Sunday, December 4, 2011

Privatisation of International Law

An exhaustive article on "Privatisation of International Law" by Prof. Paul. B Stephan raises interesting questions about international law in general as well as WTO and the Dispute Settlement mechanism in particular. International Law has generally been viewed in the context of State players (Governments) with non-state actors playing a minimal influence. Prof. Stephan questions this assumption with a series of propositions which imply a far greater role non-state players (non-governmental organisations, private commercial interests) are playing in international law making and enforcement.

The WTO Agreements are undoubtedly executed by the member states which are state players. But in the context of globalisation and international trade, the essence of the agreements are to promote free trade and reduce barriers to trade. Trade, by their very nature, are predominantly carried out by private entities. It is but natural to expect that the rules as well as their interpretation (dispute settlement mechanism) are heavily influenced by private interests. Ultimately "national interest" is a conglomeration of various interests which include the interests of private. domestic trade interests. However, to what extent private domestic trade interests dominate WTO jurisprudence makes for interesting analysis.

The scope of International Law itself has changed over time as explained in the article. It states,

"The array of issue areas in which international law has a potential role is vast and growing. Changes in the world economy and global society have combined to give almost any regulatory or social issue an international dimension. People transact across borders, move across borders, and send information across borders more frequently than ever, bringing legal issues in their wake. Fifty years ago, international law and international lawyers concentrated their efforts largely on public issues such as use of force, state boundaries, allocation of regulatory jurisdiction, diplomatic privileges, and matters pertaining to the high seas. Today, the field contains detailed regulation of matters as diverse as criminal procedure, family law, contracts, arbitration and litigation, intellectual property, environmental standards, anti-discrimination and other human rights, and health care."

Privatisation of International Law may take different forms from amicus briefs by private parties in international litigation to use of international law in domestic litigation. In the context of the WTO agreements, it has been argued that non-state players have a limited role in the Dispute Settlement mechanism of the WTO. Only States are parties to the dispute even when rights of private parties are affected. For example in case of the Boeing-Airbus dispute at the WTO, the contesting parties were the EU and US rather than the aircraft manufacturers. Disputes in the WTO largely concern private trade interests but are contested by national actors. While many disputes concern larger national concerns (anti-dumping, subsidies), many disputes are dominated by the commercial interests of large commercial players.

To what extent private players must be engaged in international law making (especially international trade law) is debatable. However, it is clear that the contours of international law have dramatically changed from the laws of war to international trade agreements. The tilt is obvious.

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