11. Improving Compliance: Jus Cogens and International Economic Law

1945 Charter of the United Nations, 557 UNTS 143.

Müller and Wildhaber 2001 at 104–105. They state that jus cogens amounts to an expression of protecting international order public and fundamental human rights.

Shaw 2014, at 88 ff; Shelton 2006, at 291, 297–298 and 302 ff.

de Schutter 2014, at 87 ff.

Nieto-Navia 2001, at 8–9, 15 ff and 20–21; Frowein 2009, at 443 ff.

1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331. See also Crawford 2012, at 591 ff; Shelton 2006, at 298 ff.

d’Aspremont 2016.

Nieto-Navia 2001, at 9 ff and 15 ff; Stephan 2011, at 1077–1078, 1096 ff and 1104.

Frowein 2009, at 443–444.

Marceau 2002, at 799; but see Costello and Foster 2016.

Shaw 2014, at 88 ff; de Schutter 2014, at 91; Nieto-Navia 2001, at 1, 18 and 20 ff.

The Swiss Constitution bars popular initiatives violating peremptory norms of public international law. Article 139(3) of the Constitution stipulates the following: ‘3. If the initiative fails to comply with the requirements of consistency of form, and of subject matter, or if it infringes mandatory provisions of international law, the Federal Assembly shall declare it to be invalid in whole or in part.’

In a populist initiative launched in 2015 by the national-conservative Peoples’ Party (SVP/UDC) seeking to redefine the relationship between international law and domestic law away from monism to dualism, the respect of mandatory norms of international law is not questioned. The Initiative is called ‘Schweizer Recht statt fremde Richter (Selbstbestimmungsinitiative)’, to be translated into ‘Swiss Law instead of Foreign Judges (Self-determination Initiative)’. Volksinitiative ‘Schweizer Recht statt fremde Richter (Selbstbestimmungsinitiative)’. www.​svp.​ch/​kampagnen/​uebersicht/​selbstbestimmung​sinitiative/​um-was-geht-es/​. Accessed 10 June 2015. This is particularly relevant in relation to the principle of non-refoulement in the law of refugees and penal extradition. There is controversy as to whether Article 139 entails a notion of jus cogens in constitutional law which may deviate from international law, or whether it refers to public international law. The absence of a catalogue and qualification of peremptory norms in the Constitution means that reference is made to international law. The provision is further informed by the obligation to respect international law, and thus clearly respect minimal standards in international law. The constitution may adopt a more expansive list of what is considered jus cogens for the purpose of constitutional law.

Nieto-Navia 2001, at 18 ff.

Article 41 of International Law Commission, Draft articles on the responsibility of states for internationally wrongful acts, with commentaries, 53rd session of the ILC, UN Doc. A/56/10, 2001.

Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), ICJ, Second phase, Judgment of 5 February 1970, paras 33–36.

de Schutter 2014, at 91 ff.

Cottier 1998, at 336–350; Palmeter and Mavroidis 2004, at 300 ff.

Nadakavukaren Schefer and Cottier, at 123 ff.

In the United Kingdom, the Slavery Abolition Act was adopted in 1833 (much due to the effort of Zackary Macaulay and William Wilberforce). Encyclopedia Britannica, William Wilberforce. http://​www.​britannica.​com/​EBchecked/​topic/​643460/​William-Wilberforce. Accessed 10 May 2015. See also Ferguson 2003, at 116–118.

Shelton 2006, at 294; Weissbrodt and Anti-Slavery International 2002, at 12 ff.

McCrudden 1999, at 5–6; Crawford 2012, at 591 ff.

Nieto-Navia 2001, at 2 ff.

The US is not a contracting state to the VCLT. It signed the Convention in 1970, but refrained from adopting and ratifying the instrument while accepting most of its provisions to amount to customary international law. Shelton 2006, at 298 ff.; Nieto-Navia 2001, at 9.

Cottier 2009, at 16 ff., 23 ff.

Petersmann 2012, at 288 ff.; 475 ff.; Shelton 2006, at 292, 306–307 and 317 ff.

Klabbers et al. 2009, at 153 ff.

See Vadi 2016.

Petersmann 2012, at 35 ff.; Cottier 2011, at 503 ff.

van den Bossche 2008, at 38–37; Cottier and Oesch 2005, at 350 ff. and 382 ff.

1994 General Agreement on Tariffs and Trade, 1867 UNTS 187.

Cottier and Oesch 2005, at 552 ff.

