In her article from 2019, Fleur Johns describes a change: from a style of development work marked... more In her article from 2019, Fleur Johns describes a change: from a style of development work marked by a propensity for ‘planning’, to one marked by a propensity for ‘prototyping’. Our project in this paper is to propose a modest shift in perspective. Where Johns traces a transition from old to new styles, we emphasise the enduring links between planning and prototyping, such that both styles are best understood through their ongoing relationships and entanglements. Returning to Pulse Lab Jakarta (PLJ), the site of Johns’ initial inquiry, we offer a reinterpretation of what might be novel about PLJ for development practice. Our claim is that to understand the particular intervention that PLJ represents, and the new modes of practice it produces, it may be helpful to understand PLJ's work in the manner of a ‘modular’ attachment to existing development apparatuses, that combines big data analytics with design thinking. We then develop some reflections and speculations on the forms a...
The purpose of this article is to identify two potential difficulties in the application of Artic... more The purpose of this article is to identify two potential difficulties in the application of Article 5.7 which appear to follow from certain statements made by Panels and the Appellate Body in the jurisprudence under that Article so far. The first relates to the situation in which a WTO Member legitimately takes provisional measures under Article 5.7, but refuses to conduct further research as required by that Article. In such circumstances, it is argued, the relevant violation is the failure to conduct further research, not the taking of provisional measures-and the solution must therefore be to require such further research, rather than to invalidate the provisional measures themselves. The second relates to questions of evolving science, and the extent to which Article 5.7 can and ought to remain available as a safe harbour to Members even once a risk assessment has been carried out. It is argued that in some circumstances it should: where substantive inadequacies and limitations of the earlier risk assessment become apparent to policy-makers, where new evidence comes to light, and where a previously unconsidered risk is identified. Under the current jurisprudence, it is not clear that Article 5.7 remains appropriately available in all such circumstances.
Journal of International Trade Law and Policy, 2015
Purpose – This paper aims to reflect on the first 20 years of the World Trade Organization (WTO) ... more Purpose – This paper aims to reflect on the first 20 years of the World Trade Organization (WTO) Appellate Body’s jurisprudence, specifically as it relates to questions of normative fragmentation. It provides an overview of some of the highlights of the WTO’s jurisprudence as it pertains to fragmentation, with particular focus on the use of general public international law in the context of the WTO dispute settlement. Design/methodology/approach – The paper adopts a traditional interpretive legal method, applied to the case law of the WTO. Findings – The paper suggests that the Appellate Body’s approach has not been driven by the institutional myopia and normative closure of which they are sometimes accused, but rather a judicial sensibility which (rightly or wrongly) valorises the virtues of modesty, caution and self-restraint. Originality/value – The paper contributes to the literature on the causes of fragmentation, drawing attention in particular to the importance of internation...
When the World Trade Organization's new dispute settlement machinery was created in 1995, no one ... more When the World Trade Organization's new dispute settlement machinery was created in 1995, no one knew for certain what its consequences would be. Innovative and experimental in crucial respects, it represented an extraordinary gambit by the Uruguay Round negotiators, who agreed to its creation partly out of frustration with the perceived deficits of the General Agreement of Tariff and Trade's enforcement machinery, partly out of fear of unilateralism and partly in the context of a particular moment of post-Cold War faith in the international rule of law. Although a mythology very quickly emerged around this new dispute settlement machinery, according to which it represented a step-change from power-oriented to rule-oriented trade diplomacy, this was in truth always more of an aspirational expression rather than a statement of fact. In the mid-1990s, the new system had many possible futures, and its historical meaning was yet to be made. No one was more conscious of this than the seven original members of the Appellate Body, who understood well the stakes of their endeavour and felt very keenly the scrutiny of the international community as it watched how this institutional experiment would unfold.
