10 Oct What Is “International Economic Law”?
Andrew Guzman has these interesting thoughts on the subject over at the International Economic Law and Policy Blog. He wonders why the field is so dominated by trade law. Among his answers, I suspect that it’s driven by the relative institutionalization of trade law relative to other components of IEL.
A related possibility is that trade law brings IEL across the private/public divide (IEL used to go under the moniker of “private international law,” which no longer makes a lot of sense in the wake of the WTO.) Perhaps trade law attracts such interest because it now speaks to a traditionally dominant (in the legal academy and ASIL at least) public IL audience. I always thought that there were, for instance, a lot of interesting theoretical things to be said about international arbitration, but it would be pretty lonely starting out with that as a focus, with some high start-up costs. The paucity of law school appointments in the area may also retard diversification – it must still be the unusual school that has more than one person doing IEL (unlike public IL, where having several is increasingly common), and if you’re the only one, trade is likely to be the natural draw. But I imagine that this will start to change as it has in public IL (Harvard’s new 1L curriculum will include an IEL offering, denominated as such – they’ll need more folks to teach it, presumably), and that we’ll see more people colonizing some of these subjects going forward. Many would for instance be fertile ground for empirical work.
Thanks for bringing this absolutely fundamental and provocative question to our attention. I think you (and Guzman) are right regarding the ‘institutionalization of trade law’ accounting for a skewed perception of what now and might constitute(s) ‘international economic law.’ Left out of this picture are the two other (and primary*) Bretton Woods institutions: the International Monetary Fund (IMF) and the World Bank Group, as well as the other economic practices and transactions identifeed by Guzman. I happen to believe that if one gets one’s bearings from basic ethical principles, say, those of global distributive justice, one is better equipped with the normative parameters and possible empirical framework for determining what might fall within the rubric of international economic law.
*See Robert Hockett’s essay, ‘Three (Potential) Pillars of Transnational Economic Justice: The Bretton Woods Institutions as Guarantors of Global Equal Treatment and Market Competition,’ for why GATT/WTO is classed here along with the IMF and World Bank (or IBRD), in Barry and Pogge, eds. Global Institutions and Responsibilities: Achieving Global Justice (2005): 90-123.
I might have said that I don’t intend to efface any distinction between the normative and the descriptive above, but rather reiterate that what we, in the end, decide to count as descriptively significant, will be colored or influenced by our values and therefore our normative understanding and orientation. Hence, for example, Jon Elster can exploit rational choice theory and appreciate the virtues of neo-classical economics, and yet identify himself in some sense as a Marxist, letting his commitment to Marxism accord centrality, for instance, to the critique of exploitation and alienation.