaries, cf. Kennedy, The Generalized System of Preferences after Four Decades, M. S. Intl’ Law Rev. 2012/20, p. 568.
7 This is for example the case with the Cotonou Agreement between the EU and 79 African, Caribbean and
Pacific countries, which includes measures of aid as well as trade.
8 For a general overview of references to human rights in different trade regimes, see Aaronson, Human
2.1.
T
HE DEFINITION,
THE CONTENT AND THE ENFORCEMENT OF HUMAN RIGHTS CONDITIONALITY CLAUSESConditionality makes co-operation with a state conditional on certain requirements.9 For
HRCCs, the co-operation consists of preferential trade concessions for the beneficiary, and the condition is compliance with human rights standards.
This definition excludes clauses that are phrased in a manner so general that they cannot be invoked on their own. An example of this being the case is the Free Trade Agreement (“FTA”) between China and New Zealand, which preamble establishes that the parties are “mindful that economic development, social development and environmental protection are interdependent and mutual components of sustainable development.”
Compliance with the conditions must constitute a prerequisite for the preferential trade benefits. This can take either take the form of positive conditionality, where the given standard must be adhered to in order to qualify for the preferential treatment, or negative conditionality, entailing withdrawal of trade benefits if the standard is no longer complied with.10 Normally,
both types are included in conditionality regimes.
In EU`s GSP+ regime, the positive conditionality is the requirement of effective implementation of 27 human rights conventions and conclusion from the relevant monitoring bodies.11 The
negative conditionality is the possibility to suspend preferences if “grave and systematic” violations of these conventions occur,12 or if the beneficiary fails to ratify, implement or report
the conventions.13 In CAFTA-DR, the positive conditionality takes shape of “reaffirm[ing]”
obligations as members of the International Labor Organization (ILO) and the national
constitutions14 in addition to an obligation of enforcing national labor laws.15 Since CAFTA-DR is
a treaty and not a unilateral regime like the GSP+, the conditionality does not take form of a prerequisite to enter into the agreement, but as an obligation set out in the agreement. 16 The
9 Pinelli, Conditionality, MPEPIL, 2013, paragraph 1
10 Linan Nogueras & Hinojasa Martinez, Human rights conditionality in the external trade of the European
Union, Colum. J. Eur. L. 2001/7, p. 309 and Cai, Human Rights Conditionality and International Economic Relations, J. E. Asia & Int’l L. 2008/71 p. 72 with further references, Beke, & Hachez, The EU GSP: A Preference for Human Rights and Good Governance? The case of Myanmar, Working Paper 2015, p. 7.
11 Article 9 (1) a)-b) of the GSP regulation. 12 Article 15 and 19 of the GSP Regulation. 13 Recital 24 of the GSP Regulation. 14 Article 16.1 CAFTA-DR.
15 Article 16.2(1) CAFTA-DR.
16 The contrast between positive and negative conditionality is blurrier in FTAs than in GSP regimes.
While the unilateral GSP+ regime is an offer open to any country that meets certain conditions, the FTAs are negotiated and entered into by the parties on an ad hoc basis. Even so, the human rights oriented obligation is binding the parties as a part of the package of preferential trade benefits, and is thus a positive conditionality provision.
only obligation enforceable is the one to enforce national labor laws.17 Non-compliance can lead
to a suspension of concessions18 or imposition of annual monetary assessments.19
While EU`s GSP+ regime requires adoption of a wide set of conventions, CAFTA-DR set out narrow obligations connected to labor. What both regimes have in common is that instead of setting out their own human rights standards, they refer to existing human rights instruments. This has the consequence that the interpretation of the HRCC indirectly entails an interpretation of the human rights instrument referred to. While positive conditionality gives an incentive for implementing the applicable human rights instruments, negative conditionality offers an added mechanism of enforcement for non-compliance. Seen in conjunction with the absence of
effective remedies for human rights violations on a global level,20 negative conditionality
constitutes a substantial addition to the possibility of securing compliance with human rights. This is so because withdrawal of trade preferences can have a significant impact on the economy of a developing country.21 Efficient enforcement is, however, dependent on the
applicable rules of invocation as well as a possibility and will to enforce the rules.
GSP+, preferences can be suspended if the beneficiary has made illegal reservations to the conventions,22 do not fulfill reporting requirements23 or if “serious and systematic violation of
principles laid down in the conventions”occurs. 24 While a decision to suspend GSP+ benefits is
decided unilaterally by the European Commission,25 CAFTA-DR allow for initiating a
dispute-settlement procedures whenever a party wishes to clarify the interpretation and application of the provisions in the CAFTA-DR.26 CAFTA-DR only allows for suspension of benefits in the case
of non-implementation of a report from a panel.27
There are few examples of enforcement of HRCCs.28 GSP + benefits has been withdrawn on
three occasions, targeting Belarus (issues related to forced labor and right to collective
17 Article 16.6(7), cf. Article 20.2 CAFTA-DR. 18 Article 20.16 CAFTA-DR.
19 Article 20.17(1) CAFTA-DR.
20 Petersmann, Time for a United Nations `Global Compact` for Integrating Human Rights into the Law of
Worldwide Organizations, EJIL 2002/13, p. 627-628.
