THE
MODERN LAW REVIEW
Volume 70
July 2007
No 4
Re£ecting on‘Linkage’: Cognitive and Institutional
Change inThe International Trading System
AndrewT. F. Langn
Since the creation of the World Trade Organisation, the international trading system has lived
through a decade of sustained and vocal public criticism. International trade lawyers have made
signi¢cant e¡orts to engage, evaluate and respond to these critiques. This article assesses the
adequacy of these responses, focusing on the so-called‘trade and’ debate ^ or ‘trade linkage’ debate ^
in international trade law.While this debate has produced valuable insights, it tends to legitimate
and reproduce precisely those aspects of the trade regime which it purports to contest. Drawing
on the insights of economic history, an alternative mode of scholarship is proposed ^ at once
historical, critical, constructivist and institutionalist ^ to augment the current literature in the
‘trade and’ debate. Concrete lines of enquiry are proposed which, if followed, would help international trade lawyers to respond more productively and with greater legitimacy to contemporary public critiques of the international trading order.
INTRODUCTION
Since the creation of theWorld Trade Organisation, the international trading system has lived through a decade of sustained and vocal public criticism. International trade lawyers, who over the same period have become a far larger and more
diverse group than in previous periods of the ¢eld’s history, have had their thinking profoundly a¡ected by this criticism, as they have attempted to engage with
it, evaluate it, and respond to it. The purpose of this paper is to assess the ways in
which the ¢eld of international trade law has responded to‘anti-globalisation’1 critiques of the international trading order. My subject is not, therefore, the critiques
themselves, but the debates which have sprung up in international legal circles by
way of response to them. More particularly, I concentrate on what has come to be
described as the ‘trade and’ (or ‘linkage’) literature,2 which is the most important
n
Lecturer, Law Department, London School of Economics and Political Science.
1 The term ‘anti-globalisation’ is an unsatisfactory term for many reasons: not only does it tend to
overstate the degree of uniformity of these critiques, but it is also far from clear that many voices
labelled as such are actually ‘anti-globalisation’ at all. Nevertheless, I will use the term as there is
to my knowledge no better term currently in widespread use.
2 I explain further below what I mean by the ‘trade and’ literature, but it is useful to refer at the
outset to a number of high pro¢le symposia which have gone a long way towards setting the
terms in which the debate is cast, including ‘The Boundaries of the WTO’ (2002) 96 American
Journal of International Law; ‘Linkage as Phenomenon: Linking the Trade Linkage Debate’
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Re£ecting on‘Linkage’
forum in which international trade law scholars have directly addressed many
anti-globalisation critiques of the trading system.
My speci¢c interest is in the discursive structures of the ‘trade and’ debate. In
other words, I do not directly evaluate the competing substantive arguments
which have been put forward by di¡erent trade lawyers in the debate, but rather
focus on the assumptions that are made, the questions that are asked, and the
concepts which are used to frame answers. Furthermore, while acknowledging
that the questions which have been addressed are clearly important, and that the
insights the debate has yielded are valuable, my task is a self-consciously critical
one. Instead of addressing the substantive questions raised by the literature, I ask
what questions are foreclosed by it. Instead of asking what the debate reveals
about the trade regime, I ask what it obscures. And rather than identifying and
following the paths down which the debate seems to be heading, I draw attention
to alternative avenues which have been bypassed or ignored.
My argument can be stated very brie£y. Public debates about the trade regime
raise, in my view, fundamental questions about the nature and social purpose of
the liberal trade project, and the ‘meaning’ of free trade. They represent, in others
words, political contestation over the constitution and de¢nition of the trade
regime.Through the discourse of ‘trade and’, however, international trade lawyers
have re-characterised these debates as con£icts between the liberal trade project
and other social projects, between ‘trade values’ and ‘non-trade values’,
and between the trade regime and other international legal regimes. This recharacterisation is not a neutral move. As I explain, in a variety of subtle ways, it
tends to work against and undermine criticisms of the trade regime, and make
transformative change to the international trading order signi¢cantly more di⁄cult to achieve.
I make this argument in two main parts. In the ¢rst part, I set out and justify
two fundamental premises on which this argument rests. First, I draw on the
work of some economic historians to show that the concept of ‘free trade’ is not
static or stable but rather varies in meaning across time and across political cultures. These di¡erent concepts in turn shape di¡erent trade policy regimes, and
inform the institutional and legal structures which accompany them. Secondly,
in the light of this material, I suggest that contemporary anti-globalisation
critiques represent a political struggle over the meaning of ‘free trade’, and that a
genuine engagement with such critiques requires critical and open discussion
of what free trade can and should mean in contemporary social and political
conditions.
The second part focuses on the ‘trade and’ debate, ¢rst surveying the literature,
setting out its core conceptual structure, and noting its basic lines of enquiry. My
account focuses on what may be called the critical strands of the linkage debate
(1998) 19 University of Pennsylvania Journal of International Economic Law; and ‘Institutional Conundrums of an Expanded Trade Regime’ (2001) 7 Widener Law SymposiumJournal. See also the debate
in Volume 1 of the WorldTrade Review: D. Esty,‘The World Trade Organization’s legitimacy crisis’
(2002) 1 World Trade Review 7; D. Esty, ‘Rejoinder’ (2002) 1 World Trade Review 297; Henderson,
‘WTO 2002: Imaginary Crisis, Real Problems’ (2002) 1 World Trade Review 277; K. Jones, ‘The
WTO Core Agreement, Non-trade Issues and Institutional Integrity’ (2002) 1 WorldTrade Review
257. Part 2 below refers to much of the rest of the published literature.
524
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
(including the trade and environment, trade and labour, and trade and human
rights literatures), and is less easily applicable to other strands (such as the trade
and competition, and trade and investment literatures) which operate according
to a somewhat di¡erent dynamic. My aim in this section, I should make clear, is
not to set out in any detail all the arguments advanced and issues raised within this
literature. I aim rather to recount the basic narrative on which the literature rests,
and set out (in a necessarily simpli¢ed form) what I take to be its core conceptual
structure. I argue that the de¢ning discursive feature of this debate is that it takes
a particular meaning of ‘free trade’ as self-evident. As a result, it counterproductively reinforces and naturalises that conception, and makes it more di⁄cult to question. The debate consequently focuses the energy and attention of
international trade lawyers away from one of the most important questions which
must be addressed: namely, what the fundamental purpose of trade regime is,
what problem it addresses, or (to put the same point in di¡erent language) what
‘trade liberalisation’ means. This rigidity at the level of ideas, I suggest, in turn
helps to sustain and reproduce the present international trading order.
In the third part, I then turn my attention to some of the implications of this
argument. I set out a concrete vision of a di¡erent form of scholarship ^ at once
critical, historically informed, constructivist and institutionalist ^ to augment the
current ‘trade and’ debate.This form of scholarship would on the one hand help to
counteract those counter-productive discursive features of the ‘trade and’ literature
which I identify. On the other, it would facilitate the productive engagement of
international trade lawyers with the fundamental question of what ‘free trade’ can
and should mean.
THE SOCIAL CONSTRUCTION OF FREE TRADE
In most discussions of international trade, the ideas of ‘free trade’ and ‘trade liberalisation’ are unproblematically presumed to have ¢xed meanings. There is, however, a body of historical research which shows that these notions take on di¡erent
guises at di¡erent times and across di¡erent political cultures.3 Trentmann, for
example, has observed that in each political culture, and at di¡erent times within
the same culture, a unique constellation of ideas, values and discourses is in circulation, generating a distinctive cultural web of associations around the concept of
free trade.4 Very often the language of free trade comes to be expressive of broader
political struggles, and is associated with historically speci¢c political programs
and ideologies. Claims in favour of free trade are refracted in contemporary political languages, and reconstituted in response to historically speci¢c critiques.The
3 See, for an interesting selection among a very wide literature, A. Howe, FreeTrade and Liberal England, 1846^1946 (Oxford: OUP, 1997); F. Trentmann, ‘Political Culture and Political Economy:
Interest, Ideology and Free Trade’ (1998) 5 Review of International Political Economy 217; F. Trentmann, Paradoxes of Civil Society: New Perspectives on Modern German and British History (Oxford:
Berghahn, 2000); M. Daunton and M. Hilton,The Politics of Consumption: Material Culture and Citizenship in Europe and America (Oxford: Berg, 2001). The same point is made in a di¡erent way in
J. Goldstein, Ideas, Interests, and AmericanTrade Policy (Ithaca: Cornell UP, 1993).
4 Trentmann,‘Political Culture’ above n 3.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
525
Re£ecting on‘Linkage’
notion of free trade, in other words, takes a substantial part of its meaning from
the particular ideational and ideological context in which it is expressed. This is
not a process of distortion, whereby a pre-existing, ‘pure’ notion of free trade is
encumbered by symbolic accretions. It is more usefully thought of as a process
of constitution.That is to say, there is no abstract, decontextualised concept of free
trade which exists prior to its imagined insertion into a particular culture. The
notion of free trade is only comprehensible if, and to the extent that, it bears the
imprint (even if implicit) of its particular historical and cultural milieu.
This claim is important in the present context because variation in the meaning
of free trade over time and across cultures is closely associated with change to policy and to the international trading order more generally.This will be an unfamiliar claim to many international trade lawyers. One of the reasons why we
typically pay little attention to evolution in the meaning of free trade is that the
cognitive or conceptual dimension of trade policy is often assumed to be epiphenomenal.We tend to assume, in other words, that ideas play no independent role
as a determinant of trade policy. Political scientists and historians interested in the
historical evolution of the trading system, on the other hand, have long understood the power of ideas and ideology as determinants of trade policy.5 Kindleberger identi¢es ideology as one of the most important factors behind the spread
of free trade policy throughout Europe as a whole in the third quarter of the nineteeth century.6 Krueger makes a similar case in respect of the ‘rush to free trade’
among numerous developing countries during the 1980s and surrounding decades.7 Goldstein, too, has argued that it is the ideas of policy-makers that matter
most, and has shown how, by being ‘embedded’ in durable institutions, these ideas
can continue to shape and inform policy-making processes, as well as the normative inclinations of policy-makers, long after their initial architects have left
o⁄ce.8
In the context of trade, the importance of ideas and cognitive framework is at
least twofold. Firstly, changing discursive frameworks help to constitute and
reconstitute the social groupings in favour of free trade ^ they enable the processes
by which economic and political actors come to perceive themselves as part of a
particular group (‘consumer’, ‘labour’, ‘cotton producer’) having particular interests. Secondly, the ideational context shapes the speci¢c policy outcomes which
are pursued in the name of ‘free trade’.That is to say, the cultural meanings of free
trade ^ ideas about what it is designed to achieve, why it matters, what problem it
5 Indeed, ‘ideas and ‘ideology’ explanations regularly feature as one among about four standard
explanatory variables for the evolution of trade policy, see, for example, H. Milner,‘The Political
Economy of International Trade’ (1999) 2 American Review of Political Science 91; P. Gourevich,
‘International Trade, Domestic Coalitions, and Liberty: Comparative Responses to the Crisis of
1873^1896’ in J. A. Frieden and D. A. Lake (eds), International Political Economy: Perspectives on Global
Power andWealth (Boston: Bedford, 2000).
