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The EU-India FTA saved is human-rights earned

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EU Trade Agreements are subjected to a three pronged review before the European Parliament (EP), Council and the European Court of Justice (ECJ), which ordinarily would widen the net for any agreement that falls foul of human-rights ethos to be rescinded. This is not mere comity but a treaty obligation under Article 1 of the Lisbon Treaty and the EU Policy. The EU has taken several initiatives that show its commitments. It has started the EU Cities Award for Fair and Ethical Trade to allow member-state consumers to undertake informed decisions, passed resolutions to halt EU imports of minerals that fund conflicts and forced labour, has advocated for torture-free trade related UN Convention and has recently been incorporating legally-binding labour and environment standards in all its agreements with a specific reference to Paris Agreement. However, since all three bodies at the EU pursue different goals, the conditionality clauses have not always been uniform.[1]

Several of its agreements have been halted over contentious issues of human-rights, such as the EU FTAs with Malaysia, Thailand El Salvador. EU-Myanmar Negotiations on Bilateral Investment have halted after 5 rounds of negotiations because of the Rohingya refugee crisis. Negotiations for a renewed agreement with Russia have also been suspended by the European Council since March, 2014 (annexation of Crimea). EU has also started an official procedure which could lead to suspension of the EU Cambodia Preferential Trading Status because of violation of human rights and labour rights. It has attempted to modernise the first-generation FTAs (executed before 2005) to include more ‘rule and value based’ systems (Mexico, since April 2018) and consistently provided macro-financial assistance to countries like Jordan and Tunisia hosting Syrian refugees, to improve their balance of payments. However, there have been criticisms that in its attempts to forge economic deals with more industrialised states, it has been willing to compromise on the human-rights aspects. A few authors believe, that the EU’s diminishing importance as a commercial hub over emerging economies such as China, India and Brazil, might be reason.

The EU-India Free Trade Agreement (‘FTA’) negotiations that commenced around 2007, have been stalled since 2013 over several issues including India’s dismal record of its treatment of minorities and human-rights defenders, its position on Kashmir (and lately, the Citizenship Amendment Act) and environmental and labour standards such as its tolerance of bonded and child labour. Agreed, there have been a few agreements pursued (1994 Cooperation Agreement on Partnership and Development and the 2004 Strategic Partnership agreement), but they have been more in the nature of political statements than binding economic commitments.

There are also a few concerns emerging with an ‘EU-wide advocacy’ solution, for several reasons including: the marked increase in populist right-wing led governments (for instance, Hungary), rising grievances against the high standards propounded by courts such as the Abu Qatada judgement of the ECtHR which upheld that fair trial principles triumph even national interests, in the context of deportation of Abu Qatada to Jordan, recession trends and economic slowdowns (for example, in Greece) that have lowered the bloc’s bargaining power, EU’s inconsistency in its own internal affairs (for instance, no actions have been taken against Spain over its actions in Catalonia over similar issues of self-determination) and a perception amongst developing countries that human-rights is a Western concept (recently cited by India’s Home Minister, Amit Shah).

Adoption of an intersectional approach

Although the EU speaks collectively on these matters, it is not denied that larger member-states often prevail over the smaller ones at the EP, hence a supranational assessment may not be the best way forward. As of March 2019, 13 member states including Germany, Belgium and France, enjoyed a trade surplus with India, while 20 member states including Netherlands and Spain stood at a deficit. A greater asymmetry of positions could indicate which way the deal ultimately tilts. The latter group would seem to be more willing to hold India to higher standards.

An analysis of the goods traded would be the next step. The EU enjoys a higher export-import ratio over India in goods such as aircrafts and associated equipments for which finding alternate markets would be difficult. Whereas India’s trade in terms of food-products, including sea-food (running into 50,000 crores) have been facing losses over the US halting imports. After the US, the EU would have naturally been the next biggest market, but the inking of the EU-Vietnam FTA indicates that further losses could percolate from the EU.

