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Mona Pinchis-Paulsen

8 Oct, 9 tweets, 3 min read

@geoffreygertz

This is an important point from @geoffreygertz and one which @harlangcohen and I have long discussed about the internal debates that led to the creation of USTR. And I hope to support Geoff's ridiculously sharp thread by reflecting on agencies' impact on the trade/security divide

International trading rules structure national security as an exception to rules of non-discrimination and trade liberalisation & this emerged as some saw trade = peace. Security exceptions were important, albeit dangerous for the multilateral trading system = rare formal use.

But the absence of invocation over time never eradicated the significance of national security as a justification or element of international economic relations between countries. As economist Thomas Schelling remarked in 1971, ‘trade policy is national security policy.'

What Geoff picks up on goes deeper - a point about the people *in* the room that made choices about insulating trade from politics (security). I agree with him that agency structure over the two respective fields are crucial – not just for the US but for all country governments.

For example, had it not been for the debates b/n State & Defense departments after WW2, the multilateral trading system may have looked different, as these debates constituted the rule/exceptions we have today. repository.law.umich.edu/mjil/vol41/iss…

To understand what these agencies debated requires closer inspection of each agencies’ origins, mandates as well as agents' ‘sensibility or style’ (to take from David Kennedy) core.ac.uk/download/pdf/2….

By this I mean not just what objectives the executive tasked them with, but the agency’s own common vocabulary. heinonline.org/HOL/LandingPag…. Andrew Lang looked to the ‘mindsets, common to the relevant community of professional interpreters.' global.oup.com/academic/produ…

We’re in this moment where we may see trading rules as over-simplified, or that these rules were perhaps too rudimentary to manage current realities. If past logics to separate the two, eg to see trade as a solution to security (& this too is multifaceted) there's value in

considering the agencies that structure that divide through law. And then the historical context will mean everything – because these domestic internal debates shape the law-making process at the international level.

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Mona Pinchis-Paulsen

@loyaladvisor

29 Jan

A thread on "Trade Multilateralism and U.S. National Security: The Making of the GATT Security Exceptions", especially for those curious about my big picture thoughts on this project. Michigan J Int'l Law has it up here: repository.law.umich.edu/mjil/vol41/iss…

My intensive archival work into the construction of the security exceptions illuminates, but also complicates, current debates about the interpretation of article XXI GATT, which is relevant for several disputes at the WTO.

My work provides new evidence into the making of the International Trade Organization (ITO), the original post-WW2 multilateral trade institution, through investigation of the internal debates among the lead architects of the exceptions and the ITO preparatory materials.

Read 8 tweets

Mona Pinchis-Paulsen

@loyaladvisor

9 Dec 19

I’ve seen discussion as to how the judicialization of the WTO is far beyond what the US originally contemplated. What does that mean? I fear, as others do, that the absence of the WTO Appellate Body is not a return to the GATT legal system, it is return to unilateral retaliation.

@nicolas_lamp

Without focusing too much on the prescriptions (@nicolas_lamp offers cogent ideas @WorldTradeLaw), the driving force behind the emergence of the multilateral trade system was international cooperation and the shared view that no member should take the law in its own hands.

But, why not go back to the GATT–before the judicialized system? The GATT was a small group of contracting states, and not today's WTO heterogenous group. I note there was thinking about non-market economies, the size of the Chinese economy was not contemplated in the 1940s/50s.

Read 10 tweets

Mona Pinchis-Paulsen

@loyaladvisor

2 Oct 19

@WorldTradeLaw

The US has posted its first submission for the US-Certain Measures on Steel and Aluminum Products (s.232 cases). I'll be posting on @WorldTradeLaw about this, as I suspect others will too, but for now, a thread on my initial reactions.

@WorldTradeLaw

@WorldTradeLaw As expected, the U.S. argues that Article XXI(b) of the GATT 1994 permits any WTO Member to take action to protect its essential security in a manner it considers necessary. It begins with an interpretation pursuant to Article 31 Vienna Convention.

As per the Russia-Traffic in Transit decision, the US argues that Art XXI(b) is entirely self-judging. This means the WTO Member invoking Art XXI(b) may decide what is "necessary", what is "essential security interests" and whether its actions are identified in ArtXXI(b)(i)-(iii)

Read 27 tweets

Mona Pinchis-Paulsen

@loyaladvisor

5 Aug 19

@howserob

I found @howserob comments insightful. Thinking aloud, and as someone who devotes time to archival work (which is by *definition* slow), there is great merit in combining slow and fast (though I doubt Rob would call it this) writing.

https://twitter.com/WorldTradeLaw/status/1158392626493526017

@dandrezner

We are in the industry of ideas (@dandrezner). We devote years to law and policy, and now - more than ever - many of us see opportunity, and responsibility, to help others understand the world. Whether that's to see the big picture, new narrative, new voice, or nuance in rules.

This means offering insights on Twitter with cutting-edge threads, writing op-eds, writing blogs, or speaking up. Sometimes remaining apolitical and unbiased, and other times not. But, these instant interactions add value - even if fleeting - to engage and think.

Read 5 tweets

Mona Pinchis-Paulsen

@loyaladvisor

2 Dec 18

@WTO

In light of consideration of @WTO addressing investment, I thought I'd highlight some prior efforts from the Working Group on the Relationship between Trade and Investment, re the Doha Development Agenda, see 2002 Report WT/WGTI/6. (thread w/ excerpts)

The working group sought to clarify scope and definitions (investment/investor), transparency, non-discrimination, pre-establishment commitments from a GATS +-list approach, exceptions + balance of payments safeguards, and dispute settlement.

Transparency - the WG sought a "transparent" framework for foreign investment, and the focus was on the nature and depth of transparency provisions.

Read 10 tweets

Mona Pinchis-Paulsen

@loyaladvisor

29 Oct 18

Mavroidis Trade in Goods (2nd ed) lays out early XXI #GATT claims (pp367-375). 1949 Czechoslovakia complained that the US failed to carry out its GATT obligation through its administration of export licences. Excerpts below. Find it here: sice.oas.org/dispute/gatt/4… 1/

Mr. Evans (US) argued "Article I would not require uniformity of formalities, as applied to different countries, in respect of restrictions imposed for security reasons." 2/

Mr. Shackle (UK) stated under XXI, the US action "would seem to be justified because every country must have the last resort on questions relating to its own security. On the other hand, the CONTRACTING PARTIES should be cautious not to take any step which might have[...] 3/

Read 6 tweets

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