反制裁的国际合法性探析——以WTO安全例外条款为视角

A Probe into the International Legality of Anti-Foreign Sanctions—From the Perspective of WTO Security Exception Clause

经济制裁是21世纪国家及国际组织惯常使用的非暴力强制手段。制裁方可借此迫使被制裁方顺从其政治目的,或敦促被制裁方遵守国际法律规范。而受制裁目的、是否有联合国授权等因素的影响,经济制裁的国际合法性始终存在争议。反制裁是被制裁方最有力的回应措施之一,但其本质上与经济制裁均系歧视性贸易措施,违反WTO法,且发动反制裁需以经济制裁这一先行为的不法性为前提,故反制裁的国际合法性不但存在较多争议,还受到制裁不法性判断的影响。故本文将在WTO法律框架下,厘清经济制裁与反制裁的关系,并探究WTO安全例外条款能否解除制裁的不法性。

Economic sanctions can be regarded as a non-violent means of coercion customarily applied by states and international organizations in the 21st century. They can be utilized by a State to force another State to comply with the former’s political objectives or to urge the latter to comply with its international obligations. The international legality of economic sanctions has always been contro-versial, depending on the purpose of the sanctions and whether they have the authorization from the United Nations. Anti-foreign sanctions can be one of the most powerful response measures the sanctioned party is able to take. However, anti-foreign sanctions as well as economic sanctions are discriminatory trade measures which are in violation of WTO law. Moreover, the launching of an-ti-foreign sanctions is premised on the unlawfulness of economic sanctions, and thereby the inter-national legality of anti-foreign sanctions not only becomes more controversial, but also gets influ-enced by the judgment of the illegality of economic sanctions. Considering this, in the context of WTO legal framework, this paper will clarify the relationship between economic sanctions and an-ti-foreign sanctions, and explore whether the WTO security exception clause can preclude the wrongfulness of sanctions.