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Afterword: The Linkage Problem—Comments on Five Texts

Published online by Cambridge University Press:  27 February 2017

John H. Jackson
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Extract

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.

Type
Symposium: The Boundaries of the WTO
Information
American Journal of International Law , Volume 96 , Issue 1 , January 2002 , pp. 118 - 125
Copyright
Copyright © American Society of International Law 2002

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References

1 See , e.g., statement of WTO Director-General Mike Moore that a second failure of a ministerial meeting to launch a trade round at Doha, Qatar, in November “would certainly condemn us to a long period of irrelevance,” in Williams, Frances, WTO Head Tells Nations ‘to Get Real,’ Fin. Times (London) July 31, 2001, at 1 Google Scholar. See also Jackson, John H., The WTO ‘Constitution’ and Proposed Reforms: Seven ‘Mantras’ Revisited, 4 J. Int’l Econ. L. 67 (2001)CrossRefGoogle Scholar.

2 My sympathies are with the organizers, however, because I know how difficult it is to recruit such perspectives for a work like this.

3 The drafts leading to this group of five articles evolved somewhat in the course of publication and are much improved through that process, but this has posed some difficulty for those of us asked to comment on these articles since it has required some rethinking and redrafting of our own comments to attempt (at least) to correlate our remarks to the final versions.

4 Charnovitz, Steve, Triangulating the World Trade Organization, 96 AJIL 28 (2002)CrossRefGoogle Scholar.

5 Id. at 30–31.

6 David Leebron, Linkages, 96 AJIL 5 (2002).

7 Bagwell, Kyle, Mavroidis, Petros C., & Staiger, Robert W., It’s a Question of Market Access, 96 AJIL 56 (2002)CrossRefGoogle Scholar.

8 Meaning great overemphasis on “balancing” access commitments as the central policy goal of the trade system. See Jackson, John H., The World Trading System: Law and Policy of International Economic Relations 147 (2d ed. 1997)Google Scholar. Furthermore, it seems quite apparent that the model presented fits hardly any of the real characteristics of the WTO rule system, inter alia: (1) by ignoring the impact of the most-favored-nation obligation on their proposals; (2) by giving little effect to the national treatment obligation and its effect on product standards; (3) by using terms that are ill-defined, e.g., “standards,” which seem to be used in at least one paragraph as embracing “subsidies” and in other places as lumping both product standards and process standards together; (4) by not accurately describing the meaning as practiced of “non-violation” cases (itself relying on the extremely ambiguous phrase “nullification or impairment”); and (5) by not realizing the huge potential for manipulation of the “nullification or impairment” phrase and the policy dilemma posed for the norm in Article 3.2 of the Dispute Settlement Understanding that rulings of the Dispute Settlement Body “cannot add to or diminish the rights and obligations provided in the covered agreements.” Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 3.2, Marrakesh Agreement Establishing the World Trade Organization, Apr. 15,1994, Annex 2, in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 354 (1999).

9 Trachtman, Joel P., Institutional Linkages: Transcending “Trade and . . ., “96 AJIL 77 (2002)CrossRefGoogle Scholar.

10 Jackson, John H., Sovereignty, Subsidiarity, and the Separation of Powers: The High Wire Balancing Act of Globalization (Proceedings of conference to honor Prof. Hudec, Robert E., University of Minnesota Law School, Sept. 2000, forthcoming)Google Scholar; see also Jackson, John H., The Great 1994 Sovereignty Debate: United States Acceptance and Implementation of the Uruguay Round Results, in The Jurisprudence of GATT AND The WTO: Insights on Treaty Law and Economic Rlations 367 (2000)Google Scholar. (Trachtman uses the term “jurisdiction,” whereas I have used the phrase “allocation of power.”)

11 Howse, Robert, From Politics to Technocracy—and Back Again: The Fate of the Multilateral Trading Regime, 96 AJIL 94 (2002)CrossRefGoogle Scholar.

12 See Robert O. Keohane & Joseph S. Nye, Jr., The Club Model of Multilateral Cooperation and the Problems of Democratic Legitimacy, Paper prepared for the American Political Science Association convention (Aug. 31-Sept. 3, 2001), in which the authors develop a remarkable overview of the post-World War II international economic institutions and note the role of elites in part of that history.

13 Howse, supra note 11, subhead of part V at 108, and text at note 5 (emphasis omitted).

14 One personal note here: Howse refers to my view, “All politics is local.” In fact, this phrase is derived from the title of a book authored by Tip O’Neil, former Speaker of the U.S. House of Representatives, and I have used this phrase in juxtaposition to another phrase, “all economics is international,” which quotes an article by Peter Drucker. I do this to illustrate the tensions about “global economic policies” that are inherent in the democratic and parliamentary procedures of nation-states. See Jackson, supra note 8, at 351 (with footnotes to the origin of those phrases).

15 Jackson, supra note 1; Jackson, John H., Dispute Settlement and the WTO: Emerging Problems, 1 J. Int’l Econ. L. 329 (1998)CrossRefGoogle Scholar; see also Keohane & Nye, supra note 12.

16 See Jackson, supra note 8, at 154 & 383 nn.63, 64, for reference to some inventories of non-tariff barriers to trade.

17 Readers who wish to explore some of these views further can examine references in some of the footnotes above, and Jackson, John H., Global Economics and International Economic Law, 1 J. Int’l Econ. L. 1 (1998)Google Scholar; Jackson, John H., International Economic Law in Times That Are Interesting, 3 J. Int’l Econ. L. 3 (2000)CrossRefGoogle Scholar; Jackson, supra note 15.

18 Of course, the GATT was also focused on the elimination of trade quotas (prohibiting them in Article XI), and was not quite as successful in this task. Tariff reductions, by contrast, were the subject of very extensive negotiations; namely, six rounds before 1970.

19 See also the Tokyo Round agreements on aircraft products, agricultural products, antidumping measures, etc.

20 See the works cited in notes 1, 8, 10, 15, 17 supra.

21 Jackson, supra note 1; Jackson, supra note 15. See also the works cited in note 10 supra.

22 The paper by Keohane and Nye, supra note 12, has an extraordinarily well articulated view of the essential need for attention to various principles of governance (transparency, participation, etc.) in the world trading system (as well as other international economic institutions).

23 This term is used in the jurisprudence of the European Convention on the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221.

24 Readers may wish to peruse an interesting article by Professor Daniel K. Tarullo on this subject, Norms and Institutions in Global Competition Policy, 94 AJIL 478 (2000).

25 See International Competition Policy Advisory Committee to the Attorney General and Assistant Attorney General for Antitrust, U.S. Dep’t of Justice, Final Report, ch. 6 (2000). See also the ideas expressed by European Union Commissioner of Competition Policy Mario Monti in his keynote address at a conference entitled Towards Global Competition held by the British Institute of International and Comparative Law (May 18, 2001) (notes of speech on file with author).