World Trade Law after Neoliberalism: Reimagining the Global Economic Order
Abstract
* Provides an innovative account of the perceived tension between free trade and human rights, setting out and critically examining the assumptions underlying this debate
* Gives a full overview of the social history of the trade and human rights debate
* Suggests a new framework for the trade and human rights debate, focusing on the WTO's role in bringing together the expert knowledge and informal relationships that drive states' behaviour in the international economic order.
The rise of economic liberalism in the latter stages of the 20th century coincided with a fundamental transformation of international economic governance, especially through the law of the World Trade Organization. In this book, Andrew Lang provides a new account of this transformation, and considers its enduring implications for international law. Against the commonly-held idea that 'neoliberal' policy prescriptions were encoded into WTO law, Lang argues that the last decades of the 20th century saw a reinvention of the international trade regime, and a reconstitution of its internal structures of knowledge.
In addition, the book explores the way that resistance to economic liberalism was expressed and articulated over the same period in other areas of international law, most prominently international human rights law. It considers the promise and limitations of this form of 'inter-regime' contestation, arguing that measures to ensure greater collaboration and cooperation between regimes may fail in their objectives if they are not accompanied by a simultaneous destabilization of each regime's structures of knowledge and characteristic features. With that in mind, the book contributes to a full and productive contestation of the nature and purpose of global economic governance.
... For decades, the prevailing assumption has been that human rights have been pushed off the agenda of the World Trade Organization (WTO). While global trade rules are known to matter to the enjoyment of many human rights, many have argued that the WTO, as an international institution, is an inhospitable space for advancing human rights concerns (Aaronson, 2007;Joseph, 2013;Lang, 2011;Sell & Prakash, 2004). To a large degree, this understanding of the politics of human rights at the WTO has been imprinted on generations of scholars by a single, yet pivotal, event: The failure of the US and other Northern actors in the mid-1990s to incorporate a 'social clause' into the WTO that would have made market access conditional on developing countries improving human and labor rights (He & Murphy, 2007;Hughes & Wilkinson, 1998;Pahle, 2010). ...
... The WTO has been criticized in both academic and activist circles for undermining international human rights (Aaronson, 2007;Lang, 2011). The international trade and human rights regimes are often seen as in conflict (Hestermeyer, 2019;Joseph, 2013). ...
... In contrast, the purpose of the international human rights regime is protecting the rights of vulnerable and marginalized groups, which is seen as requiring an active state to protect society from the adverse effects of economic globalization (Dommen, 2002;Forman, 2008). Despite long-standing calls for greater coherence between the two regimes, the WTO and international human rights system still largely operate in isolation (Cottier et al., 2005;Helfer, 2015;Lang, 2011). WTO agreements do not refer to any of the core international human rights treaties, such as the Convention on Civil and Political Rights, nor does the term 'human rights' appear in the text of any of the 60 WTO agreements. ...
... For decades, the prevailing assumption has been that human rights have been pushed off the agenda of the World Trade Organization (WTO). While global trade rules are known to matter to the enjoyment of many human rights, many have argued that the WTO, as an international institution, is an inhospitable space for advancing human rights concerns (Aaronson, 2007;Joseph, 2013;Lang, 2011;Sell & Prakash, 2004). To a large degree, this understanding of the politics of human rights at the WTO has been imprinted on generations of scholars by a single, yet pivotal, event: the failure of the US and other Northern actors in the mid-1990s to incorporate a 'social clause' into the WTO that would have made market access conditional on developing countries improving human and labor rights (He & Murphy, 2007;Hughes & Wilkinson, 1998;Pahle, 2010). ...
... The WTO has been criticized in both academic and activist circles for undermining international human rights (Aaronson, 2007;Lang, 2011). The international trade and human rights regimes are often seen as in conflict (Hestermeyer, 2019;Joseph, 2013). ...
... In contrast, the purpose of the international human rights regime is protecting the rights of vulnerable and marginalized groups, which is seen as requiring an active state to protect society from the adverse effects of economic globalization (Dommen, 2002;Forman, 2007). Despite long-standing calls for greater coherence between the two regimes, the WTO and international human rights system still largely operate in isolation (Cottier et al., 2005;Helfer, 2015;Lang, 2011). WTO agreements do not refer to any of the core international human rights treaties, such as the Convention on Civil and Political Rights, nor does the term 'human rights' appear in the text of any of the 60 WTO agreements. ...
The conventional wisdom is that human rights have long been off the negotiating agenda at the WTO. The failed attempt by Northern states to include a 'social clause' in WTO rules during the late 1990s and early 2000s is often cited as having foreclosed bringing human rights to bear in multilateral trade negotiations. This article challenges this traditional view, by demonstrating that states are mobilizing human rights at the WTO to shape current global trade rulemaking. Moreover, in sharp contrast to the prevailing assumption that developed countries are the primary champions of human rights in the trade regime and developing countries the opponents, I show that developing countries have in fact become key protagonists in marshalling human rights at the WTO. To illustrate these claims, I examine how developing countries have been mobilizing human rights norms, principles and discourse to shape global trade rulemaking in two of the most contentious issues in recent WTO negotiations: the use of public food stockholding for food security purposes and a TRIPS waiver to ensure access to COVID-19 vaccines.
... Un éxito rotundo que data de principios de la década de 1990, cuando logró agrupar a su alrededor un grado de consenso jamás visto en otro momento de la historia del sistema multilateral. Es decir, un éxito que en realidad se vincula con un periodo muy corto y excepcional de consenso acerca de su mandato negociador (Lang, 2011), que además coincide con el breve momento unipolar de entre fines de los años ochenta y primera mitad de los años noventa del siglo xx. ...
... En pocas palabras, le restó capacidad al organismo para adaptarse a la reconfiguración de poder mundial subyacente. Por el escaso tiempo que duró el consenso neoliberal alrededor del sistema multilateral de comercio (Lang, 2011), la omc fue un caso exitoso de organización guiado por reglas, sin lugar a dudas. Sin embargo, a medida que el consenso se desvanecía, la omc -como un todo-empezó a estancarse, y eso se reflejó también en su sistema de solución de controversias. ...
El objetivo es hacer un análisis sistémico de la Organización Mundial del Comercio (OMC) en medio de la crisis por la que esta atraviesa. Se sostiene que la OMC, si bien pasa por una crisis profunda en términos reales y simbólicos, sigue cumpliendo un rol importante en la crecientemente compleja gobernanza multilateral. Para eso, se analizan las tres funciones principales que cumple en la gobernanza multilateral del comercio: ser un foro de negociaciones comerciales, brindar un sistema eficiente de solución de disputas y ser una arena de discusión y revisión de estándares mínimos de política comercial. El artículo está dividido en tres partes. Primero, se analizan las propuestas de reforma de la OMC y los temas en los cuales han avanzado en años recientes. Segundo, el desempeño del sistema de solución de controversias y en conjunto con la revisión del debate sobre su reforma. Tercero, el desempeño del mecanismo de examen de políticas comerciales. La metodología es cualitativa, con revisión de la literatura especializada y análisis de fuentes primarias (documentos oficiales de la OMC), comunicados de países miembro, declaraciones conjuntas, informes de órganos y comisiones, además de recolección y análisis de datos disponibles en la página web de la organización.
... The hierarchy category was developed from the author's observations of the often-implicit hierarchy advanced in policy discourse that places health and other goals in constant reference to the 'ultimate' aim of a strong economy, often in terms of economic growth. The 'balance' category was drawn in part from the work of Lang [41] who found that issues of trade and other policy goals were often framed as a balance between economics with other considerations. This idea of 'balance' between economic and other goals was further developed in work conducted on the relationship between tobacco control and economic policy in different countries around the world [36,42]. ...
... There seems to be an accommodation between the transformative agenda and this primary focus on economic goals through an agenda of 'balance' between different goals. The concept and language of balance has emerged in other domains at the intersection of economic and other goals, often reflecting appeasement or appeal to the dominance of economic goals [36,41]. Often balance is used as a middle ground between reconfiguring how we do economics (e.g., a de-emphasis on GDP growth or strong regulation of labour markets) and keeping things as they are. ...
