Path Of World Trade Law In The 21st Century, The

Steve Charnovitz

• Publisher: WSPC
• Year: 2014
• eBook ISBN: 9789814513265
• Topic: Biological Sciences
• Subtopic: Science General
• Index: Biological Sciences

The advent of the World Trade Organization (WTO) in 1995 transformed international economic law for states, enterprises, and nongovernmental organizations. This book analyzes how the WTO is changing the path of international trade law and examines the implications of these trends for the world economy and the global environment. Containing 18 essays published from 1999 to 2011, the book illuminates several of the most complex issues in contemporary trade policy. Among the topics covered are: Is there a normative theory of the WTO's purpose? Can constitutional theory provide guidance to keep the WTO's levers in balance? Should the WTO use trade sanctions for enforcement? What can the WTO do to enhance sustainable development and job creation?

Contents:

• A Theory of the WTO:
  • Triangulating the World Trade Organization
• The WTO as an Economic Constitution:
  • A Post-Montesquieu Analysis of the WTO
  • Judicial Independence in the World Trade Organization
  • WTO Cosmopolitics
• Assessing the WTO's Enforcement Mechanism:
  • The WTO's Problematic "Last Resort" Against Non-compliance
  • Recent Developments and Scholarship on WTO Enforcement Remedies
• The WTO and Discrimination:
  • Belgian Family Allowances and the Challenge of Origin-based Discrimination
  • Mapping the Law of WTO Accession
• The WTO and Individual Rights:
  • The Globalization of Economic Human Rights
  • Transparency and Participation in the World Trade Organization
• The WTO and Sustainability:
  • A New WTO Paradigm for Trade and the Environment
  • The Law of Environmental "PPMs" in the WTO: Debunking the Myth of Illegality
  • Climate and Trade: Potential Conflicts and Synergies
• The WTO and Labor Markets:
  • The (Neglected) Employment Dimension of the World Trade Organization
  • Trade Law Norms on International Migration
• The Future of Global Economic Governance:
  • WTO Dispute Settlement as a Model for International Governance
  • Addressing Government Failure Through International Financial Law
  • The World Trade Organization in 2020

Readership: Graduate students and researchers in the field of international economics; & WTO practitioners.
Key Features:

• One of the few books that specifically dealt with the relationship between Confucian culture and democracy
• Empirical and comprehensive case studies that cover both democratization and democratic governance in various Confucian societies (South Korea, Taiwan, Japan, Hong Kong, Singapore, China)
• Written by prominent scholars in the field

Part I

A Theory of the WTO

Chapter 1

Triangulating the World Trade Organization*

One of the biggest challenges facing the World Trade Organization (WTO) is to determine its own mission.¹ The failure to launch new trade talks at the WTO’s Ministerial Conference at Seattle in late 1999 was due, in large part, to disagreements between members about what “new” issues should be placed on the negotiating agenda.² These problems continued to stymie the WTO in the runup to the Doha ministerial meeting in 2001.

Everyone agrees that the WTO ought to address proper issues, yet opinions diverge over what those issues are. For example, in April 2001, the WTO Director-General (D-G) (at the time) Mike Moore declared that governments “urgently need to broaden the agenda beyond the mandated negotiations” listed in the WTO Agreements. Nevertheless, he warned that while the “agenda has to be broad enough to have something in it for everyone”, it “must exclude issues that are inappropriate or where compromise is impossible”.³ Yet Moore did not explain how to tell whether an issue is inappropriate. A few weeks later, the governments in the Group of Fifteen (now consisting of 17 countries that cooperate on economic development policy) issued a summit communiqué stating that “non-trade issues such as labour standards and environ mental conditionalities should not be included in the WTO agenda”.⁴ This exclusion of labor and environment is specific, but the communiqué did not explain why those issues are “non-trade”. In early 2001, Moore’s three predecessors circulated a public statement declaring that “[t]he WTO cannot be used as a Christmas tree on which to hang any and every good cause that might be secured by exercising trade power”.⁵ Yet these statesmen did not reveal how to ascertain the good causes that ought to be secured by trade power.

Civil society organizations have actively participated in the debate about the policy boundaries of the WTO. For instance, in March 2001, a worldwide coalition of non-governmental organizations (NGOs), organized by the Third World Network, circulated an open letter opposing the introduction of new issues into the WTO, particularly investment, competition policy (i.e., antitrust), and government procurement. According to the coalition, “These issues, if located in the WTO, would lead to disastrous consequences socially, environmentally, economically, and for human rights, for people worldwide”.⁶

The vigorous debate about the WTO’s purview demonstrates the vitality of the organization. Governments and private actors are not clamoring to broaden the charter of most other international institutions. The WTO has become a magnet for expansionist ideas because it is perceived as powerful and effective.⁷

The purpose of this chapter is to present an analytic method for considering proposals to expand the scope of the WTO. My approach will be to organize the contending ideas about the rationale for the WTO and to show how varying assumptions can lead to different conclusions on the proper content of international trade law. As illustrated above, proponents of any particular mission of the WTO base their advocacy on an implicit assumption about its purpose. Yet often these assumptions remain unstated. I want to unpeel the outer layers of the WTO to examine its institutional core. This chapter seeks to advance the debate by comparing these different assumptions and in so doing takes note of some of the key literature about trade linkage. I will also build on that literature by presenting a new framework.