21 For Myanmar, for example, exports to the EU constitutes 3% of the GDP, cf. European Commission, EU
re-opens its market to Myanmar/Burma, 2013 [online]
22 Article 15(1) of the GSP Regulation.
23 Articles 15(3), cf. Article 9 of the GSP Regulation. 24 Article 19(1) a) of the GSP Regulation.
25 Article 15(3) and 19(3) of the GSP Regulation.
26 Chapter 20 CAFTA-DR.
27 Article 20.16 CAFTA-DR, cf. Article 16.6.
28 This lack of enforcement should not automatically be equated with lack of effects of conditionality.
Empirical research on use of economic sanctions analyzed through models of game theory indicates that the threat of sanctions can have just as much effect as actually enforcing sanctions, provided that the target think the sanction will be imposed if it does not alter its behavior. Such an analysis suggests that
bargaining),29 Sri Lanka (failure of effectively implementing the International Covenant on Civil
and Political Rights (ICCPR), the Convention against Torture (CAT) and the Convention on the Rights of the Child (CRC)),30 and Myanmar (forced labor).31 Investigations regarding labor law
violations were also initiated against El Salvador (the right to organize), but did not end in suspension of benefits.32 There has not yet been any successful enforcement of HRCCs set out in
FTAs. At the time of writing, however, the US has initiated consultations under CAFTA-DR regarding enforcement of labor rights in Guatemala.
Labor rights is strongly linked with how expensive it is to produce something, and lack of enforcement can possibly give a competitive advantage vis-à-vis other producers. Since such violations can potentially pressure producers in other countries to a ‘race to the bottom’, labor rights violations arguably have a greater economic impact than violations of for example freedom of religion. Thus, both domestic industries as well as foreign industries will have a strong interest in enforcing labor rights violations.33 Statements from US officials regarding the
ongoing case under CAFTA-DR supports this perception. The American ambassador to
Guatemala uttered that US had chosen to initiate proceedings not only because Guatemala failed to enforce its labor rights, but also because improving labor conditions would limit
immigration.34 Emphasizing this side to the issue can be interpreted as a manner to address
domestic policy issues, and suggests that the motivation to enforce the standards are driven by domestic interests rather than a wish to secure human rights compliance abroad. The
competition aspect is emphasized in two press releases from the US Trade Representative and the United States Department of Labor stating that holding Guatemala accountable for labor law infringements will “ensure that U.S. businesses and workers are able to compete on fair
terms.”35
the success rate of economic sanctions in international law might be significantly understated, see
Drezner, The Hidden Hand of Economic Coercion, Int’l Org. 2003/57, p. 643 – 659.
29 European Commission, EU will withdraw trade preferences from Belarus over workers’ rights violations,
2007 [online]
30 European Commission, EU temporarily withdraws GSP+ trade benefits from Sri Lanka, 2010 [online]
31 Regulation No 607/2013 of 12 June 2013 repealing Council Regulation (EC) No 552/97 temporarily
withdrawing access to generalised tariff preferences from Myanmar/Burma.
32 European Commission, Termination of the GSP+ investigation on El Salvador, 2009 [online]
33 Since goods falling under the GSP+ regime typically are goods that the EU do not produce domestically,
such as rice, garments etc., foreign industries possibly have an even stronger interest in fighting labor law violations from an economic point of view. Domestic industries can, however, have an interest to protect labor law on a general basis.
34 Office of the United States Trade Representative, United States Proceeds with Labor Enforcement Case
against Guatemala, 2014 [online]
35 United State Trade Representative, United States Trade Representative Kirk Announces Labor Rights
Trade Enforcement Case Against Guatemala, 2010 [online] and United States Department of Labor, US Secretary of Labor Hilda L. Solis announces labor consultations with Guatemala under CAFTA-DR agreement, 2010 [online]
While methodologically hard to assess, the scarce practice has been accused of being evidence of both politically motivated and arbitrary enforcement.36 An observance of which rights have
been subject to sanctions also supports this finding: the focus on labor rights can pursue protectionist objectives towards countries that would have a comparative advantage through cheap labor. For the EU however, violations of labor rights are not the only occasions in which investigations against beneficiaries have been initiated. Such investigations have for example also been initiated against Bolivia after it withdrew its ratification to the UN Single Convention on Narcotic Drugs. The investigations were, however, terminated because Bolivia re-acceded to the convention.37
HRCCs have been challenged in the WTO on two occasions, both times on the initiative of developing countries. While the first case, initiated by Thailand, ended with consultations,38
India’s complaint resulted in a report from the WTO Appellate Body (“AB”).39 The AB then
rendered the GSP regime incompatible with the Enabling Clause due to the absence of clear prerequisites of how to become a beneficiary.40
2.2.
T
HE ISSUES CONDITIONALITY RAISES:
FORCED OBLIGATIONS AND ARBITRARY ENFORCEMENTFrom the point of view of the beneficiaries, HRCCs mainly raise two issues. This first issue is that the beneficiary is not in a position to freely consent to the sometimes comprehensive set of conditions. The second issue is that the donor states enforce the clauses inconsistently.
Formally, entering into FTAs and applying for GSP+ benefits is voluntary. Developing countries are however not necessarily in a position to turn down a possibility to receive trade benefits. Ratifying conventions the government would not ratify under normal circumstances can be a small price to pay for economic growth in a pressured economic situation. Consequently, many states will not be in a situation where they accept the conditions because they agree to them, but in order to receive trade benefits. The case of Sri Lanka do for example support such a perception: the country`s accession to the optional protocol of ICCPR, - an accession required
36 Beke & Hachez, The EU GSP: A Preference for Human Rights and Good Governance? The case of Myanmar,
Working Paper 2015, p. 12.
