Trade Policy and International Legal Development
Chapter 8: How can a WTO Member pursue a social goal with trade regulations?
One may consider the possibilities open to WTO Members of using social trade regulation into two broad categories: legal and non-legal. These labels refer to whether or not current law is taken as the framework for change. With the term ‘legal’ solutions, I include measures that the formal WTO actors – Members, the Ministerial Conference, the General Council, the Dispute Settlement Body, or the panels and Appellate Body – can invoke on the basis of the Marrakesh Agreement or one of the Multilateral Agreements or that the Member governments can take within the framework of international law. By ‘non-legal’ solutions, I mean to include actions which do not rely on a legal structure for effectiveness. Such actions need not be violations of law, but their legality is not a consideration for their use. The subcategories vary with respect to the level of acceptability each would enjoy by the wider international legal community as well as in their impact on the trading system. 1. LEGAL APPROACHES Legal approaches to the use of social trade regulations can be found from a perspective of WTO law alone or from the viewpoint of general international law. (a) Intra-WTO Solutions i. Judicial action In the WTO system, the Dispute Settlement Body (DSB) oversees the judicial activities of the Organization as between Members. Separate from the DSB are the Appellate Body and the ad hoc panels which hear and decide on the merits of Members’ disputes. 269 270 Social regulation in the WTO (1) Conformity to WTO legal...
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