The starting point of this paper is that if we want to understand the way in which international ... more The starting point of this paper is that if we want to understand the way in which international law structures and mediates the deployment of power in international life, then we need to attend to the relationship between law and knowledge-the relationship between international legal processes and the processes by which we collectively come to know, describe, and imagine the world in which we live. My aim is to explore this relationship empirically by looking in detail at one case study, namely the international legal regime governing international trade in services, and specifically, the World Trade Organisation's General Agreement on Trade in Services. Over the last fifteen years, this new body of international law has developed and evolved alongside a corresponding body of social scientific expertise on the nature and dynamics of the global services economy. I tell a story of the coevolution of these two systems-the legal regime on the one hand, and the body of knowledge on the other-and try to trace in detail the ways in which law and legal processes have been present in processes of knowledge production, shaping the way the global services economy is collectively imagined and its dynamics understood. I offer four axes along which to think about this relationship, corresponding to the concepts of constitution, transmission, objectification and empowerment.
Over a decade ago, an important debate began concerning the proper role of the International Cour... more Over a decade ago, an important debate began concerning the proper role of the International Court of Justice (ICJ) in an international legal universe characterized by a large and rapidly increasing number of specialized courts and tribunals. What functions can and should the Court perform in response to the fragmentation of international law, and the proliferation of international tribunals? Initial proposals, especially those emerging in the late 1990s, were hierarchical and centralist in their orientation, and have justifiably fallen out of favour. This article uses the current international legal disputes about Australia's plain packaging tobacco legislation as the basis for an exploration of the possibilities for an alternative, non-centralist vision for the ICJ, which is sensitive both to the institutional limits of the international judiciary, and to the benefits of a fundamentally pluralist international legal order.
The problem of uncertainty presents a major challenge for institutions of international governanc... more The problem of uncertainty presents a major challenge for institutions of international governance. In this article we draw lessons from a variety of literatures, including ecology and environmental management, for understanding and responding to uncertainty. From them we derive a model of ' adaptive governance ' as a way to respond to the extensive and pervasive uncertainty confronting decision-makers in international institutions. Adaptive governance accepts and responds to uncertainty through promoting learning, avoiding irreversible interventions and impacts, encouraging constant monitoring of outcomes, facilitating broad participation in policy-making processes, encouraging transparency, and refl exively highlighting the limitations of the knowledge on which policy choices are based. Here we assess the World Trade Organization as an institution of adaptive governance, taking for our focus the WTO's treatment of national measures to counter the spread of invasive alien species, an arena in which particularly challenging and persistent uncertainties are faced. We fi nd that while some aspects of the WTO's operation already fi t within an adaptive governance model, in other important respects the WTO fails to encourage (and sometimes inhibits) effective policy responses to persistent uncertainty.
The last decade has seen the development of a burgeoning literature on the relationship between i... more The last decade has seen the development of a burgeoning literature on the relationship between international trade and the protection of human rights, driven in part by a series of influential reports produced by the Office of the UN High Commissioner for Human Rights. Some human rights commentators have been heavily critical of the trade regime, pointing to a variety of ways in which obligations under international trade law purportedly undermine the ability of governments to fulfil their human rights obligations. Others see the potential for strong synergies between the two regimes, and argue that international trade can be a powerful force for raising global standards of human rights protection.
An important context for contemporary trade frictions is the emergence, since the 1990s, of a wid... more An important context for contemporary trade frictions is the emergence, since the 1990s, of a wide range of new forms of market capitalism, of which China's hybrid market economy is the most significant. Institutional diversity of this kind is a source of strength and dynamism for the global trading system, but it is also the cause of very serious friction. The General Agreement on Tariffs and Trade/World Trade Organization system has dealt with this problem before, but the existing settlement regarding the legitimate boundaries of institutional diversity is under pressure and needs to be revisited. One concept that has been incorporated into World Trade Organization trade defence law (and elsewhere) to help draw these boundaries is the concept of the 'market distortion'. The concept can be a useful one, but it has so far been interpreted and applied with an inadequate appreciation of its serious conceptual and practical difficulties. The potential result is a system of trade defences targeted in a discriminatory and even punitive manner against heterodox institutional forms, in ways that may excessively disincentivize institutional experimentation. In response, this paper argues for an approach to the interpretation and application of this concept, which proceeds from an understanding of the institutionally embedded character of markets. This does not take the form of a readily available 'solution' , but rather a messy and evolving set of legal techniques that, in the best case, can form the legal basis of a practical and justifiable approach to the tensions caused by institutional diversity. A toolkit of legal techniques of this kind clearly cannot take the place of a more foundational political settlement of some sort, but it is a necessary accompaniment to it, if we are to preserve the aspiration towards a genuinely non-discriminatory and rules-based global economic order.
