In Search of the Final Frontier – An Analysis of the Extraterritorial Effect of International Trade Measures from a Jurisdictional Perspective

Abstract

In this paper an approach to the assessment of permissible extraterritorial effect of international trade measures is proposed in which the law on jurisdiction is central. A changing reality has altered the thinking about concepts typically related to the law on jurisdiction. The ever emerging threat of climate change, the simultaneous developments of globalization and increasing nationalism, the introduction of new technologies; it is these changes that have affected the interpretation of concepts such as state sovereignty, coercion and proportionality. In turn, it is to these changes that WTO law has to adapt to remain relevant and legitimate. At the same time, it is fundamental to uphold the unique characteristics of WTO law. Principles such as the regulatory autonomy of the Members and non-discrimination cannot be discarded for the benefit of jurisdictional analysis. Here it will be shown that the introduction of the ‘new’ interpretation of the ‘old’ principles related to the law on jurisdiction allow for a customized analysis of the extraterritorial effect of international trade measures. WTO law is the lex specialis within which the assessment of legality of a trade measure falls. However, the analysis of the permissibility of the extraterritorial effect of the measure should be executed under the lex generalis of the principles of jurisdiction as they exist in customary international law. It is proposed that framing the legal issues in jurisdictional terms will in particular benefit the discussion on the relationship between trade and non-trade related concerns in WTO law.