For a while now, India has been continually adopting a protectionist stance. The government has been contemplating restrictions on imports of electronic goods since it believes that its signing of the WTO’s Information Technology Agreement that led to higher imports by reduction of import duties, hurt its domestic consumers. In April 2019, the EU had taken India to the WTO Dispute Settlement Body on ICT Goods for imposing ‘unlawful duties’. It has also maintained this stance at the recently concluded Regional Comprehensive Economic Partnership (RCEP) over concerns about Chinese goods flooding the market. It seems less likely to compromise over the EU deal now. Apart from this, India has an alternative in the form of an FTA with the Eurasian Economic Union (EAEU) led by its political ally Russia (other countries include Armenia, Belarus, Kazakhstan, and Kyrgyzstan). Since the bloc lies at a distance, it would be unlikely to invest heavily and India need not be too worried about losses to its domestic players. Moreover, there is greater scope for exchange in technology (India has previously expressed its willingness to provide SEZs to Russia) and the bloc is as large as MERCOSUR (Argentina, Brazil, Uruguay and Paraguay) with whom India has had trade pacts since 2009. While Singapore, Thailand, Turkey and Egypt are in the process of negotiating FTAs with EAEU. Vietnam has already entered into an FTA with the bloc and this could be setting a precedent. Finally, India could enter into deal without the added weight of incorporation of human-rights clauses and this makes it more likely to maintain its position on the EU FTA.

However, the EU still holds the bargaining chip because India’s current economic losses and decreasing levels of investment could deter concrete deals at this point.

Legal implications

Cedric Ryngaert, expert in international law, opined that EU’s obligations to ensure its trading partner’s compliance with human-rights standards in context of the Fronte Polisario judgement, were not merely extraterritorial but flowed from its territorial obligations to exercise due-diligence since the agreements were concluded within EU, although its effects were felt on a foreign territory. He argues that even though the EU Courts may not be able to prohibit the execution of agreements, they are still competent to examine whether there has been an ‘error of assessment’ on the part of the Council. There could be similar arguments regarding the application of the passive personality principle (although the principle itself has not gained much traction), since individuals from occupied territories are now residing or are nationals of EU member states, the bloc holds a duty towards them.

Purely academic concerns aside, to prevent backlash on the part of the EU Member States, strict standards of assessment could be confined to ‘serious’ violations as opposed to ‘ordinary violations’. The seriousness could be assessed for example, by identifying whether the category of human rights being violated is peremptory in nature or at least the minimum essential or core obligations. This finds support in the example that even the concept of exercise of universal jurisdiction is limited to certain serious violations and Article 42 of the Draft Articles on Responsibility of International Organizations (DARIO) that prohibits international organisations from recognizing as lawful a situation created by a serious breach of peremptory norms nor render aid or assistance in maintaining that situation. Apart from self-determination and the freedom of religion, the core labour standards (on forced/compulsory labour, association and collective bargaining and child labour) are also part of customary international law.To see how strongly these principles are upheld, notice that even as a part of EU’s Public Procurement policies (See, 2014 Directives) which is supposed to comprise a significant proportion of its GDP (almost 14% of their GDP) and where member states are usually allowed discretion, one exception stood out: where the corporation or its operators have been convicted by a final judgement of child labour or trafficking (Art 57(1)(f) Dir 2014/24/EU).

EU agreements with other industrialised nations have not been completely smooth either. EU opted for consultations (17 December 2018) and follow-ups with South-Korea over non-ratification of four fundamental ILO Conventions and has also referred the matter for arbitration(2 July 2019). It has provided support to Central American countries (Guatemala, El Salvador and Costa Rica) in implementing ILO reforms through their regional offices, adoption of due diligence business plans and formation of tripartite councils (for collective bargaining) while condemning the situation in Nicaragua. In Columbia, Peru and Ecuador, where there were issues over child labour, collective bargaining and association rights, illegal mining and fishing issues, it has set up ‘technical missions’ to identify and provide suggestions (labour networks have been set up, hazardous occupations lists revised in Colombia, financing of labour inspection by EU in these countries, commitments to the endangered species convention). It has provided assistance packages to Georgia and Ukraine subject to them undertaking concrete measures (Georgia has enacted laws on occupational safety and health, while maintaining that Ukraine must address governance issues such as through adoption of anti-money laundering laws).

Conclusion

There are existing bottlenecks in several other countries too, yet, there still exists an agreement. 

