Can the WTO Rules Be Efficiently Breached for Welfarist Objectives?
Abdulmalik M. Altamimi
ABSTRACT: After Eric Posner and Jack Goldsmith published their controversial book, The Limits of International Law, a number of critical reviews were written, even by rational choice theory law scholars, contradicting what they saw as ‘simplistic’ and ‘inconsistent’ assumptions about the role of international law. However, neither Posner nor Goldsmith seem to be affected by the critique and have continued to explain the book’s main thesis in new publications. For instance, the co-author Posner and Alan Sykes have recently published a book entitled, Economic Foundations of International Law, which apply the rational choice theory to explain the state cooperative behaviour at the International level. They did that by claiming that international law must be self-enforcing by the application of private contract theory of efficient breach. This article will evaluate Posner, Sykes and others claim of the need for efficient breach in the context of the World Trade Organization (WTO) law. The authors have mainly relied on the WTO acquis to introduce their theory to other subfields of public international law, such as, international human right law. Sometimes they justify their argument based on ‘the absence of welfarist justification of international law’ and most of the time on the weakness of the public international law enforcement mechanism, citing the WTO dispute settlement system as an example. This article will try to answer this question: does the lack of ‘welfarist grounds’ justify an efficient breach of existing WTO rules to serve the states self-interest objectives?