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Triangulating the World Trade Organization

Published online by Cambridge University Press:  27 February 2017

Steve Charnovitz
Steve Charnovitz*
Affiliation:
Wilmer, Cutler & Pickering, Washington, D.C.
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Extract

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.

Type
Symposium: The Boundaries of the WTO
Information
American Journal of International Law , Volume 96 , Issue 1 , January 2002 , pp. 28 - 55
Copyright
Copyright © American Society of International Law 2002

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References

1 By “WTO,” I mean the international organization composed of governmental parties. I do not use WTO to refer to the secretariat alone. For die WTO treaty and its annexes, Apr. 15,1994, see WTO, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (1999), or the WTO Web site, <http://www.wto.org>.

2 The “Members” of the WTO are governments or separate customs territories exercising full autonomy in matters provided for in the WTO Agreement and the annexed Multilateral Trade Agreements. Marrakesh Agreement Establishing the World Trade Organization, Art. XII:1 [hereinafter WTO Agreement]. In an effort to demystify the WTO, I will avoid using the term “Member” and refer instead to WTO governments or member governments.

3 Mike Moore, The WTO: Challenges Ahead, Address Before the German Council on Foreign Relations (Apr. 23, 2001), at <http://www.wto.org/english/news_e/news_e.htm>. The main mandated negotiations are services and agriculture.

4 XI Summit ofthe Heads of State and Government of the Group of Fifteen, Joint Communique, Jakarta, para. 17 (May 30-31, 2001), at <http://www.dfa-deplu.go.id>.

5 Joint Statement on the Multilateral Trading System (Feb. 1,2001), at <http://www.wto.org/english/news_e/news_e.htm>. The authors were directors-general ofthe General Agreement on Tariffs and Trade (GATT) or the WTO: Arthur Dunkel, Peter D. Sutherland, and Renato Ruggiero. The statement concludes with an endorsement of a “broad trade negotiation within the WTO.” On the relationship of the GATT to the WTO, see infra note 19.

6 Joint NGO Statement, NGOs Urge Governments to Call off “New Round” Proposal (Mar. 19, 2001), at <http://www.twnside.org/sg/title/joint3.htm>.

7 Ostry, Sylvia, The WTO and International Governance, in The World Trade Organization Millennium Round 285, 290, 293 (Günter Deutsch, Klaus & Speyereds, Bernhard., 2001)Google Scholar (stating that the WTO has become a magnet for policy overload).

8 GATT Art. XX(e) allows governments to ban the importation of goods made with prison labor. But it does not require them to do so. Moreover, its applicability to forced labor remains uncertain. In 1999 the (U.S.) Business Roundtable suggested that the WTO clarify this ambiguity by affirming that governments may ban products made using forced labor. Business Roundtable, Preparing for New WTO Trade Negotiations to Boost the Economy (1999), at <http://www.brtable.org/document.cftn/321>.

9 Agreement on Trade-Related Aspects of Intellectual Property Rights, Art. 51 [hereinafter TRIPS]. In addition, TRIPS directs governments to forbid the re-exportation of goods with counterfeit trademarks other than in exceptional circumstances. Id., Art. 59.

10 Id., Art. 69.

11 See, e.g., O’Neal Taylor, C., Linkage and Rule-Making: Observations on Trade and Investment, and Trade and Labor, 19 U. Pa. J. Int’l Econ. L. 639, 690, 695 (1998)Google Scholar (discussing TRIPS as a model for a “Trade-Related Labor Rights Agreement” in the WTO).

12 International Institute for Sustainable Development, What’s It All For? Setting Clear Goals for the World Trade Organization (WTO) (2001), at <http://www.iisd.org> (“Part of the problem is that there is no clear statement of the WTO mission, making it nearly impossible for the WTO to respond to its critics.”).

13 Footer, Mary E. & Beat Graber, Christoph, Trade Liberalization and Cultural Policy, 3 J. Int’l Econ. L. 115 (2000)CrossRefGoogle Scholar; McCullough Mayman, Georgia, The Iran and Libya Sanctions Act of 1996: Enforceable Response to Terrorism or Violation of International Law? 19 Whittier L. Rev. 137 (1997)Google Scholar; Ritchie, Mark & Dawkins, Kristin, WTO Food and Agricultural Rules: Sustainable Agriculture and the Human Right to Food, 9 Minn. J. Global Trade 9, 28–30 (2000)Google Scholar; Fairclough, Gordon, Should Trade Have No-Smoking Section? Wall St. J., July 23, 2001, at A1 Google Scholar.

14 Schwarzenberger, Georg, The Frontiers of International Law 306 (1962)Google Scholar.

15 See Nichols, Philip M., Forgotten Linkages—Historical Institutionalism and Sociological Institutionalism and Analysis of the World Trade Organization, 19 U. Pa. J. Int’l Econ. L. 461 (1998)Google Scholar.

16 See, e.g., Schachter, Oscar, Enforcement of International Judicial and Arbitral Decisions, 54 AJIL 1, 7 (1960)Google Scholar (noting that the United Kingdom linked a trade negotiation with the Soviet Union to execution of an arbitral award). Recently, Antonio Perez suggested a WTO agreement on recognition and enforcement of arbitral judgments. Perez, Antonio F., The International Recognition of Judgments: The Debate Between Private and Public haw Solutions, 19 Berkeley J. Int’l L. 44, 50 (2001)Google Scholar.

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

18 Ernst-Ulrich, Petersmann, Constitutionalism and International Organizations, 17 Nw. J. Int’l L. & Bus. 398, 454 (1996-97)Google Scholar (noting how the Uruguay Round linked issues concerning different subject matter and made progress on one conditional on progress on the others). Recently, Kenneth Abbott has critiqued the “obsessive quid pro quo thinking” that dominates the WTO. Abbott, Kenneth W., Rule-Making in the WTO: Lessons from the Case of Bribery and Corruption, 4 J. Int’l Econ. L. 275, 293 (2001)Google Scholar. Abbott points out that even when new international rules can produce mutual benefits, some governments refuse to discuss them without market access trade-offs.

19 The package included the creation of “GATT 1994,” which was the existing GATT (1947) given a new name. Creating the new GATT allowed the United States and other countries to announce that they were going to withdraw from the existing GATT. This closed the door for developing countries to stay in the old GATT system, rather than join the new WTO with its broader set of obligations.