6 C. Kindleberger, ‘The Rise of Free Trade in Western Europe, 1820^1875’ (1975) 35 Journal of Economic History 20.
7 Krueger,‘Trade Policy and Economic Development: How We Learn’ (1997) 87 American Economic
Review 1.
8 Goldstein, above n 3. See also A.Yee,‘The Causal E¡ects of Ideas on Policies’ (1996) 50 International
Organization 69, 21 for a nice survey of some of the literature on how institutions mediate the role
of ideas in policy-making (outside the trade context).
526
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
is trying to solve, how it works, the domain of its operation, its relation to other
social projects, and so on ^ fundamentally a¡ect the kinds of policies which count
as ‘free trade’.Through a variety of mechanisms, such ideas deeply shape the social
and political institutions which accompany and de¢ne a particular project of liberal trade. Conversely, transformational change to the institutions of the trading
order arises ‘not only from changes in the interests and resources of relevant actors
but also from changing structures of meaning’.9
Some brief historical illustrations may help to make these theoretical points
clearer. Todd’s detailed research into the emergence of free trade ideas in postrevolutionary France in the ¢rst half of the nineteenth century provides one useful example.10 In the early years of the restored Bourbon monarchy,Todd shows,
opinions on trade policy divided along pre-existing political lines: support for the
prohibitive system ‘had conservative and reactionary undertones’,11 and drew for
support on traditional beliefs in a paternal and benevolent state. Those with
Republican leanings, on the other hand, tended to oppose prohibition. The customs administration came to symbolise the re-emergence of the repressive ancien
reŁ gime: customs o⁄cials carried out intrusive and authoritarian search and seizure
operations against (predominantly liberal) merchants and manufacturers,
designed in part to intimidate political opponents or reassure supporters. In this
context, the struggle for freer trade came to focus on such issues as the administration of customs, and the extension of warehousing and transit rights. It was
typical for supporters of free trade, during this period, to simultaneously express
general support for the prohibitive system, and for mechanisms of protection for
French industries. Over time, however, this ideological landscape was reconstituted in terms more familiar to us now. Supporters of free trade gradually developed a radical notion of ‘commercial freedom’, and their agenda broadened to
include the abolition of economic protection, and in particular the reduction
(though not the absolute removal) of tari¡s. Protectionist ideology, for its part,
successfully appropriated revolutionary discourse, portraying protection as part
of the nation-building project that began with the Revolution, and as a way of
maintaining social solidarity and equality across all French industries.
InVictorian and Edwardian Britain, as Trentmann has shown, a di¡erent ideological landscape produced a very di¡erent project of liberal trade. The great period of free trade from 1846 until the start of the World War I, he argues, was
sustained and given its particular character by a unique constellation of cultural
meanings.12 Unlike in France, where the discourse of nation sustained an ideology of protection, support for free trade in Britain was intimately bound up with
9 Jachtenfuchs et al,‘Which Europe? Con£icting Models of a Legitimate European Political Order’
(1998) 4 European Journal of International Relations 409. See also E. Adler, ‘Cognitive Evolution: A
Dynamic Approach for the Study of International Relations and their Progress’ in E. Adler and
B. Crawford (eds), Progress in Postwar International Relations (New York: Columbia UP, 1991);
M. Blyth, Great Transformations: Economic Ideas and Institutional Change in the Twentieth Century
(Cambridge: CUP, 2002).
10 S. Todd,‘The Invention of Free Trade and Protectionism in France, 1814^1851’ unpublished dissertation, University of Cambridge, 2005.
11 ibid 43.
12 Trentmann,‘Political Culture’ above n 3.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
527
Re£ecting on‘Linkage’
nationalism. Through the construction of the idea of the ‘citizen-consumer’ as the
carrier of the public interest, free trade came to be understood by many as a form
of public inclusion. The separation of politics from the market helped to guarantee the purity of the political sphere, and became an indicator of the health of the
body politic. The notion of free trade connected not so much to free markets,
Trentmann argues, but to liberty of exchange, and thus came to represent a wider
vision of ’ ‘‘self-dependence’’, cooperative internationalism and the autonomy of
civil society from colonisation by the state.’13 Furthermore, free trade was deeply
embedded in the British identity as part of their civilising mission, aided by a
frequently-invoked contrast with the backwardness of other nations’ trade
policies. One result of this ideological landscape was that British free trade
policy during this period took on a uniquely unilateral character. In interesting
counterpoint to contemporary arrangements, there was a view that any
departure from unilateralism ^ for example, towards a notion of reciprocity in
trading relations ^ was criticised as disguised protectionism.14 Moreover, some
even objected to the negotiation of trade treaties between states, on the ground
that it constituted state interference, and thus was contrary to a ‘pure’ notion of
free trade.15
The collective historical memory of the resurgence of protectionism in the
interwar years, and the subsequent descent into world war, were at the heart of
the reconstitution of free trade in the aftermath of World War Two. Stable, liberal
trading relationships, between the US and Europe in particular, were seen as a
central plank in European reconstruction e¡orts, as well as providing more
broadly an important guarantee of international peace and security in the
longer term. The experience of revolutions and profound social instability in
many countries between the wars also proved to be formative, as policy-makers
focused on constructing a liberal international order designed to promote
social stability and cohesion. As the interwar social upheaval was recast in the historical imagination as a social reaction against the market,16 the emphasis on social
stability in turn came to imply a broad consensus in favour of governmental intervention. As Ruggie has noted, this political landscape produced a particular kind
of liberal trade project.17 Free trade came to be associated with multilateralism,
and generated an accompanying infrastructure at the international level. Furthermore, free trade came to mean non-discriminatory trade above all, and e¡orts to liberalise trade concentrated on those forms of trade least likely to threaten social
stability: trade between major industrialised countries, predominantly intraindustry in character, and excluding sensitive sectors such as agriculture and
textiles.
13 ibid 232.
14 ibid 227.
15 F. Trentmann, ‘National Identity and Consumer Politics: Free Trade and Tari¡ Reform’ in
D. Winch and P. K. O’Brien (eds), The Political Economy of British Historical Experience, 1688^1914
(Oxford: OUP, 2002) 215, 224.
16 See, for a leading contemporary account which has proved highly in£uential, K. Polany|¤ ,
The GreatTransformation: the Political and Economic Origins of ourTime (Boston: Beacon Press, 2001).
17 J. G. Ruggie, ‘International Regimes, Transactions and Change: Embedded Liberalism in the
Postwar Economic Order’ (1982) 36 International Organisation 379.
528
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
A further shift occurred in the 1980s and 90s, as the concept of free trade assumed
a cultural signi¢cance more familiar to us today. The notion of free trade as an
engine of growth and a driver of modernisation ^ always present at some level in
earlier epochs ^ came to assume a central place in the constitution of the liberal
trade project. A dominant idea was that of the ‘global economy’, and the purpose
of the trading system came to be understood as the construction of that imagined
system. More particularly, the task of international trade institutions was reformulated as the elimination of governmental interference in global trade £ows. Again,
these alterations in the ideological and ideational landscape produced changes at the
level of institutional, legal and political forms. The GATT/WTO system became
truly universal in ambition, and its membership rapidly expanded. Its scope of
operation also expanded to include the oversight of forms of political practice
newly conceptualised as ‘interference’ with trade: intellectual property regimes;
health and safety regulatory regimes; regulation of service industries, and so on.
Trade liberalisation came to be associated with capital market liberalisation, and
more generally with adherence to a radical free market ideology.
Transformational change in the institutions and politics of international trade,
it seems, goes hand in hand with cognitive change. Di¡erent epochs in the history
of international trade are characterised by di¡erences in the prevailing meaning of
free trade ^ meanings which are embedded and expressed in the concrete institutions and policy choices associated with a given trading order.
When the current anti-globalisation movement is situated within this narrative,
two related propositions arise. First, it becomes apparent that contemporary critiques of the international trading system are, in large part, a political struggle over
the meaning of free trade. Debate about the trading system represents a terrain
in which the constitutive ideas of the trading system are being renegotiated: the
globalisation debate, in other words, is in part a contest to ¢x the cultural web of
associations which give meaning to the notion of trade, and which give the international trading order its purpose, shape and trajectory. It is, in part, a confrontation
between hegemonic and counter-hegemonic liberal trade projects. It is true, of
course, that the anti-globalisation movement is diverse, and no doubt some voices
in that debate would see themselves as attempting to devise alternatives to the liberal
trade project. It is not my claim that this debate is solely about contesting the meaning of free trade, rather that this represents a signi¢cant element of it.
Secondly, it also becomes apparent that any adequate response to the anti-globalisation critiques of the present international trading system must include as one
of its central elements a thoroughgoing re-examination of, and critical debate
about, what free trade can and should ‘mean’ in the early 21st century. That is to
say, rhetorical and imaginative space must be opened up to re-conceptualise the
nature and purpose of the liberal trade project, in ways which respond to contemporary political priorities, and align that project with the contemporary ideational
landscape. If it is true, as Adler notes, that institutional change ‘is most likely to be
the result of a dynamic process of change in collective understandings’,18 then failure to open up a debate on those collective understandings runs a real risk of
18 Adler, above n 9.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
529
Re£ecting on‘Linkage’
foreclosing even the possibility of transformative change to the international trading system.This, then, gives us a standpoint from which to evaluate the‘trade and’
debate among trade lawyers: this debate is productive, from this perspective, to
the extent that it enables and generates a reconsideration of contemporary collective meanings associated the liberal trade project.