37 European Commission, Termination of GSP+ investigation on Bolivia, 2013 [online]
38 Thailand, European Communities – Generalized System of Preferences: Request for consultations, 2001
[online]
39 Appellate Body Report, EC – Tariff Preferences, WT/DS246/AB/R, April 7th 2004.
40 Idem, paragraph 189. The report was implemented by amending the GSP Regulation in 2005, cf.
European Communities, European Communities – Generalized System of Preferences: Status Report by the European Communities, 2005 [online].
under the GSP+ regime, was rendered unconstitutional by the Sri Lankan Supreme Court. The accession thus required Sri Lanka to amendments its constitution.41
While reservations will not serve a function in bilateral FTAs such as CAFTA-DR, they can be a useful manner to secure autonomy under the GSP+ regime. While the GSP Regulation as a starting point operates with the same autonomy to make ratifications as in general international law,42 it has set out certain additional limitations in the procedural rules for the GSP Regime.43
Under these rules, a reservation is incompatible when this has been determined by a process under the relevant adjudicatory or monitoring body to the convention or when a certain amount of EU Member States that are also party to the convention have protested against the
reservations.44 In addition to these general standards, the GSP Regulation prohibits reservations
to reporting requirements set out in any of the relevant human rights conventions.45 This
requirement is necessary in order to be able to exercise conditionality in practice, as allowing reservations to reporting requirements would make those states that do not make such reservations worse off.46 One example of a reservation that has been tolerated is Bolivia’s
reservation against the prohibition of coca leaves set out in the UN Single Convention on
Narcotic Drugs.47 Reservations that allegedly have not been tolerated are the reservations made
by the Maldives to the ICCPR. According to statements from the Maldivian Economic
Development Minister, the Maldives have not been able to qualify for the GSP+ because the EU requires the Maldives to accept “homosexual relations and the opportunity for people to follow any religion they want”.48
On the other side of the coin, the donors enjoy a wide discretion to decide when they wish to sanction human rights violations. Under CAFTA-DR, contracting parties “may” enter into
41 European Commission, Report on the findings of the investigation with respect to the effective
implementation of certain human rights conventions in Sri Lanka, 2009, p. 8 [online]
42 Article 9(1) c) of the GSP Regulation prohibits reservations incompatible with the object and purpose of
the convention and reservations that are considered “incompatible with the conventions”. For the general rules about reservations, see Shaw, International Law, 2008, p. 918.
43 Commission Delegated Regulation (EU) No 155/2013 of 18 December 2012 establishing rules related
to the procedure for granting the special incentive arrangement for sustainable development and good governance under Regulation (EU) No 978/2012 of the European Parliament and of the Council applying a scheme of generalised tariff preferences (“Regulation 155/2013”)
44 Article 1(1) c) and 2(1) of Regulation 155/2013. 45 Article 9(1) e) of the GSP Regulation.
46 In connection with the enforcement former labor rights conditionality clauses in US legislation, Amato
points out that such imperfect information may lead to discriminatory application of conditionality clauses, cf. Amato, Labor Rights Conditionality, N.Y.U. L.Rev. 1990/79, p. 108 -113.
47 European Commission, Termination of GSP+ investigation on Bolivia, 2013 [online]
48 Asian Mirror, EU Demanded Same Sex Marriage, Freedom Of Religion, Claim Maldives Ministers, 2014
[online] and Sun.mv, EU excludes Maldives from duty exemption scheme over lack of religious freedom, 2013 [online]
consultations in order to start the dispute settlement procedure.49 While this is something the
European Commission “shall” do if it finds that the beneficiary does not fulfill the human rights conditions,50 this obligation only arises if the Commission has “reasonable doubt” of whether
the beneficiary complies with the conditions or not.51 This reasonable doubt must be based on a
report, where human rights monitoring bodies, third parties, but also the Council and the European Parliament can submit information.52 While the Commission is the body making the
conclusions under the report, the possibility to take into account such information also opens the door for politically motivated considerations. This is so because both the Council and the European Parliament are legislative bodies designed to take such considerations.53
While the substantial limits for the beneficiaries are formally not decreased much compared to public international law, the economic situation of the beneficiaries do de facto leave them in a position where they are prone to accept obligations they normally would not accept. Further, the scarce application raises uncertainty with regard to the motivation behind the enforcement. This perception is strengthened both by the emphasis on labor rights in EU`s enforcement practice and official statements by the US in the on-going dispute with Guatemala.
3. C
ONDITIONALITY AND THE HISTORY OF INTERNATIONAL
LAW
Understanding the historical context surrounding today`s conditionality will contribute to reveal the legitimacy issues that conditionality raises.54 This overview points out two
tendencies. Firstly, the interaction between Western and non-Western states have relied on a presupposition of the uncivilized nature of the latter. Secondly, conditionality in economic relations has typically been driven by the interests of the donor in its relations with far weaker states.
49 Article 20.4 CAFTA-DR.
50 Article 15(1) of the GSP Regulation. 51 Article 15(3) of the GSP Regulation. 52 Article 14(3) of the GSP Regulation.
53 Article 14 (The European Parliament), 16 (the Council) TEU. See, in contrast, Article 17 (The
Commission) TEU.
54 For an analysis of the relationship between legal obligations and the history of international law, see
Orford, The Past as Law or History? The Relevance of Imperialism for Modern International Law, IILJ Working Paper 2012/2 p. 1 – 17.
3.1.
T
HE“
NATURAL LAW”
OF NON-W
ESTERN INFERIORITY:
V
ITORIA,
THE CIVILIZING MISSION AND THE UNIVERSAL HUMAN RIGHTS CLAUSEThe presumption of inferiority of non-Western states originates back to the inception of
international law as we know it today. Both the earlier era of colonialism in the 16th century and
the later one in the 19th century were both justified by the narrative of the “civilizing mission” of
the third world,55 in which the Western powers were obliged to teach the indigenous peoples
how to lead the way of life required by natural law.56 The introduction of trade was an
important component in these civilizing missions, as expansion of commerce would help developing the “moral and material well-being” of the natives.57 The unlimited sovereignty of
the state was integrated in the justification of colonization: the sovereign would have an almost unlimited power to serve the state`s interest on the international plane. At the same time, the colonized lacked the same sovereignty and therefore also the protection against intrusion from other states. The lack of sovereignty also meant a lack of legal limits as for what conduct the colonized could be exposed to.58
A classic illustration of a justification through the universalism of international law is found in Vitoria`s lectures about the colonization of the Americas. While neutrally declaring that the Indians and the Spaniards alike were bound by the God-given ius gentium, and thus both able to have legal rights and obligations,59 only the Spaniards abode by this set of applicable standards,
- standards that corresponded with the colonizer`s interests in trade and exploitation of natural resources.60 This chain of thought was the basis of the justification of the Spaniards’ committed