20 Mike Moore, The WTO and the Arab World: Preparations for Doha, Address to UNCTAD High-Level Meeting for Arab Countries (June 20, 2001), at <http://www.wto.org/english/news_e/news_e.htm>.

21 See Alvarez, José E., How Not To Link: Institutional Conundrums of an Expanded Trade Regime, 7 Wid. L. Symp. J. 1, 12 (2001)Google ScholarPubMed (discussing the types of justification for linking trade and human rights).

22 WTO Agreement, Art. 11:1 (emphasis added).

23 Id., Art. 111:2.

24 Id., pmbl.

25 Hilf, Meinhard, Power, Rules and Principles—Which Orientation for WW/GATT Law ? 4 J. Int’l Econ. L. 111, 112–13 (2001)Google Scholar. This meticulous study seeks to identify these principles from the WTO text and case law, and from public international law and the principles common to the internal legal regimes of member governments.

26 United States—Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 by Malaysia, WTO Doc. WT/DS58/RW, para. 5.54 (June 15, 2001). The role of the compliance panel is to see whether the defending government has complied with the recommendations of the WTO Dispute Settlement Body. To this author’s surprise, Malaysia did not appeal this point.

27 Nichols, Philip M., Corruption in the World Trade Organization: Discerning the Limits of the World Trade Organization’s Authority, 28 N.Y.U.J. Int’l L. & Pol. 711, 714 (1996)Google Scholar.

28 Id. at 714, 722-40.

29 Id. at 740-47. Nichols says that the first criterion is met because customhouses relate to trade.

30 Taylor, supra note 11, at 669-72, 693-96.

31 Khor, Martin, A Comment on Attempted Linkages Between Trade and Non-Trade Issues in the WTO, in The Next Trade Negotiating Round: Examining the Agenda for Seattle 53 (Bhagwati, Jagdish ed., 1999)Google Scholar.

32 Mat 61.

33 Id.

34 Hindley, Brian, What Subjects Are Suitable for WTO Agreement’? in The Political Economy of International Trade Law 157 (Kennedy, Daniel L. M. & Southwick, James D. eds., forthcoming 2002)CrossRefGoogle Scholar.

35 Calculating effect on world economic welfare is not a straightforward exercise. Hindley gives the pros and cons of counting the effect of a government’s policy on its own residents.

36 See Symposium, Linkage as Phenomenon: An Interdisciplinary Approach, 19 U. Pa. J. Int’l Econ. L. 201 (1998).

37 Dunoff, Jeffrey L., Rethinking International Trade, 19 U. Pa J. Int’l Econ. L. 347, 386 (1998)Google Scholar; accord Kupfer Schneider, Andrea, Getting Along: The Evolution of Dispute Resolution Regimes in International Trade Organizations, 20 Mich. J. Int’l L. 697, 772 (1999)Google Scholar (suggesting that it is too simplistic to expect just one theory to explain the existence of any given regime).

38 Dunoff, supra note 37, at 386.

39 Roessler, Frieder, The Constitutional Function of the Multilateral Trade Order, in The Legal Structure, Functions & Limits of the World Trade Order 109 (2000)Google Scholar; Sykes, Alan O., “Efficient Protection “ Through WTO Rulemaking, in Efficiency, Equity, and Legitimacy: The Multilateral Trading System at the Millennium 114 (Porter, Roger B., Sauve, Pierre, Subramanian, Arvind, & Beviglia Zampetti, Americo eds., 2001)Google Scholar.

40 GATT Art. XI; Agreement on Agriculture, Art. 4.2.

41 GATT Art. II; Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 [hereinafter Antidumping Agreement]; Agreement on Textiles and Clothing.

42 Understanding on the Interpretation of Article XXIV of the General Agreement on Tariffs and Trade 1994.

43 Tarullo, Daniel K., Norms and Institutions in Global Competition Policy, 94 AJIL 478, 489 (2000)Google Scholar (“The WTO is not designed to help governments act more effectively to address a shared regulatory problem.”).

44 International Trade and the American Economy: Hearing Before the Senate Comm. on Finance, 107th Cong. 4 (2001) (statement of Alan Greenspan, chairman, Federal Reserve System), at <http://www.federalreserve.gov/boarddocs/testimony/2001>.

45 WTO, Market Access: Unfinished Business 5 (Special Studies No. 6, 2001), at <http://www.wto.org/english/res_e/res_e.htm>.

46 GATT Art. X; see, e.g., Agreement on Technical Barriers to Trade, Art. 2.9 [hereinafter TBT]; Agreement on Trade-Related Investment Measures, Art. 6 [hereinafter TRIMS]; Agreement on Safeguards, Art. 12.3.

47 TBT Art. 2 4; Agreement on the Application of Sanitary and Phytosanitary Measures, Art. 3 [hereinafter SPS].

48 The WTO Agreements include understandings on GATT Articles II: 1 (b), XVII, XXIV, and XXVIII, and on the balance-of-payments and waiver provisions of the GATT. The WTO treaty also contains agreements on the implementation of GATT Articles VI and VII.

49 See, e.g., TRIMS Annex.

50 The GATT did not contain a single requirement for the protection of intellectual property in domestic law. TRIPS contains 73 articles with dozens of requirements.

51 GATT Art. XXXVI:6.

52 M, Art. XXXVIII:2(e).

53 Avoidance of Market Disruption, GATT B.I.S.D. (9th Supp.) at 26 (1961).

54 Avoidance of Market Disruption, Annex, Programme of Study of Underlying Economic, Social and Commercial Factors, id. at 105. The joint study was not completed. Reportedly, the ILO lost interest in the project when it became apparent that GATT counterparts were seeking to use the study to help justify the Short Term Arrangement Regarding International Trade in Cotton Textiles.

55 Memorandum of Agreement on Basic Elements for the Negotiation of a World Grains Arrangement, Art. 2, §V, id. (15th Supp.) at 18 (1968).

56 International Dairy Arrangement, Art. V: 1(a), id. (26th Supp.) at91 (1980).

57 See Lake, David A., Power, Protection, and Free Trade 228 (1988)Google Scholar (“The task still before us is to integrate domestic and international, statist and society-centered explanations.”). In his contribution to this symposium, Joel Trachtman conducts a multilevel analysis looking at (1) the horizontal allocation of authority among states, (2) the vertical allocation of authority between states and international institutions, and (3) the allocation of authority among international organizations. Trachtman, Joel P., Institutional Linkage: Transcending “Trade and. ..,” 96 AJIL 77 (2002)CrossRefGoogle Scholar. He says that the same analytical techniques (i.e., property rights theory, the theory of the firm, and regulatory competition theory) are applicable to all three levels.

