LA PALENQUERA Y SUS ACTIVIDADES LABORALES

Perhaps the first serious attempt at establishing a pro-trade intergovernmental organization is the International Monetary Fund (IMF) established at the Bretton Woods Conference in 1944.65 _{The explicit goals}

of the IMF are to promote global monetary cooperation, secure financial stability, facilitate international trade, promote high employment and sustainable economic growth, and reduce poverty around the world.66 _The

idea of the so-called Bretton Woods Institutions was to prevent a new era of trade protectionism via monetary and exchange policies that could create such economic tensions as those that led to a wave of hysterical nationalism in Germany, which eventually caused the Second World War.67

Today the free trade association is one tangible reality of the international system. The Uruguay Round of Multilateral Trade Negotiations established in 1994 the current international trade association, called World Trade Organization (WTO).68 _{The Final Act of the Uruguay Round resolved to}

“develop an integrated, more viable and durable multilateral trading system.”69 _{According to Article II, “[t]he WTO shall provide the common}

institutional framework for the conduct of trade relations among its Members.”70 _{Essential to this framework is the Understanding on Rules}

and Procedures Governing the Settlement of Disputes (Annex 2).71 _The

visible goal of the settlement system is to prevent retaliatory measures that could diminish free international trade.

Parties to the Agreement recognize that “there is a need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international

63. G.A. Res. 67/238, ¶ 5 (Dec. 24, 2012). Peacekeeping operations have their own budget, with discounts for poor countries.

64. Id. ¶ 11.

65. The IMF at a Glance, INT’L MONETARY FUND (Sept. 16, 2015), https://www.

imf.org/external/np/exr/facts/glance.htm [https://perma.cc/ZGL5-QUK4].

66. Id.

67. Id.

68. Understanding the WTO: Who We Are, WORLD TRADE ORG., https://www.

wto.org/english/thewto_e/whatis_e/who_we_are_e.htm [https://perma.cc/R7SB-JKG3] (last visited Dec. 15, 2015).

69. Marrakesh Agreement Establishing the World Trade Organization pmbl., Apr. 15, 1994, 1867 U.N.T.S. 154, 155 [hereinafter Marrakesh Agreement].

70. Id. at 155–56.

71. Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 U.N.T.S. 401.

trade commensurate with the needs of their economic development.”72

Such positive efforts related with international trade are, for example, special provisions for releasing developing countries from requirements that could be burdensome for their economies. For example, Articles 65, 66, and 67 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), administered by the WTO, establish transitional periods of application and encourages forms of technical cooperation for the benefit of developing and least-developed countries.73 _{For instance,}

least-developed countries were not required to comply with the obligation to establish minimum standards of legal protection of intellectual property rights for a transitional period of ten years.74 _{However, it is important to}

note that the “positive efforts recognition” should not be interpreted as a regime of global redistribution of benefits arising out of international trade. Aaron James cites this recognition as part of “standing trade law” in arguing for principles of structural equity that are internal to the international trade system.75 _{James’s claim is interesting but very contentious, for that}

statement of recognition is a part of the preamble to the WTO treaties, and, according to the Vienna Convention on the Law of Treaties, preambles are not per se binding but provide the context for interpreting the binding

clauses of a treaty.76

It is uncontroversial that the point of the multilateral trading system is to enter “into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations.”77

Free trade is the most effective way to reduce global poverty and WTO is the most effective international instrument for achieving this goal.78

However, a multilateral trading system and its associated dispute settlement body are not meant to establish a global redistributive association.

72. Marrakesh Agreement, supra note 69, 1867 U.N.T.S. at 154.

73. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299.

74. Id.

75. AARON JAMES, FAIRNESS IN PRACTICE: A SOCIAL CONTRACT FOR A GLOBAL

ECONOMY 148 (2012).

76. Marrakesh Agreement, supra note 69, 1867 U.N.T.S. at 154; Vienna Convention on

the Law of Treaties art. 31, ¶ 2, May 23, 1969, 1115 U.N.T.S. 332, 340. 77. Marrakesh Agreement, supra note 69, 1867 U.N.T.S. at 154.

78. LOREN E. LOMASKY & FERNANDO R. TESÓN, JUSTICE AT A DISTANCE, EXTENDING

C. The Public Goods Association

Many international associations pursue the international provision of public goods, especially in cases in which the lack of an international consensus can cause permanent damages to the ecosystems. The public goods association is no different from its counterpart at the domestic level. Whereas domestic regulation is useful for internalizing negative local externalities, international regulation is needed for internalizing negative remote externalities.79 Just as the domestic public goods association is a

national form of cooperation for mutual benefit, the international public goods association is an intergovernmental form of cooperation for mutual benefit.

Public goods are defined in terms of actual or expectable preferences of groups of persons. There is no need to appeal to moral standards or principles to justify the provision of public goods. Though a utilitarian case could be made, in fact, it would be superfluous, for utilitarian justifications become relevant when the Pareto principle is not satisfied and some people’s gains must compensate others’ losses.80 _{In a typical public goods situation, the}

Pareto principle is satisfied by collective regulation because market mechanisms cannot be expected to produce the optimal level of the desired good.

The Stockholm Declaration of 1972 is a clear instance of the intergovernmental public goods association.81 _{Principle 6 of the Declaration,}

for example, provides “[t]he discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order that serious or irreversible damage is not inflicted upon ecosystems.”82 _{Pollution is one of the remote externalities the Declaration}

encourages State members to prevent through legislative and executive policies. Thus, Principle 7 says, “states shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human

79. For the distinction between local and remote externalities, see David Schmidtz,

The Institution of Property, in THE COMMON LAW AND THE ENVIRONMENT: RETHINKING THE STATUTORY BASIS FOR MODERN ENVIRONMENTAL LAW 119 (Roger E. Meiners &

Andrew P. Morriss eds., 2000). The distinction is based on Ellickson’s similar distinction between small, medium, and large events. See Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1325, 1327–35 (1993).

80. ALLEN E. BUCHANAN, ETHICS, EFFICIENCY, AND THE MARKET 4–13 (1985).

81. G.A. Res. 2994 (XXVII), Declaration of the United Nations Conference on the Human Environment (June 16, 1972), http://www.unep.org/Documents.Multilingual/ Default.asp?documentid=97&articleid=1503 [https://perma.cc/U56W-DZWR].

health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.”83

The Declaration is not concerned with fairness, equity, or any value other than the collective provision of a public good, namely, the protection and improvement of the environment. If there is any kind of justice here contemplated, it is rather intergenerational justice, but it is a form of intergenerational justice that is quite distant from Rawls’s concern with distributive fairness across generations. Though Principle 2 of the Declaration says “[t]he natural resources of the earth . . . must be safeguarded for the benefit of present and future generations, through careful planning or management,” it is clear that the goal is to avoid the depletion of such resources, and that “careful planning and management” does not mean global collectivization of natural resources.84 _{In this declaration, there are}

no traces of a regime of global ownership of natural resources that fall under the sovereignty of State members.