Drawing on interviews with trade lawyers, ambassadors, trade delegations, and trade jurists, this book details how trade has become increasingly legalized and the implications of that for power relations between rich and poor countries. Joseph Conti looks closely at who uses the system to initiate and pursue disputes, who settles and on what terms, and the relative disconnect between pursuing a dispute and what a country gains through efforts to gain compliance with WTO dictates. Through this inside look at the process of disputing, Conti provides fresh perspective on how and why the law authorizes the use of specific resources and tactics in the ever unfolding struggle for control in the global economy.
Drawing on interviews with trade lawyers, ambassadors, trade delegations, and trade jurists, this book details how trade has become increasingly legalized and the implications of that for power relations between rich and poor countries. Joseph Conti looks closely at who uses the system to initiate and pursue disputes, who settles and on what terms, and the relative disconnect between pursuing a dispute and what a country gains through efforts to gain compliance with WTO dictates. Through this inside look at the process of disputing, Conti provides fresh perspective on how and why the law authorizes the use of specific resources and tactics in the ever unfolding struggle for control in the global economy.
Between Law and Diplomacy: The Social Contexts of Disputing at the World Trade Organization
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Between Law and Diplomacy: The Social Contexts of Disputing at the World Trade Organization
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Overview
Drawing on interviews with trade lawyers, ambassadors, trade delegations, and trade jurists, this book details how trade has become increasingly legalized and the implications of that for power relations between rich and poor countries. Joseph Conti looks closely at who uses the system to initiate and pursue disputes, who settles and on what terms, and the relative disconnect between pursuing a dispute and what a country gains through efforts to gain compliance with WTO dictates. Through this inside look at the process of disputing, Conti provides fresh perspective on how and why the law authorizes the use of specific resources and tactics in the ever unfolding struggle for control in the global economy.
Product Details
| ISBN-13: | 9780804771436 |
|---|---|
| Publisher: | Stanford University Press |
| Publication date: | 12/21/2010 |
| Pages: | 264 |
| Product dimensions: | 6.10(w) x 9.00(h) x 1.00(d) |
About the Author
Read an Excerpt
Between Law and Diplomacy
The Social Contexts of Disputing at the World Trade OrganizationBy JOSEPH A. CONTI
STANFORD UNIVERSITY PRESS
Copyright © 2011 the Board of Trustees of the Leland Stanford Junior UniversityAll right reserved.
ISBN: 978-0-8047-7143-6
Chapter One
Sociolegal Studies and Disputing at the World Trade OrganizationIt's not so much that dispute settlement is one of the tools of politics; it is that dispute settlement is an aspect of politics. It's politics by another means, if you will.
—Counsel, Canadian trade delegation, Geneva, Switzerland
The dispute settlement system of the World Trade Organization (WTO) is a complex social forum for economic, political, and symbolic skirmishing between vastly unequal states. Established in 1994 through a treaty agreement of 128 nations, the WTO has jurisdiction over nearly 95 percent of world trade, making it a central institution of the global economy. The Dispute Settlement Understanding (DSU) of the WTO provides an empirical site for the study of international law-in-action as it offers mechanisms for member countries to litigate when they believe their rights under the terms of the WTO agreements have been violated. The most defining characteristic of this international legal system is a multifaceted tension between law and diplomacy in the processes of disputing. This tension is a product of the international context and lack of overarching world government, but perhaps equally as important, this tension stems from the "creeping invasion" (Hudec 1998: 116) of legal concepts, norms, and lawyers into a formally exclusive diplomatic terrain.
Much attention has been given to the legalization of world trade, though less to how actors in the system make sense of and mobilize WTO law. The tendency has been to view the WTO as a machine for trade liberalization. In this book, I challenge that presumption by utilizing a multimethod approach to study legal action at the World Trade Organization. At the center of the analysis is a concern for the relationship between law and state power. Does law constrain the powerful and empower the weak? Given the interstate context, how does law do this, to what degree, and why?
To address these questions, this book charts a new course for studying and thinking about the law and dispute settlement in the World Trade Organization by examining the thoughts and practices of actors working in WTO legal contexts. In so doing, this book builds on Shaffer's (2003) sociolegal analysis of relationships between private actors and government officials in the use of the WTO system as well as Chorev's (2007) institutionalist account of the internationalization of components of the U.S. government in the formation of the WTO system. What this book adds is an interior view of the WTO, an examination of its dispute resolution processes from the inside, a focus on the WTO itself, not predominantly the states that bring disputes to its Appellate Body. The WTO is a social world that actors must make sense of before using the law. Understanding the dynamics of WTO disputing requires attention to the institutional and professional relationships that characterize the working lives of practitioners. Focusing only on grand political games or structural trade issues misses how institutional dynamics, like legal capacity and experience, and interpersonal dynamics, like reputation, shame, and fear, shape processes of disputing. How states go about disputing is persistently mediated by the institutional arrangements in place for managing trade and the personnel who occupy those institutional spaces, whose judgment and discretion are at the basis of making and enacting policy. Indeed, while a trade grievance is a prerequisite for initiating a dispute, a trade grievance alone is insufficient and in practice is accompanied by a number of different motives and expectations. The practice of law at the WTO is not reducible to trade relationships and macrolevel structures of the world political economy. Institutional and small group social phenomena are sites for the formation of state's strategies, for calculating the possible, forming reasonable expectations, and thus for determining the specific contours of state interests.
