The Politics of Constructive Ambiguity in International (Trade) Law

Abstract

This dissertation evaluates the causes and consequences of linguistic ambiguity in preferential trade agreements (PTAs), the 1947 Havana Charter, and the General Agreement on Tariffs and Trade (GATT). The negotiating practice of “constructive ambiguity” – defined as the deliberate use of ambiguous language to address a sensitive issue in a negotiation – is widespread in the design of international trade law but varies significantly. It argues that when state leaders cannot tolerate negotiation failure, but state preferences are irreconcilable, negotiators will rely on ambiguous language to facilitate agreement in the present when they know they can return to the negotiating table in the future. While the field of international relations argues that uncertainty in treaty commitments between countries erodes cooperation, my research shows many circumstances where the opposite is true: by introducing uncertainty into a treaty, constructive ambiguity facilitates cooperation precisely because it leaves commitments open-ended. If politicians later attempt to introduce certainty through definition (via (re)negotiation) or interpretation (via courts), they can unravel the essential compromise that fostered agreement in the first place. To test this theory, this dissertation evaluates the causes of constructive ambiguity in the Havana Charter for an International Trade Organization (ITO) as it was drafted between 1940 and 1950. Through historical process tracing, there is strong evidence of the intentional dilution of treaty language to avoid negotiation failure in key issue areas across five official drafts. However, the success of the provisional GATT in 1947 changed perceptions of the costs of negotiation failure amongst state leaders, leading American President Harry Truman, in particular, to abandon the Havana Charter and ITO in 1950. In the following two empirical chapters, the dissertation provides a deeper study of the two central variables in my theory: the prospect of repeated negotiations (in the context of the World Trade Organization (WTO) after 2001), and the perceived costs of negotiation failure (in PTA negotiation attempts by the United States and Canada between 1980 and 2020). These studies demonstrate strongly that certain kinds of uncertainty can foster cooperation if used appropriately.