58 See Seidl-Hohenveldern, Ignaz, Failure of Controls in the Sixth International Tin Agreement, in 1 Towards More Effective Supervision By International Organizations: Essays in Honour of Henry G. Schermers 255 (Blokker, Niels & Muller, Sam eds., 1994)Google Scholar (noting that international organizations are established to give states control over each other’s activities).

59 Bagwell, Kyle & Staiger, Robert W., The WTO as a Mechanism for Securing Market Access Property Rights: Implications for Global Labor and Environmental Issues,]. Econ. Perspectives, Summer 2001, at 69, 72, 77-78CrossRefGoogle Scholar (contending that when a government raises its trade barriers, part of the cost of that protective policy can be shifted to foreign exporters, and hypothesizing that this shift will occur unless governments can be induced to guarantee market access through reciprocal negotiations).

60 See Office of the U.S. Trade Representative, Identification of Trade Expansion Priorities Pursuant to Executive Order 13116: Apr. 30,2001, 66 Fed. Reg. 23,064, 23,066 (2001) (stating that “[t]he message we are sending to other countries is that the United States is willing to negotiate. We are willing to open if they open.”); see also Keohane, Robert O., Reciprocity in International Relations, 40 Int’l Org. 1, 25–27 (1986)Google Scholar (discussing reciprocity in international trade negotiations).

61 Abbott, Kenneth W., The Trading Nation’s Dilemma: The Functions ofthe Law of International Trade, 26 Harv. Int’l L J. 501, 503–07, 522 (1985)Google Scholar; Goldstein, Judith & Martin, Lisa L., legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note, 54 Int’l Org. 603, 620 (2000)Google Scholar. In the Prisoners’ Dilemma model, if each ofthe prisoners refuses to admit their joint crime, they will both be sentenced for a lesser offense; but because each prisoner fears the other will snitch on him and get released, they both admit the crime and get punished, although not as severely as would one who refuses to cooperate while the other talks. Poundstone, William, Prisoner’s Dilemma (1992)Google Scholar. This story gets confusing when retold in the context of governmental cooperation because the good outcome for the prisoners is a bad outcome for society.

62 GATT Art. XXVIII bis:l. But Art. XXXVI:8 states that developed countries do not expect reciprocity from developing countries.

63 General Agreement on Trade in Services, Art. XIX:1 [hereinafter GATS].

64 Feliciano, Florentino P. & Van den Bossche, Peter L. H., The Dispute Settlement System of the World Trade Organization: Institutions, Process andPractice, 75 Philippine L. J. 1 (2000)Google Scholar.

65 See, e.g., GATS Art. XXVII (regarding denial of benefits).

66 See, e.g., Agreement on Agriculture, Art. 15.2 (applying to least-developed countries).

67 The GATS Annex on Movement of Natural Persons Supplying Services Under the Agreement provides for negotiations, but states that the GATS shall not apply to measures affecting natural persons seeking access to the employment market. GATS Article V bis states that a labor market integration agreement is not prohibited, provided that it exempts citizens of parties to the Agreement from requirements concerning residency and work permits. The GATS Understanding on Commitments in Financial Services states in paragraph 9 (a) that member governments shall permit temporary entry of management and specialist personnel of a financial service supplier that has a commercial presence in that country. A recent study terms these provisions “remarkable for their weakness,” and notes that for many countries a multilateral commitment with regard to the inward movement of labor, even on a temporary basis, is considered “out-of-bounds.” Sauve, Pierre & Subramanian, Arvind, Dark Clouds over Geneva ? The Troubled Prospects of the Multilateral Trading System, in Efficiency, Equity, and Legitimacy, supra note 39, at 16, 27Google Scholar.

68 Letter Dated 25 June 2001 from the Secretary-General to the President of the General Assembly [transmitting report of the High-Level Panel on Financing for Development (Zedillo Panel)], UN Doc. A/55/1000, at 42 (2001), at <http://www.un.org/reports/financing/full_report.pdf>.

69 See Leebron, David W., Lying down with Procrustes: An Analysis of Harmonization Claims, in 1 Fair Trade and Harmonization:Prerequisites for Free Trade? 41, 41–66 (Bhagwati, Jagdish & Hudec, Robert E. eds., 1996)Google Scholar (defining harmonization and discussing its justifications).

70 SPS Art. 2.2. There is an exception under Article 5.7 when relevant scientific evidence is insufficient. The SPS disciplines apply only to measures that directly or indirectly affect international trade. Id., Art. 1.1.

71 See id., Art. 3.

72 GATS Art. VI:4, VI:5 (applying in sectors where commitments are undertaken).

73 Id., Art. VII:l, VII:3.

74 See SPS Annex B; TBT Art. 2.9; Agreement on Import Licensing Procedures, Art. 1.4.

75 Bhagwati, Swjagdish, After Seattle: Free Trade and the WW, 77 Int’l Aff. 15, 21–22 (2001)Google Scholar (explaining that the race to the bottom has theoretical validity, but that evidence showing that it occurs is lacking).

76 Treaty of Versailles, June 28, 1919, pt. XIII headnote, 225 Consol. TS 188.

77 See Govaere, Inge & Demaret, Paul, The TRIPS Agreement: A Response to Global Regulatory Competition or an Exercise in Global Regulatory Coercion ? in Regulatory Competition and Economic Integration: Comparative Perspectives 364, 366 (Esty, Daniel C. & Geradin, Damien eds., 2001)Google Scholar (stating that there was no race to the bottom prior to the conclusion of the TRIPS Agreement).

78 GATS Art. VIII:2 (applying in sectors where commitments are undertaken). Competition policy was also addressed in the GATS negotiations on basic telecommunications services. Some governments adopted the “Reference Paper” principles, which call for the prevention of anticompetitive practices. Reference Paper, para. 1, 36 ILM 354, 367 (1997); Bronckers, Marco C. E.J., The WTO Reference Paper on Telecommunications: A Model for WTO Competition Law? in New Directions in International Economic Law: Essays in Honour of John H. Jackson 391 (Bronckers, Marco & Quick, Reinhard eds., 2000)Google Scholar.

