- See for example Joel Paul, ‘The New Movements in International Economic Law’ (1995) 10 Am. U. Int'l L. & Pol'y 607 at 613; Shelley Wright, ‘Women and the Global Economic Order: A Feminist Perspective” (1995) 10 Am. U. Int'l L. & Pol'y 861 at 874.
- Balakrishnan Rajgopal, ‘Crossing the Rubicon: Synthesising the Soft International Law of the IMF with Human Rights’ (1993) 11 Boston U Int'l L.J. 81 at 87.
- Articles of Agreement of the International Monetary Fund, Dec. 27 1945, 60 Stat. 1 U.N.T.S. 39, amended, July 28, 1969, 20 U.S.T. 2775, amended, Apr. 1, 1978, 29 U.S.T. 2203, Articles of Agreement of the International Bank for Reconstruction and Development, Dec. 27, 1945, 60 Stat. 1440, 2 U.N.T.S. 134, amended Dec. 17, 1965, 16 U.S.T. 1942. The International Trade Organization failed from its conception, but what did survive from its design was the General Agreement on Tariffs and Trade (the GATT) which later evolved into the World Trade Organisation (see below).
- Rajgopal, ‘Crossing the Rubicon’, above n2, 87.
- Articles of Agreement of the International Bank for Reconstruction and Development, above n3, Article IV (10) as cited in Wright, ‘Women and the Global Economic Order’, above n1, 881. Although cf Anne Orford, ‘Locating the International: Military and Monetary Interventions after the Cold War’ (1997) 38:2 Harvard International Law Journal 443.
- The terms ‘International Trade Law’ and ‘International Economic Law’ can be used in many different senses. In my use of these terms, I am referring to the public international law or intergovernmental side of trade and economic regulation. I do not include in my definition, private international law (also called Conflict of Laws), international business transactions or international commercial contracts.
- ‘The Debate over Sweatshop monitoring’, Journal of Commerce, Tuesday March 4 1997.
- Human Rights Watch Women's Rights Project, Mexico: No Guarantees, Sex Discrimination in Mexico's Maquiladora Sector, New York: Human Rights Watch, August 1996.
- Anita Chan & Robert Senser, ‘China s Troubled Workers’ (1997) 76:2 Foreign Affairs 104.
- I have not included in this article any stories of the millions of women, children and men affected by the practices associated with the spread of international trade liberalisation. The stories are many and often terrible and they provide the impetus for this work. So, whilst I have not reproduced them here, I urge readers to be aware of what is happening. Stories appear almost daily in the international news. In addition, one source of much information on the conditions of workers in the third world is the Third World Network (TWN). Some of the pieces produced by the TWN include; Chakravati Raghavan, ‘Asian female migrant workers require protection, says ILO'; T.K. Rajalakshmi, ‘Sita and her daughters: Women Workers at an Indian Export Processing Zone'; Boonthan Sakanond, ‘Double Whammy for Women’; Prangtip Daorueng and Kafil Yamin, ‘Women: Last in, first out'; Teresita Oliveros, ‘Impact of New World Trade Regime on Peasant Women in the Philippines’. All of these articles are available at http://www.twnside.org.sg/title (current as at 17 February 2000). See also; Patricia J. Williams, ‘Disorder in the House: The New World Order and the Socioeconomic Status of Women’ in Stanlie M. James and Abena P.A. Busia (eds). Theorizing Black Feminisms. The Visionary Pragmatism of Black Women, New York: Routledge, 1993, 118.
- Ironically though, the posited theoretical neutrality of free-trade does not preclude its proponents from asserting that it brings substantial benefits to all, in the shape of increased prosperity and a better standard of living. See for example; Jagdish Bhagwati, Protectionism, Massachusetts: MIT Press, 1993.
- The “Ministerial Conference” is the higest level decision making body in the WTO and must meet ‘at least once every two years' as required by the Marrakesh Agreement Establishing the World Trade Organisation, the WTO founding charter; Marrakesh Agreement establishing the World Trade Organization (WTO Agreement) (Marrakesh, 15 April 1994, Entry into force 1 January 1995) Australian Treaty Series 1995 No 8. For more information on Ministerials generally, see the WTO Official ministerial website at http://www.scva.wto-ministerial.org/english/about_e/03bgd_e.htm current at 1 February 2000.
- ‘Street Battles Halt Global Trade Talks’, The Age, 2 December 1999, available at http://www.theage.com…ews/19991202/A10972-1999Dec1.html.
- ‘APEC a Mixed Blessing at Best’, The Vancouver Sun, Thursday November 27 1997.
