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Foreword

Published online by Cambridge University Press:  27 February 2017

José E. Alvarez
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Extract

A burgeoning literature addresses the links between the World Trade Organization and ostensibly “nontrade” issues, including corruption and bribery, health care (such as tobacco control), human rights generally or labor rights in particular, diverse environmental concerns, issues of “culture,” and even the fight against terrorism. Current WTO scholarship, at least that published in the United States, seems to be obsessed with exploring the outer boundaries of the trade regime. In the face of a vast array of potential recipes for linkage to particular nontrade issues, as well as cautionary tales against such linkage, what is to be gained from revisiting these questions?

Type
Symposium: The Boundaries of the WTO
Information
American Journal of International Law , Volume 96 , Issue 1 , January 2002 , pp. 1 - 4
Copyright
Copyright © American Society of International Law 2002

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References

1 But the discussion has taken different forms and has involved distinct terminologies. In some cases, “trade and .. .” discourse has consisted of pleas to situate trade law within the broader confines of “international economic law” or to explore “interfaces” between distinct specialties of international law, such as international monetary law.

2 See, e.g., Jeffery, Atik, Uncorking International Trade, 15 Am. U. Int’l L. Rev. 1231 (2000).Google Scholar Other attempts have involved disciplines outside the law. See, e.g., Symposium, Linkage as Phenomenon: An Interdisciplinary Approach, 19 U. Pa. J. Int’l Econ. L. 209 (1998)Google Scholar; Daniel, C. Esty, Linkages and Governance: NGOs at the World Trade Organization, 19 U. Pa. J. Int’l Econ. L. 709 (1998).Google Scholar 8 See, e.g., José, M. Salazar-Xirinachs, The Trade-Labor Nexus: Developing Countries’ Perspectives, 3 J. Int’l Econ. L. 377 (2000)Google Scholar (arguing that many labor problems in developing countries arise from their lack of capacity to implement core labor rights and that such concerns ought to be addressed not by welfare-reducing trade policies but by technical assistance and capacity building). According to Salazar-Xirinachs, developing countries’ priorities for the next trade round include eliminating trade barriers in sectors where they have comparative advantages (such as textiles and agriculture), disciplining the application of trade remedies by developed countries, strengthening WTO dispute resolution, and enlarging access for their skilled labor to global markets for services. He contends that, given the fundamental asymmetry in market size and power enjoyed by the United States, developing countries believe that explicit links to labor and environmental issues in the WTO would institutionalize unilateralism, overload the next trade round, and prevent less developed countries from using those negotiations to achieve what they most need, namely, economic growth to alleviate unemployment and reduce poverty.

3 For concerns about regional trade pacts, see, for example, Bhagwati, Jagdish, Regionalism and Multilateralism: An Overview, in New Dimensions in Regional Integration 22 (de Melo, Jaime & Panagariya, Arvind eds., 1993)CrossRefGoogle Scholar; Bhagwati, Jagdish, A Costly Pursuit of Free Trade, Fin. Times (London), Mar. 6, 2001, at 21 Google Scholar.

4 I owe this irreverent phrasing to Joel Trachtman.

5 Leebron, David W., Linkages, 96 AJIL 5 (2002)CrossRefGoogle Scholar.

6 See Ernst-Ulrich, Petersmann, How to Promote the International Rule of Law? 1 J. Int’l Econ. L. 25 (1998)Google Scholar; Richard Shell, G., Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, 44 Duke L.J. 829 (1995)CrossRefGoogle Scholar; see also Charnovitz, Steve, The WTO and the Rights of the Individual, 36 Inter economics 98 (2001)Google Scholar (noting how the existing trade regime accommodates the rights of private parties and recommending that the WTO continue to recognize economic rights of individuals as do constitutions and human rights agreements).

7 See, e.g., Kuyper, P.J., The Law of GATT as a Special Field of International Law, 1994 Neth. Y.B. Int’l L. 227 Google Scholar.

8 Pauwelyn, Joost, The Role of Public International Law in the WTO:How Far Can We Go? 95 AJIL 535 (2001)CrossRefGoogle Scholar. But see Trachtman, Joel P., The Domain of WTO Dispute Resolution, 40 Harv. Int’l L. J. 333, 342 (1999)Google Scholar (arguing that WTO dispute resolution is authorized to directly apply only WTO law) [hereinafter Trachtman, Domain]; Trachtman, Joel P., Institutional Linkage: Transcending “Trade and...,” 96 AJIL 77 (2002)CrossRefGoogle Scholar (in this symposium) [hereinafter Trachtman, Linkage]. See generally Dunoff, Jeffrey L., Border Patrol at the World Trade Organization, 1998 Y.B. Int’l Envtl. L. 20 Google Scholar.

9 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15,1994, Art. IX:2, in World Trade Organization, the Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 3 (1999) [hereinafter WTO Agreement]; see also Understanding on Rules and Procedures Governing the Settlement of Disputes, id., Annex 2, Art. 3.9 (indicating that the Understanding is without prejudice to the rights of members to seek authoritative interpretations through decision making under the WTO Agreement).

