Abstract
Rather than just focusing on one narrow component of the TPP , this chapter takes a macro perspective. It first seeks to measure the TPP’s contribution to the IELO —whether it really does add to the field and then, critically, whether the character and components of the TPP really do undermine the IELO. In other words, whether the TPP has much to contribute to the debate about the perception that the IELO is fragmented. The chapter finds that the TPP does not really contribute much new to the IEL, for what is new in the TPP is weak, and what is strong is not new. The chapter then conclude by applying the lessons from that analysis to uncover insights about the wider issue of the fragmentation of first the international economic legal order and then the international legal order in general. The chapter finds that while there are many parts to the international economic order, at a conceptual level it remains coherent. This may be styled coherent fragmentation. Extrapolating it is possible to then consider the wider international legal order similarly fragmented in a coherent manner.
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Notes
- 1.
I will use the term ‘mega FTA’ for these sorts of large regional trade agreements (“RTA”s). Otherwise the term RTA will be used to refer to the non-customs union agreements covered by Article XXIV of the GATT and Article V of the GATS.
- 2.
Full text of the TPP can be found at the USTR website available at https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-full-text.
- 3.
Canadian Prime Minister Harper, see www.wsj.com/articles/canada-pm-harper-heralds-tpp-trade-deal-1444059948.
- 4.
- 5.
To see the signing of the TPP visit www.mfat.govt.nz/en/media-and-resources/news/trans-pacific-partnership-signing/.
- 6.
- 7.
Early versions of this work were also presented in earlier forms at the law faculties of Instituto Tecnológico Autónomo de México (ITAM) in February 2016 in Mexico City and of O.P. Jindal Global University in March 2016 in India.
- 8.
This old phrase means ‘Similar - difficult to distinguish.’ (see www.phrases.org.uk/meanings/251550.html).
- 9.
Colin B. Picker, ‘Regional Trade Agreements v. the WTO: A Proposal for Reform of Article XXIV to Counter this Institutional Threat’, (2005) 26 U. Pa. J. Int’l Econ. L. 267.
- 10.
Treaty of Bern (9 Oct, 1874), establishing the International Postal Union. See http://avalon.law.yale.edu/19th_century/usmu010.asp.
- 11.
See generally, Tomer Broude, ‘Keep Calm and Carry On: Martti Koskenniemi and the Fragmentation of International Law’, (2013) 27 Temp. Int’l & Comp. L.J. 279.
- 12.
Tomer Broude, ‘Keep Calm and Carry On: Martti Koskenniemi and the Fragmentation of
International Law’, (2013) 27 Temp. Int’l & Comp. L.J. 281. See also www.thearmstradetreaty.org/index.php/en/.
- 13.
See Rep. of the Study Grp. of the Int’l Law Comm’n, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 58th Sess., May 1-June 9, July 3-Aug. 11 2006, U.N. Doc. A/CN.4/L.682 (Apr. 13, 2006), as corrected, U.N. Doc. A/CN.4/L.682/Corr.1 (Aug. 11, 2006) (hereinafter ILC Report) at para 8, Treaty of Bern (9 Oct, 1874), establishing the International Postal Union. See http://avalon.law.yale.edu/19th_century/usmu010.asp.
- 14.
- 15.
ILC Report at para 8.
- 16.
Para 8, ILC Report.
- 17.
Bruno Simma, ‘Fragmentation in a Positive Light’, (2003–2004) 25 Mich. J. Int’l L. 845.
- 18.
ILC report, para 18 et seq.
- 19.
Indeed, one sees the same thing in domestic law—we do not expect labour and family law to share concepts, approaches or even courts.
- 20.
Tomer Broude, ‘Keep Calm and Carry On: Martti Koskenniemi and the Fragmentation of International Law’, (2013) 27 Temp. Int’l & Comp. L.J. 280.
- 21.
Detlev F Vagts, ‘International Economic Law and the American Journal of International Law’ (2006) 100 American Journal of International Law 769 (citations omitted).
