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A study of the dispute between the United States and China over certain measures affecting individual trading rights for certain cultural products.

Even if the fundamental right to trade across borders has been specifically recognized by the WTO system, it is still only indirectly protected as an individual right. This paper explores new procedures to facilitate the assertion of the individual right to trade across borders by private parties.

Is There an Individual “Right to Trade” Under WTO Law?


Abstract:
This paper examine how the issue of the individual right to trade across borders is already indirectly addressed through the use of international investment treaties and the targeting of specific companies by retaliatory sanctions. By referring to general principles of law, customary international law, and rules of interpretation of international agreements, the WTO system is gradually recognizing more rights to individuals. Since some provisions of the WTO agreements already protect the individual right to trade, this individual right to trade across borders could be more broadly recognized thanks to a better cooperation between the WTO system and domestic courts.


WHETHER THERE IS AN INDIVIDUAL “RIGHT TO TRADE” UNDER WTO LAW, WITH A SPECIAL REGARD TO THE DISPUTE BETWEEN THE UNITED STATES AND CHINA OVER SOME MEASURES AFFECTING TRADING RIGHTS FOR CERTAIN CULTURAL PRODUCTS.

Introduction

One of the defining features of the post Cold War world has been its gradual globalization, driven in part by the liberalization of international trade, with most developed countries lowering significantly their barriers to foreign trade over the past fifty years. This increase of world trade has been possible because the World Trade Organization (WTO) has provided the international legal framework for the reduction of trade barriers, while taking into account and protecting the sovereign rights of its member states (“Members”). One of the primary vocations of the WTO is to regulate trade, and by removing trade distortions, the WTO system aims to create a trade environment where the rights of its Members are protected.

Some believe that free trade cannot be seen only as a battle between sovereign countries but also as a fundamental human right — the liberty to engage in voluntary transactions across borders that leave both participants better off. This unique right can protect individuals against shocks in the domestic economy, and it can lead to more freedom for individuals to fully exploit their economic potential. The individual freedom to trade is already protected by some national constitutions and within the European Union.

However, in the context of international trade and the WTO system, the inherent power of each Member’s government to regulate trade is competing with this human right to trade. Further, the deep economic crisis faced by the world since 2008 has led to a resurgence of protectionist pressures, with a growing number of trade disputes, notably between the United States (U.S.) and China, brought to the WTO. These difficulties are testing the resilience of the WTO system. In this economic and international context, to ensure that globalization becomes a positive force benefiting all, the question is whether there is an individual right to trade across borders under WTO law.



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