atrocities against the Indians. 61
55 Stanford Encyclopedia of Philosophy, Colonialism, 2012, paragraph 2 - 3 [online]
56 Ibid.
57 Anghie, Finding the Peripheries, Harv. Int`l L. J. 1999/40 p. 64. 58 Idem, p. 69.
59 Idem, p. 24.
60 See, for example, Vitoria, The First Relecto On the Indians lately Discovered, Sect. III, paragraph 386-387:
“What natural reason has established among all nations is called the jus gentium.” For, congruently herewith, it is reckoned among all nations inhuman to treat visitors and foreigners badly without some special cause, while, on the other hand, it is humane and correct to treat visitors well; but the case would be different if the foreigners were to misbehave when visiting other nations. (…) But(so we suppose) the travel of the Spaniards does no injury of harm to the natives. Therefore it is lawful. Fourthly, it would not be lawful for the French to prevent the Spanish from traveling or even from living in France, or vice versa, provided this in no way enured to their hurt and the visitors did no injury. Therefore it is not lawful for the Indians. Further, fifthly, the banishment is one of the capital forms of punishment. Therefore it is unlawful to banish strangers who have committed no fault. Further, sixthly, to keep certain people out of the city or province as being enemies, or to expel them when already there, are acts of war. Inasmuch, then as the Indians are not making a just war on the Spaniards (it being assumed that the Spaniards are doing no harm), it is not lawful for them to keep the Spaniards away from their territory.”
61 Anghie, The Evolution of International Law, in: International Law and the Third World, 2008, p. 38 – 42
Vitoria never advocated explicitly for Western superiority62 – on the contrary, he argued that
the two peoples were alike under the law. The consequence of basing international law on Christian principles did however equate to a unilateral dictation of which norms and standards applied, in fact, it justified use of force against those who were not willing to adopt these values.63 The way international law was coupled with religion in the 16th century thus had the
consequence that the Spaniards could justify their conduct against peoples who did not follow the same standards.
The rhetoric behind the civilizing missions and human rights conditionality has similarities: in both cases, international law has been used as a justification for externally imposed reform in order to meet universal standards common to all of mankind.64 Just like the Spaniards relied on
the universal Christian values as a justification for their conduct in the Americas, the EU and the US justifies conditionality through a rhetoric of universalism: they are not promoting specific interests of their own, but of already existing instruments of international law, namely
“core international conventions on human and labor rights, environmental protection and good governance”(my emphasis),65 and “basic worker rights”.66 While not using the word ‘universal’,
the wordings of these trade instruments clearly builds on a premise the rights conditioning the trade preferences have a fundamental all-encompassing character as opposed to being
particular to certain interest or culture.67
3.2. T
HE EMERGENCE OF CONDITIONALITY CLAUSES AND THE LINK WITH DOMESTIC INTERESTS AND POWER RELATIONSThis section shows that conditionality has been motivated by self-interest of the donor state and not the interest of the beneficiaries. This has been possible due to inequalities between the donor and the beneficiaries.
62 Vitoria, The First Relecto On the Indians lately Discovered, Sect. II, paragraph 346: “Herein is manifest
that before the coming of Christ no one was vested with world-wide sway by divine law and that the Emperor can not at the present day derive therefrom a title to arrogate to himself lordship over the whole earth, and consequently not over the barbarians.”
63 Stanford Encyclopedia of Philosophy, Colonialism, 2012, paragraph 2 [online] and Vitoria, The First
Relecto On the Indians lately Discovered, Sect. III, paragraph 306-397: “(…) because brotherly correction is required by the law of nature, just as brotherly love is. Since, then, the Indians are all not only in sin, but outside the pale of salvation, therefore, it concerns Christians to correct and direct them; nay, it seems that they are bound to do so. Fifthly and lastly, because they are our neighbors, as said above: “Now the Lord has laid a command on everyone concerning his neighbour” (Ecclesiasticus, ch. 17). Therefore it concerns Christians to instruct those who are ignorant of these supremely vital matters.”
64 For the case of IMF conditionality, see Pahuja, Post-colonial approaches to the conditionality of the
International Monetary Fund, Hague Y.B.Int'l L. 2000/13, p. 129.
65 Recitals 11 and 24 of the GSP Regulation.
66 Paragraph 13 of the Preamble in CAFTA-DR.
67 On a more general note, Anghie argues that a nexus between international law and the civilizing
mission is inherit to the contemporary system of international law, including the concepts of rights. See Anghie, Finding the Peripheries, Harv. Int`l L. J. 1999/40 p. 79 – 80.
While human rights conditionality is a relatively new phenomenon,68 the use of conditionality in
trade is not: examples of countries setting out conditions for trade can be found as far back as the 18th century69 in the Treaty of Amity and Commerce between the US and France.70 In this
treaty (and similar ones entered into thereafter), the benefit was MFN-treatment and the condition was compensation for the beneficiary equivalent to that given by a third state.71 This
type of conditionality was introduced for purely protectionist purposes, and was regular for the US and for European countries up until 1923 and 1860, accordingly.72 In the aftermath of the
Second World War, conditionality was a part of development aid programs offered to a war-torn Europe. A prominent example was the conditions of market economy and democracy required by the US in the Marshall Plan.73 Conditionality was here used as an ideological tool to ensure
American interests abroad. 74
In the early years of the Cold war, conditionality was considered to be at odds with the
prohibition of intervention set out in article 2(7) of the UN Charter (“UNC”).75 The development
aid agreements concluded between the EEC and former colonies around this time did therefore not contain any conditionality clauses.76 Attempts to introduce conditionality was dismissed by
the beneficiaries as “paternalistic, protectionist and hypocritical.”77 Conditionality first came
into picture as a reaction to the massive human rights violations committed in Uganda under Idi Amin`s rule due to the lack of possibilities for the EEC to provide for an appropriate legal
response thereto.78 In order to avoid a similar situation in the future, the Lomé III linked human
rights compliance to development needs,79 which later developed to conditionality clauses in a
purer form in Lomé IV and later development agreements.80 In the same period, the US
introduced conditionality clauses in their GSP regime as a response the call from the American
68 Aaronson, & Chauffour, The Wedding of Trade and Human rights?, WTO 2011. See also Schaffer, & Apea,
GSP Programmes and Their Historical-Political-Institutional Context, in: Human Rights and International Trade, Cottier, Pauwelyn, and Bürgi, (ed) 2005, p. 488 – 503.
