Building a Just Trade Order for a New Millennium

The development of international trade law and policy continues to be hampered by inadequate consideration of the serious normative issues embedded in trade, as in any complex human social activity. The many "trade and " problems1 currently at the forefront of trade policy reveal these underlying normative aspects, which are not adequately addressed by current, primarily economic, analyses of international trade law.2 To successfully develop a truly global international economic law for the twentyfirst century-capable of bridging broad disparities in culture, development and politics-such issues must be addressed.3 The collapse of the World Trade Organization (WTO) Ministerial Meeting in Seattle, Washington in December 1999 is a cautionary tale of what the trade law and policy process might otherwise look like in the next millennium.4 The normative evaluation of social institutions has classically involved recourse to theories of justice. The normative evaluation of international trade law should be no different. If international trade law is to serve as an effective vehicle for the development of a truly global social and economic policy, as it seems destined to do, there must be a clearly articulated normative framework for the analysis of international trade law as a matter of justice. Within such a framework, basic doctrines and policies of international trade law can be evaluated in terms of their effectiveness in discharging obligations of justice. Without such a framework, implicit normative claims remain inchoate and explicit normative challenges remain unanswered, leading to continued institutional and doctrinal conflict and confusion. These are good reasons why it may be useful to consider the claims that justice might make on the construction of international trade law, but is there an obligation to? Yes. As a matter of moral obligation, liberal states must fulfill the same duties to their trading partners through international trade law, which under liberal theories of justice they must fulfill in their domestic relations.5 First, this requires a commitment to free trade as a fundamental element of just economic relations. This is not new news - a commitment to free trade has been the centerpiece of the international trading system for at least the past fifty years. A dramatic new step would be for this commitment to free trade to be understood as a moral obligation, not simply a matter of trade economics or pragmatism. Understanding trade as a matter of justice, however, has other implications for trade law, particularly with respect to contentious emerging linkage areas such as trade and development and trade and human rights, which are less readily accommodated in orthodox trade discourse. Before turning to the substance of this argument, a clarification is in order. To say that "State X has a moral obligation to do justice" does not assert this obligation on the basis of equating a state to a moral persons Rather, the obligation to do justice applies to the government of State X as the agent of its citizens, stemming from the moral obligations of its citizens, the nature of justice, and the functions and powers of the state.7 In other words, the citizens of State X have an obligation as human persons to ensure that the policies of the government of State X, their agent in international relations, are just vis A vis other human beings in State Y. Otherwise, the citizens of state X violate their own duty to the citizens of State Y.8 I. TRADE IS A MATTER OF JUSTICE A. The Concept of Justice Embraces the Subjects of International Trade Law 1. Justice as Right Order To argue that international trade law should be framed and evaluated in terms of theories of justice, one must first present a working definition of justice. Justice is a subject of study for many disciplines, including law, philosophy, and various social sciences.9 Despite their various unique emphases, it can be said that these disciplines share a common understanding of justice as the justification of social outcomes by principles accepted by the community; and a common recognition that such a definition of justice is fundamental to any kind of human social association. …