THE ‘TRADE AND’ DEBATE
With these comments ¢rmly in mind, I want now to turn to the ‘trade and’ literature itself. This debate has already been the subject of some analysis and critique
by other commentators. Dillon’s 2002 article,‘A Farewell to Linkage’, is the most
extended, and perhaps the most scathing, of such critiques. She argues that the
debate has become ‘technocratic and inward-looking’, and ‘¢xated on arti¢cially
narrow question[s]’. She observes that the questions it asks, and the language in
which the debate is couched, fail to register the real concerns which underlie it,
and are ‘far removed from the human circumstances that gave rise’ to it.19 Duno¡,
too, has faulted the critical ‘trade and’ literature for lacking ‘signi¢cant bite’ ^ for
being, in fact, insu⁄ciently critical. This literature, he argues, tacitly privileges
precisely the values and objectives which it seeks to challenge.20 The perspective
I o¡er in this section has much in common with these two thinkers, though my
focus of attention is on the discursive e¡ects of the ‘trade and’ debate.
For present purposes, the story of the‘trade and’ debate begins in the early 1990s
with the emergence, or at least the intensi¢cation, of environment- and labourrelated critiques of the international trading system. Sparked in part by adverse
public reaction to the ¢rstTuna/Dolphin dispute in 1991, as well as by a more general awareness of the connection between environmental and economic concerns,
a number of GATT contracting parties called for the activation of the GATT’s
Working Group on Environmental Measures and International Trade. Three
years later, towards the end of the Uruguay round, the WTO’s Committee on
Trade and the Environment was established, and ^ in principle at least ^ the
trade-environment nexus has been a live issue on the WTO agenda ever since.
During those same years, a similar awareness was growing among certain
sections of the public of the potential impact of trade policies on labour rights
and working conditions. Intense campaigns from a variety of groups managed
to marshal signi¢cant support for a proposal to address labour rights concerns
within the international trading regime.These were not the only e¡orts to include
so-called ‘non-trade’ issues on theWTO agenda. Around the time of the 1996 Singapore Ministerial, the ¢rst signi¢cant push began to include negotiations on
competition and investment rules within the auspices of the WTO. The result
was an extraordinary array of issues on the proposed agenda for the Singapore
Ministerial ^ including trade and investment, trade and environment, trade and
19 S. Dillon,‘A Farewell to ‘‘Linkage’’: International Trade Law and Global Sustainability Indicators’
(2002) 55 Rutgers L Rev 87, 87.
20 J. Duno¡,‘‘Trade and’: Recent Developments in Trade Policy and Scholarship ^ And Their Surprising Political Implications’ (1997) 17 NorthwesternJournal of International Law and Business 759, 768.
530
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
competition, trade and labour standards, and trade and corruption.21 Furthermore, in the years since then, partly as a result of e¡orts by UN human rights
agencies, the topic of ‘trade and human rights’ also ¢nds a natural place in
this list.22
There was thus substantial pressure from a variety of directions to substantially
broaden theWTO’s agenda beyond what had traditionally been conceptualised as
pure trade policy issues. This trend very quickly attracted academic attention.
There was already a signi¢cant body of academic work on both trade-environment and trade-labour issues, but the late-1990s saw a signi¢cant and rapid
increase in such material.Very soon, within the legal trade community, and particularly within the United States, a series of conferences and symposia were organised around the ‘trade and’theme.23 One of the most important was a conference
organised by the American Society of International Law in 2001, subsequently
published in the American Journal of International Law.24 This conference played a
signi¢cant role in canonising the distinctive conceptual structure of the
‘trade and’ literature, by making that conceptual framework itself the object of
analysis. The theme of the conference was the concept of ‘linkage’, and its
purpose was to re£ect not on particular proposals for or against linkage, but rather
on ‘broader frameworks that might illuminate the WTO’s present and future
boundaries’.25
Over time, this body of work on so-called ‘trade and’ issues has become a distinctive and identi¢able ¢eld of interest within the discipline of international
trade law. It deploys distinctive vocabularies, modes of argument, and methods
of reasoning. It rests on a set of more or less common premises, and it operates
within a more or less settled conceptual framework. And while it would be
wrong to say that this literature is the only context within which trade lawyers
wrestle with fundamental critiques of the trade regime, it is arguably the most
important one. As a result, the conceptual frameworks employed in this literature
determine in large part how these critiques have appeared to international trade
lawyers ^ and therefore how we have responded to them.
21 ibid 762.
22 See for example the following reports: ‘Human Rights as the Primary Objective of International
Trade, Investment and Finance Policy and Practice’ Working Paper, 17 June 1999, E/CN.4/Sub.2/
1999/11; ‘Globalization and Its Impact on the Full Enjoyment of Human Rights’ Preliminary
report, 15 June 2000, E/CN.4/Sub.2/2000/13; Progress Report, 2 July 2001, E/CN.4/Sub.2/2001/
10; Final Report, 25 June 2003, E/CN.4/Sub.2/2003/14, as well as O⁄ce of the High Commissioner for Human Rights,‘The Impact of the Agreement onTrade-Related Aspects of Intellectual
Property Rights on Human Rights’ 27 June 2001, E/CN.4/Sub.2/2001/13; ‘Globalization and Its
Impact on the Full Enjoyment of Human Rights’ 15 January 2002, E/CN.4/2002/54; ‘Liberalization of Trade in Services and Human Rights’ 25 June 2002, E/CN.4/Sub.2/2002/9; ‘Human
Rights,Trade and Investment’ 2 July 2003, E/CN.4/Sub.2/2003/9.
23 See above n 2.
24 See (2002) 96 American Journal of International Law; also J. Trachtman,‘Institutional Linkage: Transcending ‘‘Trade and . . .’’’ (2002) 96 AmericanJournal of International Law 77.
25 J. Alvarez,‘Foreword: The Boundaries of the WTO’ (2002) 96 American Journal of International Law
1,3.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
531
Re£ecting on‘Linkage’
Some characteristic vocabulary, narratives, and argumentative structure of the
‘trade and’ debate
An interesting feature of the ‘trade and’ literature is that it contains an oftenrepeated story of its own origins. The genesis of ‘trade and’ issues, according to
this story, lies in the rapid expansion in the scope and in£uence of the international trading system, and in the increasing interpenetration of the trading system
with other areas of social life.26 International trade £ows, it is said, have become
increasingly intense, and have begun to a¡ect a larger and larger proportion of
economic sectors. As a result, the social impact of international trade has also
increased signi¢cantly. These impacts are not con¢ned to economic matters as
traditionally understood: they are equally felt in respect of matters of social,
environmental, labour and human rights policy. This increasing impact of trade
has been accompanied by an expansion in scope of theWTO agreements in 1995,
which brought far greater areas of governmental activity under the scrutiny of the
WTO. In these new conditions, it is explained, decisions taken within the WTO
potentially now have very signi¢cant impacts on‘non-trade’ issues and concerns ^
including environmental impacts, health impacts, impacts on job opportunities
and employment quality, and so on.
Over time, some became convinced that the WTO, as presently constituted,
was not fully equipped for the task of making decisions with an important environmental or social dimension. In part, this concern was a response to particular
decisions made in the WTO, such as theTuna/Dolphin or Shrimp/Turtle Panel decisions, which, according to some, failed to take fully into account the environmental or social consequences of their decision. According to this common criticism,
the WTO is not equipped to make such decisions primarily because of its specialised mandate, and its consequent substantive bias.That theWTO is an institution
focused solely on trade, and tasked with the project of liberalising international
trade, it is thought, imparts a particular orientation to it. For its critics, this narrowness in its mandate has led to a kind of ‘myopic view’.27 It results in an
approach to policy-making which proceeds from an unduly limited perspective
(a‘single-minded free trade perspective’28), and which therefore implicitly prioritises trade liberalisation over other legitimate objectives (the WTO’s apparent
‘insistence on the primacy of trade’29).‘The prioritisation of trade issues’, observes
Guzman,‘is not surprising in light of the fact that the WTO is a trade organisation, sta¡ed by trade specialists, and guided by agreements negotiated with an eye
toward the trading regime.’30 This in-built orientation of the trade regime is
often termed the regime’s ‘pro-trade bias’.31 This concept ^ the WTO’s perceived
26 See, for example, J. Alvarez,‘How Not to Link: Institutional Conundrums of an Expanded Trade
Regime’ (2001) 7 Widener Law SymposiumJournal 1.
27 P. Nichols,‘Trade without Values’ (1996) 90 Northwestern University L Rev 658, 701.
28 R. Howse and M. Mutua, ‘Protecting Human Rights in a Global Economy: Challenges
for the World Trade Organization’ (International Center for Human Rights and Democratic
Development, Policy Paper, 2002).
29 Nichols, above n 27, 700.
30 A. Guzman,‘Global Governance and theWTO’ (2004) 45 Harvard International LawJournal 303, 313.
31 S. Cho, ‘Linkage of Free Trade and Social Regulation: Moving Beyond the Entropic Dilemma’
(2005) 5 Chicago Journal of International Law 625, 640. See also M. C. E. J. Bronckers,‘More Power
532
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
‘pro-trade bias’ ^ is at the heart of the linkage debate, and to a large extent de¢nes
the lines of enquiry which are pursued within it.To a signi¢cant extent the debate
is about whether or not such a bias exists, what other substantive orientations are
marginalised by this bias, and how (if at all) to counteract it.
Some talk about the need to take account of the legitimacy and importance
of policy objectives other than trade liberalisation. The WTO, Wai argues, is
‘narrowly focused on policy goals of trade facilitation’.32 When this policy
goal comes into con£ict with other legitimate policy objectives ^ such as the
protection of the environment or of workers ^ the ‘natural inclination of [the
WTO] might be to favour the norms underlying the liberal trading regime
(since that is their primary mandate) and to lean towards results that would prohibit trade barriers’.33 ‘Non-trade concerns’, in Nichols’ words,‘are subordinate to
trade concerns within the [WTO]’.34 TheWTO ‘largely ignore[s] non-trade concerns’, and its ‘monolithic mandate of liberalising international trade generally
does not allow the consideration of legal or ethical factors involving the environment, animal rights, consumer rights, labor rights, or sovereignty’.35 For these
commentators, the task for trade scholars is to ¢nd a way to strike a ‘better balance’36 between the pursuit of trade liberalisation and the attainment of other
legitimate policy goals within the framework of the WTO. The debate is one
about identifying ‘the . . . policy objectives that ought to ‘‘trump the [goal] of
freer trade’’’,37 and determining precisely when and in what way they might
appropriately do so.
