VJIL Symposium: Alvaro Santos Responds to Professors Howse and Lang

[Alvaro Santos is currently an Associate Professor of Law at the Georgetown University Law Center.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

I am grateful to Professors Robert Howse and Andrew Lang for their comments on my Article. I am an avid reader of their work and am honored for the opportunity to have this exchange.

My Article argues that contrary to the commonly held assumption that WTO legal obligations overly restrict countries’ regulatory autonomy, there is still flexibility in the system for countries to carve out regulatory space and pursue heterodox domestic economic policies. The Article seeks to show that often the biggest obstacles to experiment in domestic economic policy are not the trade legal obligations but the beliefs that assign to the WTO a specific form of trade liberalization. These habits of thought assume a determinate meaning in what constitutes a trade distortion when these determinations are in fact the result of policy and value-laden choices. One concrete implication is that contrary to what is often assumed, the hands of the policy decision-makers in developing countries are not tied.
Both Professors Howse and Lang seem to agree with the Article’s thesis about the existence of greater policy flexibility in the WTO and raise important points about its implications. I would like to respond by highlighting three themes that stem from their comments: the role of technical expertise, the institutional strength of the WTO’s Dispute Settlement Body (DSB) and the conceptual scope of policy autonomy.

First, let me say a word about technical expertise. Professor Robert Howse’s work has been at the forefront of showing the wider range of policy choices available under the WTO agreements. In his response Howse provides an excellent example of narrowing down of policy flexibility using the TRIPs agreement. Although compulsory licensing is often interpreted as being available only in cases of emergency, it is indeed generally available.
Howse emphasizes the importance of independent expertise on WTO law for developing countries. A kind of expertise that does not take for granted the conventional wisdom prevalent in the global trade policy elite, the WTO Secretariat or powerful interest groups but that looks instead at how to serve the needs of developing countries. This point relates to the concept of “development legal capacity”, which I use to argue that knowledge and expertise can be deployed to contest dominant interpretations of WTO to experiment domestically with heterodox economic policies. Howse makes clear that different political, social and philosophical views animate different interpretations of what the WTO obligations mean. Here, as in much of his work there is an impetus for the democratization of the global trade regime and for a vibrant public debate about the values we want the system to embrace that I find compelling.

Similarly, Professor Lang notes that if developing countries are to be successful in advancing their economic agendas they ought to pay attention not only to their legal capacity in litigation but to the structural conditions that influence the receptivity or the impact that their arguments will have on legal interpreters. I agree and indeed regard countries’ developmental legal capacity as encompassing that kind of work. Lang points to the role of public criticism in the environmental cases. Similarly, one could see the access to medicines campaign in the context of the AIDS epidemic as another important example. Developing countries like South Africa and Brazil, as well as many NGOs, managed to reframe the understanding of TRIPs so that it could not be read to limit states’ rights to pursue their public health objectives. Thus, I agree that countries’ legal capacity and lawyering strategies can’t be limited to litigation. Countries need to devise strategies that would make their arguments gain traction in Geneva and among the trade policy network. This could include very visible work like public campaigns and forging political coalitions as well as the less visible and more gradual work of WTO committees, as Lang has examined elsewhere.

Moreover, beyond the role of developing country governments and NGOs, Howse makes clear that there is also a role for legal scholars to play. I am enthusiastic about his idea of using law school clinics to provide independent and development-friendly legal advice to countries in need of counsel for WTO litigation and to other groups, like NGOs, for domestic policy debates about the meaning of WTO obligations. I am on board and hope that this exchange could be the beginning of a project of that sort.

Moving to the second theme of the institutional preparedness of the DSB raised by Lang, it is hard to know how the DSB would adapt to increasing participation of developing country members increasingly following strategies like the one I describe. It may be that the DSB reaches a point where its legitimacy to continue to make decisions with such high stakes seems unsustainable. But then the strategy may have the positive effect of putting the kind of pressure on the DSB that would require explicitly negotiated compromises by the WTO members on matters that developing countries care about. Being savvy in dispute settlement would equip developing countries to have a fallback position during negotiations.

Finally, a word on the character of policy autonomy. Lang calls policy autonomy an illusion because international law –or multiple layers of transnational legal regimes- to some extent already structures countries’ economic policy choices when it comes to trade-related regulations. We can imagine procedural rules about sovereignty, state responsibility, jurisdiction and treaty-making, or overlapping substantive regimes of investment and finance, to name a few. So, a country is never entirely free from constraints. I think that diagnosis is right although once made visible, a country might also be able to influence those background legal regimes that affect its choices on trade measures.

At any rate, it might be that Lang’s understanding of policy autonomy and mine are not so far apart. I see policy autonomy not as some limitless or pre-regulatory status that developing countries should strive to inhabit but as a quest for empowerment within the existing international regulatory regimes that could yield better consequences for them. The call is not for disengagement but for a different kind of engagement. If there were a rallying cry it would not be “leave me alone” but “let me experiment and thrive in the system”.

An additional difficulty often pointed out for policy autonomy is that, as Lang writes in his wonderful new book “one country’s regulatory ‘autonomy’ is another country’s external regulatory constraint”. This becomes even more pressing when talking about trade between developing countries. One possible way to deal with this tension, as Dani Rodrik has argued, is to elevate development as a goal and explicitly demote market access as the default, overarching principle of the trade regime. Countries would have to accept the consequences that exercising policy autonomy might have on their own exports. The key question of course is how to operationalize opt-outs that explicitly take this view and can be subjected to disciplines. This path would make clear that ever increasing trade liberalization is not equivalent to development. It is only a means and one that has to be carefully channeled and managed.

Lang has called for reimagining or rather recognizing the trade regime as a system of public global governance where the choices between different values and their potential consequences could be made explicit. This is a laudable goal and one that I fully support. But it is also likely that a change in this direction will be contentious because countries often have opposite interests and the economic and social stakes are high. So, the scope of the change might depend on how developing countries gain capacity and are able to press for it. In other words, a more hospitable trade regime for developing countries may not come out as a result of a general consensus and it will surely not be handed down to them. Developing countries will have to reshape it. My article shows one possible way in this direction.