Society continues to be confronted with the deep inadequacies of the current global order. Rampant income inequality between and within countries, dramatic disparities in access to resources, as seen during the COVID pandemic, persistent degradation of the environment, and numerous other problems are tied to existing systems of economy and government. Current global economic systems are implicated in perpetuating these problems. The Sustainable Development Goals (SDGs) were born out of the recognition that dramatic changes were needed to address these intersecting challenges. There is general recognition that transformation of global systems and the relationship between sectors is needed. We conduct a structured, theoretically-informed analysis of SDG documents produced by United Nations agencies with the aim of examining the framing of economic policy goals, a historically dominant domain of consideration in development policy, in relation to health, social and environmental goals. We apply a novel typology to categorize the framing of policy goals. This analysis identified that the formal discourse associated with the SDGs marks a notable change from the pre-SDG development discourse. The 'transformational' agenda issued in the SDG documents is in part situated in relation to a critique of previous and existing approaches to development that privilege economic goals over health, social and environmental goals, and position economic policy as the solution to societal concerns. At the same time, we find that there is tension between the aspiration of transformation and an overwhelming focus on economic goals. This work has implications for health governance, where we find that health goals are still often framed as a means to achieve economic policy goals. Health scholars and advocates can draw from our analysis to critically examine how health fits within the transformational development agenda and how sectoral policy goals can move beyond a crude emphasis on economic growth.
... En efecto, en caso de conflictos derivados de cualquiera de los 13 acuerdos comerciales constitutivos de la OMc, se aplica el importante mecanismo de la queja entre Estados ante el órgano de solución de diferencias comerciales, de carácter vinculante (17). En cambio, este mecanismo no ha sido implementado en el didh, donde se aplica el mecanismo de la denuncia o queja de particulares contra el Estado (25), que exige como requisito de admisibilidad, antes de recurrir al comité respectivo de las Naciones Unidas o ante la Comisión Interamericana de Derechos Humanos, la pesada carga del agotamiento previo de todas las instancias jurisdiccionales disponibles a nivel interno en el Estado parte. ...
La desigualdad en el acceso a la salud constituye una demanda histórica en Chile y Colombia que se manifiesta en los estallidos sociales desatados en sus territorios a partir del 18 de octubre de 2019 y el 28 de abril de 2021, respectivamente. Ambos países soportan sistemas impositivos inadecuados de redistribución de la riqueza y en el caso de sus sistemas de salud, tanto el modelo dual chileno como el modelo plural colombiano, intensamente segmentados, carecen de una adecuada redistribución de los riesgos sanitarios. El autor plantea la necesidad que ambos países refuercen en sus constituciones políticas la protección de los tratados internacionales de derechos humanos que orienten al legislador en el cumplimiento de los estándares internacionales de derechos humanos y al juez en la resolución de litigios con eventuales colisiones de derechos. Asimismo, propone la configuración constitucional de un seguro único de salud con lógica solidaria y colectiva, en reemplazo de sus modelos sanitarios imperantes.
... 65 Lixinski 2019. 66 Lang 2011. 67 Lixinski 2013. ...
This article maps the field of cultural heritage law, arguing for the need for its renewal, even if at the cost of some iconoclasm of notions we hold dear in our conceptual thinking about heritage. The article pursues this thesis by excavating a conceptual archaeology (broadly in the Foucauldian sense) of four key assumptions or conceptual pillars of cultural heritage law, which are the assumption of inherent value of cultural heritage; the pillar of authenticity; the assumption that human rights can work as a panacea for the renewal of the field; and the pillar of expertise. The archaeology of these ideas shows how much of what we take for granted in cultural heritage law is no longer fit for purpose, and the article shows those stakes by contrasting the work of these pillars and assumptions against some of the key challenges to the field: interdisciplinarity; the Anthropocene; enforcement; and the growing use of heritage as an ideological target in armed conflicts.
... Though there is a general consensus that the AB in US -Continued Suspension has specified a more deferential standard of review, 87 it remains controversial whether the procedural turn is sufficient to solve the fundamental tension between national regulatory autonomy and trade liberalization under the SPS Agreement. 88 Two years after US -Continued Suspension, the AB clarified that a panel still enjoys wide discretion in applying a stringent standards of review in SPS disputes in Australia -Apples. 89 First, with regard to the panel's scrutiny of risk assessment under Article 5.1, the AB stated that a distinction should be drawn between, on the one hand, the scientific evidence relied upon by a risk assessor and, one the other hand, the reasoning employed and the conclusions reached by the risk assessor on the basis of that scientific evidence. ...
Science has been traditionally characterized as an objective discipline that is free of values and which leads to definitive knowledge. In the GATT/WTO system, science has been elevated as the ultimate arbiter of international trade disputes. This article intends to critically evaluate, and re-conceptualize, the role of science in distinguishing disguised trade protectionism and legitimate government regulation. Drawing insights from psychology and behavioural science, the article first sets forth two normative principles that should be followed where science is to be used as an arbiter in trade disputes. It then proceeds to examine to what extent the current WTO case law has deviated from these normative principles. The article concludes that WTO Members enjoy wide discretion to address pervasive scientific uncertainty. Nevertheless, it remains possible that a rigorous use of science will bring WTO rules into direct conflict with national democracy in some highly value-laden and politically sensitive disputes.
... Pushback on this faultline of neoliberal policies and the "dominium" of neocolonialism, being grimmer than the "imperium," was helped by the oil embargo of 1973-4 and the formation of the G-77 as a global south poor nations trade union, achieving some potency including over food supplies [167][168][169]. However these policies shut out many small farmers (many of them women), from markets who then become impoverished themselves on poor diets [170][171][172]. ...
We evolved from herbivores to a meat eating "commons" in hunter-gatherer days and then to a non-egalitarian meat power struggle between classes and countries. Egalitarian-ism, trans-egalitarianism and extremes of inequality and hierarchy revolve around the fair-unfair distribution of meat surpluses and ownership of the means of meat production. Poor people on poor diets with too few micronutrients may explain many inequalities of human capital, height and health and divergent development of individuals and nations. Learning from past successes and collapses from switching trophic levels the lesson is that meat moderation toward the top of Engel's curves, not calorie-centrism, is the best recipe for countries and classes. Improved health with longer lives and higher crystallised intelligence comes with an ample supply of micro-nutrients from animal products namely iron, zinc, vitamin A, vitamin B12 and other methyl-donors (such as choline), and nicotinamide (vitamin B3). We concentrate on nicotinamide whose deficits cause the degenerative condition pellagra that manifests as poor emotional and degenerative cognitive states with stunted lives and complex antisocial and dysbiotic effects caused by and causing poverty.
... After all, economic and legal experts with an international perspective, both in and out of the academy, have experimented with cooperation throughout the twentieth century. The thing is, the majority of such projects and people subscribed to "conservative" agendas: Cold War Austrian and ordoliberal economists writing reflections on the nature of law within and between nations (Slobodian 2018); interwar international lawyers committed to the doctrinal defense of private property in wartime and (at least by the 1950s) the development of various soft law mechanisms through international organizations to preserve the sanctity of foreign investment (Shalakany 2000, 419); the rise to prominence of Law and Economics and neoinstitutionalism in universities and foreign affairs departments by the late 1970s (Dezalay and Garth 1996); and, in the aftermath of the Berlin Wall and the Soviet Union, the emphasis on "rule of law" metrics and programs by Bretton Woods institutions and other international financial and trade monitoring bodies in the name of good governance (Lang 2011). ...
This brief introduction outlines the broad context and key issues to be explored in the special issue titled “China and New Challenges to International Economic Law.” It demonstrates that, with the rise of China, the normative premises and substantive rules of international economic law have undergone significant changes. However, the shape of future international economic rules remains heavily contested.