Others frame the question as one about values. The trade regime, it is argued,
systematically excludes or de-prioritises values other than those connected to
the pursuit of liberal trade. Atik, for example, observes the way ‘outcomes in
trade-oriented fora are challenged for inadequately weighing non-trade values’,
32
33
34
35
36
37
to theWTO?’ (2001) 4 Journal of International Economic Law 41, 46. (‘liberal trade bias’), G. C. Sha¡er,
‘The World Trade Organization Under Challenge: Democracy and the Law and Politics of the
WTO’s Treatment of Trade and Environment Matters’ (2001) 25 Harvard Environmental L Rev
1, 12, (‘neoliberal bias’), G. Sha¡er,‘WTO Blue-Green Blues: The Impact of U.S. Domestic Politics onTrade-Labor,Trade-Environment Linkages for theWTO’s Future’ (2000) 24 Fordham International Law Journal 608, 611. (‘closed, trade-biased . . . institution’), J. H. Knox, ‘The Judicial
Resolution of Con£icts Between Trade and the Environment’ (2004) 28 Harvard Environmental
L Rev 1, 1. (‘biased’), Guzman, above n 30, 306 (‘trade bias’), L. A. DiMatteo et al, ‘The Doha
Declaration and Beyond: Giving aVoice to Non-Trade ConcernsWithin theWTO Trade Regime’
(2003) 36 Vanderbilt Journal Of Transnational Law 95, 133 (‘free trade bias’), H. L. Schloemann and
S. Ohlho¡,‘‘‘Constitutionalization’’ and Dispute Settlement in the WTO: National Security as an
Issue of Competence’ (1999) 93 AmericanJournal Of International Law 424, 451. (‘protrade bias’).
R.Wai,‘Countering, Branding, Dealing: Using Economic and Social Rights In and Around the
International Trade Regime’ (2003) 14 EuropeanJournal of International Law 35, 59.
D.W. Leebron,‘Linkages’ (2002) 96 AmericanJournal of International Law 5, 22.
Nichols, above n 27, 702.
DiMatteo, et al, above n 31, 98.
C. Thomas, ‘Should the World Trade Organization Incorporate Labor and Environmental Standards?’ (2004) 61Washington and Lee L Rev 347, 372.
Alvarez, above n 25, 4, citing D. P. Steger,‘Afterword:The ‘Trade and . . .’ Conundrum ^ A Commentary’ (2002) 96 AmericanJournal of International Law 135, 144. See also Guzman, above n 30, 314:
‘What is missing. . . is a way to counter theWTO’s trade interests with appropriate environmental
interests, labor rights interests, etc., without undermining the strengths of the trading system’.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
533
Re£ecting on‘Linkage’
and laments ‘the primary role that free trade values have . . . within the
international economic regime’.38 The WTO, it is said,‘fails to take into account
the fundamental nature of societal values’,39 and accords ‘inappropriate prominence’ to ‘trade values’.40 This way of expressing the bias at the heart of the trade
regime has given rise to a debate concerning ways to make the trade regime more
sensitive to other ‘non-economic’,41 or ‘social’42 values.‘The ‘‘trade and’’ discourse’,
on this view,‘is largely a plea for trade institutions to be more comprehending of
other values.’43 It is a plea for those institutions to‘mak[e] decisions that address the
wide range of social values at stake’44 rather than prioritising a narrow subsection
of them.
Perhaps, some argue, the WTO may broaden its perspective if it addressed a
wider range of concerns and issues. Guzman, echoing the thoughts of many
others, observes that ‘non-trade issues are largely overlooked at the WTO’, and
argues for ‘extending the reach of the WTO into non-trade areas’.45 He proposes
that theWTO should, over time, expand its role to include a wide variety of nontrade issues. He suggests re-structuring the WTO along departmental lines ^
including a services department, an environmental department, and intellectual
property department, and so on. Negotiations would, in Guzman’s proposal, be
primarily intra-departmental, but supplemented by larger rounds which would
cover issues from more than one department. This proposal, and others like it,
explicitly arise from a belief that an expanded institution of this sort would provide a more coherent and holistic framework for policy-making than is currently
provided by the specialised institution of theWTO.46 Such arguments are by now
very familiar: as I noted above, it was in large part discussion about an expanded
agenda for the trade regime in Singapore that propelled linkage issues to academic
attention in the ¢rst place. Counter-arguments are also familiar. The WTO, it is
said, is not equipped to deal with issues and concerns outside its area of specialty.47
There are other institutions and other forums speci¢cally designed to deal with
(say) labour, human rights or environmental issues. Furthermore, an expansion of
38 J. Atik, ‘Identifying Antidemocratic Outcomes: Authenticity, Self-Sacri¢ce, and International
Trade’ (1998) 19 University of Pennsylvania Journal of International Economic Law 229, 240. See also:
Nichols, above n 27, 660; J. Duno¡, ‘Rethinking International Trade’ (1998) 19 University of
PennsylvaniaJournal of International Economic Law 347, 351; Guzman, above n 30, 306.
39 Nichols, above n 27, 660.
40 Guzman, above n 30, 306.
41 Duno¡, above n 38, 351.
42 F. Garcia,‘Trade and Justice: Linking theTrade Linkage Debates’ (1998) 19 University of Pennsylvania
Journal of International Economic Law 391, 431.
43 J. Atik, ‘Introductory Essay: Uncorking International Trade, Filling the Cup of International
Economic Law’ (2000) 15 American University International L Rev 1231, 1233.
44 Sha¡er,‘Blue-Green’ above n 31, 421.
45 Guzman, above n 30, 304.
46 ibid, 303 and passim.
47 Some commentators who address the issue of specialisation include: R. Bhala,‘National Security
and International Trade Law: What the GATT Says, and What the United States Does’ (1998) 19
University of Pennsylvania Journal of International Economic Law 263, 264; S. Charnovitz, ‘Linking
Topics in Treaties’ (1998) 19 University of Pennsylvania Journal of International Economic Law 329, 341;
Atik, above n 43; Knox, above n 31, 24;Thomas, above n 36, 393.
534
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
the WTO’s mandate risks undermining its central task of creating an open trade
regime, not only by diverting attention and resources, but also because the ‘singlemindedness’ of the WTO has been one reason for its success.48
In this way, the debate has come to be about whether and how to integrate
‘non-trade’ (environmental, human rights) matters concerns into the work of the
WTO.49 It is about ‘the propriety of linking trade with non-trade issues’,50 of
‘bringing non-trade topics into debate at the WTO’.51 A key question is how to
integrate trade and (say) environmental concerns and objectives in an appropriate
manner within the WTO, and how to ensure compatibility between the WTO
and other international regimes. A key task which trade lawyers have set for
themselves is the search for criteria or underlying principles ‘distinguishing the
issues that are properly within, and those properly without, the trade regime’.52
The governing metaphor for the debate is that of redesigning the ‘interfaces’
between the trading system and what is currently external to it.53 The issues raised
by the debate are described as‘border con£icts’,54 and it is seen to call into question
the ‘boundaries’ of the trade regime.55 The task, it is said, is to ¢nd the appropriate
‘limits’to the pursuit of international trade, or to ¢nd appropriate mechanisms for
‘linkage’ between trade and non-trade issues.56 The same notion is also expressed
in the concept of balance. Thus, it is sometimes expressed that the WTO pursues
its mandate of trade liberalisation in an ‘unbridled’ or ‘unfettered’ manner.57
What is needed is to ¢nd a way of ‘balancing’that pursuit against others, or ‘countering’ it with competing values, to identify the constraints within which the task
of liberalising trade should be undertaken.58 It is also common to hear the trade
regime criticised as isolated,‘self-contained’ and ‘closed’.59 Thus, in the context of
the linkage debate, public criticism of the WTO is turned into a discussion of
48 See, for example, Alvarez, above n 26.
49 F. J. Garcia, ‘The Salmon Case: Evolution of Balancing Mechanisms for Non-Trade Values in
WTO’ in G. A. Bermann and P. Mavroidis (eds),Trade and Human Health and Safety (Cambridge:
CUP, 2003) 133.
50 Thomas, above n 36, 348.
51 Guzman, above n 30, 306.
52 J. Duno¡, ‘The WTO in Transition: Of Constituents, Competence and Coherence’ (2001) 33
GeorgeWashington International L Rev 979, 980.
53 See, for example, Atik, above n 43.
54 Garcia, above n 42, 392. See also J. Duno¡,‘Border patrol at theWorld Trade Organization’ (1998) 9
Yearbook of International Environmental Law 20.
55 See, for example, the Symposium entitled ‘The Boundaries of the WTO’ above n 2.
56 F. Abbott, T. Cottier and J. Jackson, ‘The Limits of International Trade: Workers’ Protection, the
Environment and Other Human Rights’ in Proceedings of the American Society of International
Law 2000 (Washington: ASIL, 2000) 219.
57 Nichols, above n 27, 660.
58 See, for example,Wai, above n 32; Guzman, above n 30, 314.
59 Bronckers, above n 31, 41. Accounts that emphasise the institutional isolation of the WTO are
common: Bhala, above n 47, 264; Duno¡, above n 54; P. Nichols,‘Forgotten Linkages-Historical
Institutionalism and Sociological Institutionalism and Analysis of theWorld Trade Organization’
(1998) 19 University of Pennsylvania Journals of International Economic Law 461; Atik, above n 43, 1231;
Duno¡, above n 52, 997; Knox, above n 31, 24.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
535
Re£ecting on‘Linkage’
whether and how to broaden the regime’s perspective beyond a narrow focus on
trade, to embed it within a large framework, to‘expand’ its mandate, to extend its
reach and range of concern, to accommodate more within it.60
Through the ‘trade and’ debate, therefore, international trade lawyers have
generated and deployed a particular optic (or discursive structure) through
which anti-globalisation critiques are framed and understood. Over time, this
optic has gradually hardened and crystallised, and has had a lasting in£uence on
the reception and perception of such critiques within the discipline of international trade law, and perhaps beyond.This in£uence is cognitive ^ that is, it shapes
how international trade lawyers interpret and understand (and therefore respond
to) anti-globalisation critiques. In the remainder of this section, I show why the
‘trade and’ optic, while useful in some ways, has ultimately impaired our ability to
respond meaningfully and creatively to them.