79 GATS Art. VI:6 (applying in sectors where commitments are undertaken).

80 Fox, Eleanor M., Antitrust Law on a Global Scale: Races Up, Down, and Sideways, in Regulatory Competition and Economic Integration, supra note 77, at 348 Google Scholar; Weiss, Friedl, From World Trade Law to World Competition Law, 23 Fordham Int’L L. J. 250 (2000)Google Scholar. For a skeptical view, see Wood, Diane P., International Standards for Competition Law: an Idea Whose Time has not Come (PSIO Occasional Paper, June 1996)Google Scholar. In April 2001, Canada and Costa Rica signed a free trade agreement that contains a chapter on competition policy that was undoubtedly formulated as a model for future, broader negotiations. Free Trade Agreement, Apr. 23, 2001, Can.-Costa Rica, ch. XI, at <http://www.dfait-maeci.gc.ca>.

81 EU Fears It Can’t Compete with U.S. Merger, Wash. Times, June 16, 2001, at A1; Melloan, George, GE-Honeywell Exposes Flaws in Antitrust Policy, Wall St. J., June 26, 2001, at A23 Google Scholar.

82 See, e.g., Revesz, Richard L., Federalism and Regulation: Some Generalizations, in Regulatory Competition and Economic Integration, supra note 77, at 3 Google Scholar; Vogel, David, Environmental Regulation and Economic Integration, 3 J. Int’l Econ. L. 265 (2000)CrossRefGoogle Scholar; see also Niskanen, William A., Building on the WTO’s Success, 19 Cato J. 459, 460 (2000)Google Scholar (arguing that allowing the WTO to reduce rule-setting competition between governments would be too high a price to pay for having the WTO spur increased competition between private firms).

83 Sec Esty, Daniel C. & Geradin, Damien, Regulatory Co-Opetition, 3 J. Int’l Econ. L. 235 (2000)CrossRefGoogle Scholar; Nicolaides, Phedon, Competition Among Rules, World Competition, Dec. 1992, at 113 Google Scholar; Trachtman, Joel P., Regulatory Competition and Regulatory Jurisdiction, 3 J. Int’l Econ. L. 331 (2000)CrossRefGoogle Scholar.

84 See Howse, Robert, From Politics to Technocracy—and Back Again: The Fate of the Multilateral Trading Regime, 96 AJIL 94 (2002)CrossRefGoogle Scholar (suggesting that trade rules should facilitate democratic experimentalism at the domestic level).

85 Marrakesh Declaration, Apr. 15, 1994, para. 2, in Legal Texts, supra note 1, at iii, iv. In a resource booklet prepared for the Fourth Ministerial Conference, the WTO Secretariat stated that “[m]any WTO rules are specifically designed to ensure that fair trade conditions prevail between trading partners.” The WTO . . . Why it Matters: A Guide for Officials, Legislators, Civil Society and All those Interested in International Trade and Global Governance 7 (2001).

86 Agreement on Agriculture, Art. 20(c).

87 Bush, George W., Remarks at Western Michigan University in Kalamazoo!, Michigan, 37 Wkly. Comp. Pres. Doc. 524, 528 (Apr. 2, 2001)Google Scholar, at 2001 WL 14297354.

88 GATT Art. VI: 1; Antidumping Agreement.

89 Qureshi, Asif H., Drafting Anti-Dumping Legislation—Issues and Tips, J. World Trade, Dec. 2000, at 19, 23Google Scholar; see also Pruzin, Daniel, India Expands Antidumping Policy in 2000; Ranks Second in Trade Practice Complaints, Daily Rep. for Executives (BNA), Apr. 16, 2001, at A-8 Google Scholar (noting that India’s recourse to antidumping relief has grown enormously since the advent of the WTO).

90 Agreement on Subsidies and Countervailing Measures, Art. 11.1 [hereinafter SCM].

91 Id., Art. 19.2.

92 SCM Arts. 3.1(a), 5.

93 Agreement on Import Licensing Procedures, Art. 1.3.

94 See, e.g., Agreement on Agriculture, Art. 15; SCM Art. 27.2(a). As many analysts have noted, this encouragement of protectionism in developing countries provides an illusory benefit to those countries. Bhagwati, Jagdish & Panagariya, Arvind, The Truth About Protectionism, Fin. Times (London), Mar. 30, 2001, at 21 Google Scholar.

95 GATT Art. XXVIII to:3(b).

96 Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (“Enabling Clause”), GATT B.I.S.D. (26fhSupp.) at 203 (1980); see Franck, Thomas M., Fairness in International Law and Institutions 40, 58, 426 (1995)Google Scholar (pointing to this GATT practice for achieving distributive justice and remedying the fairness deficit).

97 Agreement on Safeguards, Art. 11.1 (b).

98 TRIPS Art. 66.2.

99 Agreement on Agriculture, Art. 10.4; see also Food Aid Convention, Mar. 13,1986, Art. IV, 1429 UNTS71. In addition, a WTO Decision attached to the Final Act of the Uruguay Round commits governments to initiate negotiations in the “appropriate forum” to establish a level of food aid commitments sufficient to meet the needs of developing countries as they implement the Agreement on Agriculture. Decision on Measures Concerning the Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-Importing Developing Countries, para. 3(i), ra WTO, The Legal Texts, supra note 1, at 392; Geboye Desta, Melaku, Food Security and International Trade Law: An Appraisal of the World Trade Organization Approach, 35 J. World Trade 449, 456–57 (2001)Google Scholar (noting that the appropriate forum is limited to donor nations).

100 GATS Annex on Telecommunications, para. 6(b). This is to be done in cooperation with relevant international organizations and where practicable.

101 Accession is provided for in Article XII of the WTO Agreement, but no rules prescribe what current members can demand of the applicant. For a critical discussion of demanding WTO-plus commitments, see Roman Grynberg & Roy Mickey Joy, The Accession of Vanuatu to the WTO: Lessons for the Multilateral Trading System,]. World Trade, Dec. 2000, at 159,172-73; see also Group of 77 South Summit, Havana Programme of Action, §V, decision 1 (Apr. 2000), a£<http://www.g77.org/summit> (stating that developing countries seeking accession to the WTO should not be given terms that exceed or are unrelated to the commitments of developing countries that are already members of the WTO).