The ongoing paradigm shift in the governance of globalisation is marked by the resurgence of State prerogatives of economic sovereignty in trade and investment relations. While international trade frictions between opposing blocks increase, the concept of open strategic autonomy (hereafter also OSA), as conceived by the European Commission, has an intertwined economic and geopolitical dimension. In the pursuit of strategic autonomy, the Commission’s industrial strategy is focused on reducing critical dependencies on external trade partners and reinforcing European industrial capacities in strategic sectors. In turn, a strengthened EU industrial policy is set to increase the number of projects and programmes of Union interest under Article 8 of Regulation (EU) 2019/452 (hereafter also EU FDI Screening Regulation). Where the Commission considers that an FDI could pose a threat to projects or programmes of Union interest, it can address an opinion to the host Member State. Failure to comply with the opinion without an adequate explanation may constitute a breach of EU law and trigger the Member State’s responsibility. The Regulation shows the difficult balance between each Member State’s national security and the security of the Union, as it constitutes an attempt to reinforce cooperation in a field reserved to Member States’ exclusive competence. Admittedly, when the Union’s interest emerges, Member States’ discretion decreases. As closer cooperation towards a European industrial policy unfolds, the European Commission is expected to acquire a progressively more relevant role in FDI screening. In turn, this exemplifies a broader tendency of the Commission seeking to reaffirm its geopolitical role in pursuit of the Union’s OSA.
Legal translation occupies an important strategic position in economic diplomacy, as it is part of the communication channels between different countries, for example when drafting international trade agreements. This article explores some of the challenges translators face when dealing with international trade agreements, including drafting complex legal concepts, understanding and managing cultural and linguistic complexities, and maintaining confidentiality and data protection. Furthermore, the importance of lifelong training and the need to work with lawyers and translators to overcome the above challenges was emphasized. Although technological developments have created tools such as machine translation, humans are the primary means of faithfully and accurately translating legal texts. The conclusion emphasizes that legal translators must possess interdisciplinary legal knowledge and draw on this knowledge when building resources to respond to the legal environment of international trade agreements.
Critiques of international economic law have attacked the tendency of transnational legal processes, including investor-state dispute settlement (ISDS), to undermine states' sovereignty. In response to these criticisms, many states have limited the power of investment tribunals by reasserting their sovereignty. There are reasons, however, to be critical of endorsing sovereignty, particularly in the context of global distributive inequalities. This is because assertions of sovereignty are normatively ambivalent in their effects: they can be used to entrench and naturalize the unequal assets held by each state, rather than to empower states to exercise their right to regulate. These potential tensions can be resolved if sovereignty is understood as a term that is used in many different ways. Critics of ISDS often conflate two distinct meanings of sovereignty: sovereignty understood as the right to be free from external influence, and sovereignty understood as states' right to regulate. Because states are constrained by differences in resources and capacity, withdrawing from ISDS cannot always secure the conditions for effective domestic regulation. Sovereignty understood as the right to be free from interference may even stand in the way of states' ability to regulate, by allowing states to gatekeep resources that were accumulated through historical injustice
This article reflects on the normal frame for international trade law in times of resurgent assertions of national interest in domestic politics and in foreign relations. An emphasis on national interest poses special problems when legal and economic relations are fundamentally transnational, necessarily involving multiple and complex connections across national borders and reflecting a diverse and complex pluralism within each national tradition. This is especially true in Canada, which is a society foundationally built on flows of people, goods, capital, and ideas from around the world as well as Indigenous and First Nations societies. A turn to foreign relations law, if made with a critical and transnational perspective, might offer a valuable new frame for trade law in challenging times.
This book uses environmental disputes as a focus to develop a novel comparative analysis of the functions of international adjudication. Paine focuses on three challenges confronting international tribunals: managing change in applicable legal norms or relevant facts, determining the appropriate standard and method of review when scrutinising State conduct for compliance with international obligations, and contributing to wider processes of dispute settlement. The book compares how tribunals manage these challenges across four key sites of international adjudication: adjudication in the World Trade Organization and under the United Nations Convention on the Law of the Sea, International Court of Justice litigation, and investment treaty arbitration. It shows that while international tribunals perform several key functions in the contemporary international legal order, they are subject to significant constraints. Paine makes a genuine addition to literature on the role of international adjudication in international law which will benefit academics, practitioners, and policymakers.
On October 5, 2020, President Joko Widodo (Jokowi) passed Law no. 11/2020 on Job Creation (Job Creation Law/JCL) designed to improve Indonesia’s private investment climate. The law changed various legal landscapes that were identified as obstacles to accelerated development and economic growth. However, the Law has sparked widespread protests because it can potentially encourage environmental damage, exacerbate workers’ vulnerability and increase socioeconomic inequality. Describing JCL as a neoliberal legality project, this paper explores the elected executive’s role in mobilizing authoritarian state practices through disciplinary measures that undermine democratic accountabilities. It is argued that the configuration between the pre-existing illiberal democracy and Jokowi’s autocratic tendencies offers predatory business alliances an adequate legal and institutional platform to formulate a neoliberal legal breakthrough while eliminating resistance to them. Through a socio-legal analysis of the three areas targeted by the JCL amendments, we further argue that Jokowi’s success in advocating for his preferred neoliberal agenda hinges on what is called an executive aggrandizement strategy. This is characterized by interventions designed to safeguard the neoliberal legality preferences promoted by the elected executive from the disruption of meaningful checks and balances in the future, thereby deepening the features of authoritarian statecraft. This paper contributes to an advanced understanding of the bleak picture of Indonesian democracy over the past few years by proposing neoliberal legality as one of the ingrained legal characteristics of Jokowi’s authoritarian regime.
The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural and two contingent content-related implications for domestic democracies: (1) it necessarily narrows down the regulatory space of nation-states; and this may in turn (2) impair democratic stability and solidarity, and (3) provide a fertile ground for populism. Drawing on Raz’s service conception, the article focuses on the interaction between international and domestic authorities and highlights the problematic aspects of the neoliberal constitutionalization of international law.
The EU has pursued many trade pacts across the world. This is part of its foreign policy: as the third largest economy in the world and lacking hard power, the EU relies on trade agreements to project its interests. These are often complex and far-reaching initiatives that have the potential to shape not only economic but also political and social life in the EU and its trading partners.
In Standardizing the World, Francesco Duina and Crina Viju-Miljusevic have gathered a group of leading experts to present an unprecedented assessment of the EU's efforts to standardize a wide array of economic, political, and social aspects of life through its trade agreements across the globe. Drawing on economic sociology and constructivist strands in international political economy, the volume examines what is being standardized, the extent to which the EU has been able to project its worldviews, and what explains the observable patterns of standardization across policy areas and geographies. Ten leading scholars from across the world offer as many chapters on EU agreements with all major trading partners and cover efforts in social and labor rights, the environment, investments, rule of law and anti-corruption, agriculture and food quality, services, public procurement, sustainable development, and more. Their findings paint a picture of a dynamic EU capable of projecting its
worldviews across the globe that is nonetheless not always consistent or successful.
Standardizing the World provides a wide-ranging and rigorous understanding of standardization in trade agreement as well as the EU's abilities to project its power and worldviews across the globe.
International trade law has long been the site of a battle over who or what the state can represent. Today, that battle is taking a new form. While for decades the WTO was considered a centerpiece of the international economic order, the policy landscape is now awash with claims that the US should abandon WTO disciplines, critiques of the WTO as the vehicle for a coherent neoliberalism, and concerns about the implications of trade law for domestic industry, democratic participation, climate action, and national security. While I am a long-standing critic of trade law’s excesses, I don’t see that sudden shift as a cause for celebration. In order to understand why, I argue that it is necessary to pay careful attention to the different forms the battle for the state at the WTO has taken. This article explores the conditions and stakes of three key moments in that battle – the negotiation of the GATT and the era of decolonization, the end of the Cold War and the creation of the WTO, and the recent transformations caused by the decline of US power, the rise of China, and the systemic shock of climate change. I conclude that we cannot automatically apply critiques developed in earlier eras to the current situation.
