Legitimacy and Global Governance: Why Constitutonalizing the WTO is a Step Too Far
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Increasingly, scholars and even some politicians have articulated the challenge of global economic governance in constitutional terms. While the General Agreement on Tariffs and Trade (GATT) lent itself to being viewed as a structure to facilitate mutually self-interested bargains between sovereign states, its successor, the World Trade Organization (WTO), is often claimed to be performing constitutional functions or to be an incipient global economic constitution. Its legitimacy will be enhanced, it is surmised, by transforming the WTO treaty system into a federal construct. Descriptively, the proponents of a constitutional understanding of the WTO point to the new dispute settlement mechanism. This binding, juridically rigorous mechanism provides for virtually automatic authorization of countermeasures in the case of noncompliance. Proponents also point to the explicit role such tribunals play in balancing competing public values (economic efficiency versus health and safety goals, for instance) in the scrutiny of domestic regulation. Normatively, the proponents of a constitutional understanding of the WTO aspire to greater legal certainty for private economic rights against the risk of depredation of powerful domestic interest groups. There is, however, a minority position that sees the ultimate implication of WTO constitutionalism as the transformation of the WTO into a progressive economic regulator, bringing into the WTO social rights, environmental and developmental concerns, realizing distributive justice at the global level, so as to make the WTO a transnational economic constitution for all the people. The connection between constitutionalism and legitimacy is a complex one. In the short run, at least, the application of the language of constitutionalism to WTO is likely to exaggerate the hopes of globalization’s friends that economic liberalism can acquire the legitimacy of higher law—irreversible, irresistible, and comprehensive. At the same time, it is likely to exacerbate the fears of the “discontents” of globalization that the international institutions of economic governance have become a supranational Behemoth, not democratically accountable to anyone. The proposed adoption of a “constitutional” mode of thinking for the WTO system has important practical or policy implications. The first, and central implication is what is loosely called “direct effect”—constitutional norms are rights, and therefore the WTO system should evolve to a point where individuals rather than states can rely on directly enforceable WTO law. Moreover, appeal should be possible not only before WTO dispute settlement panels or appellate bodies, but also before domestic courts. Second, constitutional law is generally regarded as higher law, with a presumption against the change of basic structures. Constitutionalizing discourse tends to serve a “door closing” function against claims that the WTO has gone too far (in areas such as food safety and intellectual property rights, for example) and may need to be scaled back to give greater scope for democracy at the national level. Third, by characterizing the WTO treaty system as a constitution, one transforms its character from that of a complex, messy negotiated bargain of diverse rules, principles, and norms into a single structure. Individual elements become less easily contestable. The WTO becomes reified as something one is either for or against. We argue that the legitimacy of the multilateral trading order requires greater democratic contestability and a more inclusive view of those who are entitled to influence the shape of the system. “Constitutionalization” of the WTO will only exacerbate the legitimacy crisis or constrain appropriate responses to it. We discuss two different models or views of WTO constitutionalism. The first is the economic liberalism or (as some would say) libertarianism model. The WTO constitutional function is viewed in terms of a precommitment by which politicians tie their hands in such a manner as to resist the depredation of economic rights by domestic interest groups that demand rent-conferring interventionist and protectionist government. This model is articulated most explicitly by Ernst-Ulrich Petersmann. It is inspired by an economic liberal reading of European integration, according to which activist judicial review, on the basis of broad or expandable treaty commitments to economic mobility, drives European integration largely irrespective of political dynamics. Constitutionalism is viewed as the means of placing law, or the rule of law, above politics. WTO constitutionalism is a solution to the limits of domestic constitutionalism in achieving such a result with respect to economic rights—limits that are attributed to the “capture” of domestic politics by “special interests.” In short, a constitutionalized WTO attempts to place economic freedom above politics, but just the reverse is necessary to address the legitimacy crisis of the multilateral trading order. More politics is needed, not less.
Source Publication
Efficiency, Equity, and Legitimacy: The Multilateral Trading System at the Millennium
Source Editors/Authors
Roger B. Porter, Pierre Sauvé, Arvind Subramanian, Americo Beviglia Zampetti
Publication Date
2001
Recommended Citation
Howse, Robert L. and Nicolaïdis, Kalypso, "Legitimacy and Global Governance: Why Constitutonalizing the WTO is a Step Too Far" (2001). Faculty Chapters. 882.
https://gretchen.law.nyu.edu/fac-chapt/882
