Unilateralism and Power of Revision
© T.M.C. Asser Press and the author(s) 2015Ali Z. Marossi and Marisa R. Bassett (eds.)Economic Sanctions under International Law10.1007/978-94-6265-051-0_9
9. Unilateralism and Power of Revision
Hague Center for Law and Arbitration, Postbus 53291, 2505AG The Hague, The Netherlands
Ali Z. Marossi
International relations are based on finding common ground among the diverse interests of States while respecting the unique interests of each State with regard to its sovereignty. Although a reliable set of rules and policies for international cooperation is in the common interest of all States, achieving this is often complicated by the unilateral policies and decisions of State actors. The availability of exception clauses in international agreements and, in particular, the manner in which some States take recourse to those exception clauses questions the reliability and confidence in the current international legal system. Moreover, the lack of effective judicial review of the unilateral actions taken under such clauses leaves open the possibility for more unilateralism in international law. A consideration of relevant case law dealing with the invocation of exceptions reveals a possible strategy for strengthening judicial review to prevent unjustified unilateral actions by States.
The views expressed in this article are those of the author and do not reflect the opinions of any organizations or person. This chapter is an extract from some of the author’s research.
The laws of each society are based on prevailing social, economic, and political principles and interests. The tremendous variety of these ideologies inevitably produces conflicts between the laws of States transacting business in the international arena and the international legal norms applicable there. Resolving such conflicts in the absence of a universally accepted adjudicatory body is one of the greatest challenges to the concept of international cooperation. Unilateral actions taken on the basis of national security and national interest further complicate the legal landscape. Although the protection of these interests is vital to State engagement in international activities, the scope of States’ discretion to act unilaterally has been ill-defined under international agreements.
Common ground certainly exists for recognizing the importance of national security and national interests, and this universal understanding should inspire confidence rather than suspicion in interstate dealings. Nonetheless, the general reluctance to clearly delineate limitations on the protection of individual States’ interests has unfortunately given rise to actions such as unilateral sanctions against other States. Some States are reluctant to prioritize international common interests and further cooperation in the light of their national security concerns, leading to unilateral interpretation and sweeping application of national security exceptions. What is required to address this phenomenon is greater specificity in defining the scope of national security exceptions to international cooperation and a practical approach to resolving conflicts that arise from unilateralism.
9.2 Unilateralism versus Multilateralism in International Business
Unilateralism is an obstacle to international peace, cooperation, and rule of law. It is commonly understood as State conduct that considers only that State’s own interests in the international community. In contrast, multilateralism refers to conduct of a State acting together to further common interests of all States in the community.1
Contemporary international cooperation has changed the way States, businesses, and citizens interact and it has disrupted the traditional understanding of States and borders. This development tends to limit unilateralism while fostering multilateral cooperation and ensuring that all parties fully meet their obligations under international accords.2 Rule of law and predictability of actions and policies are the fundamental elements in the process of international cooperation.3 Where economic opportunities and political stability exists, there is a natural tendency to depart from unilateralism and embrace multilateralism. In this regard, partial denationalization of some components of national law is a means to depart from unilateralism and foster international cooperation.4
During the past decades the move toward unification and further international cooperation has caused many national laws and policies to become denationalized: domestic decisions are often taken under influence of international organizations.5 In this regard, certain multilateral or bilateral accords—notably bilateral economic treaties6—and agencies such as the WTO, UNCTAD,7 UNIDROIT,8 and UNCITRAL9 contribute to the credibility and enforcement of international law.10
There is no doubt that State sovereignty—a State’s ultimate supremacy over its internal and international affairs—still retains a fundamental place in international law and relations.11 Nonetheless, the conduct of relations between sovereign States, and even between States and private entities has changed. Therefore, a realistic evaluation of future international relations is necessary for a new definition of international cooperation. In light of this reality, many States and international organizations have recognized the need for a predictable and transparent system of laws and policies in the contemporary world.
Nevertheless, new developments in international community and the emergence of the Internet and cyberspace have challenged the traditional understanding of absolute sovereignty.
The proper role and definition of sovereignty in the contemporary business world has been much debated among scholars of international law. In this regard, some writers and international judges have already argued that State sovereignty can no longer be defined as absolutely as it once was.12 A couple of decades ago, ICJ Judge Alvarez in his Separate Opinion in the Corfu Channel Case stated:
This notion has evolved, and we must now adopt a conception of it which will be in harmony with the new conditions of social life. We can no longer regard sovereignty as an absolute and individual right of every State, as used to be done under the old law founded on the individualist regime, according to which, States were only bound by the rules they had accepted.13
Similarly, former UN Secretary-General Kofi Annan has addressed the impact of current international cooperation in redefining the concept of sovereignty:
State sovereignty, in its most basic sense, is being redefined not least by the forces of globalization and international co-operation. States are now widely understood to be instruments at the service of their peoples, and not vice versa. At the same time individual sovereignty by which I mean the fundamental freedom of each individual, enshrined in the charter of the U.N. and subsequent international treaties has been enhanced by a renewed and spreading consciousness of individual rights. When we read the Charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.14
Indeed, it could be said that current international cooperation, too, is making it necessary for all States, or even private parties, to enhance and redefine the traditional understanding of national borders and sovereignty.15
The establishment of the Internet and e-commerce may also cause us to rethink the concept of national border and State sovereignty in the borderless world of global business.16 The digital world, new methods of communication, and the manner in which people today conduct their online business transactions reflect a perception that cyberspace requires its own legal jurisdiction or multiple jurisdictions.17
9.3 Unilateralism and Recourse to Exception Clauses
Exception clauses in international agreements such as those premised on necessity18 and proportionality19 generally condition application of the agreement on the exercise of discretion by the interested States.20 For example Article 2(4) of the UN Charter states that all Members must refrain from the threat or use of force against other States. Under some circumstances, however, a State may take recourse to self-defense to justify its unilateral actions.21
Similarly, several international accords of the economic variety contain exception clauses for essential security interests. Article 2102 of NAFTA Chapter XXI22 and Article 24 the ECT23 provide for the protection of the essential security interests of the parties. The national security exception to the Article XXI of GATT also authorizes Member States to impose trade restrictions which they may consider necessary for the protection of their “essential security interests.”24
Although there may be common public policy grounds underlying the existence of rights and privileges, under the authorization of exception clauses, States have some margin of discretion to determine the scope of their own essential security interests.25
Certainly a State has no absolute discretion to implement its own understanding of exception clauses because all such determinations are subject to review by various international bodies.26 In fact, resorting to exception norms in international relations reduces legal certainty, causing more unilateral action by governments.27 In this regard, international adjudicatory bodies can provide some important guidance on how to apply international law and exception clauses, especially by highlighting the need to balance the legality of unilateral actions by an individual State with its commitments under international law.
