3. Trade War

A historical collection of embargoes can be found in Lindemeyer (1975), pp. 242–359 and Dicke (1978), pp. 208–221. A more recent example is the embargoing of individuals and legal entities involved in the construction of the Nord Stream 2 pipeline project by the United States (see Sec. 7503 of the National Defense Authorization Act for Fiscal Year 2020 (NDAA), also known as the Protecting Europe’s Energy Security Act of 2019, (Senate Bill No. 1790 — 116th Congress (2019–2020), signed into law on 20 December 2019)), which the German Federal Government rejected as extraterritorial “sanction” and referred to as an interference in European affairs (see Bundesregierung 2019).

The Economist (1973a), p. 95.

Often, even in contemporary sources, named after the Emirate Abu Dhabi.

The Economist (1973a), p. 95.

Mabro (2007), p. 56.

Shihata (1974), p. 592 (fn. 9). Many economists argue that oil was artificially cheap before (and some would even say after) the Oil Shock. For an economic justification of the price increase see Schmidt (1974), p. 444; Shihata (1976), pp. 270–274. Furthermore, the figure of 70 percent has to be interpreted carefully as it is the relative increase of the posted price of Arabian Light, a reference price, which did not translate proportionally into a rise of final prices (Mabro 2007, pp. 56, 59).

Also: Six-Day War or June War (Bregman 2012, pp. 1, 4).

Itayim (1974), p. 85; Dicke (1978), p. 216; Lindemeyer (1975), pp. 283–284. Equivalently noteworthy is the Council of the Arab League’s 1954 (unanimously) adopted resolution “Unified Law on the Boycott of Israel”, which forbid the citizens and residents of the member states of the Arab League to conclude agreements or conduct transactions with Israelis (widely defined) and companies with business premises in Israel, to import Israeli goods (again, widely defined), and to export or transit goods destined for Israel or for the aforementioned persons (Council of the League of Arab States, Resolution 849 of 11 December 1954 reprinted in part in Lowenfeld 1977, pp. 26–27 and in full in Joyner (1977), p. 356); for legal issues see Joyner (1984), pp. 216–221.

Lindemeyer (1975), pp. 284–285.

Mabro (2007), p. 56.

Shihata (1974), p. 609 does not rule out that the decisions were taken as OAPEC’s, stating: “It is not clear, however, whether these resolutions should be treated as resolutions of OAPEC’s Council of Ministers, or merely as the result of ad hoc meetings of the Ministers of Oil of member countries in their respective capacities.”

Alhajji (2005), p. 24.

Founded on 9 January 1968 by Saudi Arabia, Kuwait, and Libya; today, OAPEC has ten members: In addition to its founding members, Algeria (1970), Bahrain (1970), Egypt (1973), Iraq (1972), Qatar (1970), Syria (1972), and United Arab Emirates (1970) (Tunisia joined OAPEC in 1982; upon its request, its membership was suspended from 1986) (see OAPEC 2018).

Alhajji (2005), p. 25; see generally on the division of the Arab states on this matter Itayim (1974), p. 89. On 21 October 1973, Iraq nationalized 14.25 percent of the Netherlands’ indirect holding in the Basra Petroleum Company, see Shihata (1974), p. 595.

See Alhajji (2005), p. 25, who also claims that decisions on production required unanimous decisions, an assertion which is not reflected in the OAPEC articles. Non-binding recommendations only require a simple majority (cf. Art. 11 (d) Agreement of the Organization of Arab Petroleum Exporting Countries - OAPEC Agreement – 7 International Legal Materials 759 (1968)). The OAPEC Agreement also allows three-quarters majority votes, including two of the founding members, for statutes and resolutions on substantive issues (Art. 11 (c) of the OAPEC agreement). It would thus seem the OAPEC Agreement contains no legal barrier obstructing a decision of the OAPEC.

Shihata (1974), p. 596.

A mechanism obviously intended to ensure that friendly countries could not demand more than usually and re-sell to neutral or hostile countries, see Lindemeyer (1975), p. 286.

Mabro (2007), p. 57; Alhajji (2005), p. 26; for a list see Itayim (1974), p. 92.

Jordan, Lebanon, Tunisia, Pakistan, and Malaysia were also considered friendly, at a later point in time also Taiwan and South Korea, see Lindemeyer (1975), pp. 286, 290.

Being heavily oil-dependent, Japan was later accorded special treatment due to its change of policy in the face of rapid economic demise (Lindemeyer 1975, p. 288). Greece and Italy were partly embargoed due to their supply of United States navy vessels (Itayim 1974, p. 92).

Miller (2013), p. 156. Along with these nations, also their suppliers such as Canada and Guam for the United States or the Dutch Antilles for the Netherlands were embargoed (Itayim 1974, p. 92). Portugal, South Africa and (Southern) Rhodesia were also considered “hostile”, which had to do with the implementation of UN sanctions on these states (cf. Shihata 1974, p. 621; Lindemeyer 1975, pp. 308–331, 337–345). Canada reportedly also suffered from a total embargo, Lindemeyer (1975), p. 286.

Shihata (1974), pp. 594–595.

Boorman (1974), p. 207.

Conference of Arab Oil Ministers, Communique following meeting in Kuwait, November 4–5, 1973, reprinted in Paust and Blaustein (1977), p. 46.

Shihata (1974), p. 625.

This is even admitted by Shihata (1974), p. 609.

Cited in Paust and Blaustein (1977), pp. 44–45.

The Economist (1973a), p. 95.

As does the Vietnam or American War, this war has different names depending on the perspective: October War, Yom Kippur War, Ramadan War (Bregman 2012, pp. 1, 5–6).

Mabro (2007), p. 56; Bregman (2012), p. 5.

The Economist (1973a), p. 95 reported only 4 to 6 percent of United States crude oil being imported from Arab nations. If one also takes into account oil products refined from Arab crude oil, the figure would be 10 percent. The numbers presented by Shihata are far higher (28 percent of total consumption), see Shihata (1974), pp. 594–595. On the relatively small effect of the embargo on the United States see also Muir (1974), p. 187. By comparison, Japan imported the bulk of oil, accounting for three-quarters of the state’s energy needs, from the embargoing Arab states, cf. The Economist (1973b), p. 83.

Paust and Blaustein (1977), p. 10; Alhajji (2005), p. 25; Itayim (1974), p. 91.

Paust and Blaustein (1974), p. 412; see also Arab Oil Ministers, Resolution on Lifting Oil Embargo Against the U.S., Kuwait, December 8, 1973, reprinted in Paust and Blaustein (1977), pp. 65–66.

Mabro (2007), p. 58; Alhajji (2005), p. 26; Lindemeyer (1975), pp. 289–290.

Lindemeyer (1975), p. 290. The account for Denmark is puzzling. Some authors report the nation was treated as a hostile state and fully embargoed which does not seem to be true according to historians: Denmark received special attention albeit not for its support of Israel but for remarks made regarding the embargo; it appears that this special attention was merely a threat to totally cut off Denmark’s oil supplies, which was never realized (Mogens 2014, pp. 100–101). It is also reported that the cut-backs against Denmark were not lifted together with the end of the embargo against the United States (Boorman 1974, p. 208).

Mabro (2007), pp. 57–58 speaks of a “blunt instrument”; Licklider (1988). The question is not entirely undisputed, see Graf (2012).

It should be noted that the contemporary legal discourse of the issue was intense, with palpable personal or political sympathies and bias for one side or the other in more than a few publications. Some authors openly admitted that maintaining objectivity was difficult while under the impression of vulnerability of American and European states, created by pressure from what were then considered “minor” players on the global plane (Bilder 1977, p. 45). Adding to these tendencies, it is difficult to keep the question of whether the use of the Arab oil weapon was legal under international law separated from the complicated and delicate questions of the legality of the Israeli occupation of the disputed territories and the joint Egyptian and Syrian attempt to re-claim them (see, for instance, Shihata 1974, pp. 598–608). The latter question is one to fill many volumes and its countless controversies lie beyond the scope of this work. These latter issues will deliberately be omitted in the following as they concern military altercations and thus have no bearing on the focus of this work.

Some legal scholars were quicker than that, commenting in major newspapers, for instance Stone (1973) (whose accusation of a breach of Art. 53 UN Charter was even rejected by the most audible critics of the Arab oil weapon: Paust and Blaustein (1974), p. 430; another early commentator on the issue was Richard N. Gardner (quoted by Paust and Blaustein 1974, p. 426 (fn. 65)), who later published his views: Gardner (1974).

Paust and Blaustein (1976a), p. 419. However, Paust and Blaustein also did not rule out that the use of the Arab oil weapon constitutes even an armed attack within the sense of Art. 51 UN Charter (Paust and Blaustein 1976a, p. 419).

Paust and Blaustein (1976a), p. 419.

Paust and Blaustein (1976a), p. 424.

Paust and Blaustein (1976a), p. 424. See especially fn. 58 as to the interpretation of Art. XXI (b) (iii) GATT 1947.

Paust and Blaustein (1976a), pp. 424–426. Although not expressly referred to, the authors were probably invoking the 1933 United States-Saudi Arabia Provisional Agreement in Regard to Diplomatic and Consular Representation, Juridical Protection, Commerce, and Navigation (142 L.N.T.S. 329), Art. III; the 1958 United States-Oman Treaty of Amity, Economic Relations, and Consular Rights (380 U.N.T.S. 181), Art. V:1; and the 1938 United States-Iraq Treaty of Commerce and Navigation (203 L.N.T.S. 107), Art. II (all of which are still in force today, see United States Department of State 2017, pp. 211, 336, 389).

Shihata (1974), p. 591 (prior to fn. 1). As could be Paust and Blaustein’s, Shihata’s arguments might be biased and thus have to be read with caution (Dicke 1978, p. 217). A contemporary commentary also shows that Paust and Blaustein’s assertions were not well received by the legal community, see Smith (1976) (response: Paust and Blaustein 1976b). See also Lillich (1975), p. 361: “knee-jerk response of Western international lawyers to the Arab oil embargo”.

Shihata (1974), p. 617.

See fn. 27 above.

Shihata (1974), p. 622.

Shihata (1974), p. 622; see also Shihata (1976), pp. 265–266.

Jackson (1997), pp. 233–234.

Shihata (1974), pp. 623–625.

Shihata (1974), p. 616.

Shihata (1974), pp. 609–615. For the sake of completeness, it should be noted that in an unanswered reply, Paust and Blaustein in 1976 reaffirmed the stance they had taken earlier and attempted to rebut Shihata’s arguments, mainly relying on normative reasoning and different interpretation of the facts (Paust and Blaustein 1976a, p. 59—not cited once by what would seem to be Shihata’s last contribution on the subject: Shihata 1976). Significant new lines of argument were not presented.

Boorman (1974), pp. 229, 231 finds no violations of international law by the use of the oil weapon; Bilder (1977), pp. 43, 45; Lowenfeld (1977), pp. 28 et seqq. at least agreed with Shihata’s assessment that the United States was a frequent user of boycotts and embargoes (in the context of an earlier Arab boycott and embargo, see fn. 8 above and Sect. 6.​1.​1.​2); unclear: Dempsey (1977), pp. 263–280. It should be noted that these authors did not expressly side with Shihata.

Bowett (1976), p. 245; Boorman (1974), p. 231; Brosche (1974), p. 34 is very careful to adopt a wider interpretation: “current trends are clearly towards a broader interpretation of this principle”.

Buchheit (1974), p. 988.

Buchheit (1974), p. 1010.

Lillich (1975), p. 361 sided with Paust and Blaustein, pointing out the hypocrisy of the Arab states, which backed UN efforts to outlaw certain forms of economic warfare, but then made use of them, eventually finding “strong support for the proposition that at least certain types of economic coercion now violate international law”. He also supported the view that the GATT and bilateral agreements had been violated (Lillich 1975, p. 363). Gardner’s assessment went in the same direction (Gardner 1974, pp. 563 et seqq., 567).

Boorman (1974), pp. 215, 217–218, 231 (GATT 1947 and the bilateral agreements due to the pertinent exceptions). Bowett followed suit, contemplating a violation of the principle of non-intervention, which is, inter alia, enshrined in the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (1970 Declaration) (General Assembly Resolution 2625 [XXV] of 24 October 1970. Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, A/RES/25/2625). Aware that the mere adoption of acts by international organizations’ bodies such as the UN General Assembly could not outline the dimensions of the principle of non-intervention as binding international law, he remained cautious on formulating a violation of the customary international law principle of non-intervention by the embargoing states (Bowett 1976, p. 246; on the principle of non-intervention see Shaw 2017, p. 874; on the value of acts of international organizations as sources of international law see generally Malanczuk 1997, pp. 52–54).

Bowett (1976), pp. 248–249. The next chapter is dedicated to questions of international investment law (below Chap. 4).

Bowett (1976), pp. 247, 251 (regarding GATT 1947).

Lillich (1975), pp. 364–371; Schmidt (1974); Shihata (1976); Gardner (1974), pp. 569–573; Bowett (1976), pp. 254–258.

For other, more recent examples see, for instance, Berger (2020); Suzuki (2020); Abe (2020); Hayashi (2020); Orakhelashvili (2015); Dupont (2016); Orakhelashvili (2019), pp. 517 et seqq.; for examples relating to sanctions by the Organization of American States see Thouvenin (2020), p. 89.

Which was not least due to the indifference of the British people regarding the subject in general, a vehement rejection when it came to military action, and belief in the effectiveness of the measures (Hasse 1977, pp. 48, 77). By contrast, the Falklands/Islas Malvinas affair took a different turn. Sanctions are to the present day a frequently used measure of economic warfare as is proven lately by recent EU sanctions (fn. 63 and Chap. 2 fn. 189 above).

