Edited by David Deese
Chapter 17: Rotating checks and balances in international economic law
The international trade system of the post-World War II twentieth century mirrors the general hallmarks that have animated the collectivity of States during that period. Sovereign States joined international organizations seeking to provide predictability and order, but without infringing on the individual State’s right to its territorial and regulatory inviolability, the essence of “sovereignty” in that age. The legitimacy of international law depended, in most areas of international law, not only on its substantive desirability but on its respect for the State as the virtually exclusive authority to legislate, police and otherwise act within its borders free of outside interference. True, international law would formally assert its preemptive and self-imposing nature, but no international organization would have the power to impose its norms on a recalcitrant jurisdiction. In the trade realm (and probably generally for international law and institutions) this structural design created what can be conceptualized as a “vertical system of checks and balances.” Each sphere, international and domestic, sought to advance goals that, while not necessary unfriendly to the other sphere’s telos, tempered it with conflicting considerations. For example, the GATT sought to open up barriers to trade, and domestic environmental regulation slowed down the movement of goods across disparate regulatory areas. The GATT itself did not include an environmental code addressing the circumstances in which environmental concerns would warrant derogating from free movement principles.
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