Some discursive e¡ects of the linkage debate
Perhaps the simplest way of explaining my concern about the linkage debate is to
distinguish between its role as an arena of contestation over the future of the trade
regime, and its simultaneous (though contradictory) role as a forum for the constitution of the present trade regime. The ¢rst role is the most obvious. We have
just seen that commentators in this debate are engaged in normative arguments
concerning the kinds of values and objectives which ought to be taken into
account in trade policy decisions, what weight ought to be given to di¡erent
values, and the processes by which these decisions ought to be made. They recognise clearly and correctly that decisions made within the trade regime implicate a
wide variety of di¡erent social values, and that it is important to ensure that such
decisions balance these goals in a legitimate and sensible manner.
The second role is less obvious. In addition to generating debate over the ways
in which di¡erent social values ought to be balanced, the linkage debate also characterises or de¢nes each of those values in particular ways ^ some values are characterised as ‘trade values’, others as ‘human rights values’, others as ‘environmental
values’, and so on. In other words, in addition to generating discussion of how
trade and non-trade values ought to be treated in the trade regime, the linkage
debate performs the logically prior task of constituting particular values as either
‘trade’ or ‘non-trade’. This is not an explicit process, but rather one which occurs
purely as a result of the way that the terms of the debate have been established.
When commentators argue, for example, about the appropriateness of ‘linking
trade and non-trade issues’, or of ‘balancing trade and non-trade values’, it is clear
that a shared understanding of what constitute ‘trade values’,‘trade objectives’, and
‘trade issues’ is implicitly taken for granted, and serves as the basis for the conversation. In this way, the linkage debate therefore serves to generate and sustain collective understandings of the liberal trade project. Even as it subjects the liberal
60 For some examples of the use of such metaphors, see: Bhala, above n 47, 264; Duno¡, above n 38,
383; Alvarez, above n 26; Bronckers, above n 31; DiMatteo, et al, above n 31, 101; Guzman, above
n 30.
536
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
trade project to criticism and contestation, it reinforces particular ideas of what
that project is. While the precise content of this shared understanding is rarely
made explicit, it certainly is clear what ‘trade values’ are not: ‘trade values’, it seems,
are not ‘human rights values’, or ‘environmental values’, or ‘social values’, and
so on.
At heart, my concern is that the process of constitution actively works against,
and is seriously undermining, that of contestation. Let me o¡er three di¡erent
ways of understanding how this is occurring.
First, constructing certain values as ‘trade values’ and others as ‘non-trade values’
inevitably at some level favours the former in the process of de¢ning the activities
and mandate of the trade regime. The story of the GATT Working Group on
Environmental Measures and International Trade (EMIT, the precursor to the
current Committee on Trade and Environment (CTE)) is illustrative. Though
the EMIT Working group was formed in 1971, it ¢rst convened in November of
1991, as a result of pressure of a number of di¡erent kinds. On the one hand, it was
a response to pressure from domestic environmental lobbies, particularly in the
US, who were concerned about the impact of trade rules on environmental protection e¡orts. On the other, it was convened in reaction to domestic producer
complaints, that environmental measures were signi¢cantly impeding their trading interests.61 Lengthy and di⁄cult negotiations were necessary to de¢ne the
agenda of the EMIT Working Group (and later the CTE). Early on, the EMIT
Working Group divided its mandate into three issues:
[¢rst] trade provisions contained in existing multilateral environmental agreements
. . . vis- a'-vis GATT principles and provisions . . . [second] multilateral transparency
of national environmental regulations likely to have trade e¡ects . . . [and third]
trade e¡ects of new packaging and labelling requirements aimed at protecting the
environment.62
As Sha¡er notes,‘the primary focus was on the adverse trade impacts of certain
environmental measures, and not the environmental impacts of trade policy’.63
What is interesting is the arguments that were o¡ered to justify this result. The
EMIT Chair noted that the Working Group wished to ‘remain well within its
mandate and the GATT’s competence’.64 A number of countries argued that the
GATT was a trade organisation, with a particular competence and authority to
address trade issues, and should therefore limit itself to trade matters.65 It is apparent that such arguments rely on a particular vision of what the liberal trade project
is all about, and what a trade organisation does, to exclude alternative values and
agendas. (It is not self-evident, of course, that the major international institution
presiding over the global trade system has no business addressing the social and
environmental impacts of that system, and that such impacts are not ‘trade issues’.)
61 Sha¡er,‘Challenge’ above n 31, 17.
62 Report of the Meeting of the Group on Environmental Measures and International Trade, GATT
document TRE/1, 17 December 1991.
63 Sha¡er,‘Challenge’ above n 31, 24.
64 Report of the Chairman of the Group on Environmental Measures and International Trade,
GATTdocument BISD 40S/77, 25 January 1994.
65 Sha¡er,‘Challenge’ above n 31, 24.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
537
Re£ecting on‘Linkage’
The same dynamic can be seen at work in relation to labour issues. In part by
way of response to pressure to incorporate labour issues in the agenda of
the WTO, the former WTO Director-General, Renato Ruggiero, expressed his
view that
This organisation [the WTO] cannot be allowed to gradually drift away from its
trade vocation. It would serve neither the WTO nor any other cause if it were to
pretend it could o¡er solutions to every non-trade issue.66
Though Ruggiero’s claim is phrased for rhetorical e¡ect, it re£ects a mode of
argumentation which is very strongly present in trade policy circles, as well as in
scholarly debates.67 The coherence and appeal of this mode of argumentation
depends in large part on the initial construction of labour as a ‘non-trade issue’.
And, of course, it is precisely this construction which the linkage debate tends to
perpetuate, by treating the conceptual separation of ‘trade’ and ‘labour’ issues as
self-evident, natural and given. The debate therefore perpetuates a conceptual framework within which arguments of the kind Ruggiero proposes are persuasive,
and are deployed to legitimate the current shape of trading institutions.The result
is that ^ directly contrary to the critical and contestatory thrust of the ‘trade and’
debate ^ labour-related critiques of the trade regime are disadvantaged from the
outset. Voices and arguments addressing labour-related concerns are constructed
as outside the system, and as having no natural or obvious place within it. After
almost two centuries of being at the centre of substantive arguments over trade
policy, the voices of labour ¢nd that now they must overcome a new hurdle: to
demonstrate that their concerns are of the kind that a ‘trade’ regime properly
addresses.The debate was once whether such voices were right; now, it is whether
they are even relevant.
My point is that the linkage debate tends to reproduce and reconstitute precisely the kind of trade regime which it (simultaneously) subjects to contestation.
By treating such categories as ‘trade values’ and ‘non-trade values’ as self-evident
and natural, linkage discourse calls forth an image of the liberal trade project in
which environmental, human rights, or labour issues ¢nd no natural place ^ these
values are by de¢nition excluded from the conception of the liberal trade project
on which the debate rests. (By excluded, I do not mean that these values are presented as necessarily antagonistic to liberal trade, merely that there is no room for
their expression in the trade universe: the agreed starting point is that they are nontrade issues or non-trade values.)
The second way in which the ‘constitutive’ function undermines the ‘contestatory’function of the linkage debate is by directing attention away from important
questions. Speci¢cally, the way in which the linkage debate treats the category of
‘trade values’ as natural and obvious ^ the way in which it treats a particular vision
66 Quoted in S. Charnovitz,‘Triangulating theWorld Trade Organization’ (2002) 96 AmericanJournal
of International Law 28, 47.
67 Thomas, for example, seems to proceed from similar premises when she argues that ‘the WTO
should not incorporate labor and environmental issues because they are not themselves the subject
of trade’. Thomas, above n 36, 393. I should note that Thomas makes this point in the context of a
broader argument, to the e¡ect that the inclusion of intellectual property destabilises any claim
that the WTO is purely a‘trade’ regime ^ but for my purposes, the quote is apropos.
538
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
of the liberal trade project as self-evident ^ forecloses enquiry into alternative conceptions of that project. Recall the representation of anti-globalisation critiques
which I laid out in the previous section. I argued that contemporary debates about
the international trading order are the latest chapter in an ongoing political struggle over the language of free trade. I described anti-globalisation critiques as, in
part at least, attempting to renegotiate the cultural meaning of trade liberalisation,
and to rede¢ne the liberal trade project in light of changing political priorities and
social conditions. When reformulated in the conceptual framework of the ‘trade
and’ debate, however, these critiques take on a fundamentally di¡erent aspect. Antiglobalisation critiques are represented as the confrontation between trade liberalisation and its Other: the principled assertion of values other than trade values; the
opposition of trade liberalisation by alternative social and political projects; the
defence of alternative policy objectives against that of relentlessly freer trade. Engaging with such critiques becomes, on this view, a matter of managing the border
con£icts at the interface of trade liberalisation and other, equally legitimate, political
projects.68 In this way, a debate which started out as a contest for the heart of the
liberal trade project becomes a discussion of its appropriate boundaries.
The consequence of this has been that questions about the purpose of the
liberal trade project have been put to one side. This is profoundly disturbing: as
noted earlier, previous periods of transition and transformation in the liberal
international trading system have typically been accompanied by fundamental
realignment at the ideational level. Indeed, because ideas become embodied in
political institutions, and help to de¢ne their nature and trajectory, re-conceptualising the meaning of free trade must at some level be part of a process of changing
the trading system.Trade scholars thus have an important role to play in uncovering alternative conceptions of the liberal trade project, stretching the edges of possibility of liberal trade, and debating what vision of trade liberalisation might
respond most appropriately to contemporary social and political conditions. This
involves challenging prevailing understandings of such concepts as ‘trade values’,
‘trade objectives’ and ‘trade issues’, rather than taking such concepts as predetermined. It is a legitimate question what particular role lawyers have in this
kind of enquiry, and what skills they may bring to it, and I will address that
question shortly. For now my point is simply that the present conversation we
are having amongst ourselves is discouraging us from challenging prevailing
conceptions of free trade, and therefore retarding, rather than facilitating, crucial
cognitive change. It implicitly directs us away from an investigation of the
multiple and competing value systems and agendas present within the trade
regime itself. We tend to pay less attention to dissenting and alternative voices
within the present regime, and we tend to study less closely those historical
periods in which the regime looked very di¡erent. As a result, alternative
68 Gathii makes a similar point in di¡erent language. He criticises what he calls the‘add-on approach’
which has come to be common in debates about the international trading system, by which he
means debates about what should and should not be added to the trade regime’s mandate. He
argues that this approach ‘proceeds from assumptions that predictably lead to perspectives of the
trading regime consistent with those assumptions’ J. T. Gathii, ‘Re-Characterizing the Social in
the Constitutionalization of the WTO: A Preliminary Analysis’ (2001) 7 Widener Law Symposium
Journal 137, esp 141.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
539
Re£ecting on‘Linkage’
conceptions of liberal trade are gradually hidden from view, and are underutilised as conceptual resources to ‘rethink’ international trade.