Asada (2020), p. 1 (fn. 1); Schrijver (1994), p. 129; Gowlland-Debbas (1990), p. 445.

The following draws on Moorcraft (1990) and Parsons (1988) if not indicated otherwise.

First established by their eponym Cecil Rhodes, see McDougal and Reisman (1968), p. 1 (also on the earlier colonial history).

Schrijver (1994), p. 130.

The declaration of independence dated 11 November 1965 is reprinted in Hasse (1977), pp. 266–267. Independence was primarily declared in an attempt of the governing white minority to prevent or at least postpone the (inevitably black) majority rule which loomed due to British transition plans for the colony: A policy named “no independence before majority rule” (NIBMAR) (McLean and McMillan 2018, entry ‘majority rule’; Hasse 1977, pp. 47–48).

Gowlland-Debbas (1990), p. 200. Legally, Rhodesia was a nullity and Southern Rhodesia the proper denomination under British constitutional law, McDougal and Reisman (1968), p. 1 (fn. 1).

Also known as Zimbabwe War of Liberation. For contemporary testimony see Mlambo (1974).

Shaw (2017), p. 163.

For prior activity of the UN in matters relating to Southern Rhodesia see Mudge (1967), pp. 56–58; Cefkin (1968), pp. 651–656.

General Assembly Resolution 2024 [XX] of 11 November 1965. Question of Southern Rhodesia, A/RES/2024 (XX); Security Council Resolution 216 (1965) of 12 November 1965, S/RES/216 (1965); the unilateral declaration of independence was declared illegal in Security Council Resolution 217 (1965) of 20 November 1965 - Res. 217 (1965) - S/RES/217 (1965); a legal critique of these resolutions is given by Hopkins (1967), pp. 2–3; see also Shaw (2017), pp. 163, 348.

The United Kingdom almost immediately after the unilateral declaration of independence stopped exporting weapons, spare parts, and capital; it ejected Southern Rhodesia from the Commonwealth tariff preference system and the sterling; later on, it curtailed all exports and imports by 95 percent and enforced an oil embargo. Putting effect to these measures took time, however (Hasse 1977, pp. 78–79; Lindemeyer 1975, pp. 308–309).

Gowlland-Debbas (1990), pp. 393, 445; Lindemeyer (1975), p. 307.

On the implication of this wording see Asada (2020), pp. 6–7.

Res. 217 (1965) para. 8; see Hasse (1977), pp. 84–85.

Security Council Resolution 221 (1966) of 9 April 1966 - Res. 221 (1966) - S/RES/221 (1966), para. 1. See Shaw (2017), p. 948 (before that only in relation to the 1948 war in the Middle East, Security Council Resolution 54 (1948) of 15 July 1948, S/RES/54 (1948), para. 1). Gowlland-Debbas (1990), p. 445 does not share this opinion, alas without hinting at prior resolutions.

Res. 221 (1966) para. 6.

Res. 221 (1966) para. 6.

Nkala (1985), pp. 102–109; Fawcett (1965–1966), pp. 118–121; Hopkins (1967), p. 3; Schrijver (1994), p. 130; Henderson (2018), p. 105; Muir (1974), p. 191 who assumes this was the invocation of a naval blockade.

Gray (2018), pp. 266–267; Henderson (2018), p. 105.

Security Council Resolution 232 (1966) of 16 December 1966 - Res. 232 (1966) - S/RES/232 (1966), recital 4; Hasse (1977), pp. 92–94.

Res. 232 (1966) para. 2.

Res. 232 (1966) paras 5, 7.

Lindemeyer (1975), p. 3012; for a legal analysis see Gowlland-Debbas (1990), pp. 526 et seqq.

Res. 232 (1966) para. 8. See Lindemeyer (1975), p. 312.

Hasse (1977), p. 92 (using the term “embargo”).

Res. 253 (1968) para. 4.

Res. 253 (1968) para. 20.

Lindemeyer (1975), p. 315.

Hasse (1977), p. 102.

Res. 277 (1970) para. 21; see Schrijver (1994), p. 130.

Cf. Cefkin (1968), p. 650.

Res. 314 (1972) para. 3.

Pub. L. No. 92-156, 85 Stat. 423, 427 (1971) (codified at 50 U.S.C. §§ 98 to 98c (1972)), available at https://​www.​gpo.​gov/​fdsys/​pkg/​STATUTE-85/​pdf/​STATUTE-85-Pg423.​pdf (accessed 14 January 2021). See Carter (1988), pp. 181–182 (also with an overview of how the UN sanctions were implemented in United States domestic law); Shaw (2017), p. 125.

Security Council Resolution 318 (1972) of 29 July 1972, S/RES/318 (1979) and Security Council Resolution 320 (1972) of 29 September 1972, S/RES/320 (1972).

Hasse (1977), pp. 143–244 analyses comprehensively the weaknesses of the sanctions. Even contemporary economists did not reach the conclusion that the sanctions were effective McKinnell (1969), pp. 563 et seqq. See also Gowlland-Debbas (1990), pp. 557 et seqq.; Nkala (1985), pp. 211 et seqq.; Galtung (1967); Gasser (1996), p. 889; unsure: Cefkin (1968), p. 667.

For other issues see comprehensively Gowlland-Debbas (1990); Nkala (1985); and Zacklin (1974); see also McDougal and Reisman (1968); Stephen (1974).

Dreijmanis (1968), p. 373.

Bulgaria and Mali also abstained. All states but France abstained because they felt the sanctions did not go far enough; France viewed the whole matter as an internal, British one (Lindemeyer 1975, p. 311 (fn. 38)).

Goodrich and Hambro (1946), pp. 133–134; Stone (1954), pp. 204–207.

The “Protocol of Entry into Force of the Amendments to Articles 23, 27 and 61 of the Charter of the United Nations adopted under General Assembly resolutions 1991 A and B (XVIII) of 17 Dec 1963” is annexed to UN Document No. A/6019 (27 September 1965).

Stavropoulos (1967), pp. 738–739.

Hopkins (1967), p. 5; Cefkin (1968), p. 664; on this earlier practice see Goodrich and Hambro (1946), pp. 133–134; Stone (1954), pp. 204–207.

Stavropoulos (1967), pp. 750–752.

Gowlland-Debbas (1990), pp. 495–496; Zimmermann (2012), paras 182–188; recent works on the UN only marginally touch upon the issue, cf., for instance, Higgins et al. (2017a), paras 3.52–3.53.

The question is not pursued further in this study due to the fact that its answer depends on the individual articles of the international organization in question (see, however, below Sect. 3.4.3.1); see Hakenberg (1988), pp. 148–153 for a discussion.

Dreijmanis (1968), p. 373.

Reference to such critique can be found at McDougal and Reisman (1968), pp. 5–6 (fn. 21–23); Cefkin (1968), p. 663; Fawcett (1965–1966), p. 116.

McDougal and Reisman (1968), p. 12; see also O’Connell (2002), p. 65.

McDougal and Reisman (1968), p. 10; see also O’Connell (2002), p. 66.

Fawcett (1965–1966), pp. 117–118; see also Gowlland-Debbas (1994), p. 61; Gowlland-Debbas (1990), pp. 467–468; Nkala (1985), pp. 174–176; O’Connell (2002), p. 66.

O’Connell (2002), p. 65; Higgins et al. (2017b), para. 26.56. This question is, for the reasons stated in fn. 114 above, not pursued further here.

See the references in Higgins et al. (2017b), para. 26.75 (fn. 248).

de Chazournes (2007), pp. 58–59; Gasser (1996), pp. 874–875; Reinisch (2001a), pp. 851–852; on the “effectiveness debate” see O’Connell (2002), pp. 67–68.

Fausey (1995), pp. 205–208, 216.

Mueller and Mueller (1999).

Security Council Resolution 661 (1990) of 6 August 1990, S/RES/661 (1990) which substantially survived even after the end of Operation Desert Storm and Kuwait’s liberation, see Security Council Resolution 687 (1991) of 3 April 1991, S/RES/687 (1991), para. 24; O’Connell (2002), p. 63.

Reisman (1995); Reisman and Stevick (1998). First mention of the issue is credited to the Center for Economic and Social Rights (CESR), an international human rights organization (O’Connell 2002, p. 69 (fn. 38)).

Reisman and Stevick (1998), p. 127.

O’Connell (2002), pp. 75–78.

Reinisch (2001a), p. 853.

Reinisch (2001a), p. 854.

Reinisch (2001a), p. 855; cautious: Bleckmann (1977), pp. 109–110.

Oosthuizen (1999), p. 562.

Reinisch (2001a), p. 855.

Kelsen (1950), p. 294; see also Eagleton (1957), p. 297: “It follows […] that the United Nations is not so much a legal order as a political system”.

ICJ (28 May 1948) Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, ICJ Reports 1948, pp. 57, 64; International Criminal Tribunal for the former Yugoslavia (2 October 1995) Prosecutor v. Dusko Tadic a/k/a “Dule”, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, para. 28; Reinisch (2001a), pp. 857–859; O’Connell (2002), pp. 70–71; Gasser (1996), p. 881.

Cf. Gowlland-Debbas (1994), p. 96.

Cf. Gasser (1996), p. 883.

See, for instance, Ress (2000), pp. 271 et seqq.

Black et al. (2012), entry “tariff”; Hahn (2010), paras 17–18.

Black et al. (2012), entries “import quota”, “quota”.

Bhala (2013b), para. 65-007; see also Jackson (1997), p. 251 who defines: “home-market sales price – export sales price = margin of dumping[.] When that margin is greater than zero, there is ‘dumping’ in the sense used in international trade policy.”

Art. 2.1 Antidumping Agreement.

Cox and Ruffin (1998), pp. 68–70; Biswas and Shubham (2018), p. 509; see also Mattoo and Staiger (2019), p. 33; The Economist (2018o).

Krugman and Obstfeld (2016), pp. 249, 253–254, 260 (welfare reduction is certain only for small, price-taking economies, otherwise ambiguous); Bhala (1995), pp. 8 et seqq. (for antidumping law); see also Felbermayr et al. (2015); Blonigen et al. (2010); Fernandez (1992), pp. 889–891.

Cf. Gilpin and Gilpin (1987), pp. 182–183.

John H. Jackson instructively explains the assumptions of why tariffs are viewed superior to quotas in WTO law (Jackson 1997, p. 140 (fn. omitted)): “There are some important economic and other policy reasons to favor tariffs over quotas, however. The price effect and competitive distortion caused by quotas tend to be much less transparent than those of tariffs. Quotas as well as tariffs yield “monopoly rents”—that is, the domestic producers will be able to price their goods higher, and thus will receive more profits. Although under tariffs the government captures some of these monopoly rents (from tariff payments), this often is not the case with quotas (unless the government charges for the quota licenses). Depending on how they are constructed, quotas may also allow foreign producers to pocket these added rents. In addition, the administration of quotas is often by “license”, and licensing procedures lend themselves to corruption of government officials. […] For all these reasons, the policy preference given to tariffs has considerable rationale behind it”.

Krishna and Tan (2007), pp. 22–23.

Bhala (2013b), para. 65-009.

Of course, when the exporting state is also taken into account (whose producers have to pay the “dumped” price and whose consumers suffer from higher prices), welfare effects turn out negative, see on this point and the following Bhala (2013b), paras 65-010–65-012.

Jackson (1997), p. 177 writes: “In short, the political forces for border protection against imports are often formidable.”; Bhala (1995), pp. 19 et seqq. (for antidumping law); Hahn (2010), para. 18.

Bhala (1995), p. 1.

Bhala (1995), p. 2.

Cf. Wolff (2018): “All of this would seem an unlikely hypothetical were there were [sic] not already at present a high risk of cycles of retaliation and counter-retaliation outside of dispute settlement — in short, a trade war”.

Cf. Bown (2019a), p. 21. Also “Sino-US Trade War”, see Evenett (2019), p. 535.

This paragraph draws on Ahlbrandt et al. (1996), pp. 14–28; Moore (1994), pp. 1–6; Blonigen et al. (2013), pp. 370–371; Schafmeister (1993), pp. 60–108; Gathii (2004), pp. 48–53.

At the time, Japan and the European Community; see on the economic effects in extenso Canto (1984) and on the (in)compatibility with GATT 1947 Jackson (1988). For the current stance of the WTO legal order toward such agreements cf. Art. 11 (1) (b) Agreement on Safeguards, 1869 U.N.T.S. 154.

Schafmeister (1993), pp. 90–92.

Davis (2012), pp. 225–226; see USITC (2010), pp. 23–25 with case numbers for 1998 and 1999. Some of these cases were also escalated on an international level. For instance, the Japanese complaint against the USITC’s antidumping investigation into certain hot rolled steel products originating from Japan, which was adjudicated by the WTO Dispute Settlement Body (in favor of the claimant, see Appellate Body (24 July 2001 (adopted 23 August 2001)) United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, Report of the Appellate Body, WT/DS184/AB/R).

More on this instrument in the next section (below Sect. 3.3.1.2). The tariffs were anteceded by the 1999 Steel Action Plan, which included tax reliefs and more vigorous enforcement of antidumping and countervailing duties, see Gathii (2004), p. 52.

United States Department of Commerce (2018a), Appendix J 2; Gathii (2004), p. 52.

Narayanan (2013), p. 13.

By comparison, in most years before that the import penetration was around one fifth or even less (United States Department of Commerce 2018a, p. 27; Appendix J 1-2).

United States Department of Commerce (2018a), p. 58.