- 22.
- 23.
They include all the World Bank institutions and related or similar entities (e.g. Asia Development Bank), the many RTA secretariats and their dispute resolution bodies, the many investment arbitration bodies, and so on.
- 24.
E.g., Jagdish Bhagwati, A Stream of Windows: Unsettling Reflections on Trade, Immigration, and Democracy (1998) 290–91(discussing his ‘spaghetti bowl’ theory concerning ever-complex rules of origins emanating from RTAs and the negative consequences for government and private industry).
- 25.
The members of the TPP are/were Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam.
- 26.
Lending support to those that would say the TPP is more about geopolitics than about IEL.
- 27.
See TPP Article 30.5. At a minimum for the TPP to enter into force it needs the signatories of six of the original twelve signatories so long as those six constitute at least 85% of the combined GNP of the original twelve TPP signatories. This requirement therefore requires both Japan and the US to have ratified the treaty for that threshold to be reached.
- 28.
Congressional Research Service: The Trans-Pacific Partnership (TPP): In Brief (R44278, 8 Jan 2016) at 4.
- 29.
Congressional Research Service: The Trans-Pacific Partnership (TPP): In Brief (R44278, 8 Jan 2016) at 6.
- 30.
Congressional Research Service: The Trans-Pacific Partnership (TPP): In Brief (R44278, 8 Jan 2016) at 6–7.
- 31.
- 32.
- 33.
TPP Article 2.11.4.
- 34.
TPP Article 2.29.
- 35.
See, e.g., TPP Articles 16.2 and 16.7.
- 36.
TPP Article 26.6.
- 37.
TPP Articles 19.2 and 19.3 (and thereafter the reference back to these Articles which had themselves incorporated the ILO provisions).
- 38.
TPP Article 19.5.2 (“If a Party fails to comply with an obligation under this Chapter, a decision made by that Party on the provision of enforcement resources shall not excuse that failure.”) Nonetheless this approach is weakened through provisions relating to prosecutorial discretion, though that discretion must only be exercised in good faith or for bona fide reasons. TPP Articles 19.2 and 19.3.
- 39.
TPP Chap. 14, Article 5.1.
- 40.
TPP Article 14.8.2 (“each Party shall adopt or maintain a legal framework that provides for the protection of the personal information of the users of electronic commerce. In the development of its legal framework for the protection of personal information, each Party should take into account principles and guidelines of relevant international bodies.”).
- 41.
TPP Article 2.23.
- 42.
For example, early on it affirms that, among other things, “each Party’s sovereign right to identify its regulatory priorities and establish and implement regulatory measures to address these priorities, at the levels that the Party considers appropriate” 25.2.2.b.
- 43.
TPP Article 25.3.
- 44.
TPP Article 25.4.1.
- 45.
TPP Article 24.4.2.
- 46.
TPP Article 25.10.
- 47.
See, e.g., Article 25.5.6 (“Each Party should review, at intervals it deems appropriate, its covered regulatory measures to determine whether specific regulatory measures it has implemented should be modified, streamlined, expanded or repealed so as to make the Party’s regulatory regime more effective in achieving the Party’s policy objectives.”) and Article 25.5.7 (“Each Party should, in a manner it deems appropriate, and consistent with its laws and regulations, provide annual public notice of any covered regulatory measure that it reasonably expects its regulatory agencies to issue within the following 12-month period”).
- 48.
As subsidiarity is explained at the EU website: “it is the principle whereby the EU does not take action (except in the areas that fall within its exclusive competence), unless it is more effective than action taken at national, regional or local level”. See http://eur-lex.europa.eu/summary/glossary/subsidiarity.html.
- 49.
TPP Article 20.3.2.
- 50.
