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Linkages

Published online by Cambridge University Press:  27 February 2017

David W. Leebron
David W. Leebron*
Affiliation:
Columbia University School of Law
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Extract

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.

Type
Symposium: The Boundaries of the WTO
Information
American Journal of International Law , Volume 96 , Issue 1 , January 2002 , pp. 5 - 27
Copyright
Copyright © American Society of International Law 2002

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References

1 Studer, Margaret, Two Nations Struggle aver a Prize with Eighteen Million Tiny Legs, Wall ST. J., Aug. 17, 1995, at B1 Google Scholar (reporting German government’s interference with export of beetle collection).

2 1 use “issue” here more in the regulatory sense of a question that must be addressed than in the somewhat more limited sense adopted by many political scientists of a question in dispute.

3 For example, the linkage between trade and monetary relations is accomplished primarily through various relationships between the WTO and the International Monetary Fund (IMF). For further elaboration of the notion of “regime,” see p. 10 infra.

4 Article XX(a) of the General Agreement on Tariffs and Trade (GATT) contains a general exception for measures “necessary to protect public morals,” and Article XX(b) contains an exception for measures “necessary to protect human, animal or plant life or health.” General Agreement on Tariffs and Trade, Oct. 30, 1947, TIAS No. 1700, 55 UNTS 194. The current version of the GATT is in Annex 1A to the Marrakesh Agreement Establishing the World Trade Organization [hereinafter WTO Agreement], Apr. 15, 1994, in World Trade Organization, the Legal Texts: The Results Of The Uruguay Round Of Multilateral Trade Negotiations 3 (1999) [hereinafter The Legal Texts], reprinted in 33 ILM 1154 (1994).

5 See generally Rosenau, James N., Pre-Theories and Theories of Foreign Policy, in Approaches to Comparative and International Politics 27 (Barry Farrell, R. ed., 1966)Google Scholar. Rosenau “was the first of several foreign policy theorists to suggest the need for an issue area typology in order to better understand the external behavior of states.” Potter, William C., Issue Area and Foreign Policy Analysis, 34 Int’l Org. 405, 407 (1980)Google Scholar. Rosenau was applying a concept developed by Robert Dahl and Theodore Lowi in the context of domestic political analysis. See Dahl, Robert A., Who Governs? Democracy and Power in an American city (1961)Google Scholar; Lowi, Theodore, American Business, Public Policy, Case-Studies, and Political Theory, 16 World Pol. 677 (1964)CrossRefGoogle Scholar.

Rosenau, of course, realized that issue areas, like countries, were subject to external influences. He acknowledged the arguments regarding the changing boundaries of issue areas:

And why should the boundaries of issue-areas be so vulnerable? Because bargaining among issue-areas is a major characteristic of geographic and other types of horizontal systems. Indeed, the stability of such systems is considered to be crucially dependent on their ability to resolve conflicts in one area by compromising in other areas.

Rosenau, supra, at 78. While acknowledging that” [t]here can hardly be any dissent from much of this reasoning,” Rosenau thought that the analytic power of the concept outweighed these difficulties, and that in any event other boundary assumptions used in international political analysis were at least as “penetrated.” Id.

6 Rosenau, supra note 5, at 56. Despite its central position in public policy analysis, the concept of “issue area” has received comparatively litde attention. Potter, supra note 5.

7 Rosenau, supra note 5, at 81.

8 In the end, both intellectual property and services were included on the negotiating agenda, but intellectual property was formally limited to “trade-related aspects” and services were put on the agenda of a formally separate negotiating group.

9 Cf. Keohane, Robert O. & Nye, Joseph S., Power and Interdependence 65 (2d ed. 1989)Google Scholar (stressing that definition of issue, hence issue area, is subjective).

10 See id. at 65 (“When the governments active on a set of issues see them as closely interdependent, and deal with them collectively, we call that set of issues an issue area.”).

11 In at least some conceptions of “issue areas,” the issues within such an area are necessarily linked to each other. As Robert Keohane put it, “Decisions made on one issue must affect others in the issue-area, either through functional links or through regular patterns of bargaining.” Robert O. Keohane, International Institutions and State Power 58 (1989). In other words, issues within an issue area must be linked through substance or negotiations.