Press 1998). 6 Though see also Catherine Larrère, L'invention de l'économie au 18. siècle: du ... more Press 1998). 6 Though see also Catherine Larrère, L'invention de l'économie au 18. siècle: du droit naturel à la physiocratie (Presses universitaires de France 1992). 7 Mitchell (n5) 4.
In academic literature the WTO is largely viewed as synonymous with its novel system for the sett... more In academic literature the WTO is largely viewed as synonymous with its novel system for the settlement of disputes. We seek to demonstrate in this article that there is more to the WTO than this, and to exemplify this claim by reference to two specifi c sites of non-judicial governance in the WTO. We suggest that these two WTO committees perform important functions which are largely hidden from view. In particular, we point to the role that they play in generating and disseminating information, and as facilitators of technical assistance and regulatory learning. We also suggest that these committees contribute to the emergence of interpretive communities which serve to elaborate upon the open-ended norms laid down in the relevant agreements. Having surveyed the activities of these two sites of non-judicial governance in the WTO, we then situate them in the context of three contemporary narratives of global governance (transgovernmental networks, global administrative law, and managerialism), and use these as a way of critically evaluating the developments we describe. It is our view that the material that we have uncovered in relation to these two examples is suffi ciently rich to justify further research in this domain.
The World Trade Organization is often criticized for requiring its members to adopt policies whic... more The World Trade Organization is often criticized for requiring its members to adopt policies which can detrimentally affect poor and vulnerable groups. Close analysis of the relevant provisions of WTO law, however, often reveals international trade obligations to be significantly more flexible than is commonly suggested. The author argues, however, that, on its own, detailed formal analysis of trade law paints an incomplete picture. Trade law also influences political choices by framing debates about trade policy – determining the arguments which can be made, who can make them, and in what forums they can be presented. The author illustrates this argument through a focused analysis of one controversy relating to the trade regime, namely the ‘GATS and water’ debate, and in particular the question of whether the General Agreement on Trade in Services may require the ‘privatization’ of water infrastructures.
In her article from 2019, Fleur Johns describes a change: from a style of development work marked... more In her article from 2019, Fleur Johns describes a change: from a style of development work marked by a propensity for ‘planning’, to one marked by a propensity for ‘prototyping’. Our project in this paper is to propose a modest shift in perspective. Where Johns traces a transition from old to new styles, we emphasise the enduring links between planning and prototyping, such that both styles are best understood through their ongoing relationships and entanglements. Returning to Pulse Lab Jakarta (PLJ), the site of Johns’ initial inquiry, we offer a reinterpretation of what might be novel about PLJ for development practice. Our claim is that to understand the particular intervention that PLJ represents, and the new modes of practice it produces, it may be helpful to understand PLJ's work in the manner of a ‘modular’ attachment to existing development apparatuses, that combines big data analytics with design thinking. We then develop some reflections and speculations on the forms a...
The purpose of this article is to identify two potential difficulties in the application of Artic... more The purpose of this article is to identify two potential difficulties in the application of Article 5.7 which appear to follow from certain statements made by Panels and the Appellate Body in the jurisprudence under that Article so far. The first relates to the situation in which a WTO Member legitimately takes provisional measures under Article 5.7, but refuses to conduct further research as required by that Article. In such circumstances, it is argued, the relevant violation is the failure to conduct further research, not the taking of provisional measures-and the solution must therefore be to require such further research, rather than to invalidate the provisional measures themselves. The second relates to questions of evolving science, and the extent to which Article 5.7 can and ought to remain available as a safe harbour to Members even once a risk assessment has been carried out. It is argued that in some circumstances it should: where substantive inadequacies and limitations of the earlier risk assessment become apparent to policy-makers, where new evidence comes to light, and where a previously unconsidered risk is identified. Under the current jurisprudence, it is not clear that Article 5.7 remains appropriately available in all such circumstances.
