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GATT, Human Rights and Burma (r)

Subject: GATT, Human Rights and Burma

/* Written 10:42 pm  Nov 22, 1993 by bmcallister@xxxxxxxxxxx in igc:reg.seasia */
/* ---------- "GATT, Human Rights and Burma" ---------- */
IV.History of GATT

	The GATT was intended to preclude or at least minimize international
commercial discrimination.[1]   The GATT is a multi-lateral international
authority and agreement to liberalize global trade and the free flow of
commerce.  The United States is a party by virtue of executive action.[2] 
The GATT  has legal significance equivalent to that of a treaty.[3]  While
never ratified by the Senate, GATT has been held to be "the supreme Law of
the Land" under Article VI of the U.S. Constitution.[4]  Therefore, its
mandates are considered to be binding.


	The dispute settlement process has five main stages.[5]  The
complaining party first attempts settlement and conciliation under
Articles XXII and XXIII.  If consultations fail, all disputing parties
establish a panel by consensus. The panel requests information and
prepares a report of its analysis and conclusions.  The report is then
given to the parties.  If settlement is not reached, the report goes to
the larger GATT Council, comprised of all GATT members, including the
disputants, for adoption by consensus.  If the Council adopts the report,
it pressures the charged party to comply.  If the losing party refuses to
comply, the Council may authorize the complaining party to suspend its
obligations under the agreement.  Out of 233 cases arising under the GATT,
the United States has been either a complainant or defendant in 125.[6] 
Developing nations such as Burma are involved in very few of the disputes.
	Under international law, the principles of stare desisis and common
law  precedent do not apply.[7]  Yet, in practice, past precedent features
strongly in the GATT system, including GATT deliberations and formal
dispute settlement panel findings.  Commentators argue that independence
and expertise of the GATT panels should be increased to encourage rule
integrity over immediate settlement objectives, and third party
objectivity.  GATT is a treaty under provisional application, never
achieving a constitutional status as an international organization. 

		History of Economic Sanctions

	There are many examples of sanctions imposed between GATT members
for foreign policy reasons, although very few have ever resulted in a GATT
panel.  The following is a list of major uses of economic sanctions
between GATT members:[8]

		Argentina (Member since 1967):  
		By U.S., 1977-83 for human rights.  Sanctions included
fuel hold-up and Department of Defense suspension of 212
license requests for $100 million.  ESR II at 445-448. 
See, GATT, GATT Activities in 1982 72-73 (1983).
		1982 by European Economic Community, Australia and
Canada:  for Argentina's annexation of the Falkland
	Australia (Member since 1948) v. France (member since 1948):
1983 on, Australia cut all exports of uranium following French
nuclear testing on the Mururoa Atoll.
	Canada (Member since 1948) v. Japan (Member since 1948) and EC
(Members): 1977-78 for Nuclear Safeguards.
	Cuba (Member since 1948):  1960 on, U.S. opposition to the
Castro regime;  includes total trade embargo and secondary
boycott, including blacklisting of ships that stop in Cuba.
	Dominican Republic (Member since 1957):  Under the Rio Treaty,
Articles 6 and 8, the OAS recommended breaking diplomatic
relations, suspending arms trade and studying whether or not
to cut off other trade.  In the end, export, import and
financial sanctions involved.  ESR II 182-87;
	Haiti (Member since 1950):  
		1986: Cited in deposing Jean Claude (Baby Doc) Duvalier.
		1987-90, by U.S., for elections, human rights, and drug
smuggling under Lt. General Namphy, leads repressive
military regime in their place.  Under Foreign Assistance
Appropriations Act (1987), U.S. suspends aid to Haiti
until democratic process set forth.  ESR II 598-605;
Carter, supra note __ ,at 233.
		Present, U.S. imposed sanctions against Haiti following
Military coup ousting democratically elected Aristide
	Indonesia (Member since 1950) v. Netherlands (Member since
1948) 1957-62 - West Irian.
	Indonesia:  1963-65, "Crush Malasia" and Cease "Crush Malasia"
campaigns.  U.S. and International Monetary Fund cut aid and
exchange credits. 
	Kuwait (Member since 1963):  Sanctions imposed at the time of
Iraqi invasion.
	Israel (Member since 1962): 1956-83:  Various financial
assistance and military export controls over Palestinian and
Border questions.
	Nicaragua (member since 1950): 
		1977-79 by U.S. against Somoza.
		1984 - Reduction in sugar import quotas by U.S. for
socialist tendencies of Sandinistas
		1985 - Total embargo imposed for national security, see
	Peru (Member since 1951): 1968-74:  U.S. sanctions in response
to Peruvian expropriations in oilfields in Northern Peru.
	Poland (Member since 1967) and the Soviet Union (Not a
member):  1981-82 Grain embargo and attempt to stop exports of
pipeline equipment regarding declaration of martial law.  In
the end, these sanctions were overturned.
	South Africa (Member since 1948):  
		1975-82 by U.S. for nuclear testing.   
		1988-1991 by U.S. through the Comprehensive Anti-
Apartheid Act and various U.N. Resolutions. (has perhaps
not challenged U.S. Export controls because of its weak
international standing because of Apartheid).
	Uganda (Member since 1962):  U.K. and U.S. impose total trade
ban against Idi Amin. 
	Uruguay (Member since 1953) 1976-81, U.S. sanctions based on
human rights abuses.  Amendments to $32 of the FAA of 1973
(P.L. 93-189) and FAA of 1974 (P.L. 93-559), prohibiting U.S.
government employees from training foreign police.  In 1977,
U.S. denied 3 million in military aid.  Uruguay called this
denial of aid an "inadmissible intrusion into Uruguayan
affairs."  In July 1977, Congress froze the sale of police
	Yugoslavia (member): 1992 on, various levels of sanctions
under a variety of authorizations.

