Chapter 6: The WTO ruling on the United States’ flavoured cigarettes ban
The ‘legalisation’ of international affairs has attracted significant scholarly attention over the last several decades. According to this research, international regimes are more ‘legalised’ when states delegate to third parties the ability to determine compliance. By this dimension, the World Trade Organization’s (WTO) Dispute Settlement Body (DSB) – where states whose measures are challenged cannot veto the outcome of third-party adjudication – represents ‘legalisation’ par excellence. Regimes are also more ‘legalised’ when more binding and more precise. Here, the status of the WTO is more uncertain. On the one hand, WTO rulings – with the threat of commercial sanctions for non-compliance – are reasonably binding by the lax standards of international legal regimes. On the other hand, powerful nations have flouted rulings for years, apparently assured of their ability to weather the diplomatic and commercial storms. And many key WTO obligations are imprecise and appear to regularly confound respondent governments. Indeed, subsequent scholarship has questioned the coherence of the ‘legalisation’ concept, noting that high imprecision and high delegation appear to go together. Moreover, in the absence of a supranational entity with a monopoly of legitimate force, some scholars have suggested that regimes that regularly rule against the preferences of powerful governments will not be able to elicit compliance. I call this the ‘counter-legalisation’ problem: delegated authority plus textual imprecision empowers international regimes to fill in textual gaps in ways that states did not intend and do not control.
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