Topoi of Ambiguity I: Decoupling Statehood from WTO Membership – the Case of Separate Customs Territories

Abstract

One of the external functions usually performed by entities effectively controlling a geographically defined area is the conduct of cross-border trade. To conduct international trade, entities that are recognised by the international community as sovereign States, or groups of such entities that form customs unions and free trade areas having legal personality under public international law, enter into treaties in the form of trade agreements that regulate the terms for the conduct of trade to and from those areas. However, there are also de facto independent regimes controlling geographically defined areas that, although not recognised as States by the international community, nevertheless conduct trade with States, to the extent they are not subject to trade sanctions or embargoes. In international trade law, these territories are usually termed ‘separate customs territories’, to distinguish them from sovereign States. These territories – topoi of ambiguity – are physical places whose status under public international law is (or has been) ambiguous, disputed, in flux, sui generis, or in any way unusual. This chapter is part of a wider research project whose aim is to systematically investigate on the basis of precedent the legal rules and practices by which de facto independent regimes, of which ‘separate customs territories’ as understood in international trade law form part, conduct cross-border trade and the ways in which States and international organisations react to these. The idea is to try to discern the public international law principles, legal rules, historical realities, or functionalist arguments – the notional places in international trade law that deal with the physical topoi to which topoi of ambiguity also alludes – that underpin the de jure or de facto territorial application of international trade rules to de facto independent regimes. Put simply, the question that I try to shed light on is why notions and requirements of statehood are decoupled from issues of the territorial application of the rules in the field of international trade law.