The respected Comrade
"Social scientists should go deep into the reality, find the pressing problems in the revolutionary practice to set them as the themes of their research and make an in-depth study of them, and strive to introduce their research achievements into revolutionary practice."
International economic law literally refers to a body of rules governing international economic relationship. However, since the scope of the term "international economic law" is extensive and expanding day by day, the scope of the term is difficult to delimit and the objects of regulation are highly diversified and intertwined. This results in the divergences of approaches to the definition of international economic law.
Moreover, unlike civil law, commercial law and international law, international economic law is not based on a long historical tradition or academic foundation. As a relatively new sub-discipline of law, international economic law emerged independently in the 20th century and has continuously developed. Therefore, positions and views of different academics and states regarding the definition and the application scope of international economic law vary greatly from common law system to civil law system. In general, academics from common law countries do not consider international economic law as an independent discipline but deals with it within the framework of international trade law, international commercial law or international business law.
During the 1970s, definition of international economic law garnered greater attention in international law journals and in treatises. For example in 1971, Wolfgang Friedmann took note that "A whole new body of international economic law is developing, stimulated by the demands of developing countries for the transformation of the economies."
The international economic law term flowered in the early 1980s perhaps as a result of the 1981 treatise by Pieter VerLoren van Themaat titled The Changing Structure of International Economic Law. In the book's preface, VerLoren van Themaat explained that he chose this title in memory of Wolfgang Friedmann and in honor of Friedmann's The Changing Structure of International Law.
VerLoren van Themaat defined international economic law as the "total range of norms of public international law with respect to transnational law and international private law". His treatise sought to update Schwarzenberger's definition by adding in the regulation of energy and raw materials, transport, telecom, aid to developing countries, control of multinational enterprise and environmental protection.
His book also examined international economic organizations and dispute settlement and he was attentive to the fact that "non-governmental economic parties often have an even greater influence on the international economic process than the states themselves."
According to this approach, international economic law can be defined as "a set of international and national rules governing economic relations between natural persons, legal persons, states, and international economic organization of different states".
Jackson and Lowenfeld, who are recognized as influential international economic lawyers in countries under common legal system, views international economic law as the system of law regulating all transnational transactions including trade, investment, service etc without providing clear-cut definition of international economic law.
In 1985, Jackson wrote an entry for that term in the Encyclopedia of Public International Law and also employed the term at the beginning of his well-received 1989 book, The World Trading System. Jackson began that discussion by noting that the international economic law term ‘in not well defined,' and pointing to both a very wide and a more restrained definition.
Therefore, the term economic law or international economic law is not under wide use in the academic circle as well as judicial branches in these countries.
On the other hand, the countries under common legal system where law is academically classified into public, private and social laws, there has been longstanding debate over the concept, scope of the application and principles of international economic law. While some scholars opine that international economic law should be considered as a branch of international law, others attempt to define international economic law based on fundamental principles of economic law. Another group of scholars maintain that international economic law should be incorporated into several relevant laws like international trade law and business law.
Representative supporters of "international public law" approach to international economic law are Schwarzenberger and Ignaz Seidel-Hohenveldern of Germany.
Schwarzenberger defined international economic law as a "sub-discipline of international public law governing the status and authority of entities which conducts such activities as ownership and utilization of natural resources, production and distribution of goods, currency circulation and financial services etc".
And Ignaz Seidel-Hohenveldern explained that international economic law "refers to those rules of public International Law, which directly concern economic exchanges between the subjects of International Law∙∙∙", and his study specifically omitted "aspects of International Law as are indirectly affected by economic activities∙∙∙".
Whilst Schwarzenberger and Ignaz Seidel-Hohenveldern focused on inducing theory of regulation on international economic relations in explaining the concept of international economic law, Erler's "international organized economic law" approach is that it focused on the autonomy of social relations. He defined international economic law as ‘international organized economic law'. This is the result of direct application of Goldschmidt's "international organized economic law" approach to international economic law. Here, "international organized economy" refers to "economic activities that are conducted beyond boundaries and must be regulated in an organized fashion", and the direct subject of regulation refers to state or international organization (governmental international organization).
