Why Do Some International Institutions Contain Strong Dispute Settlement Provisions: New Evidence from Preferential Trade Agreements

To understand why some international institutions have stronger dispute settlement mechanisms (DSMs) than others, we investigate the dispute settlement provisions of nearly 600 preferential trade agreements (PTAs), which possess several desirable case-selection features and are evoked more than is realized. We broaden the study of dispute settlement design beyond “legalization” and instead reorient theorizing around a multi-faceted conceptualization of the strength of DSMs. We posit that strong DSMs are first and foremost a rational response to features of agreements that require stronger dispute settlement, such as depth and large memberships. Multivariate empirical tests using a new data set on PTA design confirm these expectations and reveal that depth – the amount of policy change specified in an agreement – is the most powerful and consistent predictor of DSM strength, providing empirical support to a long-posited but controversial conjecture. Yet power also plays a sizeable role, since agreements among asymmetric members are more likely to have strong DSMs due to their mutual appeal, as are those involving the United States. Important regional differences also emerge, as PTAs across the Americas are designed with strong dispute settlement, as are Asian PTAs, which contradicts the conventional wisdom about Asian values and legalization. Our findings demonstrate that rationalism explains much of international institutional design, yet it can be enhanced by also incorporating power-based and regional explanations.

Is there a ‚Depth versus Participation‘ Dilemma in International Cooperation?

Much of the International Relations literature assumes that there is a “depth versus participation” dilemma in international politics: shallower international agreements attract more countries and greater depth is associated with less participation. We argue that this conjecture is too simple and probably misleading because the depth of any given cooperative effort is in fact multidimensional. This multidimensionality manifests itself in the design characteristics of international agreements: in particular, the specificity of obligations, monitoring and enforcement mechanisms, dispute settlement mechanisms, positive incentives (assistance), and organizational structures (secretariats). We theorize that the first three of these design characteristics have negative and the latter three have positive effects on participation in international cooperative efforts. Our empirical testing of these claims relies on a dataset that covers more than 200 global environmental treaties. We find a participation-limiting effect for the specificity of obligations, but not for monitoring and enforcement. In contrast, we observe that assistance provisions in treaties have a significant and substantial positive effect on participation. Similarly, dispute settlement mechanisms tend to promote treaty participation. The main implication of our study is that countries do not appear to stay away from agreements with monitoring and enforcement provisions, but that the inclusion of positive incentives and dispute settlement mechanisms can promote international cooperation. In other words, our findings suggest that policymakers do not necessarily need to water down global treaties in order to obtain more participation.

Human rights and international trade

Economic globalization and respect for human rights are both highly topical issues. In theory, more trade should increase economic welfare and protection of human rights should ensure individual dignity. Both fields of law protect certain freedoms: economic development should lead to higher human rights standards, and UN embargoes are used to secure compliance with human rights agreements. However the interaction between trade liberalisation and human rights protection is complex, and recently, tension has arisen between these two areas. Do WTO obligations covering intellectual property prevent governments from implementing their human rights obligations, including rights to food or health? Is it fair to accord the benefits of trade subject to a clean human rights record? This book first examines the theoretical framework of the interaction between the disciplines of international trade law and human rights. It builds upon the well-known debate between Professor Ernst-Ulrich Petersmann, who construes trade obligations as human rights, and Professor Philip Alston, who warns of a merger and acquisition of human rights by trade law. From this starting point, further chapters explore the differing legal matrices of the two fields and examine how cooperation between them might be improved, both in international law-making and institutions,in dispute settlement. The interaction between trade and human rights is then explored through seven case studies:freedom of expression and competition law; IP protection and health; agricultural trade and the right to food; trade restrictions on conflict WHO convention on tobacco control; and, finally, human rights conditionalities in preferential trade schemes.