A Legal Typology for Trade and Development in a Shifting Global Landscape

Abstract As the rules of the global trading system continue to undergo substantive and normative shifts, the future of trade and development hangs in the balance. Conflicting narratives and norms are challenging the foundation of trade and sustainable development at a critical time. Trade’s traditional focus on efficiency and liberalization has not left adequate room for economic and social development, equity, differentiation, and broad-based benefits. Efforts to make trade rules more sustainable and inclusive, however, have been criticized for lacking precision and impact, as growing nationalism, rising protectionism, and geopolitical tensions threaten to undermine the delicate balance of incremental progress. Studying and tailoring trade and development interventions based on social and distributional design features could deliver impact beyond high-level commitments and bridge these divides. Over the past several decades, sustainable development has been integrated into trade rules to varying degrees at the multilateral and regional levels. New legal instruments, particularly new regional trade agreement models, have expanded the connection between trade and a range of issues, including labor rights, environmental sustainability, Indigenous rights, and women’s economic empowerment. This trend, coupled with greater coordination at the multilateral level and a growing body of international soft law instruments, has also advanced new, more pluralistic legal models at a time when the multilateral system is under siege. These approaches are a notable step forward and could be expanded and adapted to better address distributional challenges. What is missing, however, is a road map on how to get there. This article addresses gaps in both scholarship and practice by combining a typology for comparing international legal instruments with more “micro” domestic and stakeholder-focused approaches. In doing so, it builds upon previous work to develop a functional and qualitative comparison of trade agreements and related areas of domestic law, incorporating a “micro international law” conceptual framework that assesses social and distributional aspects at a more granular and procedural level and places greater emphasis on stakeholder interests and input. This focus on the socio-legal and contextual dimension of trade and development, which is often largely overlooked or loosely relegated to domestic law, holds the possibility of identifying and diffusing legal innovation at the domestic and international levels to achieve non-economic goals. These dynamics are deserving of greater study, with trade agreements more carefully evaluated to avoid broad, aspirational constructions and domestic law assessed through a stakeholder-focused and procedural lens.