WTO Ministerial Conferences, Official Documents of the Geneva Ministerial, 2011. https://​www.​wto.​org/​english/​thewto_​e/​minist_​e/​min11_​e/​official_​doc_​e.​htm. Accessed 8 May 2015.

Cottier and Oesch 2005, at 58 and 412 ff.; van den Bossche 2008, at 331 and 381; Conrad 2011, at 20 ff.; Holzer 2014.

European Communities—Measures Prohibiting the Importation and Marketing of Seal Products (European Communities v. Canada), WTO, Appellate Body Reports, WT/DS400/AB/R and WT/DS401/AB/R, 22 May 2014, paras 2.152–163, 5.3, 5.10 and 5.12.

The Appellate Body held the following: ‘Finally, we note that, in US—Shrimp, the Appellate Body stated that it would not “pass upon the question of whether there is an implied jurisdictional limitation in Article XX(g), and if so, the nature or extent of that limitation”. The Appellate Body explained that, in the specific circumstances of that case, there was “a sufficient nexus between the migratory and endangered marine populations involved and the United States for purposes of Article XX(g)”. As set out in the preamble of the Basic Regulation, the EU Seal Regime is designed to address seal hunting activities occurring “within and outside the Community” and the seal welfare concerns of “citizens and consumers” in EU member States. The participants did not address this issue in their submissions on appeal. Accordingly, while recognising the systemic importance of the question of whether there is an implied jurisdictional limitation in Article XX(a), and, if so, the nature or extent of that limitation, we have decided in this case not to examine this question further.’ Ibid., para 5.173.

United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services (Antigua and Barbuda v. United States), WTO, Appellate Body Report, WT/D5285/AB/R, 7 April 2005, paras 51, 72 and 103.

1994 WTO Agreement on Technical Barriers to Trade, 1868 UNTS 120. van den Bossche 2008, at 806 ff.; Cottier and Oesch 2005, at 750 ff.; Conrad 2011, at 52 ff. and 374 ff.

WTO, Technical information on technical barriers to trade. www.​wto.​org/​english/​tratop_​e/​tbt_​e/​tbt_​info_​e.​htm. Accessed 3 May 2015.

Conrad 2011, at 65 ff. and 425 ff. In relation to labour standards, see Denkers 2008, at 111–141.

See International Law Commission, Fragmentation of international law: difficulties arising from the diversification and expansion of international law, Report of the Study Group of the International Law Commission, 58th session, UN Doc. A/CN.4/L.682, 13 April 2006; Collins 2011, at 137 and 153 ff.

Marceau 2002, at 799.

Article 3.2 of the 1994 Understanding on Rules and Procedures Governing the Settlement of Disputes, 1869 UNTS 401.

See Marceau 2002, at 756, 778 (n76 and n78), 795, 796 and 802. While conflicts between WTO law and jus cogens are unlikely and can be avoided by means of interpretation and application, jus cogens prevails in case of conflict, removing the application of WTO norms inconsistent with jus cogens. As Marceu put it, ‘[i]n the case of jus cogens, the inconsistent WTO provision is automatically invalidated.’ Ibid., at 802.

Hughes and Haworth 2011, at 23 ff.

Ibid.; Elliott and Freeman 2003, at 11–12. See also ILO Declaration on Fundamental Principles and Rights at Work, 86th session of the International Labour Conference, 18 June 1998.

Humbert 2009, at 114 ff.; Weissbrodt and Anti-Slavery International 2002, at 3; Smith 2005, at 461 ff.

Kaufmann 2007, at 78–79, 87 ff. and 92 ff.; Gross and Compa 2009, at 7 ff.; Denkers 2008, at 111 ff.

Kaufmann 2007, at 234 ff.

van den Bossche 2008, at 615–616 and 650–651.

Shelton 2006, at 301 ff.

1994 General Agreement on Tariffs in Services, 1869 UNTS 183.

Cottier and Oesch 2005, at 428 ff.; van den Bossche 2008, at 615 ff.

1992 North American Free Trade Agreement, 32 ILM 289.

Kofi Addo 2015, at 216 ff.; Kaufmann 2007, at 188 ff.

Cottier 2002; Jackson 2006, at 20 ff.

Breining-Kaufmann 2005, at 95 ff.

See Marceau 2002.

Pauwelyn 2005, at 212 ff.

Called the National Security Exception and UN Sanctions. Cottier and Oesch 2005, at 468 ff.; van den Bossche 2008, at 664 ff.