Western governments, companies, economists and lawyers established the international legal order now known as international investment law to protect foreign property from a redistribution of wealth through domestic law making. This book offers a pre-history of these legal arrangements, focusing on the time before 1959 and the ratification of the first bilateral investment treaty and the ICSID Convention. It introduces new archival material, such as arbitral awards, diplomatic notes and concession agreements, as well as scholarly writings pertaining to developments in these proceedings. These materials are systematised into a coherent argument on the protection of foreign property. The book develops the important role of concession agreements and their internationalisation for the making of international investment law, thereby insisting on the private law character of the foundations of the field. In doing so it displays the analytic force of viewing law as jurisdictional practice, rather than as a system of norms.
If one wants to get a grasp on the international institutional arrangement of what J. G. Ruggie called “embedded liberalism,” which included the General Agreement on Tariffs and Trade (GATT), one must first carefully examine the conditions that made the regime of accumulation called Fordism possible. More precisely, it is essential to grasp how the particular evolution of class struggle in the US strongly influenced the organization of capitalism in this country, and subsequently the international institutions at the core of the embedded liberalism. Simply put, the thesis defended in this article is that the evolution of class struggle in the US in the 1930s and the following decades has been the main influence in the shaping of Fordism and an undervalued factor in the creation of the GATT. The GATT, in other words, is an agreement that strongly corresponds to the necessity of the management of the class struggle associated with Fordism.
The World Trade Organization is at an important institutional crossroads, buffeted by critique and with its once-heralded dispute system in doubt. Despite some achievements at the 2022 MC12 Ministerial Conference, the WTO appears in crisis, without a strong institutional mandate. In this Article, we offer a vision for its future, rooted in a particular interpretation of its past. The WTO's legal architecture is characterized by a resilient pluralism, which seeks to preserve diversity of governance models and regulatory approaches, both economic and political, in the domestic orders of member states. Despite strong pressures to impose a neoliberal vision of the state-market relationship on states, this pluralism has persevered; it offers a response to the WTO's critics and a mandate for the WTO's future.
The WTO is not well-known for being an institution that regulates the free flow of personal data across borders. The trade agreements under the auspices of the WTO either predate or coincide with the invention and early development of the internet. When the WTO was created in 1994, its members agreed to create rules for trade in services. Tim Wu observed that as a consequence, and almost by accident, “the WTO has put itself in an oversight position for most of the national laws and practices that regulate the Internet.” Wu (Chicago J Int Law 7(1), 264, 2006). Over a quarter century later, the internet has become indispensable for trade in services, facilitating not only communication and payment between parties involved in any transaction, but also as a platform for the transmission of the services themselves, and the driving technology for the creation of new services. The first section of this chapter shows how cross-border flows of personal data (on the internet) have become intertwined with the supply of many digital services (Sect. 4.1). The second section describes how the rules of the WTO on trade in services are relevant for the regulation of cross-border flows of personal data (Sect. 4.2). These multilateral trade rules can be used as proxies to distinguish between legitimate regulatory concerns and protectionism. Regarding the regulation of cross-border flows of personal data, these rules allow for the legal assessment of the line between data protection and data protectionism. The third section of this chapter analyzes whether the EU’s fundamental rights-based regulation of data transfers interferes with the rules of the WTO on trade in services (Sect. 4.3). The fourth section assesses whether the interferences that have been identified can be justified under the relevant exceptions to the rules of the WTO on trade in services (Sect. 4.4).
Many states recognize, at least on paper, that data protection and privacy are important values. Nevertheless, they diverge quite jarringly on what the correct level or design of such protection should be. In particular, there is deep disagreement about when data protection crosses the line and becomes data protectionism. In this book, I have shown—using the example of EU law—where the line between data protection and data protectionism in international trade law currently is, and how it can, or should be redrawn.
In reaction to the stalemate in the multilateral trading system, international governance of digital trade has gradually shifted toward bilateral and regional trade agreements. This allowed countries to start to regulating cross-border flows of personal data outside the WTO framework. The first section of this chapter traces the development of data flow clauses in the trade agreements of the EU, the US, and other countries. It also looks at the negotiations of the big trade agreements in the late 2010s, such as the TTIP, the TiSA, and the TPP (Sect. 5.1). The second section outlines the scope for data flow clauses in the trade agreements of the EU based on different legal requirements stemming from the architecture of EU law, the GDPR, and other regulations. These requirements include the primacy of fundamental rights over international law with regard to the right to continuous protection of personal data in Article 8 CFR, the accommodation of the legal mechanisms for the transfer of personal data in the GDPR, the inclusion of cooperation mechanisms on the basis of Article 50 GDPR, and the ban of data localization requirements beyond data protection and privacy concerns. These legal requirements are necessary to consider when drafting data flow clauses for EU trade agreements (Sect. 5.2). The third section of this chapter offers and analyzes four potential designs for data flow clauses for EU trade agreements (Sect. 5.3). The fourth section is dedicated to the analysis of the EU model data flow clauses that the European Commission introduced as a template for future trade negotiations in 2018 (Sect. 5.4).
The internet as a technology not only revolutionized communication, it also enabled new forms of trade. Digital trade often involves personal data. Information about individuals now travels around the world on an unprecedented and rapidly growing scale. The key to understanding the implications of data protection in the EU for trade with the wider world is the Charter of Fundamental Rights of the EU (Charter, CFR). The Charter has the status of primary Union law and data protection is enshrined as a fundamental right in Article 8 CFR. The first section of this chapter traces the development of the right to data protection from the early data protection laws in Europe to the inclusion of Article 8 into the Charter. It identifies the driving forces behind this development and offers insights into the origins of this new fundamental right (Sect. 2.1). The second section addresses the substance of the right to data protection. It explains the underlying values for the interpretation of the new fundamental right and analyzes the six written constituent parts of Article 8 CFR. It shows that the right to data protection must be distinguished from the right to private life in Article 7 CFR. The second section also explains what counts as an interference with the right to data protection and addresses lawful limitations on the exercise of this new fundamental right (Sect. 2.2). The third section focuses on the extraterritorial dimension of the right to data protection. The jurisprudence of the ECJ reveals an unwritten constituent part of the new fundamental right: the right to continuous protection of personal data. Personal data cannot be exported to third states that do not provide a level of protection for the transferred personal data that is essentially equivalent to that guaranteed within the EU (Sect. 2.3). Certain practices in third states are of particular relevance for the extraterritorial dimension of Article 8 CFR. Foreign internet surveillance often targets personal data that is transferred from the EU to a third country. The fourth section analyzes the requirements for foreign internet surveillance practices emanating from the right to data protection in Article 8 CFR (Sect. 2.4).
The right to data protection in Article 8 CFR has an extraterritorial dimension, which requires continuous protection for personal data that is essentially equivalent to the protection guaranteed within the EU. This right to continuous protection of personal data is an unwritten constituent part of the right to data protection in Article 8 CFR. Primary Union law in Article 16(2) TFEU instructs the European Parliament and the Council to establish rules relating to the protection of individuals regarding the processing of their personal data. This mandate also extends to the extraterritorial dimension of the right to data protection. Accordingly, Chapter V GDPR sets out the system for the transfer of personal data from the EU to third countries. The first section of this chapter defines the legal concept of “data transfers” and introduces the three legal mechanisms for the transfer of personal data in Chapter V GDPR (Sect. 3.1). The following sections address the three legal mechanism and their role in guaranteeing the right to continuous protection for personal data. Each section entails a fundamental rights analysis for the transfer of personal data on the basis of a legal mechanism in Chapter V GDPR. The second section is dedicated to data transfers based on adequacy decisions for third countries following Article 45 GDPR (Sect. 3.2). The third section is dedicated to data transfers based on the instruments providing appropriate safeguards in Article 46 GDPR such as standard data protection clauses and binding corporate rules (BCRs) (Sect. 3.3). Finally, the fourth section is dedicated to data transfers subject to contract-based and consent-based derogations in Article 49 GDPR (Sect. 3.4).
