Free Trade with Hazardous Products? The Emergence of Transnational Governance with Eroding State Government

The historical evolution of free trade has been accompanied by a plethora of debates,concerning both its positive effects and social costs. During the last decade, the subject ofthese disputes has markedly changed. The main objective of the General Agreement onTariffs and Trade (GATT) concluded 1947, was initially the reduction of tariffs introduced bystates to protect their national economy. In this respect, the agreement has been markedlysuccessful. Since the early 1970s, however, non-tariff barriers to free trade have moved to thecentre of attention. This change of focus was fostered by more intensified domestic regulationespecially in the fields of health and safety, consumer and environmental protection. Theseconcerns are of such domestic significance that they cannot simply be abandoned for the sakeof free trade; however, it also is common opinion that regulations in these areas cannot beaccepted, if they merely mask protectionist interests. In 1994, the international trade systemadapted to this situation by transforming the GATT into the World Trade Organization(WTO). The most important reforms included an overhaul of its procedures of disputesettlement and the conclusion of special agreements concerning non-tariff barriers to freetrade such as the Agreement on the Application of Sanitary and Phytosanitary Measures(SPS) and the Agreement on Technical Barriers to Trade (TBT). These agreements aim at thebalancing of their main economic objective, free trade, with domestic regulatory concerns ofWTO members. This bundle of regulations has certainly furthered the emergence oftransnational ‘governance arrangements’. Such new forms of ‘transnational governance’ havelent renewed importance to ‘old’ legal issues: How can new forms of transnationalgovernance be qualified legally? What can be said about their (social) acceptance and(normative) legitimacy? Can this form of governance be ‘constitutionalized’ in such a waythat law can defend or even regain its function as guarantor of and yardstick for legitimategoverning?