A third reason that the terms of the linkage debate tend to undermine its utility
as a venue for contestation over the future of the trade regime is that they tend
to create a tendency towards polarisation.69 Since the debate is largely framed as
a choice between trade liberalisation and competing values and objectives, and
since it therefore operates by placing its participants again and again in positions
of confrontation, there is a tendency for commentators to be lined up as ‘for’ or
‘against’ free trade. Maintaining a full commitment to‘free trade’ ^ narrowly conceived ^ at the same time as a full commitment to (say) the protection of the
environment comes to seem like a logical impossibility, rather than a political
reality which is in fact experienced by many. Furthermore, challenges to the present form of the trade regime come to look as if they necessarily involve a step
back from the project of trade liberalisation itself. Anything other than super¢cial
change to the trade regime comes to look as if it necessarily entails a ‘weakening’
of commitment to the goal of trade liberalisation, and a weakening of the
regime.70 Critics of the trade regime again and again ¢nd themselves forced by
the terms of the debate into arguing for exceptions or quali¢cations to the pursuit
of international trade liberalisation, rather than a rethinking of its fundamental
contours. Because the debate takes for granted a particular vision of trade liberalisation, alternative conceptions of liberal trade ^ ones in which perhaps the
notions of environmental protection or development play a central de¢ning
role ^ are rendered less thinkable, and a wide range of theoretically open argumentative positions are in practice rendered unavailable.
This polarising logic has a number of consequences. One obvious risk is that
some moderates have been, or will be, pushed towards more uncompromising
positions ^ on both sides of the debate. Indeed, some commentators point to clear
evidence of such a process occurring within various parts of the NGO community engaged in trade issues, and it may be in part the result of a similar logic to
that which is embedded in the scholarly ‘trade and’ debate.71 Another risk is that
moderates may tend to disengage, if they do not feel that their voices can be adequately articulated within the debate’s current conceptual framework. The potential for the debate to contribute towards the formation of a meaningful and
legitimate consensus would in that case be seriously undermined. Furthermore,
and most importantly, there is a risk that public critiques of the trading system ^
with which the ‘trade and’ debate started ^ become simpli¢ed and distorted.
Within the framework of the linkage debate, in which the possibility of a wide
variety of di¡erent kinds and forms of support for liberal trade is implicitly rejected,
69 Interestingly,Trentmann has shown that this kind of discursive polarisation has historically been a
central part of debate about free trade in a variety of di¡erent historical periods:Trentmann,‘Political Culture’ above n 3, 227.
70 Duno¡, above n 38, 383, notes this familiar dynamic in respect of the trade and environment
debate: ‘Many trade law specialists have strongly resisted arguments raised in much of the critical
scholarship, insisting that the environmentalists’ agenda threatens to undermine the liberal trading regime.’
71 M. Desai and Y. Said,‘Trade and Global Civil Society: The Anti-Capitalist Movement Revisited’
in M. Kaldor, H. Anheier and M. Glasius (eds), Global Civil Society 2003 (Oxford: OUP, 2003) 59.
540
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
criticisms of many di¡erent types are heard as variations on the single theme of
opposition to trade liberalisation. The concrete, real-world concerns which originally animated these claims are dissipated. Through a series of logical steps necessitated by the terms of that debate, di¡erent critiques are marshalled towards the
single conclusion that the pursuit of trade liberalisation must be quali¢ed, or subject
to more extensive exceptions, or contained within more constrictive boundaries. As
a result, criticism of the trading system comes to appear as protectionism, just as
opposition to protectionism comes to look like support for the contemporary
vision of free trade.72 All critiques of the international trading system become subject to discrediting claims: either that they are associated with disguised protectionism, or at least that they are susceptible to protectionist capture. The potential for
genuine engagement between competing voices in the debate is rendered less likely.
AUGMENTING THE ‘TRADE LINKAGE’ DEBATE: AN ALTERNATIVE
FORMS SCHOLARSHIP FROM TRADE LAWYERS
It has been a consistent theme of this article that if the current international trading system is to respond legitimately and productively to contemporary critiques,
there is a need to revisit the ‘meaning’ of the liberal trade project, to open up discussion on what that project is all about, what values it holds dear, what issues are
most important, who it speaks for and to. Is a project centred on the notion of
global market integration the best way of ‘imagining trade’ in response to contemporary conditions? Does the risk of a widespread protectionist trade war loom
as large as it did in the immediate post-war period? Or do global patterns of
inequality, or the potential unsustainability of global economic £ows, provide
more salient contemporary reference points in response to which the trade regime
should de¢ne its project? What understandings of the liberal trade project might
respond best to the current legitimacy crisis in the WTO? Should, for example,
the WTO be re-conceptualised as a ‘development institution’?73 It is true, of
course, that such discussions can be endless ^ I am not advocating such an openended discussion, rather I am suggesting that the particular socio-political circumstances in which the trade regime currently ¢nds itself call for a collective
re-imagining of the liberal trade project.
I am hardly the only commentator who believes this kind of conversation is
necessary. Cho, for example, criticises scholars of trade law for ‘their failure or
inadequate devotion to analyze the telos of the global trading system’ ^ that is,
‘what the trading system is for’ and ‘where it should be directed’ ^ in the context
of the linkage debate.74 A recurrent theme throughout Cho’s work is the need for
72 Regan has similarly noted, and called into question, the tendency to equate opposition to protectionism with a commitment to laissez-faire liberalism. D. Regan, ‘The Supreme Court and State
Protectionism: Making Sense of the Dormant Commerce Clause’ (1986) 84 Michigan L Rev
1091, 1097.
73 See G. Helleiner, ‘Markets, Politics and Globalization: Can the Global Economy be Civilized?’
10th Annual Raul Prebisch lecture, UNCTAD, 11 December 2000; D. Z. Cass,The Constitutionalization of theWorldTrade Organization: Legitimacy, Democracy, and Community in the InternationalTrading
System (Oxford: OUP, 2005), in particular the Conclusion.
74 Cho, above n 31, 627.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
541
Re£ecting on‘Linkage’
a‘new telos’75 for the trade regime, a‘communitarian paradigm shift’that elsewhere
he has called the WTO’ ‘Gemeinschaft’.76 Driesen, too, wrote an important article
in 2001 in which he attempts to ‘spark a dialogue about the problem of de¢ning
free trade’, and laments the absence of a clear and up-front search for a‘concept of
free trade that [theWTO] can credibly administer’ in contemporary conditions.77
Another example is provided by Duno¡, who, very early on in the debate,
showed how new trade critiques tend to call into question all the conventional
narratives which tell us why the trade regime exists and what its purpose is.78 His
claim is that trade lawyers must join the search for a new theoretical model of the
trade regime, a new ‘trade story’ de¢ning a new problematic for the trade regime to
address. There is, it seems, at least a signi¢cant group of trade scholars who see our
involvement in this project as both attractive and potentially productive.
It is a legitimate question what, if any, role lawyers have to play in this conversation. After all, these are sensitive politico-normative questions, which do not
seem to fall within the peculiar expertise of lawyers. One response to such a criticism is that all commentators within the current linkage debate ^ most of them
lawyers ^ already unashamedly engage in precisely the same kind of political/normative argumentation, and few question the legitimacy of their doing so. At one
level, then, the answer is simply that lawyers may have the courage of their convictions and add their voices to this debate like all others. Nevertheless, there is
more to be said than that, and the question is important enough to address on its
own terms, even if I am only able to do so brie£y.
My starting point is that lawyers are already and necessarily involved in de¢ning the contours of the liberal trade project at the international level. This is
because legal discourse is one key site in which the ‘meaning’ of liberal trade is
shaped and disseminated.Whether lawyers know it or not, and whether we like
it or not, what we say and do ^ through formal jurisprudence, through commentary and scholarship, through conferences and informal discussions ^ contributes
in numerous ways to the constitution of the liberal trade project.79 Much of what
we do implicitly communicates various conceptions of what problem the trading
system is designed to address, and what task it is attempting to perform. And it is
partly through these practices that one or more of these conceptions comes to be
75 ibid 646, arguing that ‘the global trading system has come to require a new telos capable of transcending the narrow purpose of anti-protection while at the same time connoting a much broader
ideal of ‘integration’ that ensures that [competing] values are upheld in a coherent and synergetic
. . . fashion.’
76 S. Cho,‘The WTO’s Gemeinschaft’ (2004) 56 Alabama L Rev 483, 490.
77 D. M. Driesen,‘What is Free Trade? The Real Issue Lurking Behind the Trade and Environment
Debate’ (2001) 41 VirginiaJournal of International Law 279, 363.
78 Duno¡, above n 38; J. L. Duno¡, ‘The Death of the Trade Regime’ (1999) 10 European Journal of
International Law 7. See also Cass, above n 73, 245.
79 The literature on the role of ‘epistemic communities’ in the constitution of the international trading order is of direct relevance here: see for example P. Haas,‘Introduction: Epistemic Communities and International Policy Co-ordination’ (1992) 46 International Organisation 1; P. Haas, ‘Do
Regimes Matter? Epistemic Communities and Mediterranean Pollution Control’ (1989) 43 International Organization 377; G. J. Ikenberry, ‘A World Economy Restored: Expert Consensus and
the Anglo-American Postwar Settlement’ (1992) 46 International Organization 289. International
lawyers are, to a much greater extent than before, a crucial epistemic community in the context
of the WTO.