The EU is generally not hesitant in enforcing the provisions, but believes in initially resorting to dialogues and bilateral talks, seeks reports from civil society, looks to the implementation of the provisions through follow-ups. Suspension or unilateral cessation of operation of the FTAs are a bit unusual. The human rights clauses are unique to the FTAs executed by the EU. These provisions are not standalone, and the whole reason why they exist in trade agreements is to incentivise the partner states to uphold their commitments.

EU has a large presence at the WTO. One of its agendas has been entering into agreements with WTO members and keeping them plurilateral, open for other WTO members to enter at a later stage. This would eventually lead to anchoring those agreements at the WTO Level itself, even if negotiated outside the organisation. India would stand at a loss if it were to leave the deal. India could also be a prominent partner when it comes to trade in services(as of 2014, the Trade in Services for EU stood at 728 Billion Euros and 60% of the EU investment abroad is related to services). It has also been negotiating the ambitious plurilateral agreement on services wherein it will engage in EU-financed exchanges, training and other capacity-building initiatives, negotiation of mobility related issues for professionals and conditions of entry and residence for nationals of non-member states. Instead of out rightly lobbying for stopping all negotiations over the FTA, showing that the EU has an upper-hand, and overselling the importance of the EU trade deal to India is what I believe will be the best way to ensure that India fulfills its human rights mandate. The Indian civil society to engage with trade confederations so as to push their business interests to facilitate trade deals considering their losses. Finally, EU at its end could be led by the UN Guiding Principles on Business and Human Rights(the revised Draft for a binding treaty along these lines was formulated in July 2019) to control corporations entering into trade agreements or investing in countries with low human rights track records.

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[1] The proposal to initiate a trade agreement with a non-member state arises from the European Commission (EC).DG Trade is one of the bodies that leads discussions before the EC. There is also the Trade Policy Committee (TPC) (a working group made up of the EU Member States that works alongside the EC). Both are known to adopt a liberal economic approach. However, EP can take the ultimate decision by choosing to not ratify agreements that have already been executed, although it cannot alter them. The EP is believed to espouse political values over commercial interests. To avert such a situation, the TPC has started deliberating with the EP’s Committee on International Trade. Finally, the European External Action Service (EEAS) is motivated to maintain a coherence in External Policies and is known to prefer values over interests. Legal commitments towards human-rights principles is enshrined also as a part of the Common Foreign and Security Policy, Development Cooperation, Common Commercial Policy, Area Freedom and Justice, the 2012 Strategic Framework and corresponding Action Plan for Human Rights and Democracy and the Common Agreement on the use of Political Clauses, 2009. These policy documents, provide that human rights clauses should be included either as a part of the FTA itself, or a political document that precedes the execution of the FTA. The Commission in certain cases also draws up Impact Assessments (before negotiations) and Sustainability Assessments (during the negotiations) to understand the potential impact of trade liberalisation on the HRs situation in the territory and the State’s ability to fulfill their obligations. This has been understood recently, to be a part of the EU’s obligations under Article 21.

Ishita Chakrabarty is a final year law student at Hidayatullah National Law University, India. She is also leading the Special Procedures mechanism at Quill Foundation. She is an international law enthusiast and has previously published her research papers under the Queen Mary Law Journal and University of Pennsylvania Law Journal. Her latest paper on dual-use object targeting is currently under publication before the NYU Journal of International Law and Politics. She has also contributed articles before blogs such as Groningen Journal of International Law blog and Cambridge International Law blog.

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Economy

The Question Of Prosperity

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Galloping economic woes, prejudice, injustice, poverty, low literacy rate, gender disparity and women rights, deteriorating health system, corruption, nepotism, terrorism, political instability, insecure property rights, looming energy crisis and various other similar hindrances constrain any state or country to be retrograded. Here questions arise that how do these obstacles take place? How do they affect the prosperity of any country? No history, geography, or culture spawns them. Simply the answer is institutions that a country possesses.

Institutions ramify into two types: inclusive and extractive. Inclusive political institutions make power broadly distributed in country or state and constrain its arbitrary exercise. Such political institutions also make it harder for others to usurp rights and undermine the cornerstone of inclusive institutions, which create inclusive economic institutions that feature secure property rights, an unbiased system of law, and a provision of public services that provide a level playing field in which people can exchange and contract; it also permits the entry of new businesses and allow people to choose their career. On the contrary, extractive political institutions accord clout in hands of few narrow elite and they have few constrains to exert their clout and engineer extractive economic institutions that can specifically benefit few people of the ruling elite or few people in the country.