102 Bhala, Raj, Enter the Dragon: An Essay on China’s WTO Accession Saga, 15 Am. U. Int’l L. Rev. 1469, 1513–15 (2000)Google Scholar.

103 Bunn, Isabella D., The Right to Development: Implications for International Economic Law, 15 Am. U. Int’l L. Rev. 1425, 1462–66 (2000)Google Scholar; Garcia, Frank J., Trade and Justice: Linking the Trade Linkage Debates, 19 U. Pa. J. Int’l Econ. L. 391, 429–31 (1998)Google Scholar.

104 League of Nations Covenant Art. 23 (a) (emphasis added).

105 Havana Charter for an International Trade Organization, Art. 7, reprinted in Raj Bhala, International Trade Law Handbook 83 (2d ed. 2001) [hereinafter ITO Charter]. The Charter did not enter into force.

106 Tumlir, Jan, Need for an Open Multilateral Trading System, 6 World Econ. 393, 402 (1983)Google Scholar; see also Tumlir, Jan, GATT Rules and Community Law—A Comparison of Economic and Legal Functions, in The European Community and GATT 1, 6, 20–21 (Hilf, Meinhard, Jacobs, Francis G., & Ernst-Ulrich, Petersmann eds., 1986)Google Scholar.

107 Hauser, Heinz, Foreign Trade Policy and the Function of Rules for Trade Policy Making, in Foreign Trade in the Present and a New International Economic Order 18, 28 (Dicke, Detlev Chr. & Ernst-Ulrich, Petersmann eds., 1988)Google Scholar.

108 Id. at 29.

109 Richard Shell, G., Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, 44 Duke L. J. 829, 877–78 (1995)Google Scholar (internal citation omitted). Shell criticizes this model on normative grounds.

110 Ernst-Ulrich, Petersmann, Prevention and Settlement of International Trade Disputes Between the European Union and the United States, 8 Tul. J. Int’l & Comp. L. 233, 243 (2000)Google Scholar; see Driesen, David M., What Is Free Trade?: The Real Issue Lurking Behind the Trade and Environment Debate, 41 Va. J. Int’l L. 279, 329 (2001)Google Scholar (stating that the WTO offers fairness to foreign producers facing discrimination).

111 Raustiala, Kal, Sovereignty and Multilateralism, 1 Chi. J. Int’l L. 401, 414 (2000)Google Scholar.

112 McGillivray, Fiona, Democratizing the World Trade Organization 2 (Hoover Institution Essays in Public Policy, No. 105, 2000)Google Scholar.

113 For example, the TBT Agreement requires central government standardizing bodies to allow a period of at least sixty days for the submission of comments by an interested party. TBT Art. 4.1 & Annex 3, Code of Good Practice for the Preparation, Adoption and Application of Standards, para. L.

114 GATS Art. VI: 1 (applying in sectors where commitments are undertaken).

115 Agreement on Rules of Origin, pmbl.

116 Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Art. 3.2.

117 Mike Moore, The Backlash Against Globalization? Address to Liberal International (Oct. 26,2000), at <http://www.wto.org/english/news_e/news_e.htm>.

118 The WTO in Brief, at <http://www.wto.org>.

119 U.S. Trade Representative, America and the World Trade Organization (1999) (emphasis added), at <http://www.ustr.gov/html/wto_usa.html>.

120 United States—Sections 301–310 of the Trade Act of 1974, WTO Doc. WT/DS152/R (Dec. 22,1999). The law at issue is 19 U.S.C. §2411 (Supp. II 1996).

121 United States—Sections 301–310 of the Trade Act of 1974, supra note 120, para. 7.71.

122 Lamy, Pascal, The WTO New Round: Perspectives for Hamburg and Europe, Address to Handelskammer Hamburg (Sept. 3, 2001), at<http://europa.eu.int/comm/trade>..>Google Scholar

123 Wolf, Martin, If You Go Down to the Woods Today, Fin. Times, July 26, 1994, at 15.Google Scholar Compare Hauser, Heinz, Domestic Policy Foundation and Domestic Policy Function of International Trade Rules, Aussenwirtschaft, Sept. 1986, at 171, 172Google Scholar (“International trade rules need a domestic policy foundation.”).

124 Pareto, Vilfredo, Manual of Political Economy 377–79 (Schwier, Ann S. trans., 1971) (1906)Google Scholar; Schattschneider, E. E., Politics, Pressures and the Tariff 287 (Archon Books 1963) (1935)Google Scholar; Smith, Adam, An Inquiry into the Nature and Causes of the Wealth of Nations, bk. IV, ch. II, at 300–01 (Sutherland, Kathryn ed., Oxford World’s Classics, 1998) (1776)Google Scholar.

125 Roessler, supra note 39, at 109 (pointing out that the “essential function of the multilateral trade order is to resolve conflicts of interest within, not between, nations”).

126 Ropke, Wilhelm, Economic Order and International Law, 86 Recueil des Cours 203, 250 (1954 II)Google Scholar.

127 Id.

128 Buchanan, James M. & Tullock, Gordon, The Calculus of Consent 291 (Ann Arbor Paperback 1965) (1962)Google Scholar. This recommendation was made in a discussion of the domestic politics of tax legislation.

129 See Hudec, Robert E., The Role of Judicial Review in Preserving Liberal Foreign Trade Policies, in Essays on the Nature of International Trade Law 133, 133–39 (1999)Google Scholar (discussing Tumlir).

130 Roessler, Frieder, The Constitutional Function of International Economic Law, Aussenwirtschaft, Sept. 1986, at 467 Google Scholar, 474.

131 Id. Roessler opines that many years are likely to pass before such phenomena “are fully incorporated into the analyses and concepts of economists, lawyers and political scientists.”

132 Ernst-Ulrich, Petersmann, National Constitutions, Foreign Trade Policy and European Community Law, 3 Eur. J. Int’l L. 1, 31 (1992)Google Scholar.

133 Michael Aho, C. & David Aronson, Jonathan, Trade Talks. America Better Listen! 149 (1985)Google Scholar; see also Ann Lenway, Stephanie, The Politics of U.S. International Trade: Protection, Expansion and Escape 54 (1985)Google Scholar (noting that trade regime rules constrain the influence of domestic pressure groups).

134 Ten Benefits of the WTO Trading System, No. 9, “The system shields governments from narrow interests,” at <http://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm> (visited Mar. 22,2001). The Web site also says that “governments use the WTO as a welcome external constraint on their policies.” Id., No. 10.