According to the report, this reduction of import penetration (i.e. of the share of imports in total consumption) could be achieved either by a global quota at 63 percent of 2017 import levels, thereby cutting 37 percent of steel imports, or by a 24 percent tariff on all steel imports. An alternative course of action presented was a tariff of 53 percent on steel imports from Brazil, South Korea, Russia, Turkey, India, Vietnam, China, Thailand, South Africa, Egypt, Malaysia, and Costa Rica while all other countries would be limited to 100 percent of their 2017 imports (i.e. a quota). The report finally suggested the option to exempt certain countries from a quota or tariff completely see United States Department of Commerce (2018a), pp. 59–60. With this option of excepting certain countries, the report possibly eyed Canada, which has been the largest exporter of steel to the United States and was commended as a reliable partner by testimony collected for the report (United States Department of Commerce 2018a, p. 28; Appendix F 60, pp. 116–117). See Bown and Hillman (2019), p. 565 for a graph of the import penetration (also for aluminum and solar panels).

United States Department of Commerce (2018b), pp. 108–109 suggests a quota of 86.7 percent or a tariff rate of 7.7 percent, in the alternative a 23.6 percent tariff rate on imports from China, Hong Kong, Russia, Venezuela, and Vietnam while all other countries would be limited to 100 percent of their 2017 import levels.

United States Department of Commerce (2018a), pp. 23–24, 27 in conjunction with Appendix I, pp. 2-3.

United States Department of Commerce (2018a), p. 23.

United States Department of Commerce (2018a), p. 23.

Pub. L. No. 87-794, 76 Stat. 872, 877 (1962).

19 U.S.C. § 1862 (b) (1) (A), (3) (A).

19 U.S.C. § 1862 (c). This did not ask for a decision earlier than 11 and 19 April 2018 (for steel and aluminum, respectively). On the powers of the President of the United States regarding tariffs and duties see Lewis (2016).

The Economist (2018a). While levying tariffs was certainly not unprecedented (2003 saw the last round of tariffs of this kind (Mankiw and Swagel 2005, p. 114 report that those tariffs came at enormous cost: “[…] each job saved by steel tariffs came at the cost of three jobs in steel-using industries […]”; the outcry was comparable to the 2018 one, cf. Firoz 1999 and Garten 1995; see also The Economist 2018n, p. 20), the way of announcing them was certainly unique, the President of the United States justifying the measure on Twitter (Trump 2018a) and declaring “trade wars are good, and easy to win” (Trump 2018b; on this latter statement see Jung and Hazarika 2018).

The DAX lost around 2.3 percent on the day after the announcement (see Yahoo Finance 2021a). The Japanese Nihon Keizai Shinbun 225 (NIKKEI) lost around 2.5 percent (see CNBC, available at https://​www.​cnbc.​com/​quotes/​?​symbol=​.​N225 (accessed 23 May 2021)). On firm level, the Thyssenkrupp AG’s share price plummeted from EUR 21.82 to 20.93 (around 5 percent) (see Yahoo Finance 2021b). See also Huang et al. (2019), pp. 66–70.

The shares AK Steel Holding Corporation, listed at the New York Stock Exchange, jumped from a price of USD 5.26 to USD 5.82 (a 9.62 percent increase) in less than one hour of the announcement of the tariffs (see Yahoo Finance 2021c); General Motors Co.’s stock lost nearly 4 percent, Ford Motor Co. 3 percent (see Carey and Banerjee 2018). See also Huang et al. (2019), p. 66.

Gary Cohn, director of the United States National Economic Council and chief economic advisor of the President of the United States, resigned on 6 March 2018 being one of few (if not the only) member of the President’s inner circle of advisers to oppose tariffs (see The Economist 2018p). See also the letter dating 7 March 2018 of more than 100 Republican Members of Congress criticizing the measures available at https://​waysandmeansform​s.​house.​gov/​uploadedfiles/​03.​07.​18_​letter_​to_​potus.​pdf (accessed 14 January 2021).

Carey and Banerjee (2018); Spiegel Online (2018c); Stelzer (2018).

Especially Canada, Mexico, and China, see The Economist (2018a). Canada’s government claimed the tariffs did not make sense and the national security explanation for them were contradictory since the United States defense industry relied on Canadian steel (see Abedi and Vomiero 2018). As a reaction to this, the United States administration started hinting at possible exclusions for Canada and Mexico (which were initially not on the table) if NAFTA’s renegotiation was successful, see The Economist (2018p). Australia was excepted for its “fair and reciprocal military and trade relationship”, see Doherty (2018) quoting the President of the United States. Japan and the EU have plead a similar case, while China remained conspicuously silent (its steel and aluminum exports to the United States amount to 0.03 percent of GDP), see The Economist (2018t), p. 67.

President of the Commission Jean-Claude Juncker formulated (European Union 2018): “We strongly regret this step, which appears to represent a blatant intervention to protect US domestic industry and not to be based on any national security justification. Protectionism cannot be the answer to our common problem in the steel sector. […] We will not sit idly while our industry is hit with unfair measures that put thousands of European jobs at risk. […] The EU will react firmly and commensurately to defend our interests. The Commission will bring forward […] WTO-compatible countermeasures against the US […]”.

European Commission (2018a); European Commission (2018b): “The College of Commissioners also discussed the EU’s response to the possible US import restrictions for steel and aluminium announced on 1 March. The EU stands ready to react proportionately and fully in line with the World Trade Organisation rules in case the US measures are formalised and affect the EU’s economic interests. The College gave its political endorsement to the proposal presented by President Jean-Claude Juncker, Vice-President Jyrki Katainen and Commissioner for Trade Cecilia Malmström”.

The measures were intended to target especially those federal states in the United States with the highest support for the President in the 2016 elections (The Economist 2018n, p. 22).

According to news reports, the President of the United States in May 2018 ordered an investigation under Sec. 232 of the Trade Expansion Act of 1962, cf. The Economist (2018n), p. 22; Spiegel Online (2018g). The EU managed to deflect these new tariffs and agreed with the United States to reduce the tariffs in negotiations (von Petersdorff 2018).

Presidential Proclamation 9711, Adjusting Imports of Steel into the United States (issued 22 March 2018), 83 FR 13361-13365, 28 March 2018; for all measures taken together see also Presidential Proclamation 9711, Adjusting Imports of Steel into the United States (issued 22 March 2018), 83 FR 13355-13359, 28 March 2018; Presidential Proclamation 9705, Adjusting Imports of Steel Into the United States, including the Annex, To Modify Chapter 99 of the Harmonized Tariff Schedule of the United States (issued 8 March 2018), 83 FR 11625-11630, 15 March 2018; Presidential Proclamation 9704, Adjusting Imports of Aluminum Into the United States, including the Annex, To Modify Chapter 99 of the Harmonized Tariff Schedule of the United States (issued 8 March 2018) 83 FR 11619-11624, 15 March 2018; U.S. Department of Commerce, Requirements for Submissions Requesting Exclusions From the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel Into the United States and Adjusting Imports of Aluminum Into the United States; and the Filing of Objections to Submitted Exclusion Requests for Steel and Aluminum, 83 FR 12106-12112, 19 March 2018.

In what would eventually prove to be futile truces, the EU and some states (Argentina, Brazil, Australia, New Zealand, South Korea, and—even earlier—NAFTA members Canada and Mexico) had convinced the United States administration temporarily otherwise in dramatical last minute negotiations prior to the entry of the force of the tariffs (Birnbaum 2018; Tankersley and Kitroeff 2018; The Economist 2018t). This temporary exemption was accompanied by two caveats, however: First, a deadline for 1 May 2018 was set to negotiate “satisfactory alternative means” regarding the high imports of steel and aluminum; second, the imposition of quotas was expressly reserved (even for the time prior to the expiry of the deadline) (Tankersley and Kitroeff 2018).

Angel (2018); Lamp (2019), pp. 727–728 refers to “illegal settlements”.

Spiegel Online (2018i); The Economist (2018m), p. 63.

Turkish steel faced 50, aluminum 20 percent tariffs, see The Economist (2018f); Tankersley et al. (2018). Remarkably, the raise was explained by the administration not with national security, but with diplomatic reasons (Turkey detained a United States citizen, a pastor, and Turkey accused the United States of harboring the mastermind behind the 2016 Turkish coup d’état attempt).

The Economist (2018m), p. 63.

Landler and Tankersley (2018).

Landler and Tankersley (2018).

Blenkinsop (2018) (for the EU); Martell (2018) (for Canada); Swanson and Tankersley (2018) (for Mexico); Spiegel Online (2018f) (for Russia); overview: The Economist (2018m), p. 63. China immediately announced to raise tariffs from 15 to 25 percent on 128 United States goods (for instance wine, nuts, and pork) in return, which amounted in tariffs on United States goods worth USD 3 billion (or 2 percent of the Chinese annual imports from the United States) (Buckley and Wee 2018); the threat was published in an online statement of the Chinese Ministry of Commerce, see www.​mofcom.​gov.​cn/​article/​ae/​ag/​201803/​20180302722664.​shtml (accessed 22 January 2021). The list of goods is also available online: Ministry of Commerce of the People’s Republic of China (2018).) The Chinese decision was executed on 2 April 2018—only one and a half weeks after the United States had erected their tariffs—and also notified with the WTO (which indicated that China regarded the United States tariffs as safeguard measures and believes its suspension of concessions was justified under Art. 8 (2) Agreement on Safeguards (Spiegel Online 2018a)).

This time based on Sec. 301 (of the United States Trade Act 1974), a legal instrument that gives interested parties the right to complain about trade policies of other states (such as tariffs, other import restrictions, or subsidies) and compels the government to review and, as the circumstances require, decide on duties or other import restrictions in return 19 U.S.C. § 2411, Public Law 93-618 (88 Stat. 1978); see The Economist (2018s); The Economist (2018c). A new list of tariffs for more than 1000 Chinese products (worth about USD 50 billion in 2018) went into effect on 6 July 2018 (the list is available at https://​ustr.​gov/​sites/​default/​files/​files/​Press/​Releases/​301FRN.​pdf (accessed 14 January 2021); Bidder 2018). The items on the list were expressly inspired by the sectors in China’s Made in China 2025 plan (below Sect. 4.​1.​1.​1.​2.​2) (Office of the United States Trade Representative 2018).

Within hours, China replied to the second set of United States tariffs with the announcement of tariffs of its own on hundreds of United States products such as soy beans, cars, and chemical products (matching the United States tariffs of USD 50 billion) and announced to take steps at the WTO (Landler and Tankersley 2018; Spiegel Online 2018e and 2018d). On 23 August 2018, a new round of US tariffs against Chinese products worth around USD 200 billion (subjecting nearly 50 percent of Chinese imports to the tariffs in total) was announced and came into effect a month later; they were almost immediately retaliated (Tankersley and Bradsher 2018). August 2019 saw another peak of escalation with the threat of tariffs on Chinese goods worth USD 250 million effective from 1 October 2019 (Rappeport and Bradsher 2019). For a up-to-date timeline and detailed chart of the tariffs see Bown and Kolb (2020) and Bown (2020). For an analysis see Evenett and Fritz (2019); Evenett (2019), pp. 540–543.

An interim armistice agreement (at least between China and the United States) was reached on the sidelines of the 2018 Group of Twenty (G20) summit, which took place in Buenos Aires from 30 November to 1 December (McDonell 2018; The Economist 2018k; The Economist 2018z). A more permanent solution (which will apparently take the form of an agreement, cf. https://​ustr.​gov/​sites/​default/​files/​US-China-Agreement-Fact-Sheet.​pdf (accessed 14 January 2021)) is still in the making at the time of writing; however, reduction of tariffs has begun (cf. Bown 2019b; Alper 2019). By conclusion of the Agreement between the United States of America, the United Mexican States, and Canada (USMCA) on 30 November 2019, the parties to this agreement achieved some mitigation (the text is available at https://​ustr.​gov/​trade-agreements/​free-trade-agreements/​united-states-mexico-canada-agreement/​agreement-between (accessed 14 January 2021)).

See Yahoo Finance (2021d); Huang et al. (2019), p. 66.

Landler and Tankersley (2018).

Spiegel Online (2018b), which also reports that the Dow Jones Industrial index as well as the NASDAQ fell by at least 3 percent after the tariffs came into effect.

Ossa (2019), pp. 47–48; The Economist (2018p): “[…] 25% tariffs on steel and 10% on aluminium by themselves [will not] wreck the economy: they account for 2% of last year’s $2.4trn of goods imports, or 0.2% of [United States] GDP”.

The same newspaper however also describes the measures as “biggest act of protectionism to date” (The Economist 2018n, p. 19).

Felbermayr and Sandkamp (2018).

Rice (2018): “The import restrictions announced by the U.S. President are likely to cause damage not only outside the U.S., but also to the U.S. economy itself, including to its manufacturing and construction sectors, which are major users of aluminum and steel. We are concerned that the measures proposed by the U.S. will, de facto, expand the circumstances where countries use the national-security rationale to justify broad-based import restrictions. We encourage the U.S and its trading partners to work constructively together to reduce trade barriers and to resolve trade disagreements without resort to such emergency measures”.

See also the predictions of the OECD and the German ifo Institut, respectively: OECD (2018) and ifo Institut (2018).

Cf. Wu (2019), pp. 108–109; The Economist (2018a); at the same time, commentators have their doubts whether the WTO dispute settlement system would be able to measure up to the delicate questions of national security in this case, see The Economist (2018p).

WTO (2018a), p. 11; WTO (2018b), pp. 23, 27–28.

Case numbers DS544 (China), DS547 (India), DS548 (EU), DS550 (Canada), DS551 (Mexico), DS552 (Norway), DS554 (Russia), DS556 (Switzerland), and DS564 (Turkey) (complainant in brackets). In detail fn. 457 below. As of 22 December 2019, the disputes between Canada and the United States and Mexico and the United States have been settled amicably whereas in the other cases panels have constituted. Yet, there is fear of the acceptance of the WTO dispute settlement process altogether, see Bown (2019a).