Inclusive institutions are proportional to the prosperity and social and economic development. Multifarious countries in the world are great examples of this. Taking North and South Korea; both countries garnered their sovereignty in same year 1945, but they adopted different ways to govern the countries. North Korea under the stewardship of Kim Il-sung established dictatorship by 1947, and rolled out a rigid form of centrally planned economy as part of the so-called Juche system; private property was outlawed, markets were banned, and freedoms were curtailed not only in marketplace but also in every sphere of North Korea’s lives- besides those who used to be part of the very small ruling elite around Kim Il-sung and later his son and his successor Kim Jong-Il. Contrariwise, South Korea was led and its preliminary politico-economic institutions were orchestrated by the Harvard and Princeton-educated. Staunchly anticommunist Rhee and his successor General Park Chung-Hee secured their places in history as authoritarian presidents, but both governed a market economy where private property was recognised. After 1961, Park effectively taken measures that caused the state behind rapid economic growth; he established inclusive institutions which encouraged investment and trade. South Korean politicians prioritised to invest in most crucial segment of advancement that is education. South Korean companies were quick to take advantage of educated population; the policies encouraged investment and industrialisation, exports and the transfer of technology. South Korea quickly became a “Miracle Economy” and one of the most rapidly growing nations of the world. Just in fifty years there was conspicuous distinction between both countries not because of their culture, geography, or history but only due to institutions both countries had adopted.

Moreover, another model to gauge role of institutions in prosperity is comparison of Nogales of US and Mexico. US Nogales earn handsome annual income; they are highly educated; they possess up to the mark health system with high life expectancy by global standards; they are facilitated with better infrastructure, low crime rate, privilege to vote and safety of life. By contrast, the Mexican Nogales earn one-third of annual income of US Nogales; they have low literacy rate, high rate of infant mortality; they have roads in bad condition, law and order in worse condition, high crime rate and corruption. Here also the institutions formed by the Nogales of both countries are main reason for the differences in economic prosperity on the two sides of the border.

Similarly, Pakistan tackles with issues of institutions. Mostly, pro-colonial countries are predominantly inheritors of unco extractive politico-economic institutions, and colonialism is perhaps germane to Pakistan’s tailoring of institutions. Regretfully, Pakistan is inherited with colossally extractive institutions at birth. The new elite, comprising civilian-military complex and handful aristocrats, has managed to prolong colonial-era institutional legacy, which has led Pakistan to political instability, consequently, political instability begot inadequacy of incentives which are proportional to retro gradation of the country.

Additionally, a recent research of Economic Freedom of the World (WEF) by Fraser Institute depicts that the countries with inclusive institutions and most economic freedom are more developed and prosperous than the least economic free countries; countries were divided into four groups. Comparing most free quartile and least free quartile of the countries, the research portrayed that most free quartile earns even nine times more than least free quartile; most free quartile has two times more political and civil rights than least free quartile; most free quartile owes three times less gender disparity than least free quartile; life expectancy tops at 79. 40 years in most free quartile, whereas number stands at 65.20 in least free quartile. To conclude this, the economic freedom is sine quo non for any country to be prosperous, and economic freedom comes from inclusive institutions. Unfortunately, Pakistan has managed to get place in least free quartile.

In a nutshell, the institutions play pivotal role in prosperity and advancement, and are game changer for any country. Thereby, our current government should focus on institutions rather than other issues, so that Pakistan can shine among the world’s better economies. For accomplishing this highly necessary task government should take conducive measures right now.

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Taxing The Super-Rich To Help The Poor

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What was traditional became law in 1941 when Thanksgiving was designated as the fourth Thursday in November.  Large turkeys, plenty of trimmings and family gatherings became the norm. . . that is until this year of the self-isolated holiday.  Small turkeys disappeared fast leaving masses of 20 lb birds and presumably more leftovers and more waste.  Yes, w e belong to the lucky 13.5 percent in this world through an accident of birth.