542
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
authoritative and pervasive. Legal discourse is by no means the only site within
which such processes are at work, and it may not even be the most important one,
but given the increasing role that lawyers now play generally within the trade
regime, it is reasonable to assume that it is signi¢cant.80 More generally, we can
understand ‘law’ as one of the most important mechanisms by which a ‘political
culture’ (to return to the terminology of Part 1) is embedded and expressed in
political institutions. In relation to the trade regime, that means that the production of law is a form of mediation between the cognitive and institutional dimensions of the trading order. Trade law is an important means by which a particular
vision of the liberal trade project is encoded and embedded in the structure and
form of international trade institutions, and an important tool through which
such a vision is sustained and reproduced over time. Aside from the (admittedly
tremendously di⁄cult) task of mapping the extent to which ^ and the ways in
which ^ law performs these functions, this model opens up at least two di¡erent
paths for thinking about how trade lawyers might be productively engaged in the
kind of discussion I am talking about.
Countering law’s closure
If it is true that some aspects of trade law and legal discourse work to institutionalise and objectify a particular vision of the liberal trade project, and thereby
help to sustain and reproduce that vision over time, then opening up space to reimagine that project must at some level and to some extent involve working
against those aspects of the law. Part 2 above in fact illustrates how one particular
arena of legal discourse ^ the linkage debate ^ encourages us to think of the liberal
trade project as pre-determined, self-evident, unproblematic, well-de¢ned, and
essentially unchanging. In my view, this is characteristic of legal reasoning
and legal writing more generally. Counteracting these discursive e¡ects involves
denaturalising the liberal trade project, showing how it changes over time and
across contexts, showing its internal inconsistencies, and revealing the ways in
which it is contested and the extent to which it is indeterminate.
One way of helping to achieve this is to develop a greater historical awareness
within the discipline of trade law, by drawing to a greater degree on historical
research into the international trading order. By telling a story of the evolution
of the liberal trade project over time, contemporary understanding of that project
may come to seem less natural, and more historically contingent. By showing in
detail how the shape of trade liberalisation in di¡erent epochs has been the product of particular social forces and political struggles, lawyers may develop a
greater awareness of the contested character of presently prevailing ideas and institutional structures. Historical perspectives can help us to see the current crisis
facing the trading system as part of a much longer, ongoing struggle over
the meaning of economic liberalism, and can thereby focus attention on the
ways in which we are currently implicated in those struggles. More generally, a
greater historical awareness may destabilise and denaturalise contemporary
80 J.Weiler,‘The Rule of Lawyers and the Ethos of Diplomats-Re£ections on the Internal and External Legitimacy of WTO Dispute Settlement’ (2001) 35 Journal ofWorldTrade 191.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
543
Re£ecting on‘Linkage’
understandings of the trade project, and thereby open up imaginative space for
the conceptualisation of alternatives.
One prominent example in recent years has been the way Ruggie’s narrative of
embedded liberalism has been introduced to, and has begun to take root in, legal
trade scholarship.81 This narrative, as set out earlier, tells the story of the original
purpose of the GATTas negotiating a delicate compromise between the competing demands of international and domestic stability. It was, according to Ruggie,
characterised by a spirit of economic liberalism, but of a distinct kind, which he
labelled ‘embedded liberalism’. The story continues to play an important transformative role in legal trade scholarship.82 Through it, the association between economic neo-liberalism and the post-war trade regime (such as it is) is shown to be a
relatively recent phenomenon. Furthermore, the re-orientation of the trade
regime during the 1980s and 1990s is shown to involve not just an extension of
the liberal trade project, but also its radical re-interpretation.While there are some
who use Ruggie’s story to advocate a return to embedded liberalism, there is evidence that it is producing a more general e¡ect of opening up space for the debate
of alternative forms of trade liberalisation.83 There is in my view great scope for
further historicisation of this kind, drawing on di¡erent authors’ accounts of the
history of the GATT, as well as on more remote periods in the history of free
trade. The work of economic historians on the development of free trade represents an abundant resource for this form of scholarship.84 Research in the
tradition of the history of ideas may also prove useful. In an insightful 1996 article,
Kenneth Abbott describes how the historical evolution of the trade regime (and
other international economic institutions) can in part be told as a story of the evolution of the meaning of the term ‘economic’. He shows how prevailing ideas as to
which issues are ‘economic’ issues, and thus more likely to form part of a trade
agenda, have been in£uenced by the development of such notions as ‘fair trade’,‘sustainable development’, as well as feminist critiques of the public/private distinction.85
In addition to more historical work, there is also room for more ‘critical’ scholarship within trade law. In the present context, I am referring to scholarship
which explicitly seeks to destabilise, and to reveal the indeterminacies and inconsistencies within, our notions of ‘trade values’,‘trade issues’ and ‘trade objectives’.
The point of this endeavour is not to demonstrate that our understandings of such
concepts are false in any simple way. Rather, it is to counteract the tendency to
assume that they are solely expressive of a self-evident truth about the social
world, or ‘determined by the nature of things’.86 Critical work can help lawyers
to view such oppositions as in part contingent analytical categorisations, the
utility of which is both contestable and (in principle at least) constantly open to
81 See generally, A. Lang, ‘Reconstructing Embedded Liberalism: John Gerard Ruggie and Constructivist Approaches to the Study of the International Trade Regime’ (2006) 9 Journal of International Economic Law 81.
82 For an account of this role, see ibid.
83 ibid.
84 See above n 3.
85 K.W. Abbott,‘‘Economic’ Issues and Political Participation:The Evolving Boundaries of International Federalism’ (1996) 18 Cardozo L Rev 971, 977.
86 Trachtman, above n 24, 77.
544
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
revision as circumstances change.The ultimate point is therefore similar to that of
historicisation: to clear imaginative space for the rethinking of core trade concepts, and to emphasise that what we currently think of as ‘trade issues’ and ‘trade
values’ are not predetermined but are in part a matter of choice.
There are a number of commentators who have already engaged in critique of
this kind. Gathii argues, for example, that in the context of the linkage debate,
‘approaches to resolving the question of the place of social issues in the international trading regime are based on whether to add social issues to the trading
regime’. In this way, such approaches ‘proceed from assumptions’ about what is a
trade or a social issue. He o¡ers an alternative view:‘that social issues are intricately
interwoven within the praxis, history, and rules of the international trading
regime as embodied in the GATT/WTO framework’. Using the examples of the
WTO’s treatment of trade remedies, as well as a case study of the steel and automobile industries in the US, he shows that ‘there is a simultaneous and dialectical
co-existence of both free trade and social concerns’ within the international trading system.87 Other commentators have made a similar point ^ that ‘non-trade’ is
always and necessarily part of ‘trade’ ^ in other ways. In the context of the trade
and labour debate, Kennedy and Duno¡ have both made clear, trade policy is
labour policy, if only because of the truism that decisions in the trade regime a¡ect
labour outcomes.Thus, the particular ‘arrangement of rules, prohibitions, permissions, enforcements, and so forth’ in the trade regime (as well as more generally in
international governance structures) constitutes a de facto international labour policy of sorts.88 From this point of view, the claim that labour issues are not trade
issues, and therefore fall outside the scope of the trade regime takes on a di¡erent
appearance. It comes to look less like an objective claim, and more like a choice to
address labour issues only in particular ways and not others. Garcia, furthermore,
argues that ‘non-trade’ values must always in some way be present in the trading
system, because all trade policy is necessarily embedded (even if implicitly)
within a vision of how trade liberalisation ¢ts with, contributes to, broader
social goals. He notes that ‘trade policy cannot be considered as independent of
concerns raised by the various trade linkage debates’. Rather, he suggests, linkage
questions ‘raise questions that are inescapable within trade policy, for . . . trade policy exists and operates within the larger inquiry as to justice’. To put the same
thing another way: ‘linkage debates are not merely disputes over the accommodation by trade policy of exogamous priorities’; they ‘come from within and not
without.’89
These theoretical arguments concerning the place of non-trade within trade
are supported by the observations of those who point, as an empirical matter, to
those elements of the trade regime which apparently provide a place for ‘nontrade’ issues, objectives and values. Sometimes, this will be textually explicit. The
Preamble to the Marrakesh Agreement, with its references to‘sustainable development’,‘full employment’, and the protection and preservation of the environment,
87 Gathii, above n 68, 141.
88 Duno¡, above n 52, 155; D. Kennedy,‘The Politics of the Invisible College: International Governance and the Politics of Expertise’ (2001) European Human Rights L Rev 463, 468.
89 Garcia, above n 42, 425.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
545
Re£ecting on‘Linkage’
is an obvious example.90 Equally commonly cited are the balancing mechanisms
contained of GATT Article XX and its equivalents in other agreements, which
explicitly refer to ‘non-trade’ objectives such as the protection of health, the conservation of natural resources, and so on.91 Others have noted that trade
agreements have historically very often dealt with ‘non-trade’ issues. Charnovitz,
for example, notes that ‘[c]ommentators considering ‘trade and’ issues have sometimes presumed a backdrop of a ‘pure’ trade regime traditionally impervious to
penetration by non-trade issues’. In fact, he shows that since their inception, trade
treaties have typically addressed an ‘amalgam of di¡erent issues’, including the
slave trade, religious freedom, travel and emigration, and the environment,
among others.92 The ‘use of trade agreements as a vehicle to agree upon non-trade
issues’, in short, ‘is an old phenomenon’.93 The same is true of the GATT/WTO
regime itself, which has never been‘single-minded about trade’.94 As a number of
commentators have noted, it ‘contains provisions relating to economic development’,95 it has addressed ‘balance-of-payments disequilibria and competition’.96
The original International Trade Organisation, out of which the GATTwas born,
addressed matters as broad as attaining full employment, attaining fair labour
standards, as well as ‘technology transfer, foreign investment, [and] double taxation’.97 Knox, for his part, observes that the trade regime ‘has multiple objects and
purposes that point in di¡erent directions’.98
More often, however, understanding the presence of non-trade within trade
will require more than simply looking at relevant legal texts. Howse has, with
characteristic clarity and insight, shown the role that ‘non-trade’ values played in
constituting the trade project during the era of embedded liberalism. The
post-war trading order, Howse argues,‘addressed itself in its very conception and
structure to ‘‘trade and . . . ’’’. Those who designed that order proceeded on the
assumption or expectation that one ‘should be able to protect domestic social and
political stability’, and this assumption gave shape to the trading regime in
numerous ways. Most importantly, in addition to constraining protectionist
trade responses to economic pressures, the BrettonWoods framework‘enabled other,
nontrade responses’ to such pressures ^ such as managed macroeconomic
adjustment.99 In this deeper sense, therefore, the post-war trade regime was about
‘trade’ and ‘non-trade’ both because it proceeded from assumptions about how the
two should interrelate, and because it saw its task as, in fundamental part, structuring the relationship between‘trade and non-trade alternative measures’.100
90
91
92
93
94
95
96
97
98
99
100
546
Marrakesh Agreement establishing theWorldTrade Organization, 1994, Preamble.