Journal of International Trade Law and Policy, 2015
Purpose – This paper aims to reflect on the first 20 years of the World Trade Organization (WTO) ... more Purpose – This paper aims to reflect on the first 20 years of the World Trade Organization (WTO) Appellate Body’s jurisprudence, specifically as it relates to questions of normative fragmentation. It provides an overview of some of the highlights of the WTO’s jurisprudence as it pertains to fragmentation, with particular focus on the use of general public international law in the context of the WTO dispute settlement. Design/methodology/approach – The paper adopts a traditional interpretive legal method, applied to the case law of the WTO. Findings – The paper suggests that the Appellate Body’s approach has not been driven by the institutional myopia and normative closure of which they are sometimes accused, but rather a judicial sensibility which (rightly or wrongly) valorises the virtues of modesty, caution and self-restraint. Originality/value – The paper contributes to the literature on the causes of fragmentation, drawing attention in particular to the importance of internation...
When the World Trade Organization's new dispute settlement machinery was created in 1995, no one ... more When the World Trade Organization's new dispute settlement machinery was created in 1995, no one knew for certain what its consequences would be. Innovative and experimental in crucial respects, it represented an extraordinary gambit by the Uruguay Round negotiators, who agreed to its creation partly out of frustration with the perceived deficits of the General Agreement of Tariff and Trade's enforcement machinery, partly out of fear of unilateralism and partly in the context of a particular moment of post-Cold War faith in the international rule of law. Although a mythology very quickly emerged around this new dispute settlement machinery, according to which it represented a step-change from power-oriented to rule-oriented trade diplomacy, this was in truth always more of an aspirational expression rather than a statement of fact. In the mid-1990s, the new system had many possible futures, and its historical meaning was yet to be made. No one was more conscious of this than the seven original members of the Appellate Body, who understood well the stakes of their endeavour and felt very keenly the scrutiny of the international community as it watched how this institutional experiment would unfold.
The starting point of this paper is that if we want to understand the way in which international ... more The starting point of this paper is that if we want to understand the way in which international law structures and mediates the deployment of power in international life, then we need to attend to the relationship between law and knowledge-the relationship between international legal processes and the processes by which we collectively come to know, describe, and imagine the world in which we live. My aim is to explore this relationship empirically by looking in detail at one case study, namely the international legal regime governing international trade in services, and specifically, the World Trade Organisation's General Agreement on Trade in Services. Over the last fifteen years, this new body of international law has developed and evolved alongside a corresponding body of social scientific expertise on the nature and dynamics of the global services economy. I tell a story of the coevolution of these two systems-the legal regime on the one hand, and the body of knowledge on the other-and try to trace in detail the ways in which law and legal processes have been present in processes of knowledge production, shaping the way the global services economy is collectively imagined and its dynamics understood. I offer four axes along which to think about this relationship, corresponding to the concepts of constitution, transmission, objectification and empowerment.
Over a decade ago, an important debate began concerning the proper role of the International Cour... more Over a decade ago, an important debate began concerning the proper role of the International Court of Justice (ICJ) in an international legal universe characterized by a large and rapidly increasing number of specialized courts and tribunals. What functions can and should the Court perform in response to the fragmentation of international law, and the proliferation of international tribunals? Initial proposals, especially those emerging in the late 1990s, were hierarchical and centralist in their orientation, and have justifiably fallen out of favour. This article uses the current international legal disputes about Australia's plain packaging tobacco legislation as the basis for an exploration of the possibilities for an alternative, non-centralist vision for the ICJ, which is sensitive both to the institutional limits of the international judiciary, and to the benefits of a fundamentally pluralist international legal order.
The problem of uncertainty presents a major challenge for institutions of international governanc... more The problem of uncertainty presents a major challenge for institutions of international governance. In this article we draw lessons from a variety of literatures, including ecology and environmental management, for understanding and responding to uncertainty. From them we derive a model of ' adaptive governance ' as a way to respond to the extensive and pervasive uncertainty confronting decision-makers in international institutions. Adaptive governance accepts and responds to uncertainty through promoting learning, avoiding irreversible interventions and impacts, encouraging constant monitoring of outcomes, facilitating broad participation in policy-making processes, encouraging transparency, and refl exively highlighting the limitations of the knowledge on which policy choices are based. Here we assess the World Trade Organization as an institution of adaptive governance, taking for our focus the WTO's treatment of national measures to counter the spread of invasive alien species, an arena in which particularly challenging and persistent uncertainties are faced. We fi nd that while some aspects of the WTO's operation already fi t within an adaptive governance model, in other important respects the WTO fails to encourage (and sometimes inhibits) effective policy responses to persistent uncertainty.