The legalism of the WTO maintains states and their agents at the center of the political and legal processes facilitating trade globalization. The WTO only directly regulates states. This justifies the focus on legalization and state power. States retain the authority to pick economic winners and losers in how they go about complying, compensating, or retaliating over trade. But the implications are broad. Beyond commerce and questions of economic development, the fates of indigenous peoples, the environment, and civil society very often depend on state measures regulated by the WTO. The WTO is thus a pivotal institution of global governance, with wide-ranging implications not only for states but also for the peoples and the myriad relationships touched by state policies. While the rapid growth in the number of free-trade agreements has made the international trading system highly complex, the WTO remains the central pillar of the legal foundations of the global trading system. How this legal foundation is managed is central to understanding the modern world economy and relations among states. Disputing is a site where these relationships become clear. And while the rules for trade and for disputing over them have been written, there is much left to decide about what the rules mean, how they should be used, and to what ends. There is much to be learned from close examination of the procedures and practices of WTO disputing and the sense made of them by practitioners. A sociolegal analysis, as I hope to demonstrate, can fruitfully contribute both empirically and theoretically to ongoing scholarship about globalization.
This book intervenes in two lines of thinking about the World Trade Organization. The first intervention is directed at scholars of world order and globalization that have largely overlooked the WTO as a complex social forum, preferring instead to evaluate the WTO in its macro social, political, and economic context. The second intervention is aimed at proponents of the WTO, particularly those emphasizing the equalizing effects of legalization. Each of these points of intervention is taken up in turn below. In the sections that follow, I will briefly outline different approaches to these interrelated questions of trade globalization, law, and state power. The purpose of doing so is to create the foundations for a sociolegal framework for international trade law. This framework will be applied over the course of the book. My goal, drawn from the insights of sociolegal scholarship, is to provide insight into the meanings and uses of the WTO and how they mediate but do not eliminate vast inequalities between states.
Globalization and the State
One of the central themes in the literature on globalization is the changing role and character of the nation-state in the world political economy and the emergence of multilayered and multicentric organizations of global authority, or what Sassen terms the "deterritorialization" of sovereignty (Hardt and Negri 2000; Sassen 1996, 2006; Shaw 2000; Held et al. 1999). For instance, Robinson argues that the nation-state is being transformed and integrated into a transnational state-class structure. As such, the state is no longer the main organizing principle of global capitalism (Robinson 2001). By extension, a focus on the nation-state as a unit of analysis obscures the globalization of states into transnational political and class structures. To understand the processes of globalization and capitalism in the current moment requires looking beyond state apparatuses as independent actors within the interstate system. There is an imperative in this approach to evaluate the external integration of states into supranational institutions along with emergent global constellation of class forces, which are linked to the global accumulation of transnational corporations (Robinson 2001; Sklair 2001). These authors tend to emphasize the pivotal role of transnational corporations, of supranational institutions, the ties between nation-states and structures of governance at the regional and supranational level, the limits of state apparatuses to regulate transborder activities, especially financial flows, global class-state formations affecting policy choices of particular states, and globalizing ideologies of consumerism. It is the continuities between state governmental apparatuses, supranational institutions, and global class forces, as well as transnational corporations, that are the privileged units of analysis. While states remain important, they do so only in the manner in which they are organized into various constellations of global authority.
Other authors have taken this argument much further, claiming that the very notion of globalization as a worldwide phenomenon, occurring through and beyond nation-states, implies that the capacity of nation-states to regulate global processes is mitigated; that national economies are merging into one global economy; and that national territorial control and national culture are increasingly less salient in the face of an emergent global economics, politics, and culture (Ohmae 1996; Sassen 1996; Strange 1998). For these authors, research on the nation-state inappropriately diminishes the significant activity of regional economic zones, transnational corporations, as well as financial and currency markets that are shaping new geographies of political power.
These different approaches share a single orientation to the WTO as an object of research and have tended to treat it as one node—even an important node—in the structure of the world political economy that rather uniformly enforces neoliberal orthodoxy. In this line of thought, there is no need to look inside it or to examine how it operates from the inside out. It is enough instead to look at where it fits in the disciplinary structures of global governance (cf. Bello 2001; Sklair 2001; Shiva 2000; Harvey 2003; 2005; van der Pijl 1998).