Non-state law is playing an increasing role in both public and private ordering. Numerous organizations have emerged alongside the nation-state, each purporting to provide their members with rules and norms to govern their conduct and organize their affairs. The nation-state increasingly finds itself sandwiched, between two broad and contrasting categories of non-state law. The first - law above the state - captures legal systems that function across the territorial borders of nation-states. The second category - law below the state - includes forms of local customary, religious, and indigenous law. As these forms of non-state law persist and proliferate alongside the nation-state, the relationship between state and non-state law becomes more complex, multifaceted, and tense. This volume addresses this relationship considering whether and to what extent state and non-state law can coexist and how each form of law seeks to influence as well as transform the other.
This book aims to connect narratives associated with the past to the international regime that protects property and contract rights of foreign investors. The book scrutinizes justifications offered to sustain practices associated with colonialism, imperialism, civilized justice, debt, and development, revealing that a number of the rationales offered in support of investment law disciplines replicate those arising out of this discredited past. By revealing these linkages, the book raises concerns about investment law's premises. It would appear that the normative foundations for today's regime reproduces discursive practices that are less than compelling. The book argues that citizens deserve something more than historically discredited reasons to justify the exercise of power over them – something more than mere pretext.
Squatting and the State offers a new theoretical and methodological approach for analyzing state response to squatting, homelessness, empty land, and housing. Embedded in local, national, and transnational contexts, and reaching beyond conventional property theories, this important work sets out a fresh analytical paradigm for understanding the deep, interlocking problems facing not just the traditional 'victims' of narratives about homelessness and squatting but also a variety of other participants in these conflicts. Against the backdrop of economic, social, and political crises, Squatting and the State offers readers important insights about the changing natures of property, investment, housing, communities, and the multi-level state, and describes the implications of these changes for how we think and talk about property in law.
This collection explores the theme of fragmentation within international economic law as the world emerges from the 2008 global financial crisis, the subsequent recession and the European sovereign debt crisis which began in early 2010. The post-crisis 'moment' itself forms a contemporary backdrop to the book's focus on fragmentation as it traces the evolution of the international economic system from the original Bretton Woods design in the aftermath of the Second World War to the present time. The volume covers issues concerning monetary cooperation, trade and finance, trade and its linkages, international investment law, intellectual property protection and climate change. By connecting a broad, cross-disciplinary survey of international economic law with contemporary debate over international norm and authority fragmentation, the book demonstrates that this has been essentially a fragmented and multi-focal system of international economic regulation.
This collection explores the theme of fragmentation within international economic law as the world emerges from the 2008 global financial crisis, the subsequent recession and the European sovereign debt crisis which began in early 2010. The post-crisis 'moment' itself forms a contemporary backdrop to the book's focus on fragmentation as it traces the evolution of the international economic system from the original Bretton Woods design in the aftermath of the Second World War to the present time. The volume covers issues concerning monetary cooperation, trade and finance, trade and its linkages, international investment law, intellectual property protection and climate change. By connecting a broad, cross-disciplinary survey of international economic law with contemporary debate over international norm and authority fragmentation, the book demonstrates that this has been essentially a fragmented and multi-focal system of international economic regulation.
Constitutionalism Beyond Liberalism bridges the gap between comparative constitutional law and constitutional theory. The volume uses the constitutional experience of countries in the global South - China, India, South Africa, Pakistan, Indonesia, and Malaysia - to transcend the liberal conceptions of constitutionalism that currently dominate contemporary comparative constitutional discourse. The alternative conceptions examined include political constitutionalism, societal constitutionalism, state-based (Rousseau-ian) conceptions of constitutionalism, and geopolitical conceptions of constitutionalism. Through these examinations, the volume seeks to expand our appreciation of the human possibilities of constitutionalism, exploring constitutionalism not merely as a restriction on the powers of government, but also as a creating collective political and social possibilities in diverse geographical and historical settings.
This article argues that the operational logic of international investment law, in part, is to tame states by legally requiring that they behave as if they were profit-seeking enterprises. This is suggested by a small set of awards, arising out of contractual disputes, that work a binary between normal contractual behaviour and sovereign acts of public authority behaviour. Non-contractual behaviour is deemed ‘political’ and likely to give rise to liability under investment law strictures. This complements well Hayek’s approach to the rule of law, where, outside of their ‘framework’ functions, states are expected to behave ‘in the same manner as any private person’. In an age of ever-increasing disparity, this renders it more difficult for states and citizens to take up measures that Polanyi associates with the protective counter movements, shielding citizens from the deleterious effects of free markets.
Prevailing wisdom maintains the transformation of U.S. trade policy initiated under President Donald Trump disrupted a continuous seven-decade project to construct a liberal international economic order and attributes the reversal to the China Shock and a populist backlash against globalization. Drawing upon original archival and interview data, this thesis complicates dominant interpretations by remodeling patterns of change to recover the endogenous sources of major reconfigurations of the U.S. trade regime. I develop a holistic analytical framework that, in place of micro-foundations and exogenous shocks, illuminates the interactivity of internal ideational and institutional processes with the evolution of the domestic and global political economies. In doing so, the thesis illuminates the radical, contingent, and contested nature of the regime’s underappreciated neoliberal restructuring and the deeper antecedents of the contemporary rupture. I argue a feedback loop emerged between the Bretton Woods system and the postwar New Deal trade regime in the 1960s that incited a critical juncture by precipitating their concurrent unraveling. The crisis altered the regime’s trajectory by opening space for policy entrepreneurs to reconfigure trade institutions and coalitions premised on a reimagined strategic vision and catalyzing new patterns of trade by unleashing financial globalization in the context of the global dollar system. The rise of the neoliberal order further shaped the regime’s reorientation through the ascendance of new ideas, the rebalancing of political power, and the intercurrent clash between neoliberal trade and macroeconomic policies, which catalyzed a second major crisis in the 1980s. In this landscape, U.S. officials employed commercial and monetary power to deflect import and balances of payments adjustment and revive industrial dominance by remaking the international trading system as a legal-institutional arrangement to reform the domestic economies of trade partners and support global production networks. The neoliberal regime’s crystallization in the 1990s embedded new fault lines that helped produce the current reconfiguration.
Typically, Bilateral investment treaties (BITs) are unidimensional instruments that confer rights on foreign investors and impose obligations on host States. As the backlash against international investment law has intensified in the last few years, this structural aspect has come under increasing scrutiny. The argument is that BITs should also impose obligations on foreign investors to bring a semblance of balance. In view of this, the paper examines the issue of investor obligations in the case of India’s new investment treaty practice. After being sued by several foreign investors, India set on the path of developing a new Model BIT with the objective to strike a balance between investment protection and host State’s right to regulate. As part of this, India is developing a new treaty practice where obligations are imposed on foreign investors. However, these obligations are negative in nature often exist in the form of best endeavour clauses. The paper argues that India should develop its treaty practice so as to impose positive obligations on foreign investors.
This article argues that the current opposition to globalization is not a structural side effect of economic integration. Instead of assuming that globalization generates resistance, it stresses the political and interpretive processes that shape collective action. It substantiates this claim by studying the rise of an antiglobalization social movement organization called ATTAC in France. It holds that ATTAC's emergence is the product of political entrepreneurs whose actions were constrained by the ideational and organizational legacies of previous contentious episodes, particularly the December 1995 strikes. Finally, it contends that ATTAC's success stems in part from its ability to produce a hybrid discourse that marries state interventionism with participatory politics.
Human Rights Quarterly 24.1 (2002) 1-50
Whether the World Trade Organization (WTO) helps or hinders the realization of human rights has been high on the popular agenda in the last couple of years. Yet the WTO has been accused of preventing countries from setting their own health standards, of dangerously eroding citizens' interests in favor of commercial interests, and of being a veritable nightmare for certain sectors of humanity. These accusations usually end with a call to the WTO to recognize the primacy of human rights over international trade law. Such calls have not been heeded, and one might wonder whether they have even been heard.
This article will explore why calls for the WTO to take human rights on board have not yet met with success. To set this exploration in context, it starts with an overview of the history, structure, and functions of the WTO. It then looks at some specific areas of conflict between human rights norms and WTO-related policies, in order also to give concrete illustration of some of the main political and economic dynamics at play in the WTO. It will conclude that this is a propitious time to raise human rights in the WTO, but will argue that in order to be heard, human rights advocates will have to ensure that the strong legal and ethical arguments supporting the primacy of human rights are directed to the appropriate actors and processes in international trade policy, rather than to the WTO as a whole. Human rights advocates also need to ensure that calls for the WTO to respect human rights are framed in the context of the political realities that shape the WTO's environment. The article will also conclude that human rights activists could make much better use of human rights mechanisms to ensure that trade and economic policy promote rather than jeopardize human rights.
