Sustainable trade

A new way to teach international trade law

Henry Gao

Published 14 November 2023

We believe no student, anywhere in the world, should find themselves unable to learn international trade law because textbooks are too expensive. That’s why the Geneva Trade Platform teamed up with four leading professors to create something brand new: a completely free, comprehensive online casebook. Here’s the introduction to this essential resource, written by Nicolas Lamp.

The casebook is currently in its open beta version, with 16 core chapters ready and the final five chapters to be added soon. The authors and editors – international trade law experts Henry Gao, Jennifer Hillman, Nicolas Lamp, and Joost Pauwelyn – believe the book is now sufficiently advanced to prove potentially useful to students and teachers alike.

International trade law governs what states may do to encourage or restrict the flow of goods and services, and in some contexts also of capital, people, and data across borders. The rules of international trade law thereby affect important aspects of all our lives. They influence how much we pay for the products that we purchase, what types of employment are open to us, and what our government can do to regulate the quality of the goods and services that we consume.

A life without international trade is hard to imagine. Most people begin their day by brewing a coffee ground from beans grown in Ethiopia or Colombia, check their email or social media in apps that are designed in and run from the United States on devices assembled in China from inputs made in numerous other countries, including cobalt from the Democratic Republic of Congo, lithium from Australia or Chile, nickel from Indonesia, and semiconductors from Taiwan. They set out to work or school on bikes built in China or Taiwan, or in cars or trains manufactured in China, Germany, Japan, the United States, Korea, or France. They listen to music, read books, or watch movies the copyright in which is owned by artists all over the world. They travel to other countries for tourism, education, or work. All these interactions are forms of international trade.

For an excellent example of how complex the production of a simple good like a T-Shirt is, involving many countries and many people, check out these 5 short videos Planet Money Makes a T-Shirt.

International trade law, as it is covered here, is public international law: it is law that is made by states and primarily governs the relationship between states. In contrast to other areas of international economic law, such as investment law (which often confers rights to individual investors), international trade law does not directly create rights and obligations for individuals, with very few exceptions (see our discussion on “direct effect” of WTO agreements in some domestic legal systems later). Individuals and businesses thus primarily feel the impact of international trade law when governments adopt domestic laws and regulations to implement their international legal obligations and act upon their international legal obligations in designing their economic policies.

International trade law has been in a state of upheaval in recent years, as the idea that everyone ultimately wins from international trade has increasingly come under attack. This contestation is part of a backlash against globalization more broadly. Some are concerned about the impact of international trade on manufacturing workers and their communities; others worry that international trade agreements primarily benefit corporations and their rich shareholders, or that international economic dependence on strategic competitors poses not only economic, but also security risks. Yet others point out that international trade has created fragile international supply chains and furthered the global diffusion of environmentally unsustainable patterns of production and consumption.

The goal of this casebook is to provide a comprehensive overview of international trade law while engaging in considerable depth with these various critiques.

Learning international trade law in a time of crisis

There have always been critics of globalization, among them many developing countries and civil society groups in developed countries. In recent years, however, fundamental critiques of globalization have moved into the political mainstream in many countries that used to be champions of international economic integration.

The Brexit vote in the United Kingdom and the election of Donald Trump to the US presidency in 2016 marked a turn away from what was assumed to be a steady trend towards further international interdependence. Since then, the (trade) relationship between China and many Western countries has steadily deteriorated, the climate crisis has become an ever more pressing concern, and the Covid-19 pandemic has put the resilience of supply chains into the spotlight. At the same time, the World Trade Organization (WTO) has been struggling to remain relevant as a forum to address trade conflicts.

In light of these developments, this introductory module is designed to challenge students of international trade law to reflect on the forces that are pulling international trade law in different directions. These forces find expression in different narratives about who is winning and who is losing from economic globalization, and in competing prescriptions for legal change that are derived from these narratives.