  	All of these examples cited above have bearing on the question of
whether or not sanctions may be imposed on Burma.  History seems to
establish a pattern and practice allowing for economic sanctions to be
imposed for foreign policy reasons.[9]  However, the history of such
sanctions set out above would not establish a derogation of GATT
obligations.  As discussed above, even the panel decisions which have been
reached have no legally binding force beyond aiding interpretation of the
actual agreement.  Therefore, these examples merely demonstrate the range
of standard sanctions practice in the international forum, not whether
they are GATT legal.


[1].Knorr, supra note 32, at 155.

[2].   J. Jackson, Legal Problems of International Economic Relations 399-401
(1977); Presidential authority to bind the United States to GATT was based on
both the executive power to conduct foreign affairs and the Reciprocal Trade
Agreements Act of 1934, 48 Stat. 943 (1934) (codified as amended at 19 U.S.C.A.
sec. 1351-1366).  See K.S.B. Technical Sales Corp. et. al. v. District Water Supply
Comm'n, 75 N.J. 272 (1977).  

[3].  K.S.B. Technical Sales Corp. et. al. v. District Water Supply Comm'n, 75 N.J. 272
(1977), citing United States v. Belmont, 301 U.S. 324, 331 (1937); United States v.
Pink, 315 U.S. 203, 230 (1942).

[4].K.S.B. Technical Sales Corp, 75 N.J. 272; Kolovrat v. Oregon, 366 U.S. 187, 190
(1961); United States v. Pink, 315 U.S. at 230.
U.S. Const., Art. VI, cl. 2.

[5].Carter, supra note 31, at 138-39.

[6].John H. Jackson, The World Trading System 99 (1989).

[7].Ian Brownlie, Principles of Public International Law (3d. ed. 1979).

[8].ESR II, supra note 11, at xii-xvi.  Information on GATT membership from
GATT, GATT Activities 1991 (1991).  See C. Joyner, The Transnational
Boycott as Economic Coercion in International Law: Policy, Place, and
Practice, 17 Vand. J. Transnat'l. L. 205, 222-23 (1984); Steven J.
Fredman, Comment, U.S. Trade Sanctions against Uganda: Legality under
International Law, 11 Law and Policy in International Business 1149-91
(1979); Judith Miller, When Sanctions Worked, 39 Foreign Pol'y. 118

[9].The general principles of treaty interpretation are summarized by
Article XXXI of the Vienna Convention on the Law of Treaties.  Among other
principles, the article recognizes "subsequent practice in the application
of the Treaty which establishes the agreement of the parties regarding its
interpretation" as creating law under the treaty.  Jackson, The World
Trading System 88-89 (1989), citing The Vienna Convention on the Law of
Treaties, with Annex, done at Vienna, 23 May 1969, U.N. Doc. A/Conf. 39-
27, May 23, 1969(not ratified by the United States, but recognized as
codification of customary international law).