The last decade has seen the development of a burgeoning literature on the relationship between i... more The last decade has seen the development of a burgeoning literature on the relationship between international trade and the protection of human rights, driven in part by a series of influential reports produced by the Office of the UN High Commissioner for Human Rights. Some human rights commentators have been heavily critical of the trade regime, pointing to a variety of ways in which obligations under international trade law purportedly undermine the ability of governments to fulfil their human rights obligations. Others see the potential for strong synergies between the two regimes, and argue that international trade can be a powerful force for raising global standards of human rights protection.
An important context for contemporary trade frictions is the emergence, since the 1990s, of a wid... more An important context for contemporary trade frictions is the emergence, since the 1990s, of a wide range of new forms of market capitalism, of which China's hybrid market economy is the most significant. Institutional diversity of this kind is a source of strength and dynamism for the global trading system, but it is also the cause of very serious friction. The General Agreement on Tariffs and Trade/World Trade Organization system has dealt with this problem before, but the existing settlement regarding the legitimate boundaries of institutional diversity is under pressure and needs to be revisited. One concept that has been incorporated into World Trade Organization trade defence law (and elsewhere) to help draw these boundaries is the concept of the 'market distortion'. The concept can be a useful one, but it has so far been interpreted and applied with an inadequate appreciation of its serious conceptual and practical difficulties. The potential result is a system of trade defences targeted in a discriminatory and even punitive manner against heterodox institutional forms, in ways that may excessively disincentivize institutional experimentation. In response, this paper argues for an approach to the interpretation and application of this concept, which proceeds from an understanding of the institutionally embedded character of markets. This does not take the form of a readily available 'solution' , but rather a messy and evolving set of legal techniques that, in the best case, can form the legal basis of a practical and justifiable approach to the tensions caused by institutional diversity. A toolkit of legal techniques of this kind clearly cannot take the place of a more foundational political settlement of some sort, but it is a necessary accompaniment to it, if we are to preserve the aspiration towards a genuinely non-discriminatory and rules-based global economic order.
Press 1998). 6 Though see also Catherine Larrère, L'invention de l'économie au 18. siècle: du ... more Press 1998). 6 Though see also Catherine Larrère, L'invention de l'économie au 18. siècle: du droit naturel à la physiocratie (Presses universitaires de France 1992). 7 Mitchell (n5) 4.
In academic literature the WTO is largely viewed as synonymous with its novel system for the sett... more In academic literature the WTO is largely viewed as synonymous with its novel system for the settlement of disputes. We seek to demonstrate in this article that there is more to the WTO than this, and to exemplify this claim by reference to two specifi c sites of non-judicial governance in the WTO. We suggest that these two WTO committees perform important functions which are largely hidden from view. In particular, we point to the role that they play in generating and disseminating information, and as facilitators of technical assistance and regulatory learning. We also suggest that these committees contribute to the emergence of interpretive communities which serve to elaborate upon the open-ended norms laid down in the relevant agreements. Having surveyed the activities of these two sites of non-judicial governance in the WTO, we then situate them in the context of three contemporary narratives of global governance (transgovernmental networks, global administrative law, and managerialism), and use these as a way of critically evaluating the developments we describe. It is our view that the material that we have uncovered in relation to these two examples is suffi ciently rich to justify further research in this domain.
The World Trade Organization is often criticized for requiring its members to adopt policies whic... more The World Trade Organization is often criticized for requiring its members to adopt policies which can detrimentally affect poor and vulnerable groups. Close analysis of the relevant provisions of WTO law, however, often reveals international trade obligations to be significantly more flexible than is commonly suggested. The author argues, however, that, on its own, detailed formal analysis of trade law paints an incomplete picture. Trade law also influences political choices by framing debates about trade policy – determining the arguments which can be made, who can make them, and in what forums they can be presented. The author illustrates this argument through a focused analysis of one controversy relating to the trade regime, namely the ‘GATS and water’ debate, and in particular the question of whether the General Agreement on Trade in Services may require the ‘privatization’ of water infrastructures.
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Papers by Andrew Lang