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The Horizontal Mechanism Initiative in the WTO: The Proceduralist Turn and Its Discontents

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European Yearbook of International Economic Law 2015

Part of the book series: European Yearbook of International Economic Law ((EUROYEAR,volume 6))

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Abstract

This article addresses a series of questions relating to the development of the so-called ‘horizontal mechanism’ (HM) initiative within the World Trade Organization. Through close readings of the various accompanying texts and scholarly writings, it proposes a robust critical-theoretic engagement with the topic going beyond what has so far been attempted in the literature. The article proposes a detailed structuralist analysis of the internal and external structures of the HM discourse. It then proceeds to interpret the emergence of the HM initiative and the development of the accompanying conventional wisdoms in the light of the broader legal-historical dynamics characteristic of the presentday public international law enterprise. Drawing on David Kennedy’s seminal “International Legal Structures”, it concludes by analysing the HM episode as part of what can be called the ‘inevitable’ proceduralist turn in contemporary international law.

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Notes

  1. 1.

    For background, see Donnan and Wagstyl (2014).

  2. 2.

    On the concept of international law as a “project” or “enterprise”, see further Koskenniemi (2007), p. 1; Kennedy (1994), p. 329.

  3. 3.

    In making this choice, I was influenced by the methodological discussion in Ginzburg (2012), pp. 193–213.

  4. 4.

    Fraser (2012), p. 1033.

  5. 5.

    Further on the subject of interpretation being a fundamentally decisionistic process, see, e.g., Eco (1979).

  6. 6.

    Staiger (2012), p. 2.

  7. 7.

    See Terhechte (2013), para. 1.

  8. 8.

    For a standard rehearsal of this argument, see Ray (1987), p. 285 (302–308).

  9. 9.

    See OECD (2005), p. 12.

  10. 10.

    Thus, the authors of a 2005 OECD study on the subject observe: “Today, exporters around the world are preoccupied less by traditional border measures, such as import or export licensing, quotas and prohibitions than by difficulties arising from product standards, conformity assessments and other behind-the-border policies in importing countries.” OECD (2005), p. 12.

  11. 11.

    OECD (2005), p. 13.

  12. 12.

    Terhechte (2013), para. 19.

  13. 13.

    See WTO, Negotiating Group on Market Access, Market Access for Non-Agricultural Products, Resolution of NTBs through a Facilitative Mechanism, Submission by NAMA 11 Group Of Developing Countries, TN/MA/W/68/Add.1 (5 May 2006); see also WTO, Negotiating Group on Market Access, Market Access for Non-Agricultural Products, Negotiating Proposal on WTO Means to Reduce the Risk of Future NTBs and to Facilitate their Resolution, Communication from the European Communities, TN/MA/W/11/Add.8 (1 May 2006).

  14. 14.

    See WTO, Negotiating Group on Market Access, Market Access for Non-Agricultural Products, Ministerial Decision on Procedures for the Facilitation of Solutions to Non-Tariff Barriers, Communication from the African Group, Canada, European Union, LDC Group, NAMA-11, Group of Developing Countries, New Zealand, Norway, Pakistan and Switzerland, TN/MA/W/106/Rev.1 (3 February 2010).

  15. 15.

    Fraser (2012), p. 1033 (1040).

  16. 16.

    Terhechte (2013), para. 18.

  17. 17.

    See WTO, Negotiating Group on Market Access, Market Access for Non-Agricultural Products, Ministerial Decision on Procedures for the Facilitation of Solutions to Non-Tariff Barriers, Communication from the African Group, Canada, European Union, LDC Group, NAMA-11, Group of Developing Countries, New Zealand, Norway, Pakistan and Switzerland, TN/MA/W/106/Rev.1 (3 February 2010).

  18. 18.

    Merrills (2011), pp. 29–34.

  19. 19.

    Fraser even goes so far as to propose an additional provision to the HM procedure enjoining the facilitator from using any kind of writing style that may be interpreted as “presenting a legal evaluation of the parties’ case”, Fraser (2012), p. 1033 (1051).

  20. 20.

    Merrills (2011), pp. 65–81.

  21. 21.