12 For the definitive history, see Jackson, John H., World Trade and the Law of Gatt (1969)Google Scholar.

13 Krasner, Stephen D., Structural Causes and Regime Consequences: Regimes as Intervening Variables, in International Regimes 1, 2 (Krasner, Stephen D. ed., 1983)Google Scholar. For a brief review of regime definitions, see id. at 2-3.

14 Haas, Ernst B., Why Collaborate”? Issue-Linkage and International Regimes, 32 World Pol. 357, 358 (1980)Google Scholar; see also Krasner, supra note 13, at 7 (“In a world of sovereign states the basic function of regimes is to coordinate state behavior to achieve desired outcomes in particular issue-areas.”).

15 This aspect of regimes also explains why membership issues become so important. The United States for years opposed China’s entry into the GATT and then the WTO in part because it would prevent the United States from linking other issues, such as human rights and Taiwan, to trade relations with China.

16 Cf. Aggarwal, Vinod K., Liberal Protectionism: The International Politics of Organized Textile Trade 27 (1985)Google Scholar (discussing the “nesting” of regimes).

17 Conversely, “The existence of interissue linkages limits the explanatory power of issue structure models.... No issue-specific explanation of events can be completely satisfactory in a world of multiple issues linked in a variety of ways.” Keohane, supra note 11, at 95.

18 Cf. id. at 113 (“Insofar as the dividing lines between international regimes place related issues in different jurisdictions, they may well make side-payments and linkages between these issues less feasible.”).

19 This notion is similar to what Robert Keohane calls “functional linkage,” see id. at 95. Kenneth Oye’s category of “explanation” linkage also largely overlaps with this category. As Oye points out, “While [other types of linkers] are seeking to construct a connection between issues, the explainer is pointing to an already existing connection between issues.” Oye, Kenneth A., Economic Discrimination and Political Exchange 43 (1992)Google Scholar.

20 This is part of what Vinod Aggarwal has captured by his concept of “nesting” and the existence of overarching norms with which parties seek to comply in constructing more focused regimes. See Aggarwal, supra note 16, at 27. However, if different parts of state bureaucratic structures are responsible for different regimes, and those bureaucracies have differing values, such coherence might not be achieved even though the same states are formally parties to the two regimes.

21 General Agreement on Trade in Services, WTO Agreement, Annex 1B. The problem with the GATS was strategic: many of the parties to the GATT would not have participated in the absence of linkage.

22 See Keohane & Nye, supra note 9, at 30-31, 122-23; see also Axelrod, Robert & Keohane, Robert O., Achieving Cooperation Under Anarchy: Strategies and Institutions, 38 World Pol. 226 (1985)CrossRefGoogle Scholar.

23 See Tollison, Robert D. & Willett, Thomas D., AnEconomic Theory of Mutually Advantageous Issue Linkages in International Negotiations, 33 Int’l Org. 425, 448 (1979)Google Scholar.

24 See Hoekman, Bernard M., Determining the Need for Issue Linkages in Multilateral Trade Negotiations, 43 Int’l Org. 693 (1989)Google Scholar.

25 See Keohane, Robert O., Reciprocity in International Relations, 40 Int’l Org. 1 (1986)Google Scholar; Winters, Alan L., Reciprocity, in The Uruguay Round: A Handbook on the Multilateral Trade Negotiations 45 (Michael Finger, J. & Olechowski, Andrzej eds., 1987)Google Scholar.

26 See Tollison & Willett, supra note 23, at 437, 444.

27 As James Sebenius put it: “Think of issues as different types of commodities and of negotiators as traders in a market.” Sebenius, James K., Negotiation Arithmetic: Adding and Subtracting Issues and Parties, 37 Int’l Org. 281, 283 (1983)Google Scholar; see also Hoekman, supra note 24, at 695.

28 In some ways, the bilateral investment treaty presents an easier case for negotiation, since at least at some times countries have regarded both incoming and outgoing investment as a benefit. Thus, agreement could be reached both between countries primarily interested in making foreign investments, and between a capital-exporting country and a capital-importing country. But despite the views of most economists, countries through most of modern history have taken a mercantilist approach to trade negotiations, so that only exports were regarded as a benefit and liberalization of imports was a price that had to be paid to obtain that benefit. The GATT strongly reflects both the reciprocity norm and its mercantilist application.