The chapter is structured around a set of narratives about economic globalization, which we draw from the book Six Faces of Globalization: Who Wins, Who Loses, and Why It Matters (2021) by Anthea Roberts and Nicolas Lamp:

the establishment narrative, which is built around the economic case for free trade;
the neocolonial narrative, which has been at the heart of the developing countries’ critique of the trade regime;
the protectionist narrative, which was most influentially championed by former US President Trump, but has been embraced across the political spectrum in the United States, and with regard to certain sectors (especially agriculture) in other countries;
the narrative about inequality and corporate power, which embodies a more left-wing critique of globalization;
the geoeconomic narrative, which focuses on the security implications of international economic interdependence;
the resilience narrative, which has come to prominence during the Covid-19 pandemic; and
the sustainability narrative, which focuses on the ways in which international trade interacts with the climate crisis.

Our hope is that studying these narratives will allow students of international trade law to understand and perhaps even anticipate developments in the field in the coming years and decades.

The importance of a multi-perspective approach

The writer F. Scott Fitzgerald has said that “the test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function”. Hardly a day passes on which international trade lawyers are not confronted with Fitzgerald’s challenge. Consider the following views on international trade:

International trade is an engine of unprecedented global prosperity.	International trade has created a global economy that is fast making our planet uninhabitable.
International trade represents the best hope for economic development.	International trade locks developing countries into an international division of labor that was shaped by colonialism.
International trade promotes peace.	International trade makes us dangerously vulnerable to our strategic foes.
International trade makes everything cheaper and more efficient.	International trade leaves us at the mercy of far-flung supply chains, leading to skyrocketing prices when there are demand shocks or supply disruptions.
International trade primarily benefits the least well-off.	International trade disproportionately enriches corporations and owners of capital.
International trade makes all of us more productive.	International trade deprives blue-collar workers of rewarding job opportunities, with devastating consequences for the workers and their communities.
International trade promotes the diffusion of green technologies and ensures that goods are produced where their production has the least environmental impact.	International trade generates emissions and facilitates unsustainable levels of production and consumption.

In past decades, most international trade lawyers would have emphasized the set of answers in the first column. While there have always been those who took the views in the second column, the developments of recent years have moved the second set of answers into the mainstream. International trade lawyers increasingly recognize that there is truth to all these perspectives. If that is the case, how can international trade lawyers master Fitzgerald’s challenge, namely, to “continue to function” in a world in which the merits of international trade—and of the rules that facilitate it—are deeply contested?

In this introductory module, we will try to gain a better understanding of these rival perspectives by studying the narratives about economic globalization in which they are embedded. Understanding multiple narratives on international trade has both analytical and normative value.

Analytically, these narratives can help us make sense of international trade law, because they are either reflected in the current set of rules or are shaping the ways in which the rules are developing. Many provisions in international trade law are designed to ensure that states remove barriers to trade. In order to understand the rationale behind these provisions, you need to know the economic case for free trade. Other rules promote the enforcement of labor rights and environmental standards or allow states to adopt trade restrictions for security reasons; these rules are justified by reference to a different set of values. In order to make sense of the law, we need to understand the story behind it.

At the same time, understanding multiple perspectives can also help us develop a critical attitude towards international trade law. Rules that prohibit discrimination in favour of domestic producers make perfect sense from an economic perspective, but could they make it more difficult to build domestic coalitions around progressive climate action? Rules that allow states to (temporarily) shield struggling companies from international competition may preserve high-paying jobs in the protected industry, but what about the employees in downstream industries and consumers who shoulder the burden of higher prices?

Understanding multiple narratives on what international trade law does or should be doing can help us identify the trade-offs among different possible designs of the rules and imagine new directions in which international trade law could develop. We start our exploration of the rival narratives with the establishment narrative, which has dominated the thinking about international trade over at least the past thirty years. At the core of the establishment narrative is the economic case for free trade.

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[Republished with permission from International Trade Law: A Case for a System in Crisis – Introduction, by Nicolas Lamp]

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