TPP Article 29.8. As an aside, was not the TPP meant to have been a “stitch up” by big business? And yet this provision may not work to the interests of big business—unless they manage to protect their interests through controlling the countries within which indigenous knowledge is found—leaving unrepresented indigenous people at the mercy of the ruling elites within their own countries. If that is what will happen then this is indeed a victory for business. Regardless of that pessimistic and perhaps paranoid perspective, the subjectivity of the provision does still leave the field somewhat unresolved and likely anarchic, which may not be in the best interests of anyone in the long run.
- 51.
See, e.g., throughout the many provisions found in TPP Article 2.29 ‘Trade of Products of Modern Biotechnology’.
- 52.
TPP Article 25.11.
- 53.
TPP Article 16.9.
- 54.
TPP Article 20.23.
- 55.
TPP Article 20.23.3 (“Before a Party initiates dispute settlement under this Agreement for a matter arising under Article 20.3.4 or Article 20.3.6 (General Commitments), that Party shall consider whether it maintains environmental laws that are substantially equivalent in scope to the environmental laws that would be the subject of the dispute.”).
- 56.
TPP Article 28.10.3.
- 57.
TPP Article 28.12.1.
- 58.
TPP Article 28.19.3.
- 59.
TPP Article 14.13.
- 60.
Subject to the international law rules on reservations. See Vienna Convention on the Law of Treaties (23 May 1969), Articles 19–23.
- 61.
TPP Article 14.2.3.
- 62.
TPP Article 14.4.4.
- 63.
TPP Article 14.4.2.
- 64.
TPP Article 14.11.3.
- 65.
TPP Articles 14.17.1 and 14.17.2.
- 66.
TPP Article 17.1.
- 67.
See, e.g., TPP Article 17.4.1.
- 68.
TPP Article 17.4.3.
- 69.
TPP Article 17.9 authorizes the Annex exemptions. See, e.g., Annex IV, Schedule of Australia (concerning Australian centrally owned enterprises and preferential purchases from indigenous Australians).
- 70.
See the list of non-applications to Annex 17D.
- 71.
See Chap. 17, Annex 17-E and 17-F.
- 72.
See, e.g., TPP Article 17.4.1(a) [providing an exception for SOE governmental benefits “to fulfil any terms of its public service mandate”, though it must still not receive benefits not otherwise available. See TPP Article 17.4.1(c) (ii)].
- 73.
TPP Article 17.6.1.
- 74.
TPP Article 17.6.3.
- 75.
See TPP Article 17.6.4 (“A service supplied by a state-owned enterprise of a Party within that Party’s territory shall be deemed to not cause adverse effects.”). Though note the footnote to that provision that partially offsets the exception. TPP Article 17.6.4 n. 21 (“For greater certainty, this paragraph shall not be construed to apply to a service that is itself a form of non-commercial assistance”).
- 76.
TPP Articles 17.7 and 17.8.
- 77.
Article 17.10.
- 78.
GATT Article XVII, present in the GATT 1947.
- 79.
The TPP took seven years to negotiate.
- 80.
TPP Preamble.
- 81.
TPP Article 1.1.1.
- 82.
TPP Articles 1.1.1. and 1.1.2.
- 83.
TPP Preamble.
- 84.
TPP Article 29.5.
- 85.
I concede my examples are US-centric, but the metaphor is similar when other major economies and their RTAs are used instead.
- 86.
I have not really touched on the many different BITs, though I believe they too are all substantially similar, with the little novelty that shows up not really a challenge to the usual approaches and the fundamental concepts involved—but the treatment (including support) for this assertion is for another paper.
- 87.
Greater solace would only be provided by a deeper and longer treatment of this issue.
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Picker, C.B. (2017). The Coherent Fragmentation of International Economic Law: Lessons from the Transpacific Partnership Agreement. In: Chaisse, J., Gao, H., Lo, Cf. (eds) Paradigm Shift in International Economic Law Rule-Making. ODS 2017. Economics, Law, and Institutions in Asia Pacific. Springer, Singapore. https://doi.org/10.1007/978-981-10-6731-0_2
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