29 See Hoekman, supra note 24, at 695.

30 Kenneth Oye distinguishes between “extortion” and “exchange” in the linking of issues for purposes of negotiation. Oye, supra note 19, at 38-43. Extortion exists under Oye’s analysis when the party insisting upon linkage would be better off under a cooperative agreement on the first issue, no matter what the other party does on the other issue. According to this view, insisting upon reciprocity as analyzed here might qualify as “extortion.” When one takes into account the problem of dividing the surplus from a transaction, the distinction between exchange and extortion is less clear. Although Oye’s formal analysis of extortion appears to include the refusal to act cooperatively when it is in one’s interest to do so, his discussion focuses on Pareto-inferior moves or threats by a party seeking action on a linked issue. As a result, the distinction between exchange and extortion is contingent on both the status quo (i.e., the present distribution of resources, rights, and obligations) and the preferences of the parties. On the latter point, see id. at 44-45.

31 Indeed, the linkage claim might still be normative in the sense that global welfare will be enhanced if the two issue areas or regimes are linked together as a strategic matter.

32 Decision on Measures Concerning the Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-Importing Developing Countries, in Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, in The Legal Texts, supra note 4, at 392.

33 These conglomerate regimes can be regarded as the formalized version of Aggarwal’s nesting of regimes. See Aggarwal, supra note 16.

34 GATT Art. XV:2.

35 Cf. Stein, Arthur A., Coordination and Collaboration: Regimes in an Anarchic World, 36 Int’l Org. 299 (1982)CrossRefGoogle Scholar (distinguishing coordination from collaboration).

36 This is certainly the meaning of the obligation to cooperate as used in the GATT. Interestingly, the word “collaborate” is used only in part IV, which was added in 1964 and intended to address issues of concern to the developing countries. The IMF Agreement uses both terms, and its usage is vaguely consistent with the distinction adopted here. Articles of Agreement of the International Monetary Fund, opened for signature Dec. 27, 1945, 60 Stat. 1401,2 UNTS 39.

37 This was the basis on which the many agreements comprised by the Uruguay Round trade negotiations were negotiated.

38 Although such retaliation is generally permissible in bilateral international relations, its status in the multilateral context is less clear, in part because many multilateral regimes are “self-contained,” that is, have their own specified procedures for dispute settlement and enforcement.

39 For a recent proposal, see Alvaro de Soto & Graciana del Castillo, Obstacles to Peace building, Foreign Pol’y, Spring 1994, at 69.

40 Executive heads of all United Nations agencies meet in the Administrative Committee on Coordination, but even in this context the Secretary-General does not exercise any hierarchical authority. “ [H]e is at best primus inter pares.” Id. at 75.

41 Each state, however, is required to adhere to principles of customary international law, some of which might develop as the result of a commonly adhered to international agreement.

42 See, e.g., Belgian Family Allowances (Allocations Familiales), Nov. 7, 1952, GATT B.I.S.D. (Ist Supp.) at 59 (1953); United States—Restrictions on Imports of Tuna, Aug. 16,1991, GATT B.I.S.D. (39th Supp.) at 155 (1993), reprinted in 30 ILM 1594 (1991) (unadopted) [hereinafter Tuna/Dolphin I].

43 Cf. Charnovitz, Steve, A Critical Guide to the WTO’s Report on Trade and Environment, 14 Ariz. J. Int’l & Comp. L. 341, 355 Google Scholar (suggesting possibility of bringing multilateral environmental agreements into WTO framework as plurilateral trade agreements).

44 GATT Art. XV:6. Because IMF membership has tended to be considerably broader than GATT membership, the vast majority of countries have fulfilled the requirement of this article through IMF membership.

45 It might, however, result in a different interpretation of some of those norms, depending on the interpretive approach adopted.

46 An exception for prison labor would be available under GATT Article XX(e), and a country could impose economic sanctions against countries violating human rights if these were specifically called for by action of the United Nations.

47 The norms of the TRIPS, including those incorporated by reference, are static. If the WIPO or other agreements are changed, the obligations under the TRIPS and the WTO Agreements do not incorporate those changes. The TRIPS calls for its council to establish “appropriate arrangements for cooperation” with WIPO, but in general does not adopt a deferential posture toward that organization. There are, however, two provisions that might be viewed as a form of deferential linkage. First, in an exception to the general rules for amending the WTO Agreements, if all members of the WTO have accepted higher levels of protection in multilateral intellectual property agreements, the WTO Ministerial Conference has the authority to adopt amendments incorporating those higher levels of protection into the TRIPS. WTO Agreement Art. X:6, referring to amendments proposed under Article 71 of the TRIPS. Second, and more important, procedures relating to the acquisition or maintenance of intellectual property rights that are provided for in multilateral agreements concluded under the auspices of WIPO are excepted from the most-favored-nation obligation of the TRIPS. Agreement on Trade-Related Aspects of Intellectual Property Rights, Art. 5, WTO Agreement, Annex 1C. Thus, parties to the WTO Agreements still have some incentive to participate in WIPO.