10 Thus, the possibility for expanding the trade regime to embrace, more directly, investment or environmental concerns remains, for now, under study within the General Council’s Working Group on the Relationship between Trade and Investment and its specialized Committee on Trade and Environment, respectively.

11 For a survey of these decisions, see generally Pauwelyn, supra note 8.

12 See, e.g., Henkin, Louis, The Mythology of Sovereignty, ASIL Newsletter, Mar-May 1993, at <http://www.asil.org/pres.htm>Google Scholar.

13 See, e.g., O’Brien, Robert, Anne-Marie, Goetz, Aart Scholte, Jan, & Williams, Marc, Contesting Global Governance (2000)CrossRefGoogle Scholar (defining the new forms of global governance emerging from the relationship between multilateral economic institutions and global social movements); Fidler, David, A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization, 35 Tex. Int’l L. J. 387 (2000)Google Scholar (defining and defending the characteristics of “globalization”); Kingsbury, Benedict, Sovereignty and Inequality, in Inequality, Globalization, and World Politics 66 (Hurrell, Andrew & Woods, Ngarire eds., 1999)CrossRefGoogle Scholar (defending aspects of “sovereignty”).

14 This is, after all, what “theory” seeks to accomplish. See generally Snidal, Duncan, The Game Theory of International Politics, 38 World Pol. 25, 25–29 (1985)CrossRefGoogle Scholar.

15 See Ratner, Steven R. & Anne-Marie, Slaughter, Appraising the Methods of International Law: A Prospectus for Readers, 93 AJIL 291 (1999)CrossRefGoogle Scholar. Of course, trade linkage debates could have been used as an instructive case study to illuminate applicable methods, schools of thought, or styles of international legal discourse in the way that the humanitarian law problem was used in the Journal’s methods symposium. Indeed, the contributions to this symposium illustrate some of the methods surveyed in that one. Aspects of Charnovitz’s and Trachtman’s respective contributions in this issue adapt tools used by international relations scholars. Charnovitz, Steve, Triangulating the World Trade Organization, 96 AJIL 28 (2002)CrossRefGoogle Scholar; Trachtman, Linkage, supra note 8; cf Abbott, Kenneth W., International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AJIL 361 (1999)CrossRefGoogle Scholar. Other aspects of Trachtman’s contribution here, as well as the contribution by Bagwell, Mavroidis, and Staiger, illustrate the centrality of economic analysis to linkage questions. Kyle Bagwell, Petros C. Mavroidis, & Staiger, Robert W., It’s a Question of Market Access, 96 AJIL 56 (2002)Google Scholar; cf. Dunoff, Jeffrey L. & Trachtman, Joel P., The Law and Economics of Humanitarian Law Violations in Internal Conflict, 93 AJIL 394 (1999)CrossRefGoogle Scholar. At the same time, Trachtman’s doctrinal analysis here and elsewhere concerning the proper domain of WTO dispute resolution, see Trachtman, Domain, supra note 8; Trachtman, Linkage, supra note 8, at 88 & n.28, evinces considerable faith in formally accepted state-centric positivist sources of law independent of moral, political, or ethical considerations. Cf. Simma, Bruno & Paulus, Andreas L., The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist Vino, 93 AJIL 302 (1999)CrossRefGoogle Scholar. Several of Charnovitz’s “normative frameworks” for linkage, such as coalition building, appear to be based on a discourse model comparable to the claims made by those interested in “policy-oriented jurisprudence” or “international legal process.” Compare Steve Charnovitz, supra, at 45-47, with Mary Ellen O’Connell,’ New International Legal Process, 93 AJIL 334 (1999). And the focus on history, common to more critical perspectives of international law, is suggested by Howse’s account of the return of politics. Compare Howse, Robert, From Politics to Technocracy—and Back Again: The Fate of the Multilateral Trading Regime, 96 AJIL 94 (2002)CrossRefGoogle Scholar, with Koskenniemi, Martti, Letter to the Editors of the Symposium, 93 AJIL 351 (1999)CrossRefGoogle Scholar, and Kennedy, David, The Disciplines of International Law and Policy, 12 Leiden J. Int’l L. 9 (1999)CrossRefGoogle Scholar. More generally, all the contributions here raise questions that pervade disputes over method, including the relative priority to be given nonstate interests and sources of law, the best way to relate state-centric institutions such as the WTO to organizations with different constituencies (including the tripartite set of interests represented in the International Labour Organization), and the role and coordination of different branches of government within the WTO. Cf. Anne-Marie, Slaughter & Ratner, Steven R., The Method Is the Message, 93 AJIL 410, 419 (1999)Google Scholar.

16 Jackson, John H., Afterword: The Linkage Problem—Comments on Five Texts, 96 AJIL 118 (2002)CrossRefGoogle Scholar; Bhagwati, Jagdish N., Afterword: The Question of Linkage, 96 AJIL 126 (2002)CrossRefGoogle Scholar; Steger, Debra P., Afterword: The “Trade and... “Conundrum—A Commentary, 96 AJIL 135 (2002)CrossRefGoogle Scholar.

17 Steger, supra note 16, at 144.