What does it mean for a new issue to be incorporated into the WTO? It means that governments would amend the WTO Agreements to include new obligations as part of the overall single undertaking. Such governmental obligations could then be covered by the WTO dispute settlement system and would be enforced in the same way as other WTO rules. Adding an issue to the WTO does not necessarily make it a “condition” for international trade. WTO rules are disciplines on government policies, not positive requirements for economic actors that wish to engage in voluntary, cross-border commerce.

Of course, the WTO treaty system could be amended to prohibit a particular kind of trade. For example, WTO rules could require governments to prohibit trade in goods made with forced labor.⁸ The most analogous provision in the WTO is the one in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) that requires governments to establish a process enabling the holder of an intellectual property right to ask customs authorities to detain counterfeit trademark or “pirated” copyright goods.⁹ Furthermore, TRIPS commits governments to cooperate with a view to “eliminating” international trade in goods infringing intellectual property rights.¹⁰ The success of adding intellectual property rights during the Uruguay Round (1986–1994) has led many analysts to view TRIPS as a template for incorporating other issues loosely linked to trade into the WTO.¹¹

This chapter proceeds in three sections. Section I shows why the purpose of the WTO is not self-evident and how a framework can be useful for improving the debate about the organization’s mission. Section II presents a three-category framework reflecting the different ambits in which the WTO operates: the relationship between states, the relationship between the state and individuals, and the relationship between intergovernmental organizations (IGOs). These three categories encompass eight distinct frames for conceptualizing the WTO’s role. Section III summarizes the analysis and explains how the frames can help triangulate the WTO within international law. This chapter, however, should not be taken as an instruction manual for deciding whether a new issue fits the WTO. Two readers using the methods suggested here could reach different conclusions about the same issue. My goal is more modest — to improve the quality of advocacy and analysis about the future mission of the WTO.

I. The Need for an Analytical Framework

If the benefits member governments derive from the WTO were obvious, then determining its appropriate mission would be relatively easy. Section I contends that they are not so obvious, and that this ambiguity makes it hard for governments to agree on the right mission.¹² To sharpen the debate, I introduce the idea of “frames” that explain the WTO’s purpose. By first calling attention to previous efforts to propose criteria for adding new issues to the WTO, I intend to show why the clarification of purpose is essential. The last section in part I briefly takes note of three frames that pervade discourse on trade policy but are not included in Part II because they fail to fit the WTO.

The debate about the proper mission of the WTO is political and prescriptive. Thus, it is not primarily a legal debate about clarifying the WTO’s existing mandate. For example, the argument against adding fundamental workers’ rights to the WTO is not that such an action would be ultra vires. No one has asserted that the parties to the WTO Agreement lack the authority to amend the treaty to add workers’ rights. Rather, the usual argument is that this issue does not fit the WTO or would be counterproductive to its purpose.

Besides workers’ rights, numerous candidate issues might be incorporated into the treaty as WTO obligations. They include investment, competition, environment, alleviation of poverty, harmful tax practices, corruption, and labor mobility. Other issues are pointed to as matters that should be exempt from WTO obligations. For example, WTO rules could specifically permit measures to preserve local culture, enhance food security, combat cigarette smoking, or fight terrorism.¹³

Deciding on the proper mission for the WTO and other agencies must be a continuing exercise. Even forty years ago, Georg Schwarzenberger foresaw that “the need for international collaboration in matters as diverse as economic, financial, social, cultural, and educational relations is likely to call for an expansion in existing international institutions and the creation of new agencies”.¹⁴ Today, in the face of rapidly evolving globalization, the call to expand existing institutions and create new ones has become more sa...

Table of contents

• Cover Page
• HalfTitle Page
• Series Page
• Title Page
• Copyright
• Contents
• About the Author
• Foreword
• Introduction
• Part I. A Theory of the WTO
• Part II. The WTO as an Economic Constitution
• Part III. Assessing the WTO’s Enforcement Mechanism
• Part IV. The WTO and Discrimination
• Part V. The WTO and Individual Rights
• Part VI. The WTO and Sustainability
• Part VII. The WTO and Labor Markets
• Part VIII. The Future of Global Economic Governance
• Index