Presidential Proclamation 96936, To Facilitate Positive Adjustment to Competition From Imports of Certain Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully Assembled Into Other Products) and for Other Purposes (issued 23 January 2018) - Proclamation 96936 - 83 FR 3541, Annex I (f) and (h); Presidential Proclamation 96942, To Facilitate Positive Adjustment to Competition From Imports of Large Residential Washers (issued of 23 January 2018) - Proclamation 96942 - 83 FR 3553, Annex (d) and (e).

Proclamation 96936, Annex I (b); Proclamation 96942, Annex (b) (in the case of washing machines, Canada was also excepted).

The Economist (2018dd); Deutsche Welle (2018).

WTO (2018c) (later joined by Thailand); Jin (2018); Mexico has considered taking steps under NAFTA (Park and Qiu 2018).

The Economist (2018c); Tankersley (2018).

Named after Sec. 201 Pub. L. No. 92-617, 88 Stat. 1978, 2011 (1975).

In both cases supported by other enterprises, see USITC (2017a), pp. 3–4; USITC (2017b), pp. 5–6. It is difficult not to note the irony that Suniva Inc., whose shareholder is Chinese, petitioned for the tariffs on Chinese imports (see The Economist 2017g).

19 U.S.C. § 2252 (b) (1) (A) (emphasis added).

See fn. 161 above.

Jackson (1997), pp. 177–178, also arguing that the causality test is stricter for Sec. 201 Safeguards.

Jackson (1997), pp. 181 (fn. 23), 179, 181–184 also on the history and interplay of the GATT and US law.

Proclamation 96936 para. 2; Proclamation 96942 para. 2 referring to the reports USITC (2017a, b).

19 U.S.C. § 2251 (a) (emphasis added). The president can also value the situation differently and opt for no measure or a different one (for a discussion of the relationship between USITC and the President of the United States see Jackson 1997, pp. 183–184).

19 USC § 2252 (c) (6) (C).

19 USC § 2252 (c) (1) (A) and (B).

With this system, reference is made to the one which was established on 1 January 1995 by the Agreement Establishing the World Trade Organization - WTO Agreement - 1867 U.N.T.S. 154, with the multilateral and plurilateral agreements contained in the Annexes thereto (see Art. II:2 and II:3 WTO Agreement; of those agreements included in Annex 1A especially the GATT 1994, the Antidumping Agreement, and the Agreement on Safeguards, see Stoll and Schorkopf (2006), para. 17. The WTO Agreement is part of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, 1867 U.N.T.S. 14, which—signed in Marrakesh—concluded in 1994 the negotiations which commenced in Uruguay seven and a half years earlier).

The underlying adjudicative and enforcement mechanisms warrant the term law even from a positivist perspective, cf. Bhala (2013a), para. 5-001.

See WTO (2018d, e, f) for the allegations on the one hand and The Economist (2018p) for the invoked justification on the other.

Fn. 199 above. Ratification by Canada is pending at the time of writing.

For the proliferation of bilateral and regional trade agreements and their relation to the WTO system see Lin (2016); Allee et al. (2017); Altemöller (2014); Apaza Lanyi and Steinbach (2017); Blanchard (2014).

With “general international law” reference is made in this work to those rules of international law which do not belong to international economic law (cf. fn. 232 below). On the meaning of “international law” see Chap. 1 fn. 49 above.

With “international economic law” reference is made in this work to law governing the economic relations between subjects of international law in the dimensions of trade, capital, competition, and money (Seidl-Hohenveldern 1986, p. 21; Orakhelashvili 2019, p. 407). The term encompasses other aspects of economic relations such as intellectual property rights or private international law (Herdegen 2018, paras 1–2, 12), which will not be addressed here.

Dörr (2018b), para. 1.

Henkin (1971), p. 544; Shaw (2017), p. 851; Shi (2018), p. 1; Gray (2018), p. 32.

Jennings et al. (1992a), pp. 1292–1293 (para. 642); Delbrück et al. (2002), p. 822 (para. 3); Dinstein (2011), pp. 101–105 (paras 273–279, 283); Shaw (2017), p. 854; Gray (2018), p. 32; Henderson (2018), p. 10; Orakhelashvili (2019), p. 452.

Gray (2018) and Henderson (2018) represent only two of the more recent topical monographs.

See the comprehensive account by Asrat (1991), pp. 127–138.

Dörr (2018b), paras 31–36; Dörr (2018a), para. 98; Henderson (2018), pp. 31–39 (also on further consequences).

Dinstein (2011), p. 106 (para. 286).

Herdegen (2018), para. 12.

Also, a treaty could be void “if its conclusion has been procured by the threat or use of force” (Art. 52 VCLT).

If recourse to economic warfare constituted “force”, answers to its use could be understood as actions necessary for the protection of essential security interests under Art. XXI (b) (iii) GATT and would thus allow deviations from obligations under this exception, see Panel (5 April 2019 (adopted 26 April 2019)) Russia - Measures Concerning Traffic in Transit, Report by the Panel, WT/DS512/R, paras 7.75, 7.111 (emphasis added, fn. omitted): “Indeed, it is normal to expect that Members will, […] encounter political or economic conflicts with other Members or states. While such conflicts could sometimes be considered urgent or serious in a political sense, they will not be ‘emergencies in international relations’ within the meaning of subparagraph (iii) unless they give rise to defence and military interests, or maintenance of law and public order interests. […] The Panel recalls its interpretation of ‘emergency in international relations’ within the meaning of subparagraph (iii) of Article XXI(b) as situation of armed conflict, or of latent armed conflict, or of heightened tension or crisis, or of general instability engulfing or surrounding a state”.

Ruys (2014), p. 163; the terms “aggression”, “armed attack”, and “coercion” are undefined too (Buchheit 1974, p. 987; Henderson 2018, pp. 63–64).

Emphasis added.

See Derpa (1970), pp. 28–40 for a systematic and thorough approach.

As regards the contemporary meaning of the word, some dictionaries emphasize the physical component of force by referring to violence or energy; at the same time, compulsion or coercion are used as periphrasis, which seem to include non-physical, namely psychological, components (see the entries for “force” in the online dictionaries Merriam-Webster (https://​www.​merriam-webster.​com/​dictionary/​force) and Lexico (https://​en.​oxforddictionari​es.​com/​definition/​force) (both accessed 21 January 2021)). The French “la force” and Spanish “la fuerza” deliver no different reading. The Chinese “武力”, however, is also the character for sword and military strength, pointing more in direction of a physical understanding of the word (cf. the entries for “武力” in the online dictionaries LINE Dict (http://ce.linedict.com/#/cnen/home) and MDBG (https://​www.​mdbg.​net/​chinese/​dictionary) (both accessed 21 January 2021) as well as Kleeman and Yu 2010). For the authentic languages cf. Art. 111 UN Charter. However, since it is not clear that “force” is a generic term, the ordinary meaning at the time of conclusion would be pertinent (Shaw 2017, p. 708). Arguing for a narrow understanding of violence in 1945 is Derpa (1970), pp. 125–128. On a general note, the selective use of dictionaries to determine the ordinary (historic) meaning of words has come under critique by linguists using large amounts of data to reach this goal and thereby reduce potential bias (cf. Sullivan 2018).

Derpa (1970), pp. 33, 40; Garçon (1997), p. 155; even Randelzhofer and Dörr (2012), para. 17, arguing for an exclusion of economic force otherwise, admit this. The formulation in the second half of the sentence regarding territorial integrity, political independence etc. are no hurdle for the subsumption of economic warfare, either because political independence is indeed threatened or because the sentence bears no material constraint, see Kißler (1984), p. 45.

Emphasis added.

Emphasis added.

Emphasis added.

Derpa (1970), p. 40; references to both positions to be found in Randelzhofer and Nolte (2012), paras 10–11.

Stone (1958), pp. 66–67; Puttler (1989), p. 65; for the closed-ended reading of Art. 2 (4) UN Charter see Brownlie (1989), p. 22. Aggression in the sense of Art. 39 UN Charter always presumes an application of force in the sense of Art. 2 (4) UN Charter (Krisch 2012a, para. 40); hence the understanding of force has a bearing on the meaning of aggression.

For the understanding of the right to self-defense as jus cogens see Kelsen (1950), pp. 791–792 for the opposing view see Brownlie (1968), pp. 272–275.

See especially Derpa (1970), pp. 41–121; Neuss (1989), pp. 49–60.

Preamble (7) UN Charter (emphasis added).

Neuss (1989), p. 32; Buchheit (1974), pp. 1006–1008.

For a formal explanation of the inclusion of the travaux préparatoires in treaty interpretation cf. Dörr (2018a), pp. 9, 111.

The United Nations Conference on International Organization, Commission I, Committee 1: Preamble, Purposes, and Principles (1945), p. 335.

The United Nations Conference on International Organization, Commission I, Committee 1: Preamble, Purposes, and Principles (1945), p. 559.

Cf. Garçon (1997), pp. 156–157.

Derpa (1970), pp. 123–124.

Shaw (2017), p. 708; O’Connell (2015), p. 142.

In greater detail see, for instance, Garçon (1997), pp. 161–165. On UN attempts to define aggression see Bruha (1980), pp. 218–223; Buchheit (1974), pp. 999–1005; Stone (1958, 1977).

International Law Commission (1951).

Stone (1958), p. 50.

For the connection of the terms “force” and “aggression” see fn. 252 above and Asrat (1991), pp. 104–105.

Stone (1958), pp. 50–51.

Stone (1958), p. 68 (emphasis added).

Art. 1, 3 (c) General Assembly Resolution 3314 (XXIX) of 14 December 1974, A/RES/29/3314; cf. Bruha (1980), p. 115; Bowett (1972), p. 3.

Brosche (1974), pp. 24–25.

UN General Assembly (1968), p. 14 (para. 26 (2) (b)) (emphasis added).

UN General Assembly (1968), pp. 24–25; UN General Assembly Special Committee on Principles of International Law, Concerning Friendly Relations and Co-Operation among States (1964), pp. 6 et seqq.; for the quoted states see also UN General Assembly Special Committee on Principles of International Law, Concerning Friendly Relations and Co-Operation among States (1964), p. 4; UN General Assembly Sixth Committee (1968b), pp. 4, 6; UN General Assembly Special Committee on Principles of International Law Concerning Friendly Relations and Co-Operation among States (1966), p. 7; UN General Assembly Sixth Committee (1965), pp. 246, 249; UN General Assembly Sixth Committee (1968a), p. 5; UN General Assembly Sixth Committee (1965), p. 249; for departing views cf. UN General Assembly Special Committee on Principles of International Law, Concerning Friendly Relations and Co-Operation among States (1964), p. 11; see also UN General Assembly Sixth Committee (1968b), p. 3.

Bowett (1972), p. 1.

UN General Assembly (1968), p. 18 (para. 9) (emphasis added).

Shaw (2017), p. 856 who, at the same time, finds a violation of Art. 2 (4) UN Charter “dubious”.

Brosche (1974), p. 26; Garçon (1997), pp. 162–163.

Garçon (1997), pp. 163–164; Bowett (1972), p. 3.

To be sure, the UN since 2009 monitors what it calls “unilateral economic measures as a means of political and economic coercion against developing countries” in periodic reports (see, for instance, UN General Assembly 2017; see also General Assembly Resolution 70/185 of 22 December 2015. Unilateral economic measures as a means of political and economic coercion against developing countries, A/RES/70/185). Although many UN member states express disapproval of such measures, many others do not and continue to employ them. A “new” understanding of force in the sense of Art. 2 (4) UN Charter is not discernible.

Gray (2018), pp. 32 et seqq., 200 et seqq.; see Garçon (1997), pp. 161–165.

See Cleveland (2001), pp. 51–52; Kißler (1984), pp. 47–49; Heintschel von Heinegg (2014a), p. 1065 (para. 21); Doraev (2015), p. 375 (fn. 80) with a comprehensive compilation of pertinent UN General Assembly resolutions.

Kelsen (1956), p. 6; Brosche (1974), p. 20; with a different view Neuss (1989), pp. 28–30, 44; Buchheit (1974), pp. 997–998.

Žourek (1974), pp. 73–74.

Buchheit (1974), pp. 994–995; Brosche (1974), pp. 22–23; cf. Stone (1958), pp. 97–98; see The United Nations Conference on International Organization, Commission I, Committee 1: Preamble, Purposes, and Principles (1945), pp. 334–335 (emphasis added): “The Delegate of Brazil referred also to another amendment of his Delegation with specific mention of ‘economic measures’. The Delegate of Belgium suggested that the Delegate of Brazil had underestimated the effect of the modifications made in the original text, calling attention, particularly, to the phrase ‘in any other manner’; and also recalled that the subcommittee had given the point about ‘economic measures’ careful consideration and for good reasons decided against”.

Paust and Blaustein (1974), pp. 417–423; Žourek (1974), pp. 75–78.

Žourek (1974), p. 75; Neuss (1989), p. 49; Neff (1989), p. 140 (with further references to both sides of the dispute in fn. 115 and 116).

Kelsen (1956), pp. 5–6, who, however, also admits that “the other interpretation is not excluded”.

van Thomas and Thomas (1972), pp. 90–93 (arguing more broadly in the context of aggression); Brosche (1974), p. 20.

Buchheit (1974), pp. 1005–1008; Brosche (1974), p. 23.

Brosche (1974), pp. 26, 30; Neuss (1989), p. 49.

Buchheit (1974), p. 998; Neuss (1989), pp. 46–47.

Stone (1977), pp. 100–101 (clearly under the impression of the use of the oil weapon).