- For example, the environmental side agreement to the North American Free Trade Agreement (NAFTA); North American Agreement on Environmental Cooperation Between The Government Of Canada, The Government Of The United Mexican States And The Government Of The United States Of America (13 September 1993), commonly known as the NAFTA Environmental (Side) Agreement. See generally; Zen Makuch and Scott Sinclair for the Canadian Environmental Law Association, The Environmental Implications of the NAFTA Environmental Side Agreement, Toronto: Canadian Environmental Law Association, October 1993.
- See for example; President Clinton's remarks at the WTO Ministerial in Seattle in 1999 about the need to tackle labour and environmental standards in order to win public support for the WTO; ‘Street Battles’, above n13.
- Such side agreements may also be implemented at the behest of transnational corporations. See for example; Anne Orford and Jennifer Beard, ‘Making the State Safe for the Market: The World Bank's World Development Report 1997' (1998) 22 MULR 195.
- Brian Langille “Labour Standards In The Globalized Economy” in Segenberger and Campbell (eds), International Labour Standards And Economic Interdependence, Geneva: International Institute for Labour Studies, 1994, 330.
- It is important to note that I am not suggesting that bringing human rights into international trade law will automatically solve all or any problems associated with trade. Indeed, there are plenty of cogent critiques of mainstream human rights law from many perspectives, not the least from feminist, third world, post-colonial and critical race perspectives. Rather, as I will raise in detail below, what I am trying to do is force practitioners of trade law to acknowledge the politics and policy choices implicit in trade law itself, so that political contestation at least becomes possible. What the ultimate orientations of those contestations will be are many.
- On the spatialization of theoretical discourse, see generally, J.K. Gibson-Graham, The End of Capitalism (as we knew it): A Feminist Critique of Political Economy, Oxford: Blackwell, 1996.
- I have borrowed this term from Homi Bhabha, though I am not using it in the same way that he uses it, which, on my reading, is to signify space between identities where difference is articulated; Homi K. Bhabha, The Location of Culture, London and New York: Routledge, 1994, 1.
- J.K. Gibson-Graham, The End of Capitalism, above n20, 90. On the idea of the ways in which representations of the economic ‘other’ can have repressive force, see; Judith Still, Feminine Economies: Thinking against the Enlightenment and the Late Twentieth Century, Manchester: Manchester University Press, 1997.
- Ibid.
- On this point, see for example; Margaret Davies, Asking The Law Question, Sydney: The Law Book Company Ltd, 1994, 148.
- North American Agreement on Environmental Cooperation, above n15.
- Also at work is a skepticism about assertions that the ‘trickle down effect’ of increased prosperity will increase respect for human rights and a belief that human rights need to be promoted simultaneously with economic growth. See for example; Robert Benson, ‘Free Trade as an Extremist Ideology’ (1994) 17 U. of Puget Sound L.R. 555 at 571.
- See for example; Alicia Morris Groos, ‘International Trade and Development: Exploring the Impact of Fair Trade Organizations in the Global Economy and the Law’ (1999) 34 Texas International Law Journal 379.
- Again, I wish to reiterate the need for such projects. Though in this paper I am searching for theoretical disruptions, I do not wish to diminish the importance of the myriad, and some may say, more immediate, challenges to the iniquities caused and perpetuated by international trade liberalization.
- Many scholars think the sanction regime is problematic (not the least because of its potential for abuse, and the ‘aggressive unilateralism’ displayed by the United States in this matter) and reject linkage on those grounds (inter alia), e.g. Philip Alston, ‘Labor Rights Provisions in US Trade Law: “Aggressive Unilateralism”?’ (1993) 15 Human Rights Q 1.
- There is a certain irony to this argument because of the increasing number of individual complaint mechanisms available in international human rights law, such as the European human rights system, or the individual complaints mechanism in the ICCPR. I would tentatively suggest that this proliferation is itself in part due to the continued separation of trade and human rights, and a post-cold war setting in which a Capitalist triumphalism prevails and in which political rights are correspondingly becoming less controversial. However this irony must remain in the realm of mere observation here, as the question is beyond the scope of this work.
- This is akin to Dan Tarullo's ‘search for an heuristic principle’ in; Daniel Tarullo, ‘Logic, Myth and the International Economic Order’ (1985) 26 Harvard International Law Review 533.
- See for example; Susan Boyd, ‘Challenging the Public/Private Divide: An Overview’ in Susan Boyd (ed.), Challenging the Public/Private Divide: Feminism, Law and Public Policy, Toronto: University of Toronto Press, 1997, 3; and Katherine Teghtsoonian, ‘Who Pays for Caring for Children? Public Policy and the Devaluation of Women's Work’ in Boyd, Challenging the Public/Private Divide, 113.
- Meg Luxton, More than a Labour of Love, Toronto: Women's Press, 1980.
