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A theoretical inquiry on the individual right to international free trade : the international antidumping regime as a case study Guan, Wenwei

Abstract

The paper addresses the status of individuals in international governance by examining how individual rights are represented in international free trade. In the evolution of international trade from the GATT to the WTO, the fact that the non-discrimination principle has been well-established in trade agreements demonstrates the gradual emancipation of the individual in the global free market. However, international antidumping law, with a heritage from domestic antitrust law, has gradually developed into a discretionary trade instrument under the control of government administrations. The limited government ethic, which is supported by the emancipation ethic of international free trade, is distorted by the international antidumping regime. The contrasting development of the free trade and antidumping regimes indicates the tension between the emancipation of the individual in international trade and the growing discretionary powers of the government over foreign trade. Further inquiry into this tension demonstrates that the paternalistic and discretionary power of the government is rooted in the myth created by social contract theory. Although social contract theory emancipated individuals from the state of nature into civil society and builds the legitimacy of government on the consent of individuals, it simplifies the dynamic evolution of social institutions into a linear development, and grounds an imaginary contract as the "first mover" of the evolution. It thus does not sufficiently illegitimatize the paternalistic power of the government. However, the emancipation of the individual in international trade, the international development of human rights, and global democratization in general are processes of mutual influence rather than factors that are isolated from each other. Research shows the social institution is a spontaneous self-extended order based on the interaction among individuals. Accordingly, individuals should eventually participate in international trade without the trappings of nationality. Although international trade generally seems to be heading in this direction, international antidumping law indicates a backwards development which might be rooted in social contract theory. It is time to get rid of the myth of social contract theory and the paternalistic and discretionary power of the government over foreign trade, and to restore the international free trade to its inherently cosmopolitan base.

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