The World Trade Organization as a Catalyst for Internal Divergences in Developing Countries

'The World Trade Organization as a catalyst of internal divergences in Developing Countries' (2009) 4 Global Trade and Customs Journal pp. 281-291

11 Pages Posted: 5 Apr 2012 Last revised: 28 Jan 2015

Marcelo Dias Varella

University Center of Brasilia; University of California, Berkeley - School of Law

Roberto Freitas Filho

Centro Universitário de Brasília (UniCEUB)

Date Written: April 5, 2009

Abstract

State’s international responsibility is linked to the actual result of public policies and discounts eventual divergences among internal divisions of the State. Due to the growing importance of certain international organisations with coercive power, such as the World Trade Organisation, eventual fractures in the coherence of national law can be exposed and are catalysts to such an extent that exceptions to a rule become the rule itself. International law exercises influence over the evolution of internal law and public policies: it can on the one hand have a paralysing effect on the evolution of public policies which are eventually contrary to it, or on the other hand, shape the policies which are in line with its general rules.

This idea can be illustrated by World Trade Organisation (WTO) law which favours the opening up of trade, but allows exceptions in defence of some values common to its members, whether they are States or systems of integration. The States may only benefit from these exceptions in a manner coherent with the objectives sought. It is of little or no importance whether the lack of coherence is due or not to a policy determined by the State. The result of the lack of coherence in the stance taken (or the very absence of this) by the Legislative, Executive or Judiciary, or even institutional incapacity to swiftly agree upon a single treatment of the issue should be taken into account. Any loss of coherence could result in the declaration of non-conformity with the measure and of its illegality in the eyes of International Law. In this case the general rule of free trade is once again imposed.

In this article this premiss will be analysed by studying the case referring to the restriction on the importation of retreaded tyres, which had as its objective the protection of public health and the environment. It will seek to show the action taken by the Brazilian Executive to protect internationally consolidated values, as well as the reaction to this among the private, public, national and international sectors as a way of guaranteeing economic gain. They made use of the options open to them within the Brazilian Legal system and the World Trade Organisation’s Dispute Settlement Body in order to transform precise decisions made by the Judiciary into decisions with an erga omnes effect.

We will begin by exposing the sanitary problem and the action taken by those involved to regulate the problem or maximise profits. We will then deal with how the World Trade Organisation confronts, in legal terms, a public health problem, which like other problems is characterised by issues of political and economic order.

The Judiciary’s actions and the consequences of these will be analysed at the end in view of the theoretical development of the non-decision making process.

Keywords: WTO, Implementation, Tires, Developing Countries, Brazil

JEL Classification: K33

Suggested Citation

Varella, Marcelo Dias and Filho, Roberto Freitas, The World Trade Organization as a Catalyst for Internal Divergences in Developing Countries (April 5, 2009). 'The World Trade Organization as a catalyst of internal divergences in Developing Countries' (2009) 4 Global Trade and Customs Journal pp. 281-291 . Available at SSRN: https://ssrn.com/abstract=2035102

Marcelo Dias Varella (Contact Author)

University Center of Brasilia ( email )

Programa de Mestrado e Doutorado em Direito
SEPN 707/907, Bloco III, Terreo, Asa Norte
Brasilia, DF 71607-050
Brazil

HOME PAGE: http://www.marcelodvarella.org

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

Roberto Freitas Filho

Centro Universitário de Brasília (UniCEUB) ( email )

SEPN 707/909 - Campus UniCEUB
Asa Norte
Brasilia, DF 70790-075
Brazil

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