Law and Politics of Rights: Who Decides the Conditions for Trade Preferences?: Institutional Choice in the General System of Preferences Case
Journal of World Trade, Vol. 39, No. 5, pp. 977-1008, December 2005
34 Pages Posted: 5 Jan 2006
The WTO case EC-Conditions for the Granting of Tariff Preferences to Developing Countries involved a challenge by India of special tariff preferences granted by the European Community (EC) to twelve developing countries in order to combat drug production and trafficking (the Drug Arrangements), resulting in decisions of a judicial panel and the Appellate Body of the World Trade Organization (WTO). After providing background to the dispute and examining key ambiguities in the legal texts, we focus on three aspects of the interpretive context that are of broader concern and which have not previously been developed: first, the normative framing and how that frame may elide the larger historical and political contexts of colonialism and asymmetric power in international economic relations (sections II and III); second, the institutional choices faced by the WTO judicial decision-makers when deciding over conditions for preferences, and the implications of these choices for participation in political, judicial and market decision-making (sections IV and V); and third, the potential shaping of judicial interpretation in response to commentary from an interpretive legal community that comes predominately from North America and Europe (section VI). However hyper-technical and brilliantly legalistic our reasoning may be, our interpretation of the ambiguities of the relevant legal texts will inevitably be affected by our backgrounds and normative approaches. Our backgrounds and normative inclinations affect the framing and understanding of a case in which a WTO judicial body exercises significant power.
Keywords: international law, international trade, institutional choice, trade preferences
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