The Universal Declaration of Human Rights (UDHR) was adopted within months of the WTO's predecessor, the General Agreement on Tariffs and Trade (GATT), and both had as their main aim to prevent the recurrence of the events of the 1930s and 1940s which caused the suffering and devastation that occurred in the Second World War. The UDHR sought to protect individuals from human rights abuses of the kinds millions in Europe and Asia had been subjected to in the 1940s, before and during the war. Indeed, these events demonstrated as never before the extreme consequences that could follow from doctrines of national sovereignty and ideologies of superiority, and highlighted the need to reaffirm safeguards for minorities and human rights, and for respecting the inherent dignity of each human being. In 1942, almost all the states at war against Germany, Italy, or Japan affirmed in the Declaration of the United Nations the need to preserve human rights and justice in their own lands as well as in other lands, and to fight tyranny, cruelty, and serfdom everywhere. The Second World War thus provided the opportunity and the motivation to enunciate basic human rights principles, resulting in respect for human rights and fundamental freedoms being listed as one of the central purposes...
Human Rights Quarterly 24.3 (2002) 781-798
In the Trail Smelter case, United States vs. Canada, the Court held that:
This case was heard close to a century ago, yet little has developed in terms of states' obligations or responsibility for transnational effects of their actions. This is true for international law generally, and for international human rights law more specifically.
The topic of transnational human rights obligations for states has not been widely explored. By transnational obligations, we imply the possibility that states may have obligations relating to the human rights effects of their external activities, such as trade, development cooperation, participation in international organizations, and security activities. Most work of human rights institutions focuses on the national or internal obligations that states have and how states that have ratified the various human rights instruments implement these provisions within their national borders. Although human rights guarantees stem from international treaties and the obligations, therefore, are of an international nature, the subjects of the human rights protection are normally the state's own nationals and residents. International human rights law is part of the general regime of international law in that its sources stem from treaty law, customary international law, and general principles of law. International human rights law, however, is different from other areas of international law because the implementation of the provisions of these treaties, or the norms of customary international law in this field, commonly is done domestically. Thus, there is a vertical relationship between a state and its subjects, rather than a horizontal relationship among states.
Accepting that this is the main thrust of international human rights law obligations, this article will challenge the notion that this is the only sphere in which states have obligations pertaining to this part of international law. In this article, we will address the following questions:
This article will only address the effects of states' direct involvement in transnational activities. Although interesting and important, we will not be able to address the extent to which states are under obligations to regulate the transnational conduct of private parties under their jurisdiction (third party regulation). This should not be taken to imply that we regard it as less important, but rather a choice of focus for this article.
In these times of globalization, the role of the individual state has changed and, in some measure, diminished. The role of the state in guiding economic policy, which may enhance or threaten human rights enjoyment, is largely reduced. International forces increasingly determine national decision making, particularly in smaller states and poorer states, and the power of private international forces, such as transnational corporations (TNCs), often imply that governments' scope of choice is limited. This reality has not only been recognized by academics but also has been acknowledged by the United Nations. In his study from 1992 on the realization of economic, social, and cultural rights, the UN Special Rapporteur, Danilo Türk argues:
Writing almost ten...
This paper analyses the particular challenges that tobacco control poses for health governance in an era of accelerating globalisation. Tra- ditionally, health systems have been structured at the national level, and health regulation has focused on the needs of populations within individual countries. However, the increasingly global nature of the tobacco industry, and the risks it poses to public health, require a transnational approach to regulation. This has been the rationale behind negotiations for a Framework Convention on Tobacco Control (FCTC) by the Tobacco Free Initiative of the World Health Organisatio n (TFI/WHO). In recognition of the need to go beyond national governments, and to create a governance mechanism that can effectively address the transnationa l nature of the tobacco epidemic, WHO has sought to involve a broad range of interests in negotiations. The contributions of civil society groups in particular in the negotiation process have been unusual. This paper explores the nature and effectiveness of these contributions. It concludes with an assessment of whether the FCTC constitutes a significant shift towards a new form of global health gover- nance, exploring the institutio nal tensions inherent in attempting to extend participation within a state-centric organisation .
In the event of a conflict between the requirements of the Biosafety Protocol, a multilateral agreement governing the trade in genetically modified organisms, and the requirements of the General Agreement on Tariffs and Trade and associated agreements (collectively WTO Agreements), which treaty's requirements prevail? This question lies as the legal heart of the perceived conflict between trade globalization and environmental protection. This issue is particularly timely given the present trade dispute between the United States and European Union over the European Union's restrictions on the importation of genetically modified agricultural commodities. In this piece, I analyze the relationship between these agreements. I conclude that while the "savings clause" language ultimately included in the Biosafety Protocol preserves countries' rights and obligations under the WTO Agreements, the Protocol and the WTO Agreements are less on a collision course than some may fear.
This article provides an assessment of the relevance in World Trade Organization (WTO) law of the international financial standards set by the Basel Committee on Banking Supervision (Basel Committee), the International Organization of Securities Commissions (IOSCO), and the International Association of Insurance Supervisors (IAIS), international cooperation fora bringing together domestic financial regulators. This analysis gauges the potential use of these international financial standards in a potential future dispute settlement involving the domestic regulation of financial services. It demonstrates their relevance in WTO law as well as their both considerable and contested role in the institutional practice of the organization, thereby highlighting the incentives for regulatory harmonization that are embedded in the General Agreement on Trade in Services (GATS). The difficulties are mainly centered on the Basel Committee due to its limited membership, therefore not meeting the conditions of validity for the recognition of external standards laid down in the GATS, and also leading to the reluctance of some developing countries unwilling to endorse standards to which they have not previously agreed. More broadly, this study reflects on the potential tensions between plurilateral regulatory strategies and the multilateral context of the WTO and highlights the insufficient coordination between the international legal frameworks for the regulation and for the liberalization of financial services.
To protect the trade interests of their firms in foreign markets, several countries have established various institutional arrangements. For example, the United States has the section 301 procedure, while the EU has the Trade Barrier Regulation (TBR). Learning from their experiences, China also established its own Foreign Trade Barrier Investigation (TBI) mechanism in 2002. This article starts with a discussion on the background for its establishment as well as the substantive and procedural requirements for investigations under TBI. In the next part, the article discusses how TBI has worked in practice by reviewing the Japan - Quantitative Restrictions on Laver case (hereinafter Japan-Laver case'), the only case that has ever been brought under the mechanism. Drawing from the lessons learnt from the Japan-Laver case, the article then offers suggestions on how the TBI might be improved in the future. The article concludes with observations on the possible implications of the TBI on China's trade partners and the multilateral trading system as a whole.
The mobilization to defeat the United States-Canada Free Trade Agreement is used as a point of departure for reflections on the role political processes play in social movement mobilization. Previous articles in this Journal presented a resource mobilization-political opportunities paradigm in the study of social movements. This article expands this paradigm's analytic reach to a country that has contributed little research to the ongoing debate about social movement mobilization. Adopting a political process perspective, political institutions, political opportunities, and social and political organizations shaped the emergence and mobilization of the popular campaign. This case can strengthen a generalized understanding of those political factors most conducive to the interesting interplay and outcome of movement, party, and electoral politics.