    For a quick introduction to Saussurean semiotics, see Chandler (2007). In a nutshell, Saussurean semiotics (there exist also other varieties) is distinguished by its presumption that the production of meaning cannot be understood in terms of some essential or intrinsic facts (content), which the words (signs) we use to describe these facts (content) are meant to represent. The reason for this is that “signs refer primarily to each other”: “no sign makes sense on its own, but only in relation to other signs.” “This notion can be hard to understand since we may feel than an individual word such as ‘tree’ does have some meaning for us, but Saussure’s argument is that its meaning depends on its relation to other words within the system (such as ‘bush’)”, ibid., p. 19; “Saussure’s relational conception of meaning was specifically differential: he emphasized the differences between signs. Language for him was a system of functional differences and oppositions. […] Saussure emphasized in particular negative, oppositional differences between signs. He argued that ‘concepts […] are defined not positively, in terms of their content, but negatively by contrast with other items in the same system. What characterizes each most exactly is being whatever the others are not.’ This notion may initially seem mystifying if not perverse, but the concept of negative differentiation becomes clearer if we consider how we might teach someone who did not share our language what we mean by the term ‘red’. We would be unlikely to make our point by simply showing that person a range of different objects which all happened to be red – we would probably do better to single out a red object from a set of objects which were identical in all respects except colour”, ibid., p. 21.

  22. 22.

    Fraser (2012), p. 1033 (1042).

  23. 23.

    See WTO, Negotiating Group on Market Access, Market Access for Non-Agricultural Products, Answers by the co-sponsors to Questions raised during Chair’s NTB session of 19.03.2009 regarding the proposed “Ministerial Decision on procedures for the facilitation of solutions to non-tariff barriers”’, TN/MA/W/110 (16 April 2009).

  24. 24.

    WTO, Negotiating Group on Market Access, Market Access for Non-Agricultural Products, Answers by the co-sponsors to Questions raised during Chair’s NTB session of 19.03.2009 regarding the proposed “Ministerial Decision on procedures for the facilitation of solutions to non-tariff barriers”’, TN/MA/W/110 (16 April 2009), para. VII.1.

  25. 25.

    See, in particular, WTO, Negotiating Group on Market Access, Market Access for Non-Agricultural Products, Answers by the co-sponsors to Questions raised during Chair’s NTB session of 19.03.2009 regarding the proposed “Ministerial Decision on procedures for the facilitation of solutions to non-tariff barriers”, TN/MA/W/110 (16 April 2009), paras. I.1 and VII.3.

  26. 26.

    Fraser (2012), p. 1033 (1036).

  27. 27.

    Terhechte (2013), para. 34.

  28. 28.

    Fraser (2012), p. 1033 (1040).

  29. 29.

    Fraser (2012), p. 1033 (1040).

  30. 30.

    See Franck (1970), p. 809; Henkin (1971), p. 544.

  31. 31.

    Franck (1970), p. 809 (810–811): “In the twenty-five years since the San Francisco Conference, there have been some one hundred separate outbreaks of hostility between states. The fact that on only one of these occasions has the United Nations been able to mount a collective enforcement action – and that more by a fluke than by dint of organisational responsiveness – indicates why, for security, nations have increasingly fallen back on their own resources and on military and regional alliances. [T]he failure of UN enforcement machinery has not been occasional but endemic, and so, concomitantly, has the resort to ‘self-defense’. [S]ince there is usually no way for the international system to establish conclusively which state is the aggressor and which the aggrieved, wars continue to occur, as they have since time immemorial, between parties both of which are using force allegedly in ‘self-defense’.”

  32. 32.

    Henkin (1971), p. 544: “The purpose of Article 2(4) was to establish a norm of national behavior and to help deter violation of it. Despite common misimpressions, Article 2(4) has indeed been a norm of behavior and has deterred violations. In inter-state as in individual penology, deterrence often cannot be measured or even proved, but students of politics agree that traditional war between nations has become less frequent and less likely. The sense that war is not done has taken hold, and nations more readily find that their interests do not in fact require the use of force at all. Expectations of international violence no longer underlie every political calculation of every nation, and war plans lie buried in national files. Even where force is used, the fact that it is unlawful cannot be left out of account and limits the scope, the weapons, the duration, the purposes for which force is used. Of the ‘some one hundred separate outbreaks of hostilities’ to which Dr. Franck refers, less than fingers-full became ‘war’ or successful conquest, and hundreds of other instances of conflict of interest and tensions have not produced even an international shot: cold war has remained cold, threats to the peace have remained threats, issues have remained only issues.’ See also ibid., p. 547: “[T]he temptation to military intervention in internal affairs is largely the affliction of the few big Powers and even for them military intervention to promote or maintain internal wars is not always and everywhere possible.”

