The current repression on Tibetans by Chinese authorities has upset the international public opinion. But which country would take the risk to talk too loud, in a moment where there is so much benefit to be drawn from investing in China? Some politicians like Hans-Gert Poettering (president of the European Parliament) have risen the possibility of boycott (see his words in the Financial Times). But the boycott at issue would be political, not commercial.

Could international trade law ever be used as a way to enforce international human rights law objectively?

Article XX of the GATT set forth exceptions in which the High Contracting Parties are free to adopt measures restricting international trade, that would otherwise be condemnable under the Agreement (as long as the non-discrimination principle is preserved, or as long as the national measure is not a disguised restriction on international trade). But exceptions of Article XX mention no exception relating specifically to human rights, and drafters of the GATT never had the intention to do so. Voices have recommended recently that more deference and consideration be shown by the law of the WTO to this aspect, as humanitarian law should prevail on trade interests (see the Preliminary Report E/CN.4/Sub.2/2000/13 submitted by Special Rapporteurs to the Sub-Commission on the Promotion and Protection of Human Rights, on June 15th, 2000). But those views are related to the impact of globalization on human rights and mostly contemplate labor law. What if one or several countries wanted to start an embargo on Chinese goods, because of violences in Tibet?

Embargos are contrary to the rules enforced by the WTO. In the Shrimp case (November 6th, 1998), the Appelate Body of the WTO has ruled that, concerning measures imposing restrictions of trade extraterritorially, there must be a “sufficient nexus” between the State adopting such a measure and the cause for which the measure is taken. Under this standard, which country could establish such a connection between Tibetans and the embargo measure? The nexus would not be deemed inexistant.

This standard is actually consistent with a fundamental case of public international law. In the South West Africa case, which was decided by the International Court of Justice, Ethiopia and Liberia had brought an action to denounce the apartheid regime enforced by South Africa during its mandate. In its judgment of July, 18th 1966, the Court found that the two countries had no standing to bring this action, because plaintiffs had failed to establish their legal rights or interests in the subject-matter. So that, in international law, there can be no actio popularis (the right for any member of a community to bring an action to defend public and common interests).

This restrictive conception of the international standing shows that moral or humanitarian considerations are not always sufficient to create duties and obligations on members of the international community.

submitted by: Tina