Although we easily intuit that development policy making is saturated with political significance, political choices are often presented in vocabularies of economic and legal expertise that obscure the political stakes of development policy making. This chapter retells the postwar history of economic and legal expertise in the development field to highlight the possibility - and also the difficulty - of reclaiming its political significance. I use the term political in two senses. Experts act politically when they distribute resources among groups and individuals - we can decode the politics of this work by associating expert choices with the interests of groups that contest one another’s claims on resources in the arenas we think of as political: men and women, rich and poor, rural and urban, North and South, agricultural and industrial. Experts also act politically when they affect the distribution of power among ideological positions that we associate with political contestation: left, center, and right. I tell the history of development common sense in four phases: a postwar modest interventionist consensus (1945-1970); followed by a period of crisis and retrenchment (1970-1980); a new consensus on transition from socialism, first in the third world, and then in the second (1980-1995); followed by a period of doubt, reexamination, and eclecticism (1995-the present) during which the neoliberal “Washington Consensus” has been chastened in numerous ways.
Introduction In the WTO's seven years of existence, six panels appointed scientific experts. Two panels requested expert advice from other international organisations and one panel appointed a linguistic expert. This stands in contrast to one single resort to experts by GATT 1947 panels. Very often parties to a WTO dispute also nominate experts on their delegation, be they lawyers, economists, scientists or linguists. On top of that, an increasing number of ‘outsiders’ or amici curiae, such as Non-Government Organizations (NGOs), but also industry and academics, have pressed their (expert) opinion on WTO panels. What explains this increase in expert advice before the WTO? Firstly, WTO agreements became more technical, both in the trade/economic sense (refer, for example, to the Agreement on Customs Valuation and the Agreement on Agriculture) and the factual/scientific sense (refer to the SPS and TBT agreements). Indeed, some WTO agreements themselves set up expert bodies (such as the Permanent Group of Experts under the Subsidies Agreement and the Technical Committee on Customs Valuation under the Customs Valuation Agreement). Secondly, certain WTO obligations adopt an explicitly economic/scientific criterion of legality, set out either in the WTO treaty itself (such as the requirement to ‘base’ sanitary measures on a ‘risk assessment’, SPS Art. 5.1) or as developed in WTO jurisprudence (such as the condition of a certain degree of ‘competitive relationship’, based largely on market studies, for products to be ‘like’ under GATT Art. III).
This detailed account of the politics of opening agricultural markets explains how the institutional context of international negotiations alters the balance of interests at the domestic level to favor trade liberalization despite opposition from powerful farm groups. Historically, agriculture stands out as a sector in which countries stubbornly defend domestic programs, and agricultural issues have been the most frequent source of trade disputes in the postwar trading system. While much protection remains, agricultural trade negotiations have resulted in substantial concessions as well as negotiation collapses. Food Fights over Free Trade shows that the liberalization that has occurred has been due to the role of international institutions. Variations in the foreign exchange market influence all aspects of the world economy, and understanding these dynamics is one of the great challenges of international economics. This book provides a new, comprehensive, and in-depth examination of the stan.
Over the past months, it has become increasingly clear that the services negotiations under the Doha Development Agenda will not produce significant improvements on current commitments unless major new impetus is provided. In an introductory section, this article discusses various impediments, from the perspective of participating governments, which might explain the lack of negotiating momentum to date. It then provides an overview of existing commitments under the General Agreement on Trade in Services (GATS) (by sector, mode of supply, and level of development) and of the initial offers that had been tabled by end-September 2005. Despite the substantial benefits that may be associated with the liberalization of services trade, the GATS has obviously not yet lived up to ambitious expectations. For example, on average across all World Trade Organization (WTO) Members, only one-third of all services sectors have been included in current schedules of commitments; and many entries have been combined with significant limitations on market access and national treatment or with the complete exclusion of particular types of transactions (modes of supply) from coverage. While the ongoing services negotiations provide an opportunity to complement the rule-making efforts of the Uruguay Round with genuine market opening, many governments apparently have found it difficult, despite generally more restrictive access regimes and, thus, potentially higher gains from liberalization than in merchandise trade, to undertake or envisage economically significant bindings across a broad range of services. Almost six years after the inception of the services round, current negotiating arrangements, based mainly on (bilateral) exchanges of requests and offers, may need to be complemented by common points of reference to provide greater focus and guidance.
The conventional wisdom of the sixties and early seventies held that, except in the very long run, rapid development and human rights are competing concerns. Needs satisfaction, income equality, and civil and political rights were regularly held to be luxury goods. An examination of the development experiences of Brazil and South Korea, however, shows much of this conventional wisdom to have been mistaken. Rapid growth and development can be achieved without sacrificing social and economic equity. Furthermore, theoretical considerations suggest that even civil and political rights are more compatible with sustained rapid development than is frequently recognized.
The first World Social Forum, held in Porto Alegre in January 2001, illustrated the growing importance and breadth acquired by the movement protesting against neoliberal globalization. The authors analyse the genesis of this complex movement from the First International Encounter for Humanity and Against Neoliberalism (Chiapas, Mexico, 1996) to the recent Forum in Porto Alegre, describing the different social movements which, from a variety of perspectives, now converge in the international struggle against neoliberal policies. Particular interest is shown in the social protest experiences in Latin America during the 1990s, undertaken by numerous movements that actively participated in the Forum. A reflection is then put forward on the challenges this movement poses for the construction of a new internationalism which, acknowledging the far-reaching social transformations that have occurred in capitalism and on the international plane, will reflect and harbour the demands of a varied and heterogeneous group of social organizations and movements. The article also presents the core debates around which the discussions at Porto Alegre were structured.
The trade union movement has been going through a crisis of representativeness and legitimacy, provoked by a diversity of factors: the decline in the centrality of work as a result of transformations in the world economy and the composition of local labour markets generated by globalization, which has led to a fragmentation of the interests on the basis of which the movement's collective identity had been built; the new forms of labour relations emerging in response to the restructuring of productive activities; the modification of the political system's bases of support and the resulting crisis of the corporativist model; the union movement's inability to launch new strategies to confront the new trends; and the bureaucratization and internal decay of many union organizations. Studies done on this issue in Latin America have shown how these factors are giving rise to a variety of real conditions, depending on the actors' strategies in each specific case. This article provides a summary description of the trends now under way.
Several years after students of international relations started to ask questions about international regimes, there continues to be a strong scholarly interest in the principles, norms, rules, and decision-making procedures that govern the behaviour of states in particular issue-areas. Indeed, international regimes have been a major focus of theoretical and empirical research in International Relations for many years now. Three schools of thought have shaped the discussion thus far: neoliberalism, which bases its analyses on constellations of interests; realism, which treats power relations among states as its key variable; and cognitivism, which emphasizes actors' causal and social knowledge. Each of these schools of thought has articulated and defended a distinct view on the origins, stability, and consequences of international regimes. In this article we explore the possibilities of achieving additional explanatory power in the study of international regimes by working toward a synthesis of these schools of thought.
The textbook theory of tariffs, and their converse, the movement to freer trade, has more elements than we need for the nineteenth century, but also lacks some. In the usual comparative statics, a tariff may be said to have ten effects: on price, trade, production (the protective effect), consumption, revenue, terms of trade, internal income distribution, monopoly, employment and the balance of payments.
Among the many challenges to the universality of human rights, none have been more persistent than those related to economic development. In no place has this challenge been more consistently advanced than in East Asia. Both scholars and ordinary citizens have confronted the claim that authoritarianism is an essential component of East Asia's 'economic miracle.' Those who advance this thesis argue that Western style democracy and human rights are dispensable and sometimes may prove positively harmful to the development effort. The alleged price of human rights is the destruction of the Asian social fabric and the resultant political and economic chaos. This article challenges this claim and offers constitutionalism as the venue for East Asia's continued economic development. As economic development proceeds, increased social diversification produces continued developmental problems for which constitutionalism and its human rights content are a proper response. The notion of constitutionalism employed in this article looks beyond mere formal institutions to consider the dynamic processes of representation and empowerment attached to human rights institutions. In considering both the fundamentals of constitutionalism as well as the indigenization of constitutional practices, this analysis offers a venue for addressing relativist arguments without undermining universal commitments.
This paper is focused around rights-based representative democracy, social equity and forms of market economy. In a survey of the North Atlantic World, the author examines how concepts such as democracy, citizenship and welfare have changed over the last fifty years. In particular, the key role of Thatcher and Reagan is examined because of their sustained assaults on many of the post-war assumptions of the liberal-democratic welfare state. The author concludes with four suggestions for the future which include: reaffirming a committment to social equity, using higher taxation to fund basic welfare provision, improvement public knowledge about the cost of the welfare state and extend international co-operation over trade and financial regulation.
