International trade law, human rights and theories of justice

Abstract

Florentino Feliciano and I met for the first time in a symposium on the Judicial Settlement of International Disputes at the Max-Planck Institute for Comparative Public Law and International Law at Heidelberg in July 1972. As assistant of the director of the Institute, Professor Mosler, I had just published a long article on ‘The New Law of North-South Trade’ and the emerging International Development Law in the Heidelberg Journal of International Law . During the evening excursion on a riverboat down the Neckar river, I sat at the same table as Florentino and asked him about his conference intervention on why developing countries were so reluctant to submit to the jurisdiction of the International Centre for the Settlement of Investment Disputes. We engaged in a lively discussion on the difficulties of realizing ‘social justice’ through international law. When we later met again in the World Trade Organization (WTO) where I worked as legal adviser for less-developed WTO members, the role of less-developed countries in international law (e.g., as plaintiffs or defendants in WTO dispute settlement proceedings) continued to be one of the central themes of our discussions. Should international law and the WTO legal system be perceived as a law of states, a law of peoples, or as a cosmopolitan law of individuals? Can the WTO effectively serve general citizen interests as long as WTO negotiations are one-sidedly ‘producer-driven’ and the constitutional safeguards of ‘input legitimacy’ (such as human rights, democratic procedures) and of ‘output legitimacy’ (such as promotion of general consumer welfare) are not mentioned in WTO law?