135 See GATT Art. XXVIII bis: 2(a); Agreement on Agriculture, Art. 4.1; Agreement on Textiles and Clothing, Art. 7.1(a).

136 In a recent commentary, John O. McGinnis and Mark L. Movsesian posit: “The principal task of trade institutions like the WTO should be to restrain protectionist interest groups and thereby promote both free trade and representative democracy.” McGinnis, John O. & Movsesian, Mark L., The World Trade Constitution, 114 Harv. L. Rev. 511, 536 (2000)Google Scholar. The authors do not explain why such groups would allow themselves to be restrained other than to say that the “majority commits to political institutions that make it more difficult for the majority’s agents in the legislative or executive branches to reward powerful interest groups.” Id. at 516.

137 Lindsey, Brink, Free Trade from the Bottom Up, 19 Cato J. 359, 363 (2000)Google Scholar.

138 Reference Paper, supra note 78, para. 6.

139 It is the nature of treaties, and indeed all higher law, for the people of the present to bind the people of the future. The people of the future may consider that antidemocratic. Nevertheless, most democracies have constitutions that can be changed only by supermajority approval. One can argue that the typical domestic deliberation that polities have used to join the WTO does not achieve the extraordinary level of democratic consent needed to justify an act calculated to tie the hands of politicians in the future. See Howse, Robert & Nicolaidis, Kalypso, Legitimacy and Global Governance: Why Constitutionalizing the WTO Is a Step Too Far, in Efficiency, Equity, and Legitimacy, supra note 39, at 227, 237.Google Scholar Perhaps the best defense of the democratic character of trade negotiations came in an article by Robert Hudec in 1993. Hudec, Robert E., “Circumventing Democracy”: The Political Morality of Trade Negotiations, in Essays on the Nature of International Trade Law, supra note 129, at 215.Google Scholar Hudec says that a trade negotiation provides a setting that legitimizes participation by affected interests. Id. at 219–20.

140 See Hauser, supra note 107, at 34 (“Gaining domestic political support from important export industries is the main driving force for governments to seek international trade agreements”); International Trade in Services, Comment by Brian Hindley, in The Emerging Service Economy 35,36 (Orio Giarini ed., 1987) (“To change the protective structure, therefore, it is necessary to change the factors that support the underlying political equilibrium.”). Compare Martin, Charles E., The International Regulation of Tariffs, 28 ASIL Proc 44, 61 (1934)Google Scholar (stating that the greatest hope in reasonable international regulation lies in the acceptance that the exporter and allied interests are entitled to a legitimate place in an integrated and balanced national economy, and that both municipal and international regulation must be shaped with their interests in mind).

141 Alan Sykes discusses a similar idea from a less idealistic public choice perspective. Sykes, Alan O., Regulatory Protectionism and the Law of International Trade, 66 U. Cm. L. Rev. 1, 24–25 (1999)Google Scholar (suggesting that trade agreements help export interests, which then reward political officials).

142 Bhagwati, Jagdish, Protectionism 41 (1988)Google Scholar (contending that GATT provides the mechanism and momentum that the ideology and the interests favoring freer trade need in order to influence policy).

143 This idea goes back long before there was a WTO. In 1933 James Shotwell proposed to Cordell Hull that new trade agreements condition lower tariffs on achieving basic labor standards. Shotwell viewed it as a “Trojan horse to get inside the protectionist walls.” James T. Shotwell, The Autobiography of James T. Shotwell 308 (1961). In 1945 the economist Allan Fisher proposed a “nutritional approach” to trade agreements so that “people who had become enthusiastic about nutrition would thereby be impelled to take a more lively interest in the trade obstructions which hitherto have often barred their access to good and sufficient food.” He further hypothesized that a prudent statement would insist upon combining the moderation of trade restrictions with “something else.” Allan G. B. Fisher, Economic Progress and Social Security 270 (1945).

144 See Shaffer, Gregory C., The World Trade Organization Under Challenge: Democracy and the Law and Politics of the WTO’s Treatment of Trade and Environment Matters, 25 Harv. Envtl. L. Rev. 1, 19 Google Scholar, 22, 83 (2001).

145 WTO Agreement, Art. IX:1. The WTO does have standby majority and supermajority decision rules in the event that a consensus cannot be reached, but these rules remain largely untested. Steger, Debra P., The World Trade Organization: A New Constitution for the Trading System, in, New Directions in International Economic Law, supra note 78, at 135 Google Scholar, 149–52.

146 Goldstein, Judith, International Institutions and Domestic Politics: GATT, WTO, and the Liberalization of International Trade, in The WTO as an International Organization l33, 143 (Krueger, Anne O. ed., 1998)Google Scholar (“Obtaining and maintaining a free trade majority is easier when countries have the largest possible pool from which to make trade-offs . . .”).

147 Fred Bergsten, C., Fifty Years of Trade Policy: The Policy Lessons, 24 World Econ. 1, 4 (2001)Google Scholar.

148 See Hauser, supra note 107, at 32 (suggesting that the GATT is best seen and used as a partner for domestic ree trade coalitions).

149 Destler, I. M. & Odell, John S., Anti-Protection: Changing Forces in United States Trade Politics (Institute for International Economics, 1987)Google Scholar.

150 Sell, Susan K., Multinational Corporations as Agents of Change: The Globalization of Intellectual Property Rights, in Private Authority and International Affairs 169 (Claire Cutler, A., Haufler, Virginia, & Porter, Tony eds., 1999)Google Scholar.

151 Graham, Edward M., Fighting the Wrong Enemy: Antiglobal Activists and Multinational Enterprises (2000)Google Scholar.

152 Charles Ikle, Fred, How Nations Negotiate 132 (1964)Google Scholar.

153 See Barnett, Michael N. & Finnemore, Martha, The Politics, Power, and Pathologies of International Organizations, 53 Int’l Org. 699, 705–09 (1999)Google Scholar (calling international organizations independent actors with their own agendas); Tarullo, supra note 43, at 486 (noting that the characteristics of international organizations shape governance arrangements located within them).

154 One prominent economist disagrees. Gerald Karl Helleiner asks how the WTO can be a trade organization when it “doesn’t seriously concern itself with trends and fluctuations in its members’ terms of trade.” He suggests that the WTO should be called the “World Market Harmonization Organization.” Gerald Karl Helleiner, Markets, Politics and Globalization: Can the Global Economy Be Civilized?, 10th Raul Prebisch Lecture (Dec. 11, 2000), at <http://www.unctad.org>.

