Functionalism, Fragmentation, and the Future of International (Trade) Law

Abstract

International law addresses the relationship between autarchic national public policy, including but not limited to national economic policy, and international cooperation. This address makes three related points. First, in order to achieve efficient levels and types of international cooperation, it will be necessary to overcome international legal fragmentation, both in international legislation and in international adjudication. Second, WTO dispute settlement has avoided making cross-sectoral trade-offs that would effectively overcome fragmentation, in part because it generally avoids evaluation of regulatory rationales, and in part because its mandate does not allow application of international law beyond the WTO covered agreements. Third, even if we overcame the fragmentation problem in legislation and adjudication, we would still need to move toward majority voting to reach an efficient level of international law-making.