Half of the world’s population lives on less than $5.50 per day.  Of these, three quarters of a billion are in extreme poverty, classified as less than $1.90 per day.  Covid 19 has swelled these numbers by 114 million and the situation is dire.  Worst affected by poverty are the day laborers i.e. informal workers without a regular job.  Moreover, the ILO (International Labor Organization) estimates 200 million job losses from Covid.  It also notes that the average income of informal workers in places like Ethiopia, Haiti, and Malawi has already fallen by 82 percent. 

The US is not immune.  Adjusting for purchasing power the US Census Bureau classifies 11.1 percent of the population as poor with Covid exacerbating the situation.  Forty seven million have to rely on food banks including 16 million children.  Hardly surprising then that the US has the highest child mortality rate among the 20 OECD countries (major economies) as reported by the U.S. Health Affairs journal.  And life expectancy has shrunk by three years, affirms the U.S. Census Bureau. 

Even in Europe with its social net and social conscience, Covid 19 is estimated to increase poverty by about half if the pandemic lasts until the summer of 2021.  Italy alone, forecasts Caritas Italiana, will have a million more children living in poverty. 

In April of this year UNCTAD (United Nations Conference on Trade and Development) warned that at least $2.5 billion was needed to lessen the impact of the impending crisis within the narrow purview of their remit. 

So where is the money to come from?  If taxing the rich is unlikely to pass in most legislatures for the most obvious of reasons — they paid for them to be there — how about taxing only the super-rich, the storied 1 percent?

The wealth of the billionaire class has surged.  While 45.5 million filed for unemployment in just three months, the U.S. added 29 more billionaires and the wealth of the billionaire class surged nearly 20 percent or $584 billion, from $2.948 to $3.531 trillion, during the same period.  Just the top five billionaires, namely, Jeff Bezos, Bill Gates, Mark Zuckerberg, Warren Buffet and Larry Ellison increased their wealth by a whopping $101.7 billion between March 18 and June 17 of this year.  Bezos and Zuckerberg alone made $76 billion or almost three-quarters.  To be fair one has to point out that the stock market took a sudden dip in March from which it recovered to new highs. 

It’s shocking that just 10 percent of their $584 billion gain would have bailed out their compatriots classified as poor over the same period.  Is it time for a tax on the super rich?  Warren Buffett has often said that he needs to be taxed more.  The fact is a small extra tax would not make an iota of difference in their lives but would help out millions of the poor and also the economy because the latter are much more likely than the rich to spend the money.  

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International Conflicts from the View of Trade Expectations Theory

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Does economic interdependence between great powers have a significant effect on the probability of war between them? This once seemingly impossible question has become extremely realistic and urgent in the current tide of anti-globalization.

In fact, it is not the first time that free trade has been terminated, as all the great powers in the Western world had abandoned the principle of free trade at one point, such as Germany in 1879, France and Britain in 1881, and the United States as early as the 1860s during the Civil War. Global trade frictions and conflicts have developed from competing for raw materials, energy, and investment to today’s competition for market space (see Chan Kung’s “Spatial Determinism” for details).

There are two views on the relationship between economic interdependence and war. Liberals assert that with commercial ties, trade and investment flows can raise the opportunity cost of going to war and thereby providing a large material incentive to avoid war. Realists claim that commercial ties make states vulnerable to cutoffs, which can devastate an economy that has reoriented itself to rely on critical markets and goods from abroad, and thereby prompt leaders to go to war.

American scholar Dale C. Copeland believes that an additional causal variable, i.e., a state’s expectations of the future trade and investment environment should be introduced to determine whether the liberal prediction or realist prediction would prevail. When a dependent state has positive expectations about this future environment, it is more likely to see all the benefits of continuing the current peace and all the costs of turning to war. Economic interdependence would then be a force for peace. Yet if a dependent state has negative expectations about the future economic environment, i.e., seeing itself being cut off from access to foreign trade and investment, or believing that other states will soon cut it off, then the realist logic will kick in. Such a state would tend to believe that without access to the vital raw materials, investments, and export markets needed for its economic health, its economy will start to fall relative to other less vulnerable actors. If this economic decline is anticipated to be severe, the leaders of the dependent state would then begin to view war as the rational option, the lesser of two evils. Such leaders would consider it is better to fight that being forced to submission.

This argument is similar to the “preventive wars” in the field of international political economy, and Dale C. Copeland calls it the “trade expectations theory”. Copeland believes that in the situation where there are different great powers, the combination of economic interdependence along with expectations of future trade and investment was a critical driving force shaping the probability of war and conflict between these powers.