155 Ruggiero, Renato, Reflections from Seattle, in The WTO After Seattle at xiii, xv (Schott, Jeffrey J. ed., 2000)Google Scholar.

156 Tenney, A. A., Theories of Social Organization and the Problem of International Peace, 30 Pol. Sci. Q. 1, 12 (1915)Google Scholar.

157 1 Cordell Hull, The Memoirs of Cordell Hull 82 (1948).

158 Thompson, Huston, An International Trade Tribunal, 34 ASIL Proc. 1, 3–4 (1940)Google Scholar. The proposed focus of this tribunal was largely private anticompetitive activity.

159 Id. at 7–9.

160 David Mitrany, The Progress Of International Government 128 (1933); see Friedmann, W., Limits of Functionalism in International Organisation, 1956 Y.B. World Aff. 256 Google Scholar; see also Ryan, Michael P., Christopher Lenhardt, W., & Tamai, Katsuya, International Governmental Organization Knowledge Management for Multilateral Trade Lawmaking, 15 AM. U. Int’ll. Rev. 1347, 1349–l55 (2000)Google Scholar (discussing functionalism).

161 See Bederman, David J., The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel, 36 Va. J. Int’l L. 275, 344–45 (1996)Google Scholar (discussing the writings of Pierre Kazansky and Pasquale Fiore).

162 Hudson, Manley O., The Prospect for Intematimal Law in the Twmtieth Century, 10 Cornell L.Q. 419, 446–47 (l925)Google Scholar.

163 Salter, J. A., Allied Shipping Control: An Experiment in International Administration 253–54 (1921)Google Scholar.

164 Id. at 252.

165 See Council for Trade in Goods, Chairman’s Progress Report (2000) on Trade Facilitation, WTO Doc. G/L/425 (Dec. 5, 2000).

166 Condliffe, J. B. & Stevenson, A., The Common Interest in International Economic Organisation 126 (1944)Google Scholar.

167 ITO Charter, supra note 105, chs. II, III (esp. Arts. 10–12), V, VI; see W. L. Clayton, Foreword to Clair Wilcox, A Charter for World Trade atvii, vii (1949) (stating that the Havana conference that drafted the ITO Charter covered a wider range of problems than had ever been tackled by any economic conference in the history of international affairs); Diebold, William, Reflections on the International Trade Organization, 14 N. Ill. U. L. Rev. 335, 336–37 (1994)Google Scholar (discussing the mind-set of the drafters that led to the broad Charter).

168 The ITO did not go into force because, for many reasons, the U.S. Congress did not act to approve it and because the other signatories did not have the confidence to go forward without the United States. Steve Dryden, Trade Warriors: USTR and the American Crusade For Free Trade 24–31 (1995); Zeiler, Thomas W., Free Trade, Free World: The Advent of GATT 147–64 (1999)Google Scholar. In 1955 governments agreed to institutionalize the GATT into the “Organization for Trade Cooperation,” but the U.S. Congress again refused to approve the measure. Dam, Kenneth W., The GATT: Law and International Economic Organization 337–38 (1970)Google Scholar. This proposed organization did not replicate the broad scope of the ITO. Thus, it is far from clear that an ITO with a narrower mandate would have won approval from the U.S. Congress in 1948 or 1949.

169 Bhagwati, supra note 75, at 26–27. Bhagwati points out that even pure trade liberalization might not lead to mutual gain, but he suggests that the solution for that is short-term financial assistance to the losing countries.

170 Bhagwati, Jagdish, On Thinking Clearly About the Linkage Between Trade and the Environment, 5 Env’t & Dev. Econ. 485, 494 (2000)Google Scholar.

171 Bhagwati, supra note 75, at 26. According to one close observer of GATT, the “main reason that the WTO mandate was expanded to include the protection of intellectual property” was “to gain access” to the WTO’s “effective enforcement mechanism” in which, “if all else fails, lie multilaterally approved trade sanctions.” Blackhurst, Richard, The Capacity of the WTO to Fulfill Its Mandate, in The WTO as an International Organization, supra note 146, at 31 Google Scholar, 47.

172 Pierre Jacquet, Jean Pisani-Ferry, & Dominique Strauss-Kahn, Trade Rules and Global Governance: A Long Term Agenda (Centre d’Etudes Prospectives et d’lnformations Internationales, Working Paper No. 2000–22,2000).

173 Advisory Opinion No. 3, 1925 PCIJ (ser. B) No. 3, at 53–59.

174 Id. at 59.

175 Jurisdiction of the European Commission of the Danube, 1927 PCIJ (ser. B) No. 14, at 64, 69. The questioned jurisdiction was over the maritime sector from Galatz to Braila.

176 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 ICJ Rep. 66, para. 26 (July 8).

177 Id. at 78, para. 25.

178 UN Charter Art. 59. In 1946 the United Nations initiated the negotiations leading to the ITO Charter.

179 “One might say that, in theory, there are no formal limits to matters on which the WTO can make rules by consensus.” Stein, Eric, International Integration and Democracy: No Love at First Sight, 95 AJIL 489 (2001)CrossRefGoogle Scholar; see WTO Agreement Art. X (Amendments). The same broad amendment power existed in GATT. DAM, supra note 168, at 384 (noting that the GATT had been amended in the past and could be amended again to expand the range of GATT’s interest to cover investment); see also Osieke, Ebere, The Legal Validity of Ultra Vires Decisions of International Organizations, 77 AJIL 239, 249 (1983)Google Scholar (noting the difficulty of considering a decision of the members of an international organization as ultra vires).

180 Parliamentary Group of the Party of European Socialists, A New Direction in World Trade: Towards a WTO Round for Development, Democracy and Sustainability (Apr. 2001), at <http://www.europarl.eu.int/pes> (stating that some critics argue that non-trade issues should be totally divorced from the WTO, but so long as we want internationally agreed rules on non-tariff barriers to trade, this clear separation is impossible); see also Agreement on Agriculture, Art. 20(c) (providing for new negotiations to begin in 1999, and stating that they should take into account “non-trade” concerns, identified in the preamble as including food security and environmental protection).