69 Geiß & Hilf, Most-Favored-Nation Clause, MPEPIL 2014, Section B (2. 70 Idem, paragraph 14.
71 Ibid. 72 Ibid.
73 Pinelli, Conditionality, MPEPIL, 2013, paragraph 17 and IMF, Cooperation and Recovery,
accessed 2015 [online].
Interestingly enough, the U.S. refused to ratify the Havana Charter establishing an International Trade Organization (“ITO”), which included references to labor rights, cf. Charnovitz,
Fair Labor Standards and International Trade, J. World. Tr. L. 1986/20, p. 64.
74 Pinelli, Ibid.
75 Idem, paragraph 23 and Hilpold, EU Development Cooperation at a Crossroads, E.F.A Rev. 2002/7, p. 57
76 Hilpold, Ibid.
77 Charnovitz, Fair Labor Standards and International Trade, J. World Tr. L. 1986/20, p. 65 with further
reference to Alston, Linking Trade and Human Rights, German Yearbook of International Law 1980 p. 126 – 158.
78 Hilpold, Idem, p. 57 with reference to the so-called “Uganda Guidelines” issued by the Council. 79 Idem, p. 59-60.
trade union federation to fight social dumping.81 Simultaneously, the US advocated for inclusion
of labor rights into the body of international trade law, an argument that did not succeed within the scope of multilateral trade regimes. 82 While the GATT only referred to labor law in relation
to prison labor in article XX,83 references to labor rights became a part of several FTAs between
the US and third states.84 Notwithstanding the provision in article XX GATT, HRCCs are only to
be found in regional trade regimes.
While earlier forms of human rights conditionality were adopted with a more open reference to domestic interests, the modern HRCCs are phrased in an objective manner: they refer to existing human rights instruments and applies equally to different contracting parties. In the case of EU`s GSP+ regime for example, any country that meets the economic vulnerability criteria can in principle become a beneficiary if it ratifies the relevant conventions. This brief overview of the emergence of conditionality clauses show, however, that the existing clauses have emerged out of domestic pressure rather than pressure from the international community or the
beneficiaries. Seen in this context, conditionality has been a means to promote domestic interests on the international plane. This dimension of conditionality is also apparent under current regimes: the on-going dispute between US and Guatemala regarding labor law
enforcement motivated by the wish of limiting migration to the US is an example on this.85 So is
the emphasis on labor rights in the enforcement of GSP+.
Whether caused by war or colonization, conditionality clauses have been enabled by inequality between the parties. While pure conditionality clauses are only found in agreements where one party has had significantly lower bargaining power vis-à-vis the other, conditionality in trade agreements between strong states are either too vaguely formulated to have actual effects86 or
non-existent.87 Seeing this fact in the conjunction with the claim for sovereignty formerly made
by developing states indicates that conditionality is a result of a possibility for strong states to exercise their domestic interests in relations with weaker states rather than a manner to ensure the interests of the latter. This backdrop must be taken into account when assessing the
legitimacy of conditionality under the rules in international law.
81 Amato, Labor Rights Conditionality, N.Y.U.L. Rev. 1990/79, p. 83 and Charnovitz, Fair Labor Standards
and International Trade, J. World. Tr. L. 1986/20, p. 61 – 65.
82 Aaronsen, Human Rights Provisions in Trade Agreements, 2011, p. 431-432.
83 Charnovitz, Idem, p. 64. 84 Idem, p. 65.
85 Office of the United States Trade Representative, United States Proceeds with Labor Enforcement Case
against Guatemala, 2014 [online]
86 Charnovitz, Fair Labor Standards and International Trade, J. World Tr. L. 1986/20, p. 64-65.
4. T
HE CONDITION FOR LEGITIMACY
:
A NON
-
HEGEMONIC
STANDARD OF SOVEREIGNTY DETERMINED BY RE
-CONCEPTUALIZING UNIVERSALITY AND THE USE OF FORCE
The history of using conditionality to serve the interest of strong states, the weak position of the beneficiary vis-à-vis the donor and the allegedly arbitrary enforcement necessitates that HRCCs meet certain legitimacy standards in order to not be perceived as a hegemonic tool. Despite the voluntary nature of conditionality, not requiring any legal limits would give powerful states the possibility to use HRCCs in order to exploit a superior economic position. 88 This section will set
out the guidelines for assessing which degree of intrusion is legitimate in relations between states with help of the standards of sovereignty, universalism and economic coercion. These guidelines will then form the basis of assessing the legitimacy of the applicable law regulating conditionality.
The principle of state sovereignty is a fundamental pillar of international law.89 It is manifested
in some, if not all foundational instruments setting out the rules of interaction between states,90
such as the general principle of non-interference in Article 2 UNC and the 1970 Friendly Relations Declaration.91 Sovereignty gives the capacity to enter into treaties under the Vienna
Convention of the Law of Treaties (“VCLT”). It is a general principle in international law and it is constantly evolving.92
State sovereignty has an internal and an external side.93 The external side gives a state the
capacity to enter into international engagements.94 The internal side comprises of a right to rule
over its own territory without interference that the state has not consented to.95 As the two
88 Oppositely, see Herdegen, Principles of International Economic Law, 2013, p 68 – 69, who holds that
legal limits on conditionality cannot be required since conditionality is not a mandatory measure, but a voluntary opportunity to give advantages to weak states
89 Besson, Sovereignty, MPEPIL, 2011, paragraph 1 and 2.
90 Idem, paragraph 2.
91 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations.