Several historical examples from the twentieth century are clear prove of this. Japan’s attacks on Russia in 1904 and the United States in 1941 were intimately related to Japanese fears of future access to the raw materials and trade of the East Asian region. In the first case, Japan witnessed Russia’s steady penetration into economically valuable areas of Manchuria and the Korean Peninsula. After repeated and invariably unsuccessful efforts to convince Russia to pull back, Tokyo realized that only preventive war would mitigate Japan’s long-term economic and military concerns. The closed economic policies of the great powers after 1929 had a devastating impact on Japan’s economy and Japanese views of the future trade environment. Tokyo’s efforts to consolidate its own economic sphere in Manchuria and northern China, spurred by its decades-long worry about Russian growth in the Far East, led to conflicts with the Soviet and Nationalist Chinese governments. When the United States entered the fray after 1938 and began a series of damaging economic embargoes, Japanese expectations of future trade fell even further, prompting a desperate effort to acquire access to oil and raw materials in Southeast Asia. The ultimate result was the attack on Pearl Harbor in December 1941.

During the forty-five-year Cold War struggle after World War II, there was a low level of economic dependence between the United States and the Soviet Union, and the “trade expectations theory” seemed unable to explain the geopolitical rivalry between the two great powers. Obviously, economic relations between states do not explain all the problems of geopolitics, which involves a variety of other issues (e.g., ideological rivalry, mutual military threats, etc.). However, the impact of economic relations can be seen even during the Cold War. In the late 1950s, President Dwight Eisenhower’s unwillingness to relax stringent economic restrictions alienated Nikita Khrushchev and contributed to the extreme tensions of the 1960–1962 period. But in the early 1970s and again in the late 1980s, Washington was more willing to commit itself to higher future trade with the Soviets. This proved critical to achieving an initial détente period and then an end to the Cold War altogether.

In the current tide of anti-globalization, it seems that the phenomenon of “trade expectations theory” can also be seen. The Trump administration, following the principle of “America First”, believes that the major trading partners of the United States have taken advantage of the United States through trade, making the economic interests of the United States damaged, and China has caused the greatest economic damage to the United States. As a result, the United States has adopted a series of crackdowns and sanctions on its major trading partners, including China. The modern world is less prone to war between major powers, but instead manifests in more diverse non-war forms, i.e., trade sanctions, technological sanctions and blockades, financial sanctions, diplomatic recriminations, and geopolitical repression. In the view of researchers at ANBOUND, this overall deterioration in geopolitical relations, triggered by economic ties, is merely an alternative to the “trade-security” model of war. If the geopolitical friction intensifies further and the threshold of a certain aspect is breached, a war of some kind is not out of the question.

The view of defensive realism is that national leaders, aware that their actions can lead to a vicious cycle of hostility, are justified in maintaining their current reputation for neutrality, prudent territorial policies, constant trade with other countries, and a willingness to embrace common international rules in a relatively open attitude. This view helps to create a pattern in which great powers tend to coexist for a long time without serious conflict or war. However, if national leaders take the view of aggressive realism, that in a leaderless world, great powers must always worry about what other nations will do in the future, and prepare for the worst, then they must maximize their power. The likelihood of violent conflict or even war between the great powers would then increase.

How to avoid security conflicts between great powers over trade issues? Some scholars have argued that it depends on the rationality of the national decision-makers, as well as the objective judgment on the strength and determination of both sides in the conflict. Rational actors have an incentive to reach agreements that prevent war from inflicting damage on each other, so that the situation for war does not arise and thereby improving the circumstances of both sides. In the event that if an actor do not understand the true balance of power and the determination of the other side, or do not trust the other side to keep the promises made in the agreement, war may occur.

Final analysis conclusion:

After World War II, the world as a whole has been largely at peace for 75 years (meaning that there was no major war involving a large number of countries). The current tide of anti-globalization and increasing geopolitical frictions is shaping up to be the most far-reaching and influential period of global trade and geopolitical turmoil since the end of the Cold War. “Trade expectations theory” provides an explanation for the current global conflicts, as well as an idea for countries to make rational decisions and mitigate international conflicts.

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