181 See text at notes 169–72 supra.

182 ITO Charter, supra note 105, Art. 87.3.

183 Id., Art. 53.3.

184 Bronckers, Marco C. E.J., More Power to the WTO? 4 J. Int’l Econ. L. 41, 45 (2001)Google Scholar; Picciotto, Sol, Networks in International Economic Integration: Fragmented States and the Dilemmas of Neo-Liberalism, 17 Nw. J. Int’l L. & Bus. 1014, 1053–54 (1996–97)Google Scholar.

185 Abbott, Frederick M., Distributed Governance at the WTO-WIPO: An Evolving Model for Open-Architecture Integrated Governance, 3J. Int’l Econ. L. 63, 65 (2000)Google Scholar.

186 Id. at 69–70.

187 SPS Art. 3.1.

188 Jackson, John H., World Trade and the Law of GATT 771 (1969)Google Scholar.

189 GATT Art. XV:2.

190 SCM Agreement Art. 3.1 & Annex I, item (k).

191 OECD, Arrangement on Guidelines for Officially Supported Export Credits (1998), at <http://www.oecd.org/ech/act/xcred/arrngmnt.htm>.

192 In the Canada-Brazil Aircraft dispute, the defendant government Brazil urged the panel to interpret this provision as referring only to the OECD arrangement in effect when the WTO went into force in 1995. Brazil argued that it was inappropriate to give a handful of countries carte blanche to amend the scope of this safe haven. Brazil—Export Financing Programme for Aircraft, Second Recourse by Canada to Article 21.5 of the DSU, WTO Doc. WT/DS46/RW/2, para. 5.68 (July 26, 2001). Brazil was not in the handful of original members of the arrangement in 1978, as it was limited to OECD members. The panel admitted that item (k) was “unusual,” but held that it refers to the most recent successor undertaking. Id., paras. 5.81, 5.87. The panel also suggested that if the original member industrial countries “were to abuse their power to modify the scope of the safe haven, the recourse of other Members would be to renegotiate” item (k). Id., para. 5.89 & n.86. Of course, renegotiation may be hollow recourse in an organization that acts by consensus.

193 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, Aug. 17,1994, GA Res. 48/263, Annex, §6, para. 1(b), reprinted in 33 Rm 1309,1324 (1994).

194 See, e.g., Trachtman, Joel P., The Theory of the Firm and the Theory of the International Economic Organization: Toward Comparative Institutional Analysis, 17 Nw. J. Int’l L. & Bus. 470 (1996–97)Google Scholar.

195 Id. at 503.

196 Id. at 512 (citing the work of Bruno Frey and Beat Gygi), 519.

197 Esty, Daniel C., Toward Optimal Environmental Governance, 74 N.Y.U. L. Rev. 1495, 1557–61 (1999)Google Scholar.

198 Esty, Daniel C., We the People: Civil Society and the World Trade Organization, in New Directions in International Economic Law, supra note 78 Google Scholar, at 87, 97.

199 Esty & Geradin, supra note 83, at 248–55.

200 Tarullo, supra note 43, at 504. Tarullo explains that institutional analysis can show how trade rules will create problems for regulatory systems and where complementary or alternative arrangements may be indicated. Id.

201 Id. at 492–93. Tarullo says that if a WTO competition code provides for dispute settlement, then competition authorities from different countries will inevitably be pulled into litigation.

202 See id. at 501–04 for details of Tarullo’s argument.

203 Tarullo, Daniel K., The Relationship of WTO Obligations to Other International Arrangements, in New Directions in International Economic Law, supra note 78, at 155, 172Google Scholar (suggesting that the reconciliation of trade and non-trade norms will work best in the WTO when relevant international arrangements are themselves robust); see Ernst-Ulrich, Petersmann, Human Rights and International Economic Law in the 21st Century: The Need to Clarify Their Interrelationships, 4 J. Int’l Econ. L. 3, 12 (2001)Google Scholar (discussing checks and balances in political philosophy).

204 Haas, Peter M. & Haas, Ernst B., Learning to Learn: Some Thoughts on Improving International Governance of the Global Problematique, in Issues in Global Governance: Papers Written for the Commission On Global Governance 295, 300–06 (1995)Google Scholar.

205 M a t 314.

206 Dam, supra note 168, at 387–88.

207 Access to Medicines Could Become Doha’s (Only ?) Success Story, Bridges, June 2001, at 1, at <http://www.ictsd.org>.

208 T R I p s A r t gg

209 WTO Agreement Art. V: 1 (stating that the WTO General Council shall make appropriate arrangements for effective cooperation with other IGOs that have responsibilities related to those of the WTO), Art. 111:5 (stating that the WTO shall cooperate as appropriate with the IMF and the World Bank); WTO Declaration on the Contribution of the World Trade Organization to Achieving Greater Coherence in Global Economic Policymaking, para. 5, in The Legal Texts, supra note 1, at 386 (“The interlinkages between the different aspects of economic policy require that the international institutions with responsibilities in each of these areas follow consistent and mutually supportive policies.”); GATS Art. XXVI (Relationship with Other International Organizations) . Oddly, the WTO Agreement makes no mention of improving cooperation with the UN Conference on Trade and Development, an organization referenced indirectly in GATT Article XXXVIII:2 (b).

210 For example, the WTO Council for TRIPS has refused to grant even observer status to the Secretariat of the Convention on Biological Diversity. This step is reportedly opposed by the United States, which is not a party to that Convention.

211 Sauvé, Pierre & Beviglia Zampetti, Americo, Subsidiarity Perspectives on the New Trade Agenda, 3 J. Int’l Econ. L. 83, 104 (2000)Google Scholar.

212 Id. at 104, 105.

213 Bronckers, supra note 184, at 53.

214 Id. at 49. Compare Konrad von Moltke, Trade and . . .: The Agenda of Trade Linkages 25 (Sept. 2001) (unpublished manuscript, on file with author) (“Most ‘trade and’ issues will ultimately require a determination concerning the most appropriate relationship between the trade regime and other international regimes.”).

215 Bronckers, supra note 184, at 54–55.

216 The same phenomenon occurred in the pre-WTO era under the GATT. See Jackson, supra note 188, at 471 (noting how the cognizance of the GATT was expanded beyond the articles of the General Agreement); Roessler, Frieder, The Competence of GATT, J. World Trade L., No. 3, 1987, at 73, 82Google Scholar (noting that the GATT Contracting Parties had used their deliberative powers to discuss a range of subject matter far wider than that covered in the General Agreement).