Erler also subdivided the scope of international economic law into international commercial system, international monetary system and international economic management system. In particular, he did not view international economic law as "international law governing economy" but as "law governing international economy", and emphasised the independent nature of international economic law by embracing, within the threshold of international law, not only international law concerning international economics but also relevant national law. In this sense, his approach is of prominent significance in the study of international economic law.
All these approaches, however, leave so many uncertainties and contradictions that it is difficult to embrace rapidly-changing international economic phenomena as its objects of research, since they are based on economic relations between states and international economic order formed in the mid-20th century.
After the end of WWII, the economic relations between capitalist countries were formed and maintained for the purpose of establishing and sustaining international economic structure based on the Bretton-Woods System, i.e., international economic order was formulated based on free trade relying upon cost comparison theory, sustenance of international monetary order through the gold-based fixed exchange rate, the adoption of "General Agreement on Tariff and Trade"(GATT) aimed at sustainable economic development by means of smooth money supply and the establishment of "International Bank of Reconstruction and Development"(IBRD).
However, due to the shift in the international economic climate in the mid-1960s, the Bretton Woods System was faced with crisis. It was triggered by the birth of WTO and successive emergence of regional economic organizations, globalization of multinational enterprises and aggravation of the international economic crisis.
Drastic change in the international economic environment required the establishment and sustenance of international economic order that is capable and adaptable to such change and the development of economic relations between states in a unified system and order based on properly defining the concept of international economic law as its main means. In light of this requirement, it came to be recognized that international economic law is an "independent system of law" the purpose of which is "the establishment of world market and maintenance of fair order".
First, international economic law is the set of rules concerning the adjustment and mitigation of legal systems that are detriment to the establishment of the international market. It is one of the main missions of international economic law to establish the international market where economic activities between all states and businesses can be freely performed.
Unlike national market, the international market is still nascent. Although the efforts of the international community led to the establishment of favorable trade climate by abolishing all kinds of border barriers, institutional mechanisms undermining international economy including import and export of goods and incorporation of investment businesses still exist. The means to eradicate such hindrances and provide favorable environment and condition for the establishment of the international market is none other than international economic law.
Secondly, international economic law is the set of rules prohibiting and restricting conducts of parties to ensure fair competition in the international market.
The establishment of the international market alone does not underpin free business transaction in the international market. It does not mean the establishment of international economic order either. Even though all kinds of institutional mechanisms blocking participation in the international market are eradicated, if abuse of competitiveness and advantage of gigantic enterprises and monopoly of profits in return for encroachment upon rights of small and medium-sized enterprises, the international market hardly becomes worthwhile. In a word, the international market is premised on free transactions, which can only be ensured by "fair order of competition". Therefore, international economic law aims at providing equal opportunities and conditions for fair competition to all businesses entering the international market, and imposes relevant obligation upon states.
In order to establish free and fair order of competition in the international market, all parties should be given equal opportunities. To this end, international economic law laid down the principles of most-favored nation treatment, national treatment, equality and mutual benefit, and market liberalization as its fundamental principles. In addition, It enforces a legal system for domestic industrial rehabilitation, including the provision of government subsidies for inferior, small and medium-sized industries, and at the same time imposes administrative and judicial measures to prevent monopoly and unfair competition, such as the dumping of individual enterprises including multinational enterprises, export cartels, etc.
The present paper aims at providing accurate definition of international economic law and exploring the direction, objects and contents of research of the discipline in theoretical manner thus contributing to practice of international economic law.
Analysis of the definition of international economic law attempted to provide more accurate understanding of independent principles and concepts underlying the system and the whole contents of international economic law and its sources and systems beyond the superficial, even meaningless and misleading viewpoint of the past contending it is "a body of rules governing economic relations between states".
It should be defined the concept of international economic law and noted one-sided approaches that international economic law is a sort of administrative law for administering and controlling economic life or a mixed law of public and private law seem irrelevant.
Since it is an established theory that international economic law is a system of rules governing the establishment of an international market and maintenance of its order, study on international economic law should be further intensified in terms of its independence, purpose and mission.