Neuss (1989), pp. 36, 52–56, who also proposes differentiated criteria to distinguish economic force (falling under Art. 2 (4) UN Charter) from legitimate exertion of economic influence.

Barrie (1985-1986), p. 45; Blum (1977), p. 11; Bothe (2016b), p. 600 (para. 10); Bryde (1981), p. 231; Brownlie (1968), pp. 361–362; Dahm (1962), p. 49; Delbrück et al. (2002), p. 824 (para. 7); Derpa (1970), p. 136; Detter Delupis (1994), p. 259; Dicke (1978), p. 152; Dinstein (2011), p. 88 (para. 236); Elagab (1988), p. 201; Farer (1985), p. 410; Fischer (2004), p. 1076 (para. 14); Garçon (1997), p. 165; Goodrich and Hambro (1946), p. 70; Goodrich et al. (1969), p. 49 (the word of Goodrich and Hambro carries additional weight in this context as they were personally engaged in the San Francisco Conference (Elagab 1988, p. 199)); Heintschel von Heinegg (2014a), p. 1065 (para. 21); Henderson (2018), p. 55; Jennings et al. (1992a), pp. 428–429 (para. 128) (fn. 3); Joyner (1984), pp. 240–242; Joyner (2016), p. 194; Kißler (1984), p. 49; Krajewski (2017a), p. 201 (para. 23); Lindemeyer (1975), pp. 140–141; Muir (1974), p. 202; Neuss (1989), pp. 33–34; Puttler (1989), pp. 69–70; Randelzhofer and Dörr (2012), paras 17–20; Ress (2000), pp. 14–16; Ruys (2014), p. 163; Schachter (1986), p. 127 (fn. 63); Schrijver (2015), p. 470; Schröder (2016), p. 589 (para. 121); Seidl-Hohenveldern (1986), pp. 200–201; Seidl-Hohenveldern (1999), p. 159; Shaw (2017), p. 856; Vitzthum (2016), p. 27 (para. 75); Voitovich (1991–1992), p. 30; for a critique by Russian scholars see the references provided by Doraev (2015), p. 358 (fn. 158 and 159).

Heintschel von Heinegg (2014a), p. 1063 (para. 18); Fischer (2004), p. 1076 (para. 14).

Kewenig (1982), p. 14. In Bryde’s view, the persistent objections of a large group of states hinders the extension of Art. 2 (4) UN Charter to economic force (Bryde 1981, p. 233).

Garçon (1997), p. 161.

Bryde (1981), p. 233.

Puttler (1989), p. 68.

Lindemeyer (1975), p. 140; Derpa (1970), p. 70; Neuss (1989), pp. 33–34.

Bryde (1981), p. 233, who argues that non-violent, economic measures could only be permissible as countermeasures. If one subsumes economic coercion under “force” within the meaning of Art. 2 (4) UN Charter, due to the formulation in Art. 51 UN Charter, still only in case of attacks involving military force may the right of self defense be invoked. The acknowledgement of economic warfare as force does not extend the scope of the inherent right to self defense.

Dinstein (2011), p. 88 (para. 236).

Muir (1974), p. 202.

As regards arguments deduced form wording and system of the provisions, the particular limitations of these methods of interpretation in the context of the UN Charter, drafted by politicians, should be born in mind (cf. Malanczuk 1997, p. 366).

Cf. Waxman (2011), p. 431; Kilovaty (2015), pp. 214–215, 224–226, 233–234; Gray (2018), pp. 34–35.

ICJ (27 June 1986) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgement, ICJ Reports 1986, p. 14 (paras 177–178); Corten (2010), p. 5.

Dinstein (2011), p. 100 (para. 271); cf. Krieger (2017), pp. 199–206 and Krieger (2012), pp. 9–11; Watts (2015); Woltag (2014), pp. 113–121.

Cf. Puttler (1989), p. 70; Brosche (1974), p. 30; Bowett (1972), p. 12 prophesied: “Doubtless, more concrete norms governing the limits of permissible economic coercion will emerge in the same way as the norm or norms on military coercion”.

Neuhold (1977), p. 82 (Ger) takes the following view: “The extension of the prohibition of the threat or use of force to political and economic pressure is at best a particular rule of public international law outside the West. However, […] recent show of vulnerability of industrial states to such pressure might lead to a universal rule in the future”.

Tomuschat (2012), paras 23–25.

Peters (2016), pp. 389–390 (para. 1); Ziegenhain (1992), p. 23; Bothe (2016b), p. 618 (para. 31).

Elagab (1988), p. 197.

Heintschel von Heinegg (2014a), p. 1077 (para. 52); details Barrie (1985-1986), pp. 51–53.

Ronzitti (2016b), p. 6.

Delbrück et al. (2002), p. 798 (para. 4); Ronzitti (2016b), p. 4.

ICJ (27 June 1986) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgement, ICJ Reports 1986, p. 14(para. 202). The ICJ noted that “the principle of respect for State sovereignty […] is of course closely linked with the principles of […] non-intervention” (p. 111 (para. 212)). See also Heintschel von Heinegg (2014a), pp. 1073–1074 (para. 42); Stein et al. (2016), p. 237 (para. 635).

Allowing interventions would disregard the sovereignty of states, see Dicke (1978), pp. 143–144; Shaw (2017), p. 874. Cf. Jennings et al. (1992a), p. 428 (para. 128); Heintschel von Heinegg (2014a), p. 1073 (para. 41).

Shaw (2017), p. 874.

Kunig (2018), para. 3. Application of the principle of non-intervention to UN sanctions is doubted by Joyner (2016), p. 198.

Cf. Jennings et al. (1992a), p. 430 (para. 129); Bockslaff (1987), p. 90.

Dicke (1978), pp. 147–148 explains the link between sovereignty and domaine réservé.

Fischer (2004), pp. 1101–1102 (para. 53); Crawford (2012), p. 293; see also Kunig (2018), para. 3.

Stein et al. (2016), p. 238 (paras 637, 639); Heintschel von Heinegg (2014a), p. 1075 (para. 47).

Kunig (2018), para. 3.

Petersmann (1981), p. 9.

In lack of a consensus regarding the use of the term intervention, which can refer both to unlawful and lawful actions (cf. Delbrück et al. 2002, p. 801 (para. 1)), this work refers to lawful actions as “interference” and to unlawful actions as “intervention” (see Kewenig 1982, p. 15). “Influence” will be used as a neutral term. For a different view see Dicke (1978), pp. 144–145.

Delbrück et al. (2002), p. 804 (para. 2) and Bockslaff (1987), pp. 82–89 emphasize the requirement of economic pressure; however, the criteria offered to assert such are so broad that no meaningful constraint can be derived from them. The pivotal question, it seems, is the assertion of (il)legality.

Ronzitti (2016b), p. 5.

Cf. Fischer (2004), pp. 1102–1103 (para. 55); Kunig (2018), para. 6. For a detailed overview of this early line of opinion see Gerlach (1967), pp. 52–65.

Jennings et al. (1992a), p. 434 (para. 129) notes that “[i]nterference which is sufficiently coercive may take a variety of forms. […] Other forms of coercion, involving economic or political measures […] may also constitute intervention, where they have the necessary coercive effect” (fn. omitted); for a profound reappraisal of the dispute see Dicke (1978), pp. 165–197; Kunig (2018), para. 6; Stein et al. (2016), p. 240 (para. 642); Fischer (2004), pp. 1102–1103 (para. 55); Puttler (1989), p. 71; Gerlach (1967), pp. 213–214; Garçon (1997), p. 167; Kißler (1984), pp. 50–51; Derpa (1970), pp. 58–60; Bryde (1981), pp. 229–230; Petersmann (1981), p. 8; Lillich (1975), pp. 361–362; Doraev (2015), pp. 375–376; with a differentiated view Delbrück et al. (2002), pp. 802 (para. 2), 809 (para. 9) and Elagab (1988), pp. 208–209, 211–212; critical Bockslaff (1987), pp. 32–37, 80–81. In case of a use of military force, both principles are violated.

Jennings et al. (1992a), p. 432 (para. 129); cf. also Kunig (2018), para. 5.

Garçon (1997), p. 167; Fischer (2004), pp. 1102–1103 (para. 55); Puttler (1989), p. 71.

See Dicke (1978), pp. 177 et seqq. for an extremely critical review of opinion.

See comprehensively Bockslaff (1987), pp. 46–70.

Art. II (c) Res. 36/103 (emphasis added).

Art. II (k) Res. 36/103 (emphasis added).

Delbrück et al. (2002), p. 803 (para. 3); Dicke (1988), pp. 187–188; Elagab (1988), pp. 210–211; Fischer (2004), p. 1103 (para. 56); Kunig (2018), para. 25; Schröder (2016), p. 590 (para. 121); Boon (2018), pp. 1, 10–11; Keller (2018), para. 22; Vitzthum (2016), p. 27 (para. 75); cf. Joyner (1984), pp. 248, 252; for a partially different view see Lillich (1975), p. 361; Bowett (1976), p. 247; Barrie (1985-1986), p. 43.

Cf. Bowett (1972), p. 9. According to Krajewski, there is state practice pointing at the violation of the principle of non-intervention in cases of comprehensive economic and financial embargoes or blockades with significant impact on the target economy with the aim to influence the policy of the target state, see Krajewski (2017a), p. 177 (para. 41) (also for other cases); Fischer (2004), p. 1103 (para. 57).

Bowett (1972), p. 8; Ronzitti (2016b), pp. 2–4; Kunig (2018), para. 25; Fischer (2004), p. 1103 (para. 57).

Brosche (1974), pp. 3, 4, 34; Dicke (1978), pp. 225–229; for numerous other contentious examples see Derpa (1970), pp. 61–62.

Fischer (2004), p. 1105 (para. 62); Kunig (2018), para. 26; Dicke (1978), p. 225; Cleveland (2001), p. 53; Lowenfeld (2008), pp. 850–851; cf. Petersmann (1981), p. 16. For a differentiated view Gerlach (1967), pp. 99–100, 153, 167–169. For the (non-existent) right to development assistance see Hagemeyer (2014), pp. 292–293 (fn. 237); Dann (2012), p. 207.

See fn. 342 above; Keller (2018), para. 22.

Seidl-Hohenveldern (1986), p. 201. Other advocates of this view: Garçon (1997), pp. 176–179; Boorman (1974), p. 231 (at least with an inclination towards objective criteria); probably also Dicke (1978), pp. 150–151, 238–239 who views infringements on (certain fragments of) sovereignty as unlawful.

Garçon (1997), p. 178.

Even admitted by Garçon (1997), p. 175.

Farer (1985), p. 413 (referring to “economic aggression” which should a maiore ad minus also include “economic coercion”). Other advocates of this view: Barrie (1985-1986), pp. 46–47; Blum (1977), pp. 12–13; Bowett (1976), p. 249 (who probably has to be credited as founder of this string of opinion); Lillich (1977), pp. 22–23 and Lillich (1975), p. 367; Delbrück et al. (2002), pp. 206–207; Gerlach (1967), pp. 177 et seqq., 193; Dicke (1988), p. 190; Joyner (1984), p. 230.

Malanczuk (1997), p. 44: “There is clearly something artificial about trying to analyze the psychology of collective entities such as states.” See the illustrative quote in Parry (1977), p. 4: “And if, as the old judge said, the thought of man is not triable, for the Devil himself knoweth not the thought of man, how much more difficult is it to ascertain with any certainty the thought or motive and intent of a state?”

The roots of the quote appear to be creditable to British Chief Justice Sir Thomas Brian (cf. Ames 1908, p. 97).

Dicke (1978), p. 181; Fischer (2004), p. 1105 (para. 63); Kewenig (1982), p. 16; Carter (2018), para. 10. The idea of “social adequacy” as a gauge was advocated first by Delbrück et al. (2002), pp. 206–207 and further developed by Gerlach (1967), pp. 189 et seqq.

Kewenig (1982), p. 16. Other advocates of this view: Bockslaff (1987), pp. 99 et seqq. (somewhat differentiatedly arguing with the values protected by the UN Charter (Schutzgüter)); Derpa (1970), pp. 60–61; Kunig (2018), para. 25; Kißler (1984), pp. 51–58; Gerlach (1967), pp. 196 et seqq.; Neff (1982), pp. 435–436.

Kewenig (1982), p. 15.

For instance, the “normative” value of goal pursued by the measure is objectionable in lack of an internationally agreed-upon scale for such classification.

For a different view see Tzanakopoulos (2015b), p. 630; Schröder (2016), p. 590 (para. 121).

Vitzthum (2016), p. 27 (para. 76); Puttler (1989), p. 75; Carter (2018), para. 11.

Epping (1992), p. 115; Ress (2000), p. 19; Puttler (1989), pp. 76–77; Lillich (1975), p. 361 writes: “Indeed, even a cursory survey of UN declarations during the past decade reveals strong support for the proposition that at least certain types of economic coercion now violate international law”.

For continuous use in the course of history cf. Neff (1982), pp. 413 et seqq.; Farer (1985), p. 410; Knorr (1977), pp. 102–106; Carter (2018), para. 4; and Gloria (2004), pp. 684–685 (paras 13–14).

The Economist (2018d). It should also be noted that by levying tariffs on the textiles, the states would have become ineligible for tariff exceptions granted under the African Growth and Opportunity Act (of 18 May 2000 (Pub. L. 106-200 (114 Stat. 251))).

The Economist (2018c).

Apps (2018); for details on the renegotiation and the means of its initiation see Lee (2017) and below Sect. 3.4.5.

Details Chap. 6 fn. 68 to 70 below. See, however, fn. 1 above for the German Federal Government’s reaction to the United States embargo against the Nord Stream 2 pipeline project.

See also fn. 279 above.

