The proliferation of non-state mechanisms designed to create authoritative social and
environmental standards in the global marketplace potentially takes the international trade
regime into uncharted territory. If these standards gain legitimacy and international recognition,
they can affect international trade even if no state officially adopts them as a national standard or
regulation. While a number of studies address how international trade law treats such
mechanisms and speculate on what might happen if they should be subject to a trade dispute,
very few address the deeper question of whether they could ever produce legitimate international
standards. Two questions that animate this study arise in this regard. First, under what
conditions will such governance standards gain acceptance as being authoritative under
international trade law? Whereas the short answer is that requires recognition as an international
standard, how that happens remains a grey area in World Trade Organization (WTO)
Agreements. Second, is the WTO’s legitimacy at risk if its rules open the door to legal
challenges of states that implicitly or explicitly adopt or encourage the adoption of such a
system’s standard?
The problem stems from a trade regime designed for an international world of states that
has adapted uneasily to the increasingly globalized marketplace it helped create. Indeed, the
proliferation of non-state standards and governance mechanisms is symptomatic of the resultant
fragmentation of regulatory authority in which states are still the primary, but not the only node.
While the trade regime has adapted over time from a focus on tariff reductions to address issues
such as non-tariff barriers, trade in services, and protection of intellectual property, it remains an
organization designed to regulate the behavior states, not firms. At the same time, it has shifted
from an institution concerned with controlling barriers at borders to one focused on domestic
legal and regulatory systems. This shift has been the primary source of its legitimacy problems.
1
For example, Chang 1997; Ward 1997; and Joshi 2004.
2
Ostry 2006; Howse 2001.
2
Convention