World Order, Law, and Legal Practices: Approaches to Law in International Affairs
In international relations, the relationship between state power and international regimes has been the subject of much research. Much of this comes from liberal internationalists and scholars of hegemonic stability, who have theorized the emergence of international legal structures as a solution facilitating hegemonic orders—in particular, the liberal order under the auspices of U.S. hegemony. For instance, Ikenberry (2006) critiques the realist assumption that international politics are inherently anarchic by pointing to the stability of the post–World War II legalization of world order under the "penetrated hegemony" of the United States. Constitutional-like features of the postwar settlement were an essential solution for the United States as it sought to induce participation in its vision of liberal world order. The "cobinding" arrangements of legalized orders constituted a bargain whereby the leading state agreed to limit its power by operating in an institutionalized rule-bound context in exchange for the participation of weaker states. In this way, legalization promotes participation in the U.S. world order by placing limits on the exercise of power. Ikenberry notices a long-term historical progression of constitutional-like orders emerging in the wake major crises of world order. He asserts:
The postwar settlement of 1648, 1712, 1815, 1919, and 1945 may all have been major reordering moments, but the specific character of the orders they produced evolved over the centuries. The settlements grew more global in scope.... Most importantly, the settlements increasingly sought to institutionalize cooperation—to go beyond reinforcing state autonomy and reconstructing the balance of power by binding states to each other in mutually constraining institutions. With the rise of these co-binding institutions, the settlements increasingly came to resemble constitutionallike order. (2006: 115)
Ikenberry describes world historical phenomena conditioning the character of world order in which law and legal practices have, over time, increasingly structured international affairs. The process of legalization is thus driven by breakdowns of order and the interests of ascendant states to conserve their power (Kindleberger 1986; McKeown 1983; Lake 1993).
While neorealists generally dismiss international law as epiphenomena of the material capabilities of states primarily concerned with survival (Baldwin 1993), Ikenberry and others (Abbott et al. 2000; Abbott and Snidal 1998; Krasner 1983; Stein 1984) tend to understand international law and organizations as vehicles for surmounting the anarchy of international politics. For these scholars, the primary role of international law and organizations is to facilitate state cooperation by diffusing information and reducing transaction costs for enforcing world order. In such legal contexts, states pursue their interests at reduced cost. These goals are achieved by placing limits on the power of dominant states, forcing them to exercise power under rule-bound conditions. This is efficacious because dominant states have an interest in conserving power, and that explains why law works—the powerful want it to. Investing in the institutionalization of rules facilitates that goal. In this conception, law remains an extension of state power that provides, through its institutionalization, a medium for accomplishing state interests. Where the material capacities of states for coercion are the "real" structure of world order, law is a tool for the satisfaction of state interests. Finally, legalization is identified based on the presence of formal laws. The political projects and economic structures that guide the implementation of rules constitute the critical social action, rather than how people use or make sense of law, or how legal understandings may change over time.
World systems theorists share with neorealists and neoliberal theories a similar emphasis on the material capacities of states as the primary source of power in the international system. Unlike those approaches, however, the unit of analysis in world systems theorizations is not the atomized state but the system of states and the historical processes by which they are incorporated into and stratified in the modern world system. As such, there is much emphasis placed on relationships between states, particularly patterns of trade and uneven development. While world systems approaches are useful for thinking about power dynamics between states as they interact over trade, they ultimately fail to suggest an adequate understanding of the role of law in international power relations and tend instead to privilege military and economic relationships (Halliday and Osinsky 2006). In this conception, law plays a secondary role, providing normative coherence to the meaning of property rights in the economic organization of world order (Chase-Dunn 1989).
In contrast to neoliberal institutionalists and world systems theories, critical scholars of the "new constitutionalism" understand legal practices as power-laden, and by so doing move law and legal institutions to the center of analytic focus as a critical element in social order at the global level. Law constrains power as an inducement for cooperation with a hegemonic system and provides ideological buttressing for capitalist economics. As such, law and legal institutions are sites for the exercise of power. For instance, Gill's (1995; 2003) "new constitutionalism" describes the institutional manifestation of disciplinary neo-liberalism, whereby states are restructured to be made accountable to global markets. Similarly, McMichael (2004) suggests that the legalization of world trade constitutes an institutional bulwark favoring transnational accumulation at the expense of nationally vested capitalists. This alters political and economic opportunities and incentives, both in global and in national markets, to favor increased liberalization. Murphy (1994) and Chorev (2007) make similar arguments about how legalized institutional arrangements facilitate cooperation with the liberalization bias of the world trade regime by transforming the very terrain of political struggles over the role of the state in protecting declining industries. At the same time "new constitutional" theories provide only anemic understandings of why law works. Why is it that constitution-like features of international relations are constraining? What are the social bases of law that enable it to "lock in" neoliberal relationships?
(Continues...)
Excerpted from Between Law and Diplomacy by JOSEPH A. CONTI Copyright © 2011 by the Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Contents
PREFACE....................ix1 Sociolegal Studies and Disputing at the World Trade Organization....................1
2 The World Trading System: From GATT to WTO....................24
3 The WTO Dispute Settlement Process....................59
4 The Good Case: Legal Mobilization at the World Trade Organization....................68
5 International Legal Contexts and State Power: The Institutional Influences on Dispute Transitions....................97
6 Compliance Measures....................123
7 Power, Law, and the Future of the Global Trading System....................161
APPENDIX....................193
NOTES....................209
WORKS CITED....................219
INDEX....................239