Constructive Ambiguity in International Trade Law

• In Event: The Global Governance of Trade

Abstract

What explains variation in treaty language across international agreements? How do ambiguous treaty terms affect references to and compliance with international trade law? This article shows that the practice of "constructive ambiguity" - the deliberate use of ambiguous language to address a sensitive issue in order to advance a negotiation - is widespread in the design of international trade law, particularly in the GATT/WTO. Furthermore, the degree of constructive ambiguity in GATT/WTO agreements varies considerably over time and issue area. This ambiguity limits the capacity of states to apply and ensure compliance with treaty terms precisely because vague treaty terms leave commitments open-ended. Using process tracing of the development of the central GATT treaty in 1947, and an ideal point estimation of the degree of uncertainty in key GATT/WTO treaty provisions over time, I explain variation in constructive ambiguity across GATT treaties, highlighting the importance of issue salience and novelty at the time of negotiation, whether future negotiations are scheduled, and the credibility of dispute settlement procedures. Importantly, this paper explains the current period of disorder in the WTO by highlighting how the collapse of negotiations after the 1999 WTO Ministerial Conference led to a reliance on the dispute settlement body to bring meaning to vague treaty terms. When treaty terms are left open ended by negotiators, politics intervenes to determine who brings meaning to the words binding states in international law.

Author

• Lauren C. Konken, Princeton University