Legal Opportunity in Trade Negotiations: International Law, Opportunity Structures and the Political Economy of Trade Agreements

Abstract

In 2009, the Economic Community of West African States (ECOWAS) challenged the European Union (EU)'s interpretation of Article XXIV GATT in bilateral trade talks. Based on a legal analysis that West African activists initially provided, ECOWAS established that the clause allowed for more flexibility on market opening than the EU expected. Since then, market access constitutes one unresolved issue slowing down negotiations between the trade power Europe and trade- and aid-dependent ECOWAS. The example challenges the political economy literature dealing with trade policy-making on at least two accounts, namely the role of typically sidelines actors such as poor countries and transnational activists; and the role of the law in mediating strategic and discursive aspects of trade political processes. To assess the evidence and its theoretical implications, I combine the analytical concept of political opportunity structure developed in the transnational studies literature with pluralist approaches to law. I argue that trade political actors can become aware of the pathways to influence that legal uncertainty opens, in particular under conditions of multi-level governance where national, regional and international legal orders are intertwined. Overall, the way in which the law mediates ideas and interests thus deserves scrutiny in political economy approaches to trade.