CYIL vol. 11 (2020)

HALIL RAHMAN BASARAN CYIL 11 (2020) prohibits the use of or the threat of the use of force, does not prohibit “economic or financial intevention”. 69 The “practice” of the United Nations has not definitively and consistently included the use of economic or financial force within the prohibition of Article 2 (4) of the United Nations Charter, either. The United Nations Charter makes no mention of the prohibition of economic intervention of one country into the other.True, “theUnitedNations General Assembly 70 has regularly called for the ending of the U.S.’s (United States of America) economic, commercial and financial embargo against Cuba on the basis of the principle of non-intervention”. 71 In the General Assembly’s view, the embargo interferes with the sovereign rights of Cuba in violation of Article 2(1) of the United Nations Charter. 72 And, this may be a sign of burgeoning customary international law in respect of economic coercion on states. Yet, under international law, “restrictions upon the independence of States cannot be presumed.” 73 Bilateral trade is a question of national sovereignty. Governments freely choose other governments with which they wish to have commercial relations. 74 Multilateral comprehensive approach to international trade is weak. Indeed, there is no multilateral approach to SWFs. Arguably, this is compatible with international trade law, in that international trade law is of a bilateral nature (notwithstanding its veneer of multilateral and public international law). Indeed, the World Trade Organization (WTO) dispute settlement turns every multilateral trade problem into a bilateral one between two countries. 75 Even though the multilateral dimension of the WTO has been deadlocked at numerous times, the bilateral dispute settlement between countries throughWTO panels and the WTO Appellate Body have worked efficiently. Multilateral trade negotiations have not moved ahead in the last two decades yet bilateral dispute settlement between WTO members and bilateral trade sanctions have been effective. In this regard, the bilateral treatment of SWFs between countries (the home country and the recipient country) is not against the nature of international trade law in particular or public international law in general. Thus, allowing SWFs to be managed/directed on a bilateral level between countries is valid. Additionally, international rules cannot operate without the constant help and support of national legal systems. 76 The cooperation between public international law and national law is natural. Yet, the problem is that the amount and the quality of public international law as applied to SWFs is thin and ambiguous. There is no impersonal law or treaty between states dealing with or governing SWFs, in contrast to the more than 60 treaties which comprise the WTO. Rather, among nations, in respect of SWFs, there are particular and ‘customized’ laws. 69 United Nations Charter, Article 2(4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” 70 e.g., General Assembly Resolution 47/19, 24 November 1992. General Assembly Resolution 63/7, 11 December 2008. 71 WHITE, Nigel and ABASS, Ademola, Countermeasures and Sanctions (Chapter 18), in Malcolm D. EVANS (ed.), International Law, Oxford University Press, New York, 2010, p. 546. 72 United Nations Charter, Article 2(1): The Organization is based on the principle of the sovereign equality of all its Members. 73 Lotus judgment, Permanent Court of International Justice, no. 9, 1927, Serie A, no. 10 at p. 18. 74 WHITE, Nigel and ABASS, Ademola, Countermeasures and Sanctions (Chapter 18), op. cit., p. 547. 75 GOLDSMITH, Jack L. & POSNER, Eric A. The Limits of International Law, Oxford University Press, New York, 2005, p. 135. 76 CASSESE, Antonio, International Law, Oxford University Press, Second Edition, New York, 2005, p. 9.

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