Trade Policy and International Legal Development
Chapter 9: Is There a Modality to Decide when Trade Measures can be Used to Pursue Social Goals?
9. Is there a modality to decide when trade measures can be used to pursue social goals? CASE-SPECIFIC ANALYSIS 1. It is impossible to state in the abstract which of the possible solutions to the pursuance of social goals through the use of trade regulations is the ‘correct’ one. Not every use of social trade regulations is going to be either good (in the sense of minimizing the harmful impacts on the pursuit of the panoply of values to be balanced in the search for human dignity and sustainable development) or legitimate (in the sense of promoting an idea which any individual could accept as life-enhancing). And while I have argued that protectionism ought not to be the ultimate factor in determining whether a trade measure should stand or fall under WTO rules, certainly the implementation of an overwhelmingly rent-seeking measure would be undesirable. The problem, it appears, is similar to that of humanitarian interventions, about which Thomas Franck says the following: Violations are a problem, of course, but they are not the problem. Rather, the problem is procedural. It is how to separate the sheep of genuine [international interest] from the goats of opportunistic political selfaggrandizement. It is how to allow some, but not others, to take unauthorized action in extremis: how to allow some, but without thereby allowing all. It is a problem common to the law: a problem of line-drawing, of process.1 But how does one line-draw? One must look at each case individually and compare it...
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