MJIEL Vol 1 Issue 2 2004 - Editorial

Communication Flows in International Economic Law

In my editorial in the first issue of the MJIEL I wrote about Communication Flows in International Economic Law. In the editorial to this issue I would like to continue with this focus. The chatter in international economic relations must continue. And indeed it does. Since the last issue of the MJIEL the Doha Round of Trade Negotiations has been given a new impetus this summer. By the same token the International Law Association Bi-Annual Conference of in August 2004 held in Berlin, was marked by a number of active committees in the sphere of International Economic Law viz., International Trade Law, International Commercial Arbitration, International Law on Biotechnology, International Law on Foreign Investment, International Monetary Law, International Law on Sustainable Development, and International Securities Regulation. Similarly, the British Institute of International and Comparative Law organised its Second Investment Treaty forum on Appeals and Challenges to Investment Treaty Awards in May 2004. Just prior to that, it had organised its annual Conference on WTO Dispute Settlement. In the same vein, the WTO co-ordinated successfully the Third WTO/ADB/ECA Trade Policy Course for African Countries in Tunis, September 2004. These are but a sampling of the recent chatter about and in international economic relations.

In the ILA International Trade Committee proceedings in Berlin I raised the point that if the Committee was to project itself as a committee of international trade experts which could credibly make recommendations to the membership of the WTO, the Committee should ensure that the development dimension is an integral part of any recommendations emerging from the Committee. In making my point I observed that one should acknowledge that sometimes what parades as expertise and scholarship is underpinned by value judgements; and that this danger was particularly of concern in the light of the dearth in expertise from developing countries on board. My point was constructively received. The International Trade Committee decided to set up a sub-group focusing on development issues in international trade. In the post-ILA conference held in Budingen, Germany in August of this year on the Doha Round of the World Trade Organization organised under the auspices of the law firm Hohmann & Partner, I observed that in linking human rights to international trade and trade sanctions, one should also take cognisance of the fact that trade sanctions are not an effective compliance mechanism when it comes to its use by developing members of the WTO to ensure human rights compliance in developed States, as it relates to for example racial discrimination in developed States that affects migrant labour. It seemed to me that as trade lawyers we needed to focus on the efficacy of trade sanctions for the membership of the WTO as a whole, as much as anything else. In the same conference I reacted to the suggestion made by a speaker that the development dimension was appropriately dealt with in the WTO through exceptions and differential treatment provisions. I reacted because the idea of treating the development dimension effectively in “appendages and footnotes” in international economic agreements, undermined its significance and its integral role in international economic relations. Not to mention that this manner of its treatment reduced its role to a corrective and remedial function ---- an afterthought to the consequences of following other objectives. Both of these interjections involved a perspective, the burden of raising of which, should have been shared equally in the discourse. I am reminded somewhat of a very articulate Indian delegate in the Uruguay Round of trade negotiations in Geneva some years back whom I observed in one of the negotiating Groups start off in his interjection by prefacing: “Once again the burden of raising this point falls on me…”. In the context of communications in international economic relations diverse perspectives are incorporated in discourse through inclusion of different participants. This is of course positive but perhaps on its own still a somewhat second best manner of engaging in meaningful dialogue in quests for resolving important international issues. In conjunction with it there is a need to find ways to internalise from within each participant diverse perspectives. But this call for a holistic approach to international economic relations is perhaps easier said than done. I was poignantly reminded of this, when in the Third Trade Policy Course for African Countries organised in Tunis, I was invited to explain by the participant from Mali how the “holistic approach” to Article 31 of the Vienna Convention on the Law of Treaties, in contra-distinction to sequencing of the text, context and objects/purposes of a treaty, should actually be practiced by the interpreter. To this there was no simple response but that is not to deny the existence of a response. International communication flows are indeed a complex of messages that need to be received, addressed and communicated with equal sophistication.

Asif H Qureshi

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