92 Besson, Idem, paragraph 8.
93 This is only one out of several dichotomies describing the duality of sovereignty. Other classifications
are, for example, absolute and limited sovereignty, unitary and divided sovereignty and political and legal sovereignty, see Besson, Idem and Kokott, Sovereign Equality, MPEPIL, 2011. These descriptions partly describe different phenomena while partly also overlapping.
94 Besson, Idem, paragraphs 36 – 38, with reference to the PJIC, August 17th 1923, Series. A No. 1(S.S.
Wimbledon).
95 Kokott lays out three elements this passive, or defensive sovereignty entails. Firstly, it entails that no
state shall be bound by a rule in international law without its consent. Secondly, no state shall be convicted in another state`s domestic court. Thirdly, every state has the right to protect its own interest against unlawful influence from other states. See Kokott, Souveräne Gleichheit und Demokratie im Völkerrecht, HJIL 2004/64, p. 519.
sides co-exist, neither is absolute; sovereignty is limited as a consequence of it applying to all states and as a consequence of self-limitation under domestic law and limitations by jus
cogens.96 External sovereignty does thus not mean a right to resort to any means to serve one`s
interests, and internal sovereignty does not give immunity from interference.97 A
non-hegemonic sovereignty standard should ensure that these limits to state sovereignty also can protect the interests of weak states. Such limitations should therefore not only restrict the non-interference principle, but also to the right to exercise power towards other states.
International law operates with a presumption that all sovereign acts are legal; “restrictions upon the independence of States cannot therefore be presumed”.98 It is therefore the limitations
to sovereign power that must be proven in order to establish the scope of a state`s autonomy. This section offers suggestions on limitations of both sides of the concept of sovereignty. It will use existing concepts as a starting point, but then develop a suggestion on how these concepts can be applied in a counter-hegemonic manner.99 The limiting factors that will be addressed are
the ones of universalism and use of force.
4.1.
U
NIVERSALITY AS LIMITATION OF THE SCOPE OF INTERNAL SOVEREIGNTYUniversal human rights are considered to be within the domain of international law as opposed to a part of a state`s internal affairs only.100 Measures to ensure compliance with human rights
are thus not shielded from interference through the internal side of state sovereignty;101 rather,
“sovereignty (…) must yield to certain universally accepted norms and standards.”102 Such a
limitation is a consequence of a development of the sovereignty concept that takes not only the
96 There are also other explanations to this inherit limitation to a state`s sovereignty: since sovereignty
and international law imply each other, it can be argued that its constitutive character is self-limiting in the sense that it cannot go further than what has amounted to in international law. See Besson,
Sovereignty, MPEPIL, 2011, paragraphs 75 – 80.
97 Idem, paragraph 96.
98 PCIJ , September 7th 1927, Series A Number 10 (The Case of S.S. Lotus), p. 18. See also Kokott, Sovereign
Equality, MPEPIL, 2011, paragraph 26.
99 As Besson rightfully points out, it is important to note that sovereignty as such is an issue of a
threshold, rather than degree. While certain acts are outside the scope of what a state is entitled to do towards over sovereigns, this is not to say that sovereignty is a concept of having a little or a lot. A territory is either a sovereign entity or not. Once sovereignty is acquired, however, the sovereign has to abide by the limits the threshold of international law sets. See Besson, Idem, paragraphs 76 – 80.
100 Weeramantry, Universalising International Law, 2004, p. 111 and Delbrueck, International Protection of
Human Rights and State Sovereignty, in: Third World Attitudes Toward International
Law, 1987, p. 266. Besson reads the UN Charter to exclude human rights from the scope of a state`s internal affairs per se, cf. Besson, Idem, paragraph 122.
101 Weeramantry, Universalising International Law, 2004, p. 111-112 and Delbrueck, International
Protection of Human Rights and State Sovereignty, in: Third World Attitudes Toward International Law, 1987, p. 266.
will of the state, but also the will of peoples within the state into account.103 In a historical
perspective, this limitation constitutes a shift from a strict positivist approach to the concept of sovereignty towards a concept limited by natural law.104 As mentioned above, HRCC donors rely
on a presupposition that the rights conditioned are universal. This is apparent not only through how the EU and the US describe the conditions they impose, but also the resemblance their rhetoric has with human rights declarations advocating universality of human rights are used as a justification for conditionality.105
Using universalism as a limit raises the need to find out when a right is universal. A failure to scrutinize the scope of this limitation while at the same time applying it to justify conditionality raises a risk that universality can be used as an excuse to exercise powers towards weaker states just like it was in colonial times.106 Consequently, scrutinizing the universality claim
serves an opportunity to prove that international law can be non-hegemonic. This will only be the case, however, if definitive legal limits to the universality concept can be established. A norm is universal if it is common to all actors in the international community of states,107 and
not only particular cultural groups.108 Within the context of international law, possible clusters
of actors to base the assessment of universality on could be states, peoples, individuals, international organizations or a combination of these.109 Since states are no longer the only
subjects of international law, it is not self-evident that state conduct should be the only yardstick for assessing universality.110 This is also so because the lack of ratification of an
103 Petersmann, Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of
Worldwide, EJIL 2003/13, p. 631 and 650 and Kokott, Sovereign Equality, MPEPIL, 2011, paragraph 51.
104 Degan, Some Objective Features In Positive International Law, in: Theory of International Law in the
21st century, 1997, p. 142.