This article examines the impacts, on citizenship rights, democratic practice and public policy, of the constitution‐like regimes for the protection of investor rights embedded within contemporary international investment treaties. It argues that a central objective of these investment treaties is to remove specific governmental functions from the stock of policy instruments available to national governments and to democratic polities. Drawing upon Habermas' discourse‐theoretic approach to law and democracy, the article argues that national states have the room to deviate, if not withdraw from the current configuration of economic rights advanced and enforced through international investment treaties. A robust proceduralist approach to rights and democracy would subject these agreements to critical democratic practice and open space to revise and roll back some of the rules and institutions associated with economic globalization.
The article examines the responses of women's movements in Canada, the United States and Mexico to the North American Free Trade Agreement (NAFTA) from a comparative perspective. It argues that while some women's groups have raised important critiques of trade agreements from a feminist perspective, they have largely failed to make the gendered dimension of regionalization visible in public debate on NAFTA and have had virtually no impact on public policy. The nature of the women's movements in the three countries limited the possibilities of greater contestation of the form of economic liberalization at both the national and transnational levels. Drawing upon the literature on social movements, the article suggests that the ability of women's movements to respond to NAFTA was conditioned by: (1) the shifting universe of political discourse in each country - whether it permits the identification of macroeconomic policy as a gender issue - which is conditioned in part by the diverse forms of engagement with liberalism as a political philosophy in each country, and (2) the organizational structure of women's movements in each country, their relationships with their respective states, and their role within broader coalitions.
Unlike the original 1947 General Agreement on Tariffs and trade (GATT), the 1994 Agreement establishing the World Trade Organization (WTO Agreement)1 covers a much wider range of trade. It extends beyond goods and now embraces services, intellectual property, procurement, investment and agriculture. Moreover, the new trade regime is no longer a collection of ad hoc agreements, Panel reports and understandings of the parties. All trade obligations are subsumed under the umbrella of the WTO, of which all parties are members. Member States have to accept the obligations contained in all the WTO covered agreements: they cannot pick and choose.
The beginning of the new millennium spawned a biosafety protocol ¹ for the transboundary movement of genetically modified organisms, ² against the background of an existing WTO code ³ concerned mainly with liberal trade. The co-existence of the two codes, and their almost separate development, reflects the fact that the international movement of GMOs raises concerns both of biosafety and liberal trade. However, their co-existence also invites a number of questions—viz., the level to which they complement each other, the level of duplication, and the levels to which they are adequate qua normative frameworks for biotechnology products. In short, the two systems beg the question whether they co-exist happily, or provide for incoherence. This article is not intended as an exhaustive analysis of the codes, but rather as a framework for a focus on the respective codes, as well as their relationship to each other, from a legal perspective.
Since the creation of the World Trade Organisation, the international trading system has lived through a decade of sustained and vocal public criticism. International trade lawyers have made significant efforts to engage, evaluate and respond to these critiques. This article assesses the adequacy of these responses, focusing on the so-called 'trade and' debate - or 'trade linkage' debate - in international trade law. While this debate has produced valuable insights, it tends to legitimate and reproduce precisely those aspects of the trade regime which it purports to contest. Drawing on the insights of economic history, an alternative mode of scholarship is proposed - at once historical, critical, constructivist and institutionalist - to augment the current literature in the trade and debate. Concrete lines of enquiry are proposed which, if followed, would help international trade lawyers to respond more productively and with greater legitimacy to contemporary public critiques of the international trading order.
The human rights corpus is a bundle of pathologies of choice and substance. But these pathologies are ideologically driven and inhere in the human rights movement because of the political choices and biases that are part of the cultural universe of human rights. In particular, the corpus is captive to thin notions of human rights that tend not to challenge deeply embedded social and economic assumptions and systems. The historical narrative of the human rights movement closely parallels the hegemonic rise of the West and hence the movement’s imprisonment in an intellectual project that casts the human being in the narrow idiom of the traditional rights discourse.
This piece argues that although human rights is an ideology although it presents itself as non-ideological, non-partisan, and universal. It contends that the human rights corpus, taken as a whole, as a document of ideals and values, particularly the positive law of human rights, requires the construction of states to reflect the structures and values of governance that derive from Western liberalism, especially the contemporary variations of liberal democracy practiced in Western democracies. Viewed from this perspective, the human rights regime has serious and dramatic implications for questions of cultural diversity, the sovereignty of states, and the universality of human rights.
A recurring and delicate issue in the GATT/WTO dispute settlement processes is whether, and to what extent, WTO Panels and the Appellate Body (AB) should defer to national government decisions. With regard to disputes under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), WTO Panels adopted, and the AB endorsed, a standard of review close to de novo review. As a result, the WTO jurisprudence in SPS disputes has been subject to sharp criticisms over the years. In the recent EC-Hormones II case, the AB has deviated from its established case law and articulated a new standard of review. I argue that the deviation indicates that the AB is now willing to endorse a more deferential, procedurally focused standard of review, as opposed to the conventional substantive, merit-based review, in SPS disputes where human health and safety are at stake. The new standard of review in EC-Hormones II is of fundamental importance in discussing a central issue of the GATT/WTO regime, i.e., to what extent WTO rules should penetrate into its Members’ domestic regulatory order.
Compared with the realist tradition, relatively few students of international relations explore variations within liberalism. This paper introduces a particular interpretation of Immanuel Kant’s evolutionary liberalism and then compares it with Thomas Paine’s revolutionary liberalism. Paine was an ebullient optimist while Kant was more guarded and cautious. These different assumptions lead to distinct liberal views on voting rights, how trade fosters peace, and defense policies. The most striking disagreement, and one that endures in contemporary liberal circles, revolves around the question of military interventions to spread democratic rule. Kant advocated nonintervention while Paine actively pursued military intervention to spread democratic rule. Differences between Kant and Paine represent some enduring tensions still residing within the liberal tradition in international relations.
Even before the Doha Round of international trade talks in the World Trade Organisation (WTO) had been suspended in July 2006, there was little sign of progress in the negotiations on the relationship between WTO rules and multilateral environmental agreements (MEAs). If the Round is resumed, this and many other important issues on the WTO agenda will have to take a back seat while the big ticket items—agriculture and market access—are resolved. Meanwhile, governments acting outside the WTO will continue to agree to new MEA commitments that relate to trade policy without a clear understanding of how the design and implementation of those commitments is affected by WTO rules. This article examines some of the options for governments to clarify the relationship between WTO rules and ME As, both inside and outside the WTO. It sets out the nature and experience of the relationship, before examining ways in which governments in the WTO and in the UN system could work towards better global governance of trade and sustainable development.
The agreement on an international biosafety treaty in January 2000 marks an important achievement in reconciling trade and environmental interests. The Cartagena Protocol on Biosafety strengthens the right of importing nations to reject shipments of genetically modified organisms on grounds of environmental safety or risks to human health. Crucially, it acknowledges the precautionary principle within its environmental risk assessment procedure. However, the political compromise that led to the adoption of the Protocol failed to resolve several contentious issues including labelling, liability, and the relationship between the biosafety regime and the international trade order. This article traces the history of biosafety negotiations, analyses the Cartagena Protocol and assesses the future biosafety agenda.
Increasingly, scholars have articulated the challenge of global economic governance in constitutional terms. The World Trade Organization (WTO) is often painted as an incipient global economic constitution. Its legitimacy would be enhanced, some contend, by transforming the WTO treaty system into a federal construct. But the application of the language of constitutionalism to the WTO is likely to exacerbate the fears of the “discontents” of globalization that the international institutions of economic governance are not democratically accountable to anyone. We argue that the legitimacy of the multilateral trading order requires greater democratic contestability. The notion of global subsidiarity would be a more appropriate model for the WTO than that of a “federal” constitution. This notion incorporates three basic principles: institutional sensitivity, political inclusiveness, and top–down empowerment.