Cf. Ress (2000), p. 19; Epping (1992), p. 115. This is even admitted by proponents of the inclusion of economic force, see Cassese (2005), p. 55.

Cf. Bowett (1972), pp. 4–5.

Malanczuk (1997), p. 209; Orakhelashvili (2019), p. 351; Tomuschat (2014), p. 119.

Cf. Gasser (1996), p. 883 only referring to wartime sanctions; there does not seem to be a meaningful difference to the present case of economic warfare. Gasser also indicates that compliance with UN sanctions may be necessary even if they conflict with state obligations. On other remedies: UN General Assembly (2016), pp. 7 et seqq. (paras 13 et seqq.). Affected individuals can also initiate an infringement proceeding provided for under the applicable human rights treaty (cf. Tomuschat 2010, p. 986; Jayawickrama 2002, p. 136).

Critical Happold (2016), p. 87.

Herdegen (2018), para. 43. In detail Remmert (2008), pp. 231 et seqq. (also on other GATT provisions to the same effect). For a differentiated view see Cleveland (2002), pp. 146–149.

Momtaz (2001), p. 223; Schrijver (1994), p. 156; Fausey (1995), pp. 198–200; see Starck (2000), pp. 98–134 for an extensive description of the effects of sanctions on the civilian population of the target state.

UN Economic and Social Council (2000), p. 9 (paras 30–31); UN General Assembly (2016), pp. 10–12; Dupont (2020), pp. 47–49; Happold (2016), pp. 88–89.

Angelet (2001), p. 75; Reinisch (2001a), pp. 854–857; UN Economic and Social Council (2000), p. 8 (para. 24); Krisch (2012b), para. 19 and Krisch (2012c), paras 41, 43, 45; Starck (2000), pp. 330–331, 339; see also fn. 135 above. For a different view see Oosthuizen (1999), p. 562; critical also Krisch (2012c), para. 46.

Starck (2000), pp. 352, 360, 370, 391 (also with a review of other potentially pertinent human rights).

Cf. Art. 3 General Assembly Resolution 217A (III) of 10 December 1948. Universal Declaration of Human Rights, A/RES/3/217 A; Art. 6 (1) General Assembly Resolution 2200A (XXI) of 16 December 1966. International Covenant on Civil and Political Rights (1966) - ICCPR - A/RES/220 (XXI).

See O’Connell (2002), p. 73; Joyner (2016), p. 202; UN Economic and Social Council (2000), pp. 8 (para. 26), 9 (paras 30–31); Reinisch (2001a), pp. 861–862; Verdirame (2011), pp. 300 et seqq.; UN General Assembly (2015), p. 22 (paras 18 et seqq.).

See also Starck (2000), pp. 187–226.

Verdirame (2011), pp. 71–72, 89. However, even the extension of wider-ranging treaty-based human rights obligations is inescapable, see Mégret and Hoffmann (2003), pp. 317–318.

Krisch (2012b), paras 20, 22 and Krisch (2012c), para. 47; Higgins et al. (2017b), paras 26.75–26.79; see also Chap. 2 fn. 172 and 173 above. Whether adherence is successful, is disputed, see the references in Reinisch (2001a), p. 852 (fn. 7 to 9); Krisch (2012b), para. 21.

Cf. Mégret and Hoffmann (2003), p. 318. Naturally, one has to be mindful of the extent of obligations of international organizations insofar as these obligations presuppose the exercise of governmental functions.

Reinisch (2001b), p. 143; in doubt of such a rule of international law is Verdirame, who in effect achieves this result through the doctrine of equivalent protection (Verdirame 2011, pp. 87, 89, 320 et seqq.).

Reisman and Stevick (1998), pp. 127–140 with a broader catalogue of requirements; Krisch (2012b), paras 19, 22.

Higgins et al. (2017b), para. 26.56.

With regard to proportionality, although it is a general principle of law (in the sense of Art. 38 (1) (c) ICJ Statute) (Crawford 2018, para. 1), profused and undifferentiated extension to all measures of economic warfare is not justified, as it would hardly be operational to say that such measures have to be “proportionate” without further guidance. Instead, proportionality is addressed in this work where it comes to bear in the many fields of international law it is reflected in and relevant for economic warfare (cf. Newton and May 2014, pp. 33–60) Finally, the requirement of compliance with formal procedures will only be relevant to the legality of measures of economic warfare where these are decided upon by (in most cases: collective) organs of international organizations; otherwise, i.e. in case of unilateral measures, these are questions for domestic law not addressed here.

Cf. Starck (2000), pp. 334–342; Tomuschat (2014), pp. 44–45.

Cf. Marks and Azizi (2010), p. 726; Fontaine (2014), pp. 218, 234 who calls human rights regimes state-centered (staatenzentriert).

Cf. Marks and Azizi (2010), p. 732.

See Naert (2016), pp. 196, 203; Joseph (2010), pp. 161–168 analyses the territorial scope of numerous human rights agreements.

Cf. Schilling (2016), p. 36 (para. 88); Tomuschat (2014), pp. 95, 119 for the requirement of such authority.

Schlochauer (1962), p. 9; on the disagreement on the meaning of the term and the imputability of acta iure gestionis see ICSID (12 October 2005) Noble Ventures, Inc. v. Romania, Award, ICSID Case No. ARB/01/11, para. 82.

Cf. also Ryngaert (2018), pp. 383–389.

The example becomes slightly more complicated in case the central bank is independent from the government, but it should be clear that even then it is still an organ of the state (cf. Joseph 2010, p. 154).

The act of voting in the UN Security Council is considered one of sovereign public authority by the member states, Schilling (2004), p. 346. See also Joyner (2016), p. 202; with a different view O’Connell (2002), pp. 72–73.

On these rules see generally Joseph (2010), pp. 155–156; Fontaine (2014), pp. 233–235.

Seibert-Fohr (2013), p. 40; International Law Commission (2001), Art. 8, para. 1.

International Law Commission (2001), Art. 8, para. 1.

See Crawford (2002), pp. 92 et seqq.; Marks and Azizi (2010), pp. 727–728.

Fontaine (2014), p. 233; Seibert-Fohr (2013), pp. 40–42.

Gondek (2009), p. 47, cf. Marks and Azizi (2010), p. 732; International Covenant on Economic, Social and Cultural Rights (1966 (entry into force 1976)), 993 U.N.T.S. 3 without any provision, on the one hand, and Art. 2 (1) ICCPR, on the other hand (emphasis added): “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction […]”

The issue becomes even more intricate if the target state is not party to the human rights treaty, cf. Schilling (2004), pp. 352–354. See also Ryngaert (2018), pp. 379–383 for the Charter of Fundamental Rights of the EU.

Schilling (2004), pp. 351–352; Kanalan (2018), pp. 45–46; Krajewski (2017a), pp. 299–301 (paras 68–75); Tomuschat (2014), pp. 95, 119; Schilling (2016), p. 36 (para. 88); Joseph (2010), p. 160; Naert (2016), pp. 196–202; Ryngaert (2015), pp. 23–25; Ryngaert (2018), p. 380; Marks and Azizi (2010), pp. 732–735; see extensively Gondek (2009), pp. 121 et seqq., 263 et seqq., 291 et seqq.

Human rights law and international humanitarian law are not mutually exclusive (ICJ (8 July 1996) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226 (para. 25); Kleffner 2013, paras 251–253; Orakhelashvili 2019, pp. 476–477). Thus, they can still apply to measures of economic warfare directed at targets within the jurisdiction of the belligerent. Such measures lie beyond the scope of this work (above Sect. 1.​3.​2).

While the voting on the resolution (which constitutes the exercise of sovereign public authority) occurs at the seat of the UN, the effects of the sanctions are felt in the target state (cf. Schilling 2004, p. 346); yet, no doubts exist regarding the territorial applicability of human rights.

Kleffner (2013), para. 251.

Stein et al. (2016), pp. 454–455 (paras 1214, 1216); Turns (2014), pp. 824–825; Ipsen (2014), pp. 1190 (para. 6), 1198–1199 (paras 4–5); Bothe (2016b), p. 641 (para. 62); Krajewski (2017a), p. 241 (paras 28, 30–31); United Kingdom Ministry of Defence (2004), paras 3.1, 3.3; Kleffner (2013), paras 201–209; Starck (2000), pp. 235–236; Shaw (2017), p. 911; O’Connell (2002), p. 74.

Reinisch (2001a), p. 860; O’Connell (2002), p. 74; unlike the necessity of an international armed conflict, cf. Krajewski (2017a), pp. 242–244 (paras 37–44).

Reisman (1995), pp. 354–355; Reisman and Stevick (1998), p. 95; Sassòli (2001), p. 244 (suggesting a stricter application of the rules); Starck (2000), pp. 235–244.

In addition, the applicability to organizations such as the UN (and its organs such as the Security Council) has to be explained if these are not party to the treaty in question, cf. O’Connell (2002), pp. 71–72; Sassòli (2001), pp. 245–246; Reinisch (2001a), pp. 854–855; Starck (2000), pp. 244–247.

O’Connell (2002), p. 74; Sassòli (2001), p. 241.

Starck (2000), p. 243 (arguing a maiore ad minus for rules with jus cogens character and with further references); Reinisch (2001a), p. 853 (with further references in fn. 21); see UN Economic and Social Council (2000), p. 10 (para. 32); Momtaz (2001), p. 224; Sassòli (2001), p. 241; Gasser (1996), p. 882; cf. also Condorelli (2001), p. 234.

For the prerequisites see Vöneky (2018), paras 12–16; Fastenrath (1991), pp. 136–138. With ICJ (26 November 1984) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, ICJ Reports 1984, p. 392 (para. 63) and ICJ (27 June 1986) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgement, ICJ Reports 1986, p. 14 (para. 210) the possibility of analogies in international law is accepted here (although, for the avoidance of doubt, neither judgement sets forth the requirements of an analogy); for criticism see Heintschel von Heinegg (2014b), pp. 500–501 (paras 5–7).

O’Connell (2002), p. 73: “[I]f [sanctions] kill, it is in a different way than weapons do.” See also Dupont (2020), pp. 42–43 (with further references in fn. 21 to 22).

Cf. Art. 54 (1) Additional Protocol I of 1977 to the Geneva Conventions of 12 April 1949 (as quoted in Macalister-Smith 1991, p. 443).

Cf. Turns (2014), p. 822.

Critical O’Connell (2002), pp. 74–75.

Reisman (1995), p. 355 extends the application of international humanitarian law to “any other strategic instrument of high coercion”; see also Reisman and Stevick (1998), p. 127. For an extension to other than UN sanctions see UN Economic and Social Council (2000), p. 10 (para. 32); Dupont (2020), pp. 42–43. For a different view see O’Connell (2002), pp. 74–75; Reinisch (2001a), p. 860.

Starck (2000), pp. 227–329 (also with a discussion of other potentially pertinent rules of international humanitarian law); for other potentially pertinent rules cf. UN Economic and Social Council (2000), p. 10 (paras 32–36).

On these rules see Macalister-Smith (1991), pp. 443–445; United Kingdom Ministry of Defence (2004), paras 5.27, 15.19.1, 15.27.2; Momtaz (2001), pp. 224–225; Reinisch (2001a), p. 861.

Cf. Momtaz (2001), p. 227; Gasser (1996), pp. 885–886 (only dealing with armed force, however); Gowlland-Debbas (2001), pp. 17–18.

Cf. UN General Assembly (2016), pp. 12–13 with reference to Reisman and Stevick (1998) and Joyner (2016); see also Dupont (2020), pp. 39–40, 42–43.

Cf. Lamp (2019), pp. 721–723; Bhala (2013a), pp. 1–3 (referring to the “constitution” of international trade law); Culot (2017), p. 345 (on sanctions).

UN member states: http://​www.​un.​org/​en/​member-states/​index.​html; WTO member states: https://​www.​wto.​org/​english/​thewto_​e/​whatis_​e/​tif_​e/​org6_​e.​htm (both accessed 10 January 2021). Cf. The Economist (2018y), p. 15.

Cf. https://​wits.​worldbank.​org/​gptad/​library.​aspx (accessed 24 January 2021), where also non-member free trade agreements are listed.

General Agreement on Trade in Services, 1869 U.N.T.S. 183, 33 ILM 1167 (1994). For a discussion in investment war context cf. below Sect. 4.​3.​1.​1.​2.​1.

Soprano (2018), pp. 10–12, 24–28; Cooper (1967), p. 1285; Cho (2001), p. 420 (fn. 6).

Posner and Sykes (2013), p. 267 (emphasis added). On the Smoot-Hawley tariffs see Evenett (2019), pp. 537–540.

Bhala (1995), p. 2 calls antidumping laws “a potent weapon for protectionists” and in fn. 17 cites a 1988 Economist article calling them “the chemical weapons of the world’s trade wars”; see also Soprano (2018), pp. 1, 136–137; Gathii (2004), p. 48.

The United States’ commitments are available at https://​www.​wto.​org/​english/​thewto_​e/​countries_​e/​usa_​e.​htm (accessed 10 January 2020). For legal discussion of the issue see especially Herrmann (2018), Tietje and Sacher (2018), and Jung and Hazarika (2018).

Jackson (1997), p. 139; Wolfrum (2010a), para. 3; Hahn (2010), pp. 1, 3–4; Mavroidis (2008), p. 72; Bhala (2013a), para. 38-001.

van den Bossche and Zdouc (2017), p. 423.

On the Harmonized System see Mavroidis (2008), pp. 72–73.

Mavroidis (2008), p. 70.

Details van den Bossche and Zdouc (2017), pp. 447–450.

Cf. Fabbricotti (2010), para. 14; van den Bossche and Zdouc (2017), p. 449.

Cf. Jackson (1997), p. 257.

