International Trade

Despite significant attention in recent times, the law of international trade has been remarkably resilient in steering clear of compliance with the demands of justice. The history of the law governing international trade is rooted in forms of coercion and violence designed to promote the interests of powerful states and their multinational enterprises. The first norm of international trade law for the modern state, the principle of freedom to trade, was a rationalization to commit atrocities, including genocide, to promote the interests of European powers and their commercial interests. This problematic history of the law of international trade led governments to promote the wrong values in international trade relations between states. The chapter then examines the international trade order put in place when treaties and positive law became more important and industrial forms of capitalism became ascendant, based on notions of promised-based commitment, providing states with a rationale to ignore notions of justice, disparities in bargaining power, global inequality, and other values. With such norms in effect still today, power is permissibly exercised via a transactional model between states. In this model, trade treaties are all about bargaining. A national or mercantilist conception of market took absolute priority, a conception in which markets are divided up according to power imposed in bargaining. The chapter explains how the contemporary trade treaty suffers from various pathologies because of these historical rationalities imposed on it from these prior eras. The result is a failure of contemporary trade agreements to comply with principles of justice and relatively little concern expressed about this failure.