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?

Trade and the environment. Trade and workers’ rights. Trade and competition policy. Trade and eighteen million tiny feet. It begins to resemble a question from an IQ test: which of the preceding pairs of issues does not fit? Increasingly, it seems there is no pairing with trade for which some argument cannot be made. The “trade and …” industry is booming.

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

In this paper, we argue that market access issues associated with the question of the optimal mandate of the World Trade Organization should be separated from nonmarket access issues. We identify race-to-the-bottom and regulatory-chill concerns as market access issues and suggest that the WTO should address these concerns. We then describe ways that WTO principles and procedures might be augmented to do so. As for nonmarket access issues, we argue that as a general matter these are best handled outside the WTO, and that, while implicit links might be encouraged, explicit links between the WTO and other labor and environmental organizations should not as a general matter be forged. We view this as a measured approach to labor and the environment within the WTO.

“Trade and … ” linkages arise when nontrade issues are linked to trade. Thus, if the United States declines to trade with Myanmar until it complies with certain human rights or democracy standards, this is a “trade and … ” linkage. All “trade and … ” linkages are constructed, in the sense that the decision to link trade to other issues is always a political decision and is not otherwise determined by the nature of things. Governments link trade concessions to the satisfaction of other, nontrade policy interests, either politically or legally, whenever they find such linkage useful to the achievement of their goals.

As is known to every student of trade law and policy, the modern idea of free trade originates from the theories of absolute and comparative advantage developed by the classical political economists, Adam Smith and David Ricardo. Smith and Ricardo both addressed themselves to a sovereign unilaterally deciding its trade policy. They concluded that, with some qualifications or exceptions, a policy of liberalizing restrictions on imports would maximize the wealth of that sovereign.

The problem of linkage between “nontrade” subjects and the World Trade Organization is certainly one of the most pressing and challenging policy puzzles for international economic relations and institutions today. It is extensively and harshly debated by political leaders and diplomats, at both the national and the international levels of discourse, and is one of several issues that derailed the WTO Third Ministerial Conference in Seattle in late 1999. It also posed problems for the Fourth Ministerial Conference in Doha, Qatar, in November of 2001, and it threatens to derail the successful functions of the WTO itself.

Commenting on the papers in this symposium is paradoxically a difficult task. The authors are remarkably distinguished and one can only learn from what they write. Indeed, I have learned much from them (especially from Dean David Leebron’s splendid clarification of several aspects of linkage, a paper that shows that he should have been an Oxford philosopher if only he had not been such a successful legal scholar). Yet it is easy for an invited commentator to be overwhelmed by despair because the authors write for the most part as if in a research vacuum. There is little attempt at relating what they write to the enormous literature on the problem of linkage.

The issue of whether and how the trading system should deal with social and economic policies not strictly within the ambit of the WTO has been with us at least since the inception of the GATT in 1947-1948. It is not a new question. The problem, however, has become even more vexing since the 1970s, as tariffs became less important in trading relationships and governments struggled to respond to a proliferation of nontariff barriers to trade. I will argue, in this Afterword, that the question is not whether the WTO should or should not deal with the “trade and … ” subjects—trade and environment, trade and public health, trade and labor rights, trade and human rights, trade and competition, trade and investment, and trade and intellectual property, to name a few. It already does and has done so, in many respects, since 1948. The question I would pose is this: how should these so-called nontrade subjects be dealt with within the WTO system? And who should define the scope of WTO recognition/cognizance of these subjects: WTO member governments (the “Members”) or the quasi-judicial bodies of the dispute settlement system (the panels and the Appellate Body)?

The contributors to this symposium, both principal authors and commentators, ably demonstrate that there are indeed “overarching constructs” linking the subdisciplines of international law. All of the writers here assume that linkage issues arise for the World Trade Organization, as they have with respect to a number of other intergovernmental organizations, precisely because centralized, quasi-autonomous institutions maybe relatively effective vehicles for the promotion of interstate cooperation between rational, egoistic state actors. All of them assume, as scholars of international relations and economists have long recognized, that many international regimes are linkage machines by their very nature. It is important to recall why this is so in order to consider when or how an organization’s attempts at linkage may fail.