See Sect. 3.3 and fn. 150 above.

Art. XI:1 GATT (emphasis added).

Wolfrum (2010a), paras 1–2; Bhala (2013a), para. 38-005 with case law.

Neff (1990a), p. 84.

See Angel (2018).

Cf. Wolfrum (2010a), para. 12.

It should be noted that it is not clear whether the United States unilaterally imposed quotas on steel vis-à-vis all affected states and the EU or whether some states affected by the quota “agreed” to it in exchange for exemption from the tariffs (cf. fn. 190 above). The latter case could qualify as a voluntary export restraints, which, while hotly debated during the 1980s (cf. Gathii 2004, pp. 66–67; Mavroidis 2016b, pp. 323–324), are today prohibited by Art. 11 (1) (b) Agreement on Safeguards (Bhala 2013b, para. 82-026). It will be assumed here that the quotas were not implemented by voluntary export restraints.

It is obvious from the text of the provision that no item is pertinent (for an analysis see Bhala 2013a, paras 38-023 et seqq.). Art. XI:2 GATT exempts the following from the obligations under Art. XI:1 GATT (asterisk omitted): “(a) Export prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of foodstuffs or other products essential to the exporting contracting party; (b) Import and export prohibitions or restrictions necessary to the application of standards or regulations for the classification, grading or marketing of commodities in international trade; (c) Import restrictions on any agricultural or fisheries product, imported in any form, necessary to the enforcement of governmental measures which operate: […]”.

For a discussion of sanctions under Art. XI GATT see Remmert (2008), pp. 228–231.

Below Sect. 3.4.4.2.3; Bhala (2013b), para. 73-001.

van den Bossche and Zdouc (2017), p. 697.

Soprano (2018), p. 49; Mavroidis (2016a), pp. 477–478; van den Bossche and Zdouc (2017), p. 700; certain export subsidies and local content requirements are prohibited under the ASCM, see Mavroidis (2008), p. 181.

Verma (2017), pp. 264–265.

See Pickett and Lux (2015), pp. 5–6; Dicke (1988), p. 188; Lowenfeld (2008), pp. 915–916 (dealing more specifically with his definition of “economic sanctions”); see also with regard to the 2018 United States tariffs WTO (2018e), p. 3; WTO (2018f), p. 3. For a detailed subsumption of sanctions under Art. I and III GATT see Remmert (2008), pp. 201–228.

The following is oriented toward the questions raised by the examples because they represent a typical defense narrative for measures of economic warfare (many other GATT exceptions are not relevant in any case since they require (majority) WTO member state consent, especially waivers such as Art. XXV:5 GATT). For a comprehensive overview of exceptions see Mavroidis (2016a), pp. 413–495.

Identically in all (as of 14 January 2021: nine, thereof seven pending) disputes regarding aluminum and steel (United States — Certain Measures on Steel and Aluminium Products, case numbers DS544 (China), DS547 (India), DS548 (EU), DS550 (Canada) (settled), DS551 (Mexico) (settled), DS552 (Norway), DS554 (Russia), DS556 (Switzerland), and DS564 (Turkey) (complainant in brackets)), the respective first communication of the United States made reference to Sec. 232 Safeguards whereas Sec. 201 Safeguards were denied (quoting from WT/DS548/13 of 6 July 2018, Doc. No. 18-4254): “The EU’s request concerns tariffs on imports of steel and aluminum articles imposed by the President of the United States pursuant to Section 232 of the Trade Expansion Act of 1962 (“Section 232”). The President determined that tariffs were necessary to adjust the imports of steel and aluminum articles that threaten to impair the national security of the United States. Issues of national security are political matters not susceptible to review or capable of resolution by WTO dispute settlement. Every Member of the WTO retains the authority to determine for itself those matters that it considers necessary to the protection of its essential security interests, as is reflected in the text of Article XXI of the GATT 1994. The EU’s request purports to be pursuant to Article 14 of the Agreement on Safeguards. However, the tariffs imposed pursuant to Section 232 are not safeguard measures but rather tariffs on imports of steel and aluminum articles that threaten to impair the national security of the United States. The United States did not take action pursuant Section 201 of the Trade Act of 1974, which is the law under which the United States imposes safeguard measures. Therefore, there is no basis to consult pursuant to the Agreement on Safeguards with respect to tariffs imposed under Section 232”.

By comparison, in United States — Safeguard measure on imports of large residential washers, case number DS546, the United States communication unequivocally concerns Sec. 201 Safeguards and the Agreement on Safeguards (cf. WT/DS546/4 of 16 August 2018, Doc. No. 18-5246).

Bhala (1997), pp. 7–8; Mavroidis (2016a), pp. 477–479 (also on the ASCM).

See Wolfrum (2010c), para. 2 for a detailed overview.

Reiterer (1997), p. 191.

van den Bossche and Zdouc (2017), pp. 544–545.

Bhala (1998), pp. 267–268; Bhala (1997), pp. 7–8.

Mavroidis (2008), p. 63.

Art. XX (c), (h), (i), and (j) GATT provides (asterisk to item (h) omitted): “[…] (c) relating to the importations or exportations of gold or silver; […] (h) undertaken in pursuance of obligations under any intergovernmental commodity agreement […]; (i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; […]; (j) essential to the acquisition or distribution of products in general or local short supply; […]”.

This is also a consequence of the coming about of Art. XX GATT, sometimes dubbed “laundry list”, in reference to the hotchpotch of individual state interests epitomized in the provision (see Bhala 2013b, para. 45-001).

Qureshi (2006), pp. 104–110; Hahn (1991), p. 579; see also Appellate Body (12 October 1998 (adopted 6 November 1998)) United States — Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, para. 157; with a different view van den Bossche and Zdouc (2017), p. 624 and Hestermeyer (2010), para. 22; also critical Balan (2013), p. 390.

Bhala (2013b), para. 45-001 would appear to place Art. XX (c), (e), (f), (h) to (j) GATT in the former, Art. XX (a), (b), (d), (g) GATT in the latter class.

Cf. Appellate Body (12 October 1998 (adopted 6 November 1998)) United States — Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, paras 156, 159; critical Bartels (2015), p. 97.

Appellate Body (12 October 1998 (adopted 6 November 1998)) United States — Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, para. 150. Critical of the content of the obligations flowing from this (namely contra a duty to negotiate) is Condon (2018), p. 109. On safeguard measures “in disguise” in the 2018 trade war example see Jung and Hazarika (2018).

See Wolfrum (2010b), pp. 1 et seqq.; van den Bossche and Zdouc (2017), pp. 595–604; critical Bartels (2015), pp. 96, 116.

For restrictive tendencies of the WTO dispute settlement system regarding Art. XX GATT see Howse (2016), pp. 48–53.

Jackson (1997), pp. 230–231; Reiterer (1997), p. 210.

In addition to fn. 457 above cf. the statement to be found on https://​www.​commerce.​gov/​news/​fact-sheets/​2017/​04/​president-donald-j-trump-standing-unfair-steel-trade-practices (accessed 14 January 2021); The Economist (2018n), p. 19: “What is unprecedented about the new tariffs is thus not their purpose. Nor is it their likely impact. […] It is the legal rationale being used to justify them that stands out. […]”

The Economist (2018n), p. 19.

See, for example, Hillman (2018); The Economist (2018n), p. 19 (quoting Hillman and Hufbauer); van Aaken and Kurtz (2019), p. 617: “no legal basis”.

See Tietje and Sacher (2018); The Economist (2018n), p. 22.

Hestermeyer (2010), para. 5 notes (emphasis added, fn. omitted): “[…] Several reasons explain Members’ reticence to appeal to or (conversely) to challenge the appeal to Art. XXI: the fear that other Members will also make use of Art. XXI culminating in trade wars, the sensitivity involved with issues of national security and, last but not least, the fact that other provisions of GATT also give leeway, e.g., to protect national industries of strategic importance”.

Art. XXI GATT (emphasis added).

See especially Panel (5 April 2019 (adopted 26 April 2019)) Russia - Measures Concerning Traffic in Transit, Report by the Panel, WT/DS512/R, paras 7.59 et seqq.; Hestermeyer (2010), paras 23–25, 34 is instructive in his construction of the text: The “security” element could be read as to include only non-economic, for instance military, threats to safety; in addition, since Art. XIX GATT and the Agreement on Safeguards are pertinent insofar, the failure of national industries can regularly also not serve as set of facts establishing an issue of “security” but should be limited “to very few industries at best in this respect”; see also Hahn (1996), pp. 295–269, 300–301; Balan (2013), pp. 386–388; Knoll (1984), pp. 582–607. Others want to exclude measures taken for protectionist reasons by requiring a “minimal nexus” between the “genuine security interests of the state” and the measure (Remmert 2008, p. 262; similarly Hahn 1996, p. 296). Bhala notes that the use of force in the sense of Art. 51 UN charter is no prerequisite (Bhala 1997, pp. 16–17; Bhala 1998, p. 274). An all too lenient interpretation of “emergency in international relations” would, in Hestermeyer’s opinion, blur the provision’s differentiations and should thus be read in a way to capture “situations of similar gravity” as compared to war.

Differently Hahn (1991), p. 579, who cautions not to deem the lege artis legal interpretation irrelevant due to the self-judging nature of the provision.

Jackson (1997), pp. 230–231 (fn. omitted). Cf. similarly Senti and Hilpold (2017), p. 323 (para. 956). For a different view see Bhala (1998), pp. 275–276.

As of January 2020, the GATT Analytical Index contained no reports (cf. World Trade Organization 1995, pp. 599 et seqq.), the WTO Analytical Index (WTO 2020) apart from Panel (5 April 2019 (adopted 26 April 2019)) Russia - Measures Concerning Traffic in Transit, Report by the Panel, WT/DS512/R offers only one entry relating to the panel report in China – Raw Materials (2011), which contains the following comparison (Panel (5 July 2011 (adopted 22 February 2012)) China — Measures Related to the Exportation of Various Raw Materials, Report of the Panel, WT/DS394/R, WT/DS395/R, WT/DS398/R, para. 7.276 (emphasis added)): “The Panel does not consider that the terms of Article XI:2, nor the statement made in the context of negotiating the text of Article XI:2 that the importance of a product ‘should be judged in relation to the particular country concerned’, means that a WTO Member may, on its own, determine whether a product is essential to it. If this were the case, Article XI:2 could have been drafted in a way such as Article XXI(b) of the GATT 1994, which states: ‘Nothing in this Agreement shall be construed […] to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests’ […]”.

Mavroidis sees this as suggestion of “a very deferential standard […] in line with the [Appellate Body] line of thinking […]” and even concludes that “the findings of the Panel […] echo a very reasonable standard of review, and most likely the predominant view of the WTO members as well.” (see Mavroidis 2016a, p. 487). On the 1996 dispute between the European Communities and the United States regarding the Helms-Burton Act: WTO (1996)—the Panel suspended its work upon request of the European Communities 1997 and its authority lapsed 1998 in accordance with Art. 12 (12) DSU (see Remmert 2008, pp. 256–257).

Measures taken by GATT member states were either not reviewed at all or the reports not adopted; for a compilation see Mavroidis (2016a), pp. 481–487; Hahn (1991), pp. 569–578; Senti and Hilpold (2017), pp. 322–323 (paras 954–955); Chen (2017), pp. 317–319 and Hestermeyer (2010), para. 5. See also GATT (1982) and comprehensively Panel (5 April 2019 (adopted 26 April 2019)) Russia - Measures Concerning Traffic in Transit, Report by the Panel, WT/DS512/R, Appendix.

Bhala (1998), pp. 268–269; Bhala (1997), pp. 8–10.

Schill and Briese (2009), pp. 107–110, 120–138 with further references and a proposition for a general standard of review for good faith; Chen (2017), pp. 321–322 also with further references; Hestermeyer (2010), para. 21.

See also Akande and Williams (2003), pp. 379–386.

ICJ (27 June 1986) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgement, ICJ Reports 1986, p. 14 (para. 222); see Reiterer (1997), p. 194 and especially the rejection of a consideration of this material in Panel (5 April 2019 (adopted 26 April 2019)) Russia - Measures Concerning Traffic in Transit, Report by the Panel, WT/DS512/R, para. 7.82 (fn. 156).

Hestermeyer (2010), para. 20; Reiterer (1997), p. 210; Schill and Briese (2009), pp. 105–106; Chen (2017), p. 319; Bhala (1998), pp. 278–279; Pickett and Lux (2015), pp. 12–13 invoking the creation of the DSU itself as an argument for review; cf. Panel (13 October 1986 (not adopted)) United States - Trade Measures Affecting Nicaragua, Report by the Panel, L/6053, para. 5.16.

Schill and Briese (2009), p. 106; Hahn (1991), pp. 584, 597; Tietje and Sacher (2018).

See, for instance Chen (2017), pp. 321–322, 340–345 with further references; Schill and Briese (2009), pp. 120–138; Hestermeyer (2010), para. 21; Hahn (1991), pp. 599–601; Bhala (1998), pp. 271–272, 275 demands a “credible threat judged from the objective standpoint of a reasonable, similarly-situated government, coupled with the articulation of specific types of dangers that track one or more of the three clauses” of Art. XXI GATT.

Hahn (1991), p. 601; Balan (2013), p. 389; Schloemann and Ohlhoff (1999), p. 448; Akande and Williams (2003), pp. 389–396.

See also Lamp (2019), p. 738; Roberts et al. (2019), pp. 665, 672.

The Economist (2018y). Observers who did not expect a game-changing statement on Art. XXI GATT were probably taken by surprise vis-à-vis the panel decision (see Akande and Williams 2003, p. 403. Cf. Bhala 1998, pp. 278–280; Senti and Hilpold 2017, pp. 323–324 (para. 957) remark that the consequences of an all too far-reaching judgement could be withdrawal of the affected state and gives the example of the United States’ withdrawal from the general jurisdiction of the ICJ in the wake of the court’s Nicaragua judgement).