Barcelona Traction, Light and Power Company, Limited, at 3 and 32; Nieto-Navia 2001, at 14; Shelton 2006, at 314.

Marceau 2002, at 756 and 795 ff.

Nadakavukaren Schefer and Cottier 2015, at 127 ff.

Hilpold 2015, at 2 ff. and 16 ff.; Nadakavukaren Schefer and Cottier 2015, at 16 ff.

Valenti 2014, at 27 ff.; Barbieri 2014, at 131 ff.

Perfetti 2014, at 308 ff.

Cottier and Oesch 2005, at 969 ff.

Dimsey 2013, at 161 ff.

United Nations Office of the High Commissioner for Human Rights, Guiding principles on business and human rights: implementing the United Nations ‘protect, respect and remedy’ framework, HR/PUB/11/04, 2011, at 3 ff.

Nadakavukaren Schefer and Cottier 2015, at 125 ff.; Gass 2013, at 137 ff.; Wilske and Obel 2013, at 180 ff.; Tamada 2015, at 107 ff.

Polanco Lazo 2015, at 430 ff.

Section 1504 Dodd–Frank Wall Street Reform and Consumer Protection Act, Pub.L. 111-203, H.R. 4173; Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC Text with EEA relevance; Directive 2013/50/EU of the European Parliament and of the Council of 22 October 2013 amending Directive 2004/109/EC of the European Parliament and of the Council on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market, Directive 2003/71/EC of the European Parliament and of the Council on the prospectus to be published when securities are offered to the public or admitted to trading and Commission Directive 2007/14/EC laying down detailed rules for the implementation of certain provisions of Directive 2004/109/EC Text with EEA relevance. See Reilkoff 2014, at 2435 ff.; and Mattfess 2012.

OECD 2011, at 30, 34, 48–49, 61, 71 and 85 ff.

United Nations Conference on Trade and Development, Investment and Enterprise Responsibility Review, UNCTAD/DIAE/ED/2010/1, August 2010, at 31 and 34 ff.; United Nations Office of the High Commissioner for Human Rights, Guiding principles on business and human rights: implementing the United Nations ‘protect, respect and remedy’ framework, HR/PUB/11/04, 2011, at 13 ff.

For a detailed discussion, see Cottier and Wermelinger 2014, at 86 ff.

1994 Agreement on Trade-Related Aspects of Intellectual Property Rights, 1869 UNTS 299 (TRIPs Agreement).

Article 41 TRIPs Agreement.

Nike Inc. was condemned to pay damages for false information on labour practices in Vietnam, based upon the State of California unfair competition act. The US Supreme Court denied certiorari: Kasky v. Nike, Inc., California Supreme Court, 45 P 3d 243 (Cal. 2002); and Kasky v. Nike, Inc., US Supreme Court, 539 U.S. 654 (2003). For further information, see Cottier and Jevtic 2009, at 669 ff.; Cherry and Sneirson 2011, at 1028 ff.; Besmer 2006, at 279 ff.

Cottier and Wermelinger 2014, at 86 ff.

Howse 2014, at 317 ff.

Marceau and Maughan 2014, at 358 ff.

Philip Alston, Special Rapporteur, Report of the Special Rapporteur on extreme poverty and human rights, 70th session of the GA, UN Doc. A/70/274, 4 August 2015.

Shelton 2006, at 292, 305, 317 and 321–322.

Nieto-Navia 2001, at 2.

Shaw 2014, at 5, 69 ff., 595 ff. and 654 ff.

Cottier and Oesch 2005, at 143 ff.; van den Bossche 2008, at 235 ff.

Shaw 2014, at 73 and 83–84.

Nieto-Navia 2001, at 14.

For a detailed discussion, see Cottier et al. 2014, at 3 ff.

1992 United Nations Framework Convention on Climate Change, 1771 UNTS 107.

1992 Convention on Biological Diversity, 1760 UNTS 79.

Preamble para 3 of the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture, 2400 UNTS 303.

2003 Convention for the Safeguarding of the Intangible Cultural Heritage, 2368 UNTS 1.

Cottier et al. 2014, at 19 and 25.

Nadakavukaren Schefer and Cottier 2015, at 6 ff.

Ibid., at 14 ff.; Cottier et al. 2014, at 5 ff.

Shaw 2014, at 86–87.

Cottier et al. 2014, at 20 ff.

Nieto-Navia 2001, at 2–3.

Cottier et al. 2014, at 5 ff.

Nadakavukaren Schefer and Cottier 2015, at 136–137; Bellamy 2015, at 38 ff.