- Susan Boyd (ed.), Challenging the Public/Private Divide, above n32, 4.
- On a discussion of this point see David Kennedy, ‘Receiving the International’ (1994) 10:1 Connecticut J.I.L 1 at 14.
- On this point, see for example; Shelley Wright, ‘Women and the Global Economic Order’, above n1, 874.
- Joel Paul, ‘The New Movements in International Economic Law’, above n1, 613.
- Janine Brodie ‘Shifting the Boundaries: Gender and the Process of Restructuring’ in Isabelle Bakker (ed.), The Strategic Silence: Gender and Economic Policy, London: Zed Books in Association with the North South Institute, 1994, 46 at 52. Here Brodie is citing Catherine MacKinnon, Towards a Feminist Theory of The State, Massachusetts: Harvard University Press, 1989, 190.
- David Palmeter, ‘International Trade Law in the Twenty-First Century’ (1995) 18:5 Fordham I.L.J 1653.
- Janine Brodie, ‘Shifting the Boundaries’, above n38, 56.
- Ann L. Jennings, ‘Institutional Economics: Public or Private?’ in Marianne A. Ferber & Julie A. Nelson (eds), Beyond Economic Man: Feminist Theory and Economics, Chicago: University of Chicago Press, 1993, 120.
- See for example; John Ralston Saul, The Unconscious Civilization, Melbourne: Penguin Books, 1997, 2.
- Quoted in Madeline Bunting. ‘The New Cold War Comes to Seattle’, The Age, 30 November 1999, 15.
- Barry Jones, ‘Beware our New World Without Rules, The Age, 9 July 1999, available at http://theage.co…y/990709/news/specials/news2.html.
- Hilary Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to International Law’, (1981) 85 AJIL 613.
- Frances Olsen, ‘International Law: Feminist Critiques of the Public/Private Distinction’ in Dorinda Dallmeyer (ed), Women and International Law: Reconceiving Reality, American Society of International Law: Studies in Transnational Legal Policy: Washington, 1993 at 157.
- Karen Engle, ‘After the Collapse of the Public/Private Distinction: Strategizing Womens’ rights in Dallmeyer (ed.). Women and International Law, above n46 at 143.
- Engle, ibid, 149. See also; Doris Buss. ‘Gloing Global: Feminist Theory, International Law and the Public/Private Divide’, in Boyd, above n32, 360.
- Gay Alcorn, ‘Street Battles Halt Global Trade Talks’, The Age, 1 December 1999. (emphasis added)
- Lisa Phillipps, ‘Discursive Deficits: A Feminist Perspective on the Power of Technical Knowledge in Fiscal Law and Policy’ (1996) 11 Canadian Journal of Law and Society 141 at 141.
- Ibid, 147. See also; Julie A. Nelson, Feminism, Objectivity and Economics, New York: Routledge, 1996.
- This argument is a much simplified version of the argument made in detail by Lisa Phillipps; above n50, 148–9. My purpose here is really to identify this as a characteristic of international trade law, and to consider how it relates to the depoliticising tendencies of that discourse, rather than to make any claim to originality about the argument that claims to scientific knowledge serve to increase the legitimacy of the discourses which make such claims.
- C. Gonick, The Great Economic Debate, Toronto: James Lorimer, 1987, at 148–53, as quoted in Phillipps, above n50, 163.
- See for example; Brian Langille, ‘General Reflections of the Relationship of Trade and Labor (Or: Fair Trade is Free Trade's Destiny)’, in Jagdish Bhagwati and Robert Hudec (eds), Fair Trade and Harmonization, Massachusetts: M.I.T, 1996, Vol. 2, 231; and Brian Langille, ‘Labour Standards in the Globalized Economy’, in Werner Segenberger and Duncan Campbell (eds), International Labour Standards and Economic Interdependence, Geneva: International Institute for Labour Studies, 1994, 329.
- Adam Smith, The Wealth of Nations, Modern Library Edition, 1937 (1776), 424 as cited in Langille, ‘General Reflections’, above n54, 233.
- Michael Trebilcock and Robert Howse, The Regulation of International Trade, New York: Routledge, 1996, 7.
- Ibid., 20.
- Jagdish Bhagwati, The World Trading System at Risk, 1991, as cited in Langille, ‘General Reflections’, above n54, 235.
- On the fallacy of the autonomous market, see Joel Paul, ‘Free Trade, Regulatory Competition and the Autonomous Market Fallacy’ (1995) 1 Columbia Journal of European Law 1.
- Daniel Tarullo, ‘The MTN Subsidies Code: Agreement without Consensus' in Seymour J. Rubin and Gary Clyde Hufbauer, Emerging Standards of International Trade and Investment, Rowman & Allenhead: New Jersey, 1983, 63 at 64.