In Panel (13 October 1986 (not adopted)) United States - Trade Measures Affecting Nicaragua, Report by the Panel, L/6053, the panel did not receive the mandate to review Art. XXI (b) (iii) GATT (see para. 5.3) and some argue that even if it did, it would not have intruded on the United States national security concerns (cf. Mavroidis 2016a, pp. 484–485, 487).

Lamp (2019), p. 728; Sacerdoti (2019), p. 785; Bown (2019a), p. 22 and Chap. 7 fn. 72 below.

Marossi (2015), pp. 169–170; Schloemann and Ohlhoff (1999), p. 426 call it the “Achilles’ heel of international law”; Roberts et al. (2019), pp. 665, 672, 676; see generally Emmerson (2008).

Cf. Mavroidis (2016b), p. 313.

Jackson (1997), pp. 179–181; comprehensive overview of the history at Maruyama (1989), pp. 400 et seqq. Art. XX and XXI GATT were contained in a single article (Art. 99) of the Havanna Charter, which is remarkable due to the chapeau (today only in Art. XX GATT) also applicable to the security exception.

Soprano (2018), pp. 73–74; van den Bossche and Zdouc (2017), p. 631.

van den Bossche and Zdouc (2017), p. 647 call it “breathing space”. A second, so-called pragmatic or political explanation assumes that domestic producers have more clout with the government than do foreign exporters or domestic consumers (which benefit from competitive imports). Thus, the argument goes, it is preferable to have such a safeguards rule as an exception to a generally liberal import policy than to have tariffs. For both arguments see Jackson (1997), pp. 176–177; see also Müller (2006), pp. 40 et seqq.; Sykes (1991), pp. 259, 278–279.

Cf. Jackson (1997), pp. 176–177.

Sykes (1991), pp. 264–265.

Müller (2006), p. 34.

Sykes (1991), p. 259; Soprano (2018), p. 74.

Bourgeois and Wagner (2010), pp. 1, 5.

Art. 2 (1) Agreement on Safeguards (fn. omitted; emphasis added).

Reading both together is mandatory, cf. van den Bossche and Zdouc (2017), p. 633.

A comprehensive treatise on the material requirements of is provided by Müller (2006), pp. 105 et seqq. The requirement that the increased imports are a result of “the obligations incurred by a contracting party under” the GATT (Art. XIX:1 (a) GATT) is not reflected in the Agreement on Safeguards and is not treated as a substantial requirement (see Bhala 2013b, paras 83-030–83-032).

See Prost and Berthelot (2008); Bourgeois and Wagner (2010), paras 9–18.

On the interpretation by the bodies of the WTO dispute settlement system see Rios Herran and Poretti (2008), para. 16; Mavroidis (2016b), pp. 365–366.

As a narrow exception to this rule, provisional safeguard measures (normally in the form of refundable tariffs) may be taken where delay would cause damage difficult to repair and where causation of serious injury by increased imports has been preliminarily determined (Art. 6 Agreement on Safeguards). Also, to be precise, Art. XIX:1 GATT allows “to suspend the obligation in whole or in part or to withdraw or modify the concession” (lit. (a)) and “to suspend the relevant obligation in whole or in part or to withdraw or modify the concession” (lit. (b)), which could be the suspension of a GATT obligation or withdrawal or modification of the tariff schedule of concession.

Wolfram (2008), para. 4.

van den Bossche and Zdouc (2017), p. 647; Mavroidis (2016b), p. 363.

Mavroidis (2016b), p. 360; Bhala (2013b), para. 84-003.

Bhala (2013b), paras 84-037–84-038.

Mavroidis (2016b), pp. 366–367; cf. Jackson (1997), p. 210. In the process of determining the material requirements, the WTO member states have to adhere to the procedural provisions of the Agreement on Safeguards (especially Art. 3 and 12 thereof).

See, also for the following sentences, the communication of the Permanent Mission of the United States to the WTO to the Permanent Mission of the People’s Republic of China of 4 April 2018, which is a response to China’s request for consultations: Permanent Mission of the United States (2018). For a recent discussion of the case see Jung and Hazarika (2018).

In this regard, see also WTO (2018b), pp. 16–17 and the communication quoted in fn. 457 above.

Herrmann (2018) (also on the problems the United States approach causes under EU law); Tietje and Sacher (2018).

Soprano (2018), p. 75.

Herrmann (2018); see also Hestermeyer (2010), para. 23 and Hahn (1996), pp. 295–296.

Felbermayr and Sandkamp (2018), paras 31–32.

Tietje and Sacher (2018) argue that this would curtail exporting WTO members’ rights to suspend concessions in accordance with Art. 8 (2) Agreement on Safeguards, which would violate Art. 3 (2) and 19 (2) DSU.

According to the provision, suspension is not permissible for the first three years after the safeguard measure (i.e. the United States tariffs of 2018) has taken effect provided that the safeguard measure is a reaction to an absolute increase of imports. Normally, the United States would have to prove an absolute increase of imports under Art. 2 (1), 4 (2) Agreement on Safeguards. What is unclear is whether the burden of proof shifts to the reacting WTO members under Art. 8 (3) Agreement on Safeguards. See Lamp (2019), p. 727 and Tietje and Sacher (2018).

WTO (2018c).

Fn. 190 above.

Cf. Felbermayr and Sandkamp (2018), p. 30. It is not unthinkable that a similar argument is made for solar panels and washing machines. So far, this allegation has not been made (cf. WTO 2018c). Thus, such argument shall not be elaborated here for the sake of brevity and clarity.

Neither does the Antidumping Agreement, see Posner and Sykes (2013), p. 277; Jackson (1997), p. 257; Adamantopoulos (2010), para. 13.

Art. VI:2 GATT.

Adamantopoulos (2010), para. 2; Posner and Sykes (2013), p. 277.

Mavroidis (2008), p. 62.

van den Bossche and Zdouc (2017), pp. 754–758.

See fn. 144 and 146 above.

Adamantopoulos (2010), para. 14.

Jackson (1997), pp. 257–258.

Details Mavroidis (2016b), pp. 138–160. For the EU, see Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (2016), OJ, L 176, 30 June 2016, p. 21 (as amended from time to time); for the United States see Sec. 731 et seqq. of the Tariff Act of 1930, 19 U.S.C. §§ 1673 et seqq. (Bhala 1995, pp. 55 et seqq. is critical of whether consistency of United States domestic law and WTO law has been achieved, as is Jackson 1997, p. 259; an alternative view is offered by Gathii 2004, pp. 10–13).

Adamantopoulos (2010), para. 1 (fn. 2).

The White House (2018).

Mavroidis (2016b), p. 184.

Cf. The Economist (2018a).

Senti and Hilpold (2017), pp. 103 (para. 337), 104 (para. 340), 107 (para. 349); Bhala (2013a), para. 5-40. A provision expressly establishing this binding character (like Art. 59 ICJ Statute) is sought in vain in the DSU, cf. Stoll (2006), para. 70 (fn. 155). There is no stare decisis rule in WTO law, however (Soprano 2018, p. 62).

Cf. generally Guzman (2008), pp. 22, 25–70.

Bello (1996), p. 417.

In majority opinion, WTO members cannot resort to the customary international law rules on state responsibility to remedy breaches due to the fact that the DSU has created overriding and conclusive rules (lex specialis), see Art. 55 Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001) - Draft Articles - Annex to General Assembly resolution 56/83 of 12 December 2001; Soprano (2018), pp. 24–28, 43–44; Stoll (2006), para. 4; Bourgeois (2007), p. 38; van den Bossche and Zdouc (2017), pp. 61, 208.

Assuming, of course, that the DSU constitutes a self-contained regime whose remedies are exclusive and conclusive (below Sect. 5.​3.​3).

Panel (22 April 2005 (adopted 20 June 2005)) European Communities — Measures Affecting Trade in Commercial Vessels, Report of the Panel, WT/DS301/R, para. 7.193; Howse (2016), p. 73; Steinmann (2006), para. 2; Stoll (2006), paras 7–10, 67 et seqq.

Steinmann (2006), para. 6.

See Stoll (2006), paras 67–69, who rightly places a mutually acceptable resolution first (cf. Art. 3 (7) sentence 3 DSU).

Bello (1996), pp. 417–418; Schwartz and Sykes (2002), p. S200.

van den Bossche and Zdouc (2017), p. 204. They are not available in case of trade remedies, see Soprano (2018), p. 114.

van den Bossche and Zdouc (2017), p. 206.

Cf. Qureshi (2019), pp. 153–157 and Howse (2016), p. 73 who notes: “The USA, in particular, has accepted constraints on aggressive unilateralism, which includes the option of self-help through trade sanctions or economic threats where another Member was determined by US authorities to have violated its WTO obligations, pursuant to section 301-type trade law”.

This is also evidenced by the constant and frequent use of the WTO dispute settlement system (and before it the GATT 1947’s), cf. the annual statistical analyses by Kara Leitner and Simon Lester, which in their most recent publication at the time of writing report 518 WTO complaints (in the sense of requests for consultation) between 1995 and 2016, heaviest users being the United States and the EU (Leitner and Lester (2017), p. 172).

An argument invoked by the United States regarding their trade policy vis-à-vis China, see The Economist (2018c). Naturally, the assertion stands and falls with the assumption that there is no customary international law obligation of states to settle their disputes amicably (below Sect. 3.4.4.3).

See above Sect. 3.4.4.2.1 and Howse (2016), pp. 66–67. In addition, the WTO dispute settlement system faces more or less open sabotage by some of its members, see fn. 505 above.

Also referred to as preferential trade agreements (PTAs).

See, for instance, Bhagwati et al. (2016), pp. 8–12; Lee (2017), p. 447 and the comprehensive volumes by Mathis (2016); Low and Baldwin (2009); Bagwell and Mavroidis (2011).

Bothe (2016a), pp. 36–37; Culot (2017), p. 345 and the references in fn. 567 above. See also Peacock et al. (2019).

Wolfrum (2010c), para. 3; Hestermeyer (2010), para. 2.

NAFTA is likely to be replaced by the USMCA (see fn. 199 above). To a lesser extent, bilateral trade agreements also played a role in the oil weapon example, see fn. 44 above for the agreements in question; cf. Paust and Blaustein (1976a), pp. 424–426; Shihata (1974), pp. 623–625.

See Art. 2.3 (1) KORUS.

See Art. 2.8 KORUS.

Canada is exempt from the washing machine tariffs, see fn. 210 above.

Art. 10.1 KORUS.

See Art. 10.1 KORUS.

Slightly different, Art. 23 (2) KORUS provides: “Nothing in this Agreement shall be construed: […] (b) to preclude a Party from applying measures that it considers necessary for the fulfillment [sic!] of its obligations with respect to the maintenance or restoration of international peace or security or the protection of its own essential security interests.²”

Interestingly, fn. 2 provides: “For greater certainty, if a Party invokes Article 23.2 in an arbitral proceeding initiated under Chapter Eleven (Investment) or Chapter Twenty-Two (Institutional Provisions and Dispute Settlement), the tribunal or panel hearing the matter shall find that the exception applies”.

See Art. 23.2 KORUS.

Krajewski (2017b), para. 1007.

Oyer (1997), pp. 463, 465; Abbott (2018) (it should be noted that the NAFTA security exception could be invoked either in a Chapter 19 or 20 (state-state) or Chapter 11 (investor-state) dispute settlement; this is also the case for KORUS, see its Art. 11.15 et seqq. for investor-state dispute settlement and Art. 22.3 et seqq. for state-state dispute settlement.

Art. 10.7, 10.8 KORUS; of course, the FTA contains an “ordinary” dispute settlement mechanism, see Art. 22.3 KORUS et seqq.

See also Art. 10.7 (2) KORUS.

Abbott (2001), p. 172 (fn. 9).

Amendments may be reviewed declaratorily only (cf. Art. 1903 NAFTA).

In case of conflict between WTO agreements and FTAs or RTAs with parallel obligations, the question of conflict arises. See Art. 103 NAFTA and Art. 1.2 KORUS. An interesting (and, considering the potential job loss in the United States: ironic) example of choice of NAFTA (as the more lenient agreement compared to the GATT) is found in the idea to evade the (by virtue of the 2018 tariffs) higher prices for preliminary product imports by shifting production to Canada or Mexico, from where the final products could still be imported tariff-free into the United States (The Economist 2018a). In reality, Canada and Mexico are not exempt from the tariffs (which are based on Art. XXI GATT) so that the idea probably never materialized.

ICJ (27 June 1986) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgement, ICJ Reports 1986, p. 14 (para. 276); Orakhelashvili (2019), p. 410; Herdegen (2018), para. 10. Writing in 1989, Puttler (1989), p. 76 summarizes (Ger): “[T]he present state of international law does not contain a general obligation of a state to entertain economic relations with other states […]”.

See also Neuss (1989), p. 65; Ress (2000), p. 21; Elagab (1988), p. 197; Schröder (2016), p. 589 (para. 121); Art. XXXV (1) GATT, which presupposes that states are members but do not engage in trade with one another (see Mavroidis 2016a, pp. 493–494). On freedom of consent cf. the 3^rd recital of the preamble to the VCLT; Schmalenbach (2018), p. 12 (para. 7); Villiger (2009), Art. 6 VCLT, para. 5; Art. 11 VCLT, para. 13; p. 48 (para. 10); briefly Rauber (2018), pp. 46–47, 90 (fn. 375).

Neuss (1989), p. 64; Ress (2000), pp. 20–22; Hakenberg (1988), p. 141.