9.4 National Security and Unilateralism
There is no a consensus among States or international courts and tribunals on defining national security.28 Therefore, operative meaning of national security will vary for any given State depending on its approach and understanding of this concept in particular circumstances.29 As a general definition, the concept of national security refers to ensuring the protection of a State’s interests through the exercise of its power.30 In any case, the elasticity of the concept allows some States to invoke claims of national security to justify their unilateral actions against other countries.31
In the context of international economic cooperation, the WTO allows States to challenge each other’s laws and regulations before the Dispute Settlement Body (DSB).32 However, Article XXI of the GATT provides that a State cannot be prevented from taking any action it considers necessary for the protection of its essential security interests. As such, some activities of the Members are exempt from challenges under WTO regulations.33
Sovereignty and national security concerns can be invoked by a Member State as a justification to argue that issues related to GATT Article XXI should remain outside the jurisdiction of WTO dispute settlement bodies.34 The US Cuban Liberty and Solidarity Act, commonly known as the Helms–Burton Act,35 which was subject of a dispute between the United States and the EU, is as an example of how Article XXI acts as both a sword and a shield in this context. When the United States passed the Helms–Burton Act on 12 March 1996, some WTO Member States considered it an action to impose US law extraterritorially, undermining their rights under the WTO agreements.36 The EU challenged the action by initiating a case before the DSB.37 The United States defended the legislation on national security grounds and argued that its action was authorized under GATT Article XXI.38 Eventually, the United States and the EU settled their differences outside of the WTO dispute settlement system.39
9.5 Unilateral Actions and the Power of Revision
All parties to an international agreement must act appropriately to fulfill their obligations under that agreement. However, when questions of interpretation of a binding legal text arise, national and international courts may approach the issue differently. International bodies give precedence to international jurisdiction and customary international law, while national courts often give precedence to their own national legislation and policies.
Almost all States and international organizations recognize the right of States to protect their national security and confidential information.40 However, certain questions remain. What is the solution when a State or an individual believes that a decision by a State Party’s national authorities violates or deprives it of its international rights? And, more importantly, what is the practical consequence of a determination that the national authority’s decision was unlawful?
There is no clear rule or binding jurisprudence to determine the authority of an international adjudicatory body to review national authorities’ decisions. There are two main approaches. The judicial restraint approach limits the international forum’s ability to review the decisions of national authorities, whereas the judicial review approach grants adjudicatory bodies enough power to review the issue and come to different conclusions from those of national authorities.41
9.5.1 Respect for National Authorities’ Discretion
Under the judicial restraint approach, international bodies limit the exercise of their power and leave national authorities with some degree of discretion in the process of executing their international obligations.42 Several cases, including two cases—LaGrand 43 and Avena 44—before the ICJ and Case B1 (claim IV)45 before the IUSCT, contribute to understanding the judicial restraint approach.
In LaGrand, the ICJ considered Germany’s legal action against the United States to protect German nationals’ rights to consular assistance under the Vienna Convention on Consular Relations (VCCL).46 The ICJ left to the United States’ discretion the choice of means for carrying out its international obligation and held:
The Court considers in this respect that if the United States, notwithstanding its commitment … should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States.47
In Avena, which also concerned the rights of foreign national criminal defendants under the VCCL, the ICJ upheld the United States’ right to determine the process of reviewing its authorities’ decisions48 but concluded that the margin of discretion afforded to national authorities is not unlimited:
[T]he Court acknowledged that the concrete modalities for such review and reconsideration should be primarily left to the United States. It should be underlined, however, that this freedom in the choice of means for such review and reconsideration is not without qualification…49
From the IUSCT’s point of view, the exercise of a sovereign right by a party is not subject to review by that Tribunal. In Case B1(claim IV),50 Iran claimed that the purpose of the General Declaration was to ensure the transfer of all Iranian properties held by the United States.51 Paragraph 9 of the General Declaration between Iran and the United States (known together with other agreements as the Algiers Accords) obliges the United States to “arrange … for the transfer to Iran” of all Iranian properties subject to the provisions of US law applicable prior to 14 November 1979.52