Among many examples, see Nichols, above n 27, 712; Knox, above n 31.
Charnovitz, above n 47, 330.
ibid 333.
ibid 344.
ibid.
F. Roessler,‘Domestic Policy Objectives and the Multilateral Trade Order: Lessons from the Past’
(1998) 19 University of Pennsylvania Journal of International Economic Law 513, 513. See also Garcia,
above n 42, n 1 and accompanying text.
Roessler, ibid 513.
Knox, above n 31, 62.
R. Howse, ‘From Politics to Technocracy-and Back Again: The Fate of the Multilateral Trading
Regime’ (2002) 96 AmericanJournal of International Law 94, 95.
ibid.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
Law as imaginative resource
The second path is di¡erent, and may initially seem contradictory. Law does not
just entrench and objectify particular meanings of the liberal trade project, it also
can be used in precisely the opposite way, as an imaginative resource to actually
facilitate the renewing and re-imagining of that project. Precisely because international trade law represents a tool through which particular collective meanings
are written into the structure and form of international trade institutions, past
epochs of an institution’s history, such as that of the WTO, are embodied and
expressed in its law. This raises the possibility that lawyers might use the law as a
set of imaginative resources to be discovered and deployed in contemporary
debates about the future of liberal trade.To the extent that we understand the legal
discourse of the trading system in this way as a repository of meanings or knowledge, one research task is to excavate from legal texts and commentaries the
‘meanings’ of trade liberalisation which are contained in them, and to analyse
how they are encoded, contested and reproduced in the law. These meanings,
once recovered, become ideational resources to be utilised in the process of reconceptualisation ^ not only by lawyers, but also by scholars from other disciplines. In this way, lawyers may make a contribution to the processes by which
new meanings of trade are manufactured, and old meanings are reshaped and
reinvigorated. This is a role in which we are actively involved in a mode of
research which focuses on exploring and expanding the range of available meanings of liberal trade, and which concentrates on discovering and developing new
and competing narratives about what the liberal trade project is about, and what
the trade regime is there to accomplish.101 Such exploration would not, of course,
be for its own sake, but in order to provisionally evaluate at critical moments the
meaning which is most appropriate to contemporary conditions.
An excellent example of this form of scholarship is provided by Driesen, in the
article referred to earlier.102 Driesen identi¢es three di¡erent meanings of the
concept of ‘free trade’ in the texts and jurisprudence of the GATT/WTO. Each
of these meanings, he argues, derives from a di¡erent understanding of precisely
what it is that ‘free trade’ is to be free from. Free trade may ¢rstly be understood as
‘trade free from discrimination’. He identi¢es this concept of ‘non-discriminatory
trade’ as underpinning, for example, GATTArticle III. Secondly, free trade may be
understood also as trade free from economic burden: ‘trade free of national regulation . . . unencumbered by national laws that might increase prices’. Driesen
refers to this as the ‘laissez-faire concept’ of free trade. Finally, free trade may be
understood as ‘trade free from international coercion’, or, in other words, trade
101 What I have in mind here is an explicit focus on something very similar to what Ruggie (and
constructivists generally) like to refer to as the element of ‘collective intentionality’ or the notion
of an ‘intersubjective framework of meaning’ which is constitutive of the trade regime itself: see,
generally, J. G. Ruggie,‘Introduction:What Makes theWorld HangTogether? Neo-utilitarianism
and the Social Constructivist Challenge’ in J. G. Ruggie (ed), Constructing theWorld Polity: Essays on
International Institutionalization (London: Routledge, 1998), 1. In this article, I have chosen not to
employ the language and categories of constructivist thought, though it will be clear that my
approach has much in common with some elements of that diverse body of literature.
102 Driesen, above n 77, 300.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
547
Re£ecting on‘Linkage’
free from sanctions designed to coerce other countries into adopting particular
policies or positions. He sees this concept of free trade as, for example, expressed
within the Appellate Body’s legal reasoning in the Shrimp/Turtle decisions. Driesen
makes the point that these three di¡erent visions of free trade co-exist within the
present trade regime, though each logically leads in di¡erent directions. And he notes
that there is no self-evident answer to the question of which concept is the right one
for the trade regime to use to de¢ne its mission. He further suggests that the problem
of de¢ning trade, and the ‘failure to choose a clear, limited, coherent concept of free
trade from among the available alternatives’, lies at the heart of many of the issues
raised by the linkage debate.103 Driesen then evaluates these three di¡erent conceptions, and advocates the adoption of what he calls the ‘anti-discrimination model’ of
free trade, primarily on the basis that he believes that it suits theWTO’s core competence, and substantially addresses contemporary challenges to its legitimacy.104
Lawyers and institutional design
There is a ¢nal potential line of enquiry.Trade lawyers have a recognised expertise
in institutional design, and may in that role help to facilitate critical discussion on
the future direction of the liberal trade project. Speci¢cally, trade lawyers can help
to design institutional and legal forms appropriate to the task of facilitating critical debate and political consensus-building. For at least a decade, those trade lawyers interested in issues of institutional design have focused largely on improving
the WTO’s mechanisms of rule negotiation, enforcement and implementation.
While the present WTO’s institutional forms are therefore comparatively well
adapted to those functions, they may be less well adapted to alternative tasks.
Abbott and Snidal, for example, have argued that at present theWTO is relatively
poorly equipped, in terms of institutional design, to address the complex problems thrown up by globalisation.105 The institution’s emphasis on ‘hard’ legal
forms, the quid pro quo nature of negotiations, the absence of any obvious space
for normative forms of argument and normative leadership, and a highly technical approach to decision-making, they suggest, all hamper the ability of theWTO
to facilitate meaningful debate and generate widespread consensus. As I have
argued, however, it is precisely these kinds of process-based responses which are
more appropriate for the complex issues currently faced by the trade regime,
which fall outside its traditional scope of activities. Without such responses, no
reconstitution of liberal trade is likely, nor is any consensual rede¢nition of the
problem of the trading system. These two authors thus propose the development
of ‘soft law’ legislative mechanisms in the WTO, to accompany its current
focus on enforceable legal norms. For similar reasons, others have argued more
generally for the need to design into international institutions like the WTO
speci¢c characteristics which lend them an ability to adapt, as well as a capacity
to learn, to respond to changing conditions by rede¢ning their purpose and
103 ibid 284.
104 See ibid 363.
105 K. Abbott and D. Snidal,‘International Action on Bribery and Corruption: Why the Dog Didn’t
Bark in the WTO’ in D. Kennedy and J. Southwick (eds),The Political Economy of InternationalTrade
Law: Essays in Honor of Robert E. Hudec (Cambridge: CUP, 2002) 177.
548
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
Andrew Lang
role.106 These are precisely the kinds of questions with which trade lawyers can
productively and meaningfully engage.
CONCLUSION
In her recent monograph, The Constitutionalization of the World Trade Organization,
Deborah Cass helpfully catalogues a number of branches of scholarship from
which sustained criticism of the trading system has arisen over the last decade
or more. Outside the law, she identi¢es ‘social activist, anti-capitalist or antiglobalisation’ scholarship, and its numerous variations and strands. Within
international legal scholarship, she draws attention to ‘a small branch of legal,
post-colonial and Third World scholarship’, located at ‘the intersection with other
disciplines such as economics, anthropology and international relations’.107 International trade lawyers have worked hard to absorb and respond to the powerful
critiques which these and other voices have articulated. As Cass notes, one of the
most visible and most important products of this e¡ort has been the emergence of
the ‘trade and’, or ‘linkage’, literature since around the middle of the 1990s.
This paper represents a re£ection on a decade of ‘trade and’ literature. It is a literature which, without doubt, has produced some important and insightful pieces
of scholarship. I have argued, however, that it is built on a conceptual foundation
which is ultimately counter-productive. At the level of ideas, the debate legitimates
and naturalises precisely those concepts which it ought to be contesting. And since
cognitive change is a sine qua non of transformational change at the institutional and
political levels, the debate ends up helping to sustain and reproduce precisely the
trading order that it seeks to contest. The critical impulse with which the debate
starts becomes dissipated and largely lost, and international trade law as a discipline
fails adequately to engage with, and respond to the substance of, anti-globalisation
critiques of the trading system. I suggest the need for an alternative form of scholarly practice, which both negates the exclusionary discursive e¡ects of the ‘trade
and’ debate and, more positively, facilitates the engagement of international lawyers in the project of re-imagining liberal trade. At the same time, there are some
aspects of my argument which may speak more broadly. The discursive structure
of the ‘trade and’ debate is not unique, but re£ects in part some features of the
broader public critique of the international trading order. It may be, therefore, that
this call to re-think international trade ^ merely the latest in a series of such calls in
recent years from a number of commentators108 ^ may have equal resonance
outside the realm of international trade lawyers.
106 A. Chayes and A. H. Chayes,The New Sovereignty: Compliance with International RegulatoryAgreements
(Cambridge, Mass.: Harvard UP, 1995); E. B. Haas and P. M. Haas, ‘Learning to Learn: Some
Thoughts on Improving International Governance of the Global Problematique’ in Issues in Global
Governance: Paper Written for the Commission on Global Governance (Deventer: Kluwer, 1995);
K. Abbott and D. Snidal,‘Hard and Soft Law in International Governance’ (2000) 54 International
Organization 421; B. Hoekman, ‘Operationalizing the Concept of Policy Space in the WTO:
Beyond Special and Di¡erential Treatment’ (2005) 8 Journal of International Economic Law 405.
107 Cass, above n 73, 79.
108 See Duno¡, above n 38; Driesen, above n 77; Cho, above n 76; Cass, above n 73.
r 2007 The Author. Journal Compilation r 2007 The Modern Law Review Limited.
(2007) 70(4) MLR 523^549
549