  33. 33.

    See WTO, Negotiating Group on Market Access, Market Access for Non-Agricultural Products, Resolution of NTBs through a Facilitative Mechanism, Submission by NAMA 11 Group Of Developing Countries, TN/MA/W/68/Add.1 (5 May 2006), para. 5.

  34. 34.

    See Fraser (2012), p. 1033 (1041).

  35. 35.

    For an overview of the bleak history of unscrupulous use of domestic analogism in international law, see Carty (1986); see, in particular, ibid., pp. 67–80 and 87–92; see also for a related comment Rasulov (2014), p. 74.

  36. 36.

    See WTO, Negotiating Group on Market Access, Market Access for Non-Agricultural Products, Resolution of NTBs through a Facilitative Mechanism, Submission by NAMA 11 Group Of Developing Countries, TN/MA/W/68/Add.1 (5 May 2006), para. 4.

  37. 37.

    See WTO, Negotiating Group on Market Access, Market Access for Non-Agricultural Products, Answers by the co-sponsors to Questions raised during Chair’s NTB session of 19.03.2009 regarding the proposed “Ministerial Decision on procedures for the facilitation of solutions to non-tariff barriers”, TN/MA/W/110 (16 April 2009), para. II.2.

  38. 38.

    Fraser (2012), p. 1033 (1036).

  39. 39.

    See, e.g., Moravcsik (1997), p. 513; Slaughter (2004).

  40. 40.

    See, e.g., Koh (1998), p. 623.

  41. 41.

    A good place to start reconstructing such a critique would be Mouffe (2000). For a slightly different starting point, see Kelman (1983), p. 274. Otherwise, see Koskenniemi (2007), p. 1 (on the new managerial ethos in international studies). See also Kennedy (1999), p. 9, and Kennedy (2001), p. 463 (on the politics of not-seeing-politics and dark sides more generally).

  42. 42.

    See Kennedy (1987).

  43. 43.

    See, e.g., Kennedy (1980), p. 353.

  44. 44.

    See Kennedy (1987), p. 289.

  45. 45.

    Kennedy (1987), p. 289.

  46. 46.

    Kennedy (1987), p. 289.

  47. 47.

    Kennedy (1987), p. 195.

  48. 48.

    Kennedy (1987), p. 188.

  49. 49.

    Kennedy (1987), p. 290.

  50. 50.

    See Kennedy (2006), p. 95 (140).

  51. 51.

    See Kennedy (1987), p. 198.

  52. 52.

    See Koskenniemi (2006).

  53. 53.

    Kennedy (1987), p. 196.

  54. 54.

    Kennedy (1987), p. 293.

  55. 55.

    Kennedy (1987), p. 291: “[T]o a surprising extent, the rhetorical patterns characteristic of each discourse – indeed, which seem[] to characterize that discourse – seem[] to repeat themes and references familiar from other areas. This [is] most apparent in the return of the law of force to doctrines about sources. Although these two fields seem[] very distinct – sources a very doctrinal, logical field, the law of force a very substantively engaged field – both seem[] to be concerned with invoking and the muffling the sovereign authority behind its most basic principles.”

  56. 56.

    For the same argument, see also generally Koskenniemi (2006).

  57. 57.

    Kennedy (1987), p. 291.

  58. 58.

    See Lang (2011).

  59. 59.

    See in particular the discussion in Lang (2011), pp. 313–353.

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Rasulov, A. (2015). The Horizontal Mechanism Initiative in the WTO: The Proceduralist Turn and Its Discontents. In: Herrmann, C., Krajewski, M., Terhechte, J. (eds) European Yearbook of International Economic Law 2015. European Yearbook of International Economic Law, vol 6. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-46748-0_4

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