105 Linan Nogueras & Hinojosa Martinez, Human Rights in the External Trade of the European Union,
2001/7 Colum. J. Eur. L p. 333 and Leino, European Universalism?, YEL 2005/24, p. 329 – 333.
106 This situation would support the claim of TWAIL scholars who holds that international law is
inherently Eurocentric. That the current notion of sovereignty, and of international law in general, relies on such a heritage is for example argued by Anghie, see Anghie, Finding the Peripheries, Harv. Int`l L. J. 1999/40 p. 79-80.
107 Webster`s New Dictionary and Thesaurus, 1990, p. 598
108 Leino, European Universalism?, YEL 2005/24, p. 368.
109 For an overview of the different actors with legal personality in international law, see
Shaw, International law, 2008, p. 251 – 259.
110 While states are still considered the primary subjects of international law, it is widely recognized that
other entities also are objects and subjects on the international plane, even though this status is conferred to them by states, cf. Idem. p. 261. To the extent states have conferred legal status of other actors in international law, such actors will have a possibility, albeit only supplementary to the states` under article 38 of the ICJ Statutes, to influence the making of international law. An example of this influence can be found in the process of creating the creation of the Rome Statues establishing the International Criminal Court, where NGOs and so-called caucuses were very active participators in securing interests of the civil society, cf. Boyle & Chinkin, The Making of International Law, 2007 p. 71 – 74, Higgins, Conceptual Thinking about the Individual in International Law in: Themes and Theories, Higgins, R. (ed), 2009, p. 73 - 90 and Kwiecien, Does the State Still Matter? Sovereignty, Legitimacy and International Law, Pol. Y. Int’l Law 2012/32, p. 45 – 73.
instrument does not necessarily mean that the state does not agree with the content111: rather,
the lack of ratification can be explained through lack of possibility to fulfill the obligations.112
Further, a state`s interest does not always correspond with the will of the people.113 Oppositely,
it would not be possible to use the views of individuals as a yardstick, as this would rely on assumptions only. A more feasible option is to use peoples and their cultures as a starting point and in conjunction with state practice.
Research on both clusters leaves us with quite a human rights friendly starting point. 114 While
diverging in degree of detail, emphasis and form of practice,115 research on human rights in
different cultures tend to conclude that all cultures seek to protect human dignity and the best of the human being.116 This starting point is also found in several international instruments. The
Vienna Declaration and Programme of Action for example, states that “[a]ll human rights are universal, indivisible and interdependent and interrelated”117 and the UN Universal Declaration
of Human Rights is ”a common standard of achievement for all peoples and all nations.”118
The fact that all cultures embrace the idea of “human dignity” does not necessarily mean, however, that all cultures acknowledge the human rights set out in conditionality regimes. Some schools of Islam do for example not allow Muslims to abandon their religion.119 However,
111 In general, acquiescence cannot be equated to accepting the state practice of other states. Rather, the
consequence of such an absence of reaction must be determined from case to case, cf. Shaw, Idem, p. 89 – 91.
112 This can be due to lack of economic resources, lack of state control or by a uncertainty of how the
rights will develop in the future. This is especially crucial for instruments that leave much room for interpretation, which also opens up for hegemonic application on the enforcement stage. Chimni
mentions the ILO Declaration as an example of cases where soft law instruments opens up for hegemonic application, cf. Chimni, Critical theory and international economic law, in: Research Handbook on Global Justice and International Economic law, 2013, p. 265.
113 As stated by Goonsekera and concurred to by Baehr, Flinterman and Senders, the answer to the
question of whether human rights are universal will then most likely be answered more affirmatively than if asking states the same question:
“It is my observation (…) that almost always those arguments [against universalism] are raised not by the ordinary people, but by governments or groups in society which have much to lose by recognizing the universality and indivisibility of human rights. No ordinary human being would deny the need to be treated equally and with dignity, to speak freely, not to be arrested and detained arbitrarily, to be free from torture, to have an adequate standard of living, to be entitled to just conditions of labour and so on. To say these norms are nothing but a Western development is to deny to non-Western societies the humane and democratic legacies of their own religions and cultures”, cf. Goonsekera, 26 August 1998. Quoted
by Baehr, Flinterman & Senders, The Continuing Universality of the Universal Declaration, in: Themes and Theories, 2009. p. 665.
114 See for example Idem, p. 655 – 667 and Müllerson, On Cultural Differences, Levels of Societal
Development and Universal Human Rights, in: Theory of International Law in the 21st century, 1997, p. 927
– 954.
115 Baehr, Flinterman & Senders, Idem. p. 665 – 666.
116 Ibid and Petersmann, Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the
Law of Worldwide, EJIL 2003/13, p. 634.
117 Part I, Paragraph 5.
118 The Preamble of the UN Universal Declaration of Human Rights.
such a right could clearly be enforced under EU`s GSP+ regime, based on the obligation to interpret the applicable conventions in light of statements from the monitoring bodies.120 This
example shows that the common acknowledgement of human dignity does not necessarily equate to a common acknowledgement of all human rights instruments enforced in HRCCs. At the same time, the scope of exactly which human rights are encompassed universally is hard, if not impossible to determine. This uncertainty makes the concept of universality in its current form unsuitable as yardstick for establishing legal limits to a state`s internal sovereignty. Defenders of the current doctrine of universality often rely on a “people-oriented
sovereignty”.121 This concept is however, a construct, where other states presume a tension
between the rulers and the ruled. Without a further development of the concept, universality is a too vague a notion to function as a legal limit to the otherwise unlimited scope of a state`s sovereignty. It is thus not a sufficient justification for the use of HRCCs. In order to become a more suitable yardstick, the concept needs more detailed empirical foundations than it has today. Such foundations should not be limited to stating that human dignity is universal, but also extend to a more thorough documentation of the status of specific rights. This documentation should not only take state practice into account, but also cultural views. Although being a comprehensive task, this would strengthen force of the universality argument and ensure a historical departure from its hegemonic origins.
