VJIL Symposium: Andrew Lang Comments on “Carving Out Policy Autonomy for Developing Countries”

[Andrew Lang is a Senior Lecturer in Law at the London School of Economics and Political Science.]

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.

It is a pleasure to be asked to comment on Alvaro’s most recent paper on ‘Carving out Policy Autonomy for Developing Countries in the World Trade Organization’. I spent a happy few hours reading and digesting the thoughts that Alvaro offers in this paper, and am richer for the experience. I am in sympathy with essentially all of the starting points of the analysis: that WTO law is more ambiguous than is usually appreciated; that it therefore is potentially more flexible than is commonly acknowledged; and that law is not epiphenomenal to relations of power in global trade politics but rather partly constitutive of them. And I appreciate the importance of what I take to be the article’s core point: that building the ‘legal capacity’ of developing countries in the trade regime should mean more than just building their capacity to bring and win cases in the WTO, but more broadly to integrate developing countries’ WTO legal strategies much more closely with their development goals and policies, to shape the terms of their integration into the global trading order.

One thought that occurred is that if this project is to be successful, then work on building the ‘capacity’ of developing countries in WTO dispute settlement needs to be complemented by research into the ‘receptivity’ of the dispute settlement system to the arguments that developing countries make. The power to shape the interpretation of the law in WTO dispute settlement, in other words, is not just a function of the legal capacities of the parties to a dispute, but also about the structural conditions which make certain legal arguments appear more convincing, persuasive, institutionally appropriate, textually grounded, and so on to legal interpreters. Alvaro tells the story of the evolution of the law through US litigation of the Tuna and Shrimp disputes as an illustration of the winning strategies of Repeat Players, which might usefully be replicated by developing countries. But isn’t it also possible to explain the change in the law over the course of these cases as in part a response on the part of the regime to its greater public visibility and the rise of public criticism of the WTO? Presumably both play a role – the point is simply to say that building the capacity of developing countries to use the WTO dispute settlement system strategically would ideally be complemented by work on the conditions which make the dispute settlement system receptive (or not) to the strategies that developing countries thereby pursue.

A related thought has to do with the pressures that this project will place on the WTO dispute settlement system. Alvaro, and other writing in this area, are right to say that struggles over the interpretation of WTO law are likely to become an even more central aspect of global trade politics over the next decades, partly as a result of more and more Members building their legal capacity in precisely the way Alvaro describes. Is the dispute settlement system equipped at present to respond to the challenges that this will pose? Does it currently possess a sufficient set of juridical tools and techniques to carve out both a legitimate and effective role for itself as it finds itself ever closer to the centre of trade politics? One of the tasks for the next decade or so it to try to craft a way of ‘doing law’ in international economic governance which bears the weight that strategies such as those described in this article will necessarily place on it.

Finally, a brief comment on the notion of ‘policy autonomy’, which plays an important role in Alvaro’s analysis. The quest to ‘carve out policy autonomy’ for developing countries, as the Article’s title puts it, is an important one. But, as I try to argue in the final chapter of my book, it is important to remember that true policy ‘autonomy’ is an illusion. It is even an illusion if we understand it as ‘freedom from international legal constraint’, since there are myriad ways in which international law structures the states’ economic policy choices even before we get to the kinds of WTO disciplines commonly talked about. If this is true, should we be talking not just about the ‘negative freedom’ of removing international legal constraints on developing countries’ policy autonomy, but also about the ‘positive freedom’ of creating an international legal order which, to paraphrase Unger, actively encourages policy experimentation and institutional pluralism amongst WTO Members?