- Trebilcock and Howse, The Regulation of International Trade, above n56, 149.
- William K. Wilcox, ‘GATT Based Protectionism and the Definition of a Subsidy’, (1998) 16 Boston University International Law Journal 129, 150.
- Ibid.
- Trebilcock and Howse, The Regulation of International Trade, above n56, 149.
- It is important to note that the subsidies debate, and in particular the negative or “hidden” subsidy debate is not unproblematic. Many industrialised states which raise such arguments do so entirely self interestedly, and for various motives, some of which pose serious moral dilemmas to those seeking to use such arguments to raise standards in developing countries. However, in the context of what I am seeking to do, such dilemmas may not be so troublesome The reason is that I am using the subsidies debate in combination with insights of feminist theory to try and reveal the fallacy of the myth of regulatory neutrality contained in trade theory. This does not have an inherent political or moral orientation. The point is to open up for political contestation, spaces which are currently closed because of the myth of the autonomous market, not to determine the content ot that contestation.
- This situation arises not only between developed and developing countries but between developed nations. One of the issues Canada wished to see addressed in the 1994 Subsidies Code was the US practice of negotiating special arrangements with certain industries, giving them dispensation from various forms of regulation. See generally; Charles Bram Cadsby & Kenneth Woodside, Canada and the New Subsidies Code, Toronto: C.D. Howe Institute, 1996.
- Philip Alston, ‘Post-Post-Modernism and International Labour Standards: The Quest for a New Complexity’ in Segenberger and Campbell (eds). International Labour Standards, above n54, 95 at 99.
- Langille, ‘General Reflections’, above n54, 235.
- Gary Hufbauer & Joanna Shelton Erb, Subsidies in International Trade, Washington D.C: Institute for International Economics, 1984.
- Ibid.
- Langille, ‘General Reflections’, above n54, 236.
- Brodie, ‘Shifting the Boundaries’, above n38, 56.
- This does suppose that trade theorists would acknowledge that baseline norms must appropriately be found outside the market. This is what Langille establishes by his examination of labour theory to show that the market cannot be the only determinant of labour standards. Langille, ‘General Reflections’, above n54.
- See for example; Saskia Sassen, ‘When the State Encounters a New Space Economy: The Case of Information Industries’ (1995) 10 Am. U. J. Int'l L. & Pol'y 769; Saskia Sassen, Losing Control: Sovereignty in an Age of Globalization, New York: Columbia University Press, 1996, 1–31.
- By ‘labour’ here, I mean largely non-professional labour. Professions such as Medicine, Consulting, and Information Technology are spawning increasingly mobile labour forces, however, for the vast majority of workers, as trade becomes more liberalised, state restrictions on migration increase. The exception to this is Asian Women employed as domestic workers. According to the Third World Network, this group is the fastest growing category of international migrant workers. As a group, they are particularly vulnerable to discrimination, exploitation and abuse. See Chakravati Raghavan, ‘Asian female migrant workers’, above n10.
- On this point, see for example, Ruth Buchanan 1–800 New Brunswick: Re-Locating Women's Work in the New Economy presented as a working paper at the Workshop on Poverty, Low Wage Labour and Social Retrenchment, Baldy Centre for Law and Social Policy, SUNY Buffalo, September 19 and 20, 1997.
- See for example; Charlesworth, Chinkin and Wright, ‘Feminist Approaches to International Law’, above n45; and Karen Knop, ‘Re/Statements: Feminism and State Sovereignty in International Law’ (1993) 3 Transnational Law and Contemporary Problems, 293.
- See for example; Rebecca Cook (ed.), Human Rights of Women: National and International Perspectives, Philadelphia: University of Pennsylvania Press, 1994, 58–84.
- Ruth Buchanan, ‘Border Crossings: NAFTA, Regulatory Restructuring, and The Politics of Place’ (1995) 2:2 Indiana Journal of Global Legal Studies 371 at 378.
- Ibid, at 380.
- Some people have identified this regulatory competition, and characterised it as a ‘race to the bottom’ in terms of regulatory standards. An example of the idea of the race to the bottom in relation to environmental standards is Richard Revesz, ‘Rehabilitating Interstate Competition: Rethinking the “Race-to-the-Bottom” Rationale for Federal Environmental Regulation’, (1992) 62 New York University Law Review, 1210.
- See for example, the preface to Martha Fineman (ed.), The Public Nature of Private Violence, New York: Routledge, 1994.
- Ann L. Jennings, ‘Institutional Economics: Public or Private?’, above n41, 118.
Australian Feminist Law Journal
Volume 14, 2000 - Issue 1