48 GATT Art. XV:2.

49 Id., Art. XXI(c). This provision is effectively required by the UN Charter, which provides: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” UN Charter Art. 103.

50 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331.

51 Id., Art. 31(3).

52 United States—Restrictions on Imports of Tuna, GATT Doc. DS29/R (June 16,1994), reprinted in 33 ILM 839 (1994) (unadopted) [hereinafter Tuna/Dolphin II].

53 The panel’s reasoning on the latter point was opaque. It was unclear whether it based its decision on the fact that only some parties to the GATT were parties to those arrangements, or more generally on the fact that those agreements were distinct from the GATT.

54 Vienna Convention on the Law of Treaties, supra note 50, Arts 30,31. However, an argument could be made that “the same subject-matter” refers to the specific instance of treaty application, and that any two treaties that might be interpreted as applying to the same problem or instance of state conduct relate “to the same subject-matter.”

55 See text following note 40 supra.

56 Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, Nov. 7, 1990, GATT B.I.S.D. (37th Supp.) at 200 (1990), reprinted in 30 ILM 1122 (1991).

57 Id., para. 58.

58 The exception is limited because the measures adopted must be “necessary,” and must “not [be] applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.” GATT Art. XX [chapeau] & XX(b).

59 Id., Art. XXI. See text at note 49 supra.

60 Tuna/Dolphin I, supra note 42.

61 The reference to “dumping” is an attempt to draw an analogy to those provisions of the GATT regarding dumping and antidumping duties. That analogy, however, is somewhat inapposite, both because it is generally an action against the behavior of private firms and because the crucial element of dumping is selling below cost. The problem with “social dumping” is that firms are not required to internalize certain costs (e.g., measures for environmental protection and worker safety), and therefore benefit from an implicit subsidy.

62 U.S. Dep’t of State, Pub. No. 3206, Havana Charterforan International Trade Organization: Including a Guide to the Study of the Charter, Art. 45.1 (1948) [hereinafter Havana Charter].

63 GATT Ad Art. XX.

64 Havana Charter, supra note 62, Art. 70.1.

65 Some means, such as membership linkage and issue deference, are available only if two issue areas have been formalized into regimes.

66 I do not mean to restrict “participant” here to the formal sense of a potential signatory to an agreement. Opposition out of self-interest might come from individual nations or from sectoral representatives.

Linkage also has the potential to introduce issues not present in either regime separately, which might create additional obstacles to agreement. For example, if the norms of one regime are not all included in the linkage, agreement must be reached on which norms are to be so linked. That is likely to be a difficult negotiation, as it potentially forces the parties to agree on the relative importance that is placed on the range of norms incorporated into that agreement. To take the case of human rights, the parties to the human rights covenants will probably disagree as to which norms are so fundamental, or so linked to some aspect of trade, that they should be selected for incorporation into the trade regime. These issues of differentiating the status or function of various rights would not need to be addressed in two independent regimes.

67 For a more formal demonstration of this point, see Sebenius, supra note 27, at 300.

68 See Shihata, Ibrahim F. I., Human Rights, Development, and International Financial Institutions, 8 Am. U.J. Int’l L. & Pol’y 27, 36 (1992)Google Scholar (“Political manipulation of the institutions by members in pursuit of their perceived national interests may be unavoidable once political considerations are allowed to be freely taken into account”).

69 For a criticism of the United Nations peacekeeping and humanitarian roles along these lines, see Ingram, James C., The Politics of Human Suffering, Nat’l Interest, Fall 1993, at 59.Google Scholar Because the humanitarian function has failed to thrive alongside the peacekeeping function, Ingram suggests separating the two.

70 I Compare, e.g., United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/AB/R (Oct. 12, 1998), reprinted in 38 ILM 118 (1999), with Tuna/Dolphin II, supra note 52.