4.2. Prohibition of use of economic force as a limitation of the scope of
external sovereignty
External sovereignty is limited through the prohibition of the use of force.122 While it is widely
acknowledged that this limits the allowed use of military force, it is not clear whether use of economic force is also comprised.123 In this section, I argue that this should be the case.
Although the tolerance level must be higher than for the use of military force, international law should entail certain limitations on the use of economic power towards weak states in order to be truly counter-hegemonic. In the case of conditionality, this limitation should be done on the basis of a doctrine of legitimate expectations, where the relationship between the contracting parties, the potential benefit from the agreement for the parties and the normative links between the conditions and the preference are relevant guidelines.
120 Article 9 (1) a)-b) of the GSP regulation and Article 2(1) of Regulation 155/2013. In General Comment
Nr. 22, the Human Rights Committee States that “that the freedom to "have or to adopt" a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief,” cf. CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion) paragraph 5.
121 Kokott, Sovereign Equality, MPEPIL, 2011, paragraphs 50-51.
122 Article 2(4) UNC.
Unlike with military force, use of economic force is an integrated mechanism in international relations. In interacting with each other, states are driven by economic, political and moral interests, in which they will have different strengths vis-à-vis each other. International affairs always entail exercise of power, also through use of economic force. The concept of sovereign equality does not seek to escape this fact.124 Notwithstanding this factual inequality, states are
presupposed to be able to act as free rational agents who`s sovereign acts must be respected.125
Under this starting point, the choice of a weak state to agree to conditionality is not only lawful, it manifests a use of the state`s external sovereignty, and questioning the validity of this choice will consequently be to set limits thereto. Completely ignoring the immense inequalities between contracting parties do, however, constitute an oversimplification of the possibility to act as a free rational agent. As Weeramantry appropriately points out, the conclusion of a treaty for a developing country is
[T]heoretically the free act of a free consenting state, just as the borrowing of money by a needy individual in a domestic situation is theoretically the free act of a freely consenting individual. For centuries legal systems have functioned on the basis of this fiction of free consent, with the result that legal systems did not interfere with the terms of these transactions. Sociological legal theory however demonstrated the total unreality of this supposition, and came to the aid of the borrower through a series of statutory and common law protections.126
It is in such circumstances where the prohibition of using economic force towards weak states should come into the picture. Such a prohibition could limit the possibility for a strong state to take advantage of a situation where the weaker party has no possibility to maintain its interests. In such cases, the weaker party`s consent to be bound by an obligation can be illusory due to the economic conditions the stronger party sets. While officially consenting, the consent can thus be a result of coercion through economic use of force.
Research on use of conditionality in EU`s external relations supports the view that the (lack of) economic power of contracting parties has been decisive for whether conditionality has been agreed to or not. While agreements between EU and developing countries always have such clauses, Australia and New Zealand refused to have this as a part of their FTAs with the Union
124 Rather, it seeks to ensure a formal equality before international law, cf. Kokott, Sovereign Equality,
MPEPIL, 2011, paragraph 2.
125 Besson, Sovereignty, MPEPIL, 2011, paragraphs 97 and 104. This starting point is an extension of a
general presumption of legality of sovereign acts, cf. Idem paragraph 120 with reference to PJIC, August 17th 1923, Series. A No. 1(S.S. Wimbledon).
126 Weeramantry, Universalising International Law, 2004, p. 116. Although the quote is taken
from Weeramantry’s description of sovereignty and aid, he mentions on the very next page that the description equally fits international trade with developing countries, cf. Idem, p. 117.
because they found it too interfering.127 The fact that even Western human rights friendly states
reject the use of HRCCs reveal the interfering nature such clauses are considered to have. It is not possible to exclude all use of economic use of force in international relations. The issue then is how the line between lawfully offering and consenting to terms to a treaty and illegal use of economic force should be drawn. Since such limits are already developed in domestic legal systems, it is natural to use guidelines on coercion in domestic law as a starting point for the assessment. Wertheimer`s theory of coercion is a good outset in this connection: since the theory is all-encompassing, based on contract law, family law and criminal law,128 it is
sufficiently independent from the different sectors to give guidance also to international law. According to Wertheimer`s theory, coercion is present when a party accepts terms less beneficial than she would normally entitled or expected to.129 The content of such an
entitlement or expectation forms the party`s baseline, which is based on the result she could be expected to reach based on her power and circumstances.130 Conduct that makes the weaker
party accept less beneficial terms than what she is entitled to or expects thus amounts to coercion,131 and should be declared unlawful under the applicable law.132 While hard to directly
transpose in detail, conceptualizing the use of force through a theory of entitlement and expectations can form a starting point for setting a yardstick of which type of economic use of force in trade relations should be legal in international law.
Within the realm of conditionality, such entitlement or expectations could be based on a combination of power relations, the benefit the parties can achieve through the agreement and the normative links between the condition and the preference. While the two former
requirements must be assessed on a case-by-case basis, the normative links between the condition and the benefit can be assessed on more generally. This issue is already a component in ongoing debates in international law theory, both on a general level and in a specific context of trade and human rights.
4.2.1.
T
HE NORMATIVE RELATIONS BETWEEN TRADE AND HUMAN RIGHTS AND THECONSEQUENCE FOR THE LEGITIMACY OF CONDITIONALITY
How vague should the link between the condition and the benefit be in order to render the condition coercive? Both a wide and a narrow approach are possible. While the wide approach
127 Leino, European Universalism?, YEL 2005/24, p. 345 – 352.
128 Wertheimer, Coercion, 1987, p. vii
129 Honoré, A Theory of Coercion, Oxford J. Legal Stud. 1990/10, p. 94. 130 Idem, p. 97.
131 Ibid.
132 Idem, p. 94. Note that Wertheimer does not consider inequality between the parties to constitute
