Reconstruction Of The Legal Order Of International Trade Community Under The Background Of RTAs' Proliferation

Nowadays the proliferation of regional trade agreements(RTAs) forms a serious challenge against WTO. It is all along a hot issue in international economic law academe to explore how to deal with the relationship between WTO and RTAs so as to maintain the stability of the legal order of international trade community. The traditional academic spirit tends to study how to perfect GATT Article XXIV and other provisions of WTO law to enhance WTO's legal rulings on RTAs and make RTAs a beneficial supplement for WTO. However, this approach pays little attention to the macro background of the coexistence of globalization and regionalism in international society, which makes itself unpractical and full of improper subjectivity. This dissertation argues that it is necessary to employ jurisprudential theories and views to explore this problem. Only by analyzing the social foundation of the legal order of international trade community can we produce an effective jurisprudential response on this problem.Besides the Preamble and the Conclusion, There are five chapters in this article which are arranged as the following:The heading of the first chapter is "Postmodern jurisprudential perspective on contemporary international trade law". This chapter believes that there are obvious characters of postmodernism with the close combination of "power" and "knowledge" in contemporary international trade law, for which postmodern jurisprudence has a strong interpretative capacity. People usually pin their hope on WTO itself, imagine WTO as a just and impartial "rational subject" and the "top legislator" in international trade law, and expect WTO to establish more perfect and clearer disciplines on RTAs. But this proves to be very difficult in practice, and is not necessarily consistent with the benefits of developing countries. Therefore, a political legal way by Neumann and Ungel finds its position in this area. Although postmodern jurisprudence is not able to replace modem jurisprudence, it can still provide us a useful thinking way to understand the situations of international trade law.The heading of the second chapter is "New definition on the legal function of GATT Article XXIV". After analyzing the operating effect of GATT Article XXIV and giving an overview of the various academic reforming opinions, this chapter believes that there is a true contradiction between the design of the content and the prospective legal function of GATT Article XXIV, of which the legal function needs to be re-interpreted. In a certain extent, Article XXIV can be seen as a "soft law", but its softness must be attributed to the over-high tune of the traditional definition on its legal function. By using Reisman's view of "the three elements in international law-making" and Fuller's theory of "internal morality of law", this chapter takes a new definition on the legal function of GATT Article XXIV based upon the political reality of international society. This is the first step towards the re-construction of the modernity of the legal order of international trade community.The heading of the third chapter is "Theory of multi-control in the legal order of international trade community". This chapter argues that the fundamental mechanism of the legal order of international trade community is a continuous and pendulous balance between multilateralism and minilateralism based upon sovereign states' unilateral will, not being "complete fragmentation", nor "competitive liberalization", or even "federalist constitutionalism". Under such a balance, the macro picture of the legal order of international trade community exhibits a co-control of the three elements of sovereign states' unilateral legal action, WTO and RTAs. Among them, sovereign states' unilateral legal action is the basal element, and WTO and RTAs are the institutional elements. This situation of multi-control forms the "spontaneous order" or "order without law" argued by liberalism jurisprudence.The heading of the fourth chapter is "Communicative legal view in the legal order of international trade community". This chapter argues that the institutional interaction among the three elements in the legal order of international trade community operates by the communicative legal view. Based philosophically on Harbermas' Communicative Nous and Communicative Behaviour Theory, the communicative legal view transforms the autonomy of law into circulatory autonomy, and legitimacy of law into communicative legitimacy. It emphasizes the communication and interaction between legislators and the regulated, and communication and interaction among different legal systems. The concrete communicative activities in the legal order of international trade community operate on Nuemann's approach of political coordination and Pauwelyn's approach of normativism, and Nuemann's approach of political coordination is the main and primary one. This chapter takes much institutional analysis in order to exhibit the macro picture of the legal order of international trade community. "institutionalization of communicative power" is a very important job, of which the basic meaning lies mainly in the procedural construction of international deliberative mechanism to enhance information exchange and opinion communication for an "elastic conformity".The heading of the fifth chapter is "WTO's moderate control in the legal order of international trade community". This chapter argues that WTO is still the most prestigious universal international organization in international trade community and it owns special institutional advantages over any RTAs. Since WTO provides us the best multilateral platform for cooperation that we can utilize at the present, there is no reason to ignore this precious institutional resource on the work for conformity of international trade agreements. The view of "moderate control" is based upon not only the conclusions of the former four chapters but also the viewpoints of "the end of managerialism" and "service administration" in administrative governance theory. It is apparently "regulation" but virtually "coordination" to perfect the WTO normative discipline on RTAs. The basic meaning of "moderate control" is to improve the transparency mechanism of RTAs and the construction of the deliberative mechanism in CRTA. As to the substantial aspect, it is proper for GATT Article XXIV and other provisions of WTO law relating to RTAs to maintain "simple" features at the present. In addition, there are also some other important issues belonging to the spectrum of "moderate control" such as the function role of DSB, the public participation and equal cooperation between WTO and RTAs.