The Constitutionalization Of The World Trading System

The World Trading System was born in 1940s. As an institution struggling for international economic cooperation of human society, the World Trading System has been playing a critically important role in the development of world economy more than half a century. However, at the same time it has achieved amazing success and enormously enlarged its influence, the inner defects of the World Trading System have been explored gradually, which caused serials of grave challenges and dissatisfactions in international society as well as domestic society. It is of great importance for the System's survival and long-term development in the future, that how to analyze the constitutional problems of the World Trading System and deal with them. This dissertation tries to analyze and conclude the general jurisprudence of the World Trading System in its building and operation. On this basis, the author attempts to construct the constitutional value principle of the World Trading System within dual-bound of the international legal system and domestic legal system, to direct the future constitutional reform of the World Trading System.Besides the Introduction, this dissertation can be composed of the following six chapters:Chapter 1 first explores the constitutional challenges raised by World Economic Integration upon the traditional Dual-Division Jurisdiction System of human society. The traditional jurisdiction system of human society is character by dual-division, that is, the international legal system is different thoroughly by goals and functions with the domestic legal system. They have separated value bases and regime structures in nature. The development of World Economic Integration has profoundly changed the social foundation of traditional Dual-Division Jurisdiction System. Since private subjects all over the world have generally, frequently and large-scale participated in the labor-division and cooperation activities of World Economic Integration, the inter-separated state of international issues and domestic issues has been broken gradually. It has become a serious problem faced by traditional international legal system and domestic legal system that how to properly regulate the inter-private transnational interest-relationships. The inner conflicts between the trends of World Economic Integration and the legging Dual-Division Jurisdiction System have led to serials of grave constitutional problems in human society. It will be a great historic task faced by the World Trading System to meet the constitutional challenges of World Economic Integration.Chapter 2 examines the evolution of regulatory system from"Unilateral- Jurisdiction"pattern to"Joint-Jurisdiction"pattern. The conflicts between World Economic Integration and the legging traditional Dual-Division Jurisdiction System have caused seriously economic and social crisis in different countries all over the world. In order to meet the need of World Economic Integration, some states create a member-oriented GATT/WTO Jointed-Jurisdiction System. According to GATT/WTO system, member-states commit themselves to binding the Unilateral-Jurisdiction power in foreign economic affair by Principle of Reciprocal, and gradually remove the trade barriers and open domestic markets. Then, member-states reform their own domestic legal system according to the GATT/WTO rules, and indirectly provide legal protection for the private participation on the activities of World Economic Integration. In this way, the tension between"Unilateral-Jurisdiction"system and World Economic Integration can be eased to a certain extent. The creation and development of GATT/WTO Jointed-Jurisdiction System shows that states have attempted to connect the institutions of international legal system with those of domestic legal system, to meet the constitutional challenge of World Economic Integration.Chapter 3 concludes and analyzes the general trends of after-war World Trading System from"Power-Oriented"pattern to"Rule-Oriented"pattern. With the development of World Trading System, the position and role of legal instruments have increasingly rise in regulation of world trade affair, which put forward the legalization progress of the System gradually. During this process, GATT/WTO system has transformed progressively from a"Power-Oriented", loose Jointed-Jurisdiction System to a"Rule-Oriented", tense Jointed-Jurisdiction System. This transformation indicts that in the area of World Economic Integration affairs, the ties of international legal system and domestic legal system have been consolidated and deepened, and have more protracted nature and stability. The transformation from"Power-Oriented"pattern to"Rule-Oriented"pattern has pushed forward the progresses of the Rule of Law in form. However, the future development of GATT/WTO in legalization depends on the extent of progress made by the World Trading System on the Rule of Law in substance. Due to the separation of values and functions between traditional international legal system and domestic legal system, the World Trading System built on Principle of Reciprocal can't satisfy with the inner value need of domestic constitutional system. So the GATT/WTO can put forward legalization dramatically only in procedure areas, but still keep an inter-state political conciliation regime in substantial areas.Chapter 4 discusses the transformation of World Trading System from"State-Centered"conception to"Private-Centered"conception. The World Trading System was founded by traditional international public law, so it is character typically by"State-Centered"in value-bases. The GATT/WTO built on state-interests may causes imbalance of domestic interest distribution in the condition of World Economic Integration, and impedes the constitutional function of domestic legal system. Furthermore, the inconsistence of state-interests with private-interests will prevent the"State-Centered"GATT/WTO from protecting private transnational interest-relationships. This situation may seriously distort or injure the normal interest-relationships made by private subject in world economic activities of labor-division and cooperation, and impede the private enthusiasm from participating in the activities of World Economic Integration. Only by reconstructing the"Private-Centered"value-objective of World Trading System, can we closely link the function of international legal system and domestic legal system, and provide protection for the legitimate interests of private subject participating in World Economic Integration. The value-pursuits of WTO"Positive Integration"rules for protecting private rights and defining the proper intervention power of state promotes the connection of functions between the World Trading System and domestic legal system, and make them co-serve for the regulation of private transnational interest-relationships in World Economic Integration.Chapter 5 makes a further discussion about the transformation of World Trading System from"Interests-Standard"conception to"Rights-Standard"conception. To a great extent, the"Interests-Standard"conception represented by traditional International Politics Realism conception and Utilitarianism conception will mislead the development of World Trading System, and undermine the legitimacy of World Trading System. On the base of due-bound by value of international legal system and domestic legal system, the author tries to construct general constitutional value principles for directing the long-term development of future World Trading System. As a social institution for regulating activities of World Economic Integration, the World Trading System should appropriately balance the transnational interest-relationships made by private in activities of World Economic Integration, so as to promote the private's enthusiasm for participating in world economic activities of labor-division and cooperation. That means the World Trading System should found a regime to proper allocate and distribute the benefits and burden in social cooperation, to make every private participator of World Economic Integration can get their proper profits which it deserved. At the same time, the World Trading System should define a proper intervention power of state to safeguard different countries'public interests (state interests), to promote private participation in World Economic Integration, and to accelerate the economic development and social progress in all countries. By constructing the general constitutional value principles with balance of private rights and proper intervention power of state, the World Trading System can fully satisfy the legitimacy need for both international law and domestic law, and consolidate the moral approval and political support from states and domestic citizens, so as to answer the constitutional challenges of World Economic Integration comprehensively and powerfully.Chapter 6 concludes the former chapters, and makes some prospects on the constitutional reform of future World Trading System. The transfer from"Dual-Division Theory"to"Joint-Coalition Theory"clarifies the value-goals as well as primary ways for constitutional reform of the World Trading System. So we should make progressively improvements on the basic rules system, rule-making and decision-making regime, execution regime and dispute-settlement regime of existing WTO system according to the general constitutional value principles with balance of private rights and proper intervention power of state in the condition of World Economic Integration, and push the movement of the constitutionalization of the World Trading System.