Search the Issue Archive

Volume9
MonthNovember
Year2007
TitlePublic International Law and the WTO: A Reckoning of Legal Positivism and Neoliberalism
Author(s)S.G. Sreejith
First Page5
AbstractThis Article proceeds in five parts. In part one, I review the scholarly skepticism as to how far international law is law in the "hard" sense and show that this skepticism has always permeated the discipline. In part two, I go on to examine what has prompted contemporary scholarship to credit the WTO with helping international law grow out of the "thin" normativity often attributed to it. The analysis suggests that certain features of legal positivism customarily associated with law in its strict sense, which were alleged to be lacking in international law, are found in the institutional apparatus of the WTO. To test this hypothesis, in part three, I examine that apparatus in light of the tenets of three prominent positivists-Bentham, Austin, and Hart-and enquire whether they would have sanctioned international law had the WTO existed in their day. The conclusion drawn is that, even with the WTO, their views on international law would not have been different than what they were. This finding rectifies the myths that regard the WTO as a positivist enterprise. Part four of the article undertakes to demonstrate that neoliberalism is the driving force of not only the WTO but also the normative and structural global changes all around. To this end, the analysis conceptualizes neoliberalism and then demonstrates how the WTO serves the implementation of the neoliberal agenda. As a corollary, in part five, positivism and neoliberalism are critically juxtaposed and shown to stand in harmony with one another. The conclusion highlights the extent to which the findings can restructure the outlook of international lawyers towards the WTO.