VJIL Symposium: Robert Howse Comments on “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization”

[Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law.]

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.

Professor Alvaro Santos’s Article brilliantly illustrates how developing countries can use effectively the WTO dispute settlement system not only to defend but to promote their chosen economic developing strategies, even where these (as in the case of Brazil) diverge considerably from the neo-liberal, Washington Consensus approach that is often assumed, partly erroneously, to be embedded in the WTO treaties. His Article raises the question of whether the policy space available under the treaties is inadequate or whether in fact developing countries have been in some cases overly-influenced by what elites with a neo-liberal orientation have told them the provisions in question mean.

To my mind, one of the clearest examples of the problem of who controls the understanding of what the treaty means is that of compulsory licensing under TRIPs. I hear it again and again suggested that TRIPs only allows compulsory licensing if there is some kind of emergency or crisis. This is simply not so. The TRIPs agreement merely imposes fewer conditions in the case of an emergency. But it makes compulsory licensing generally available.

In some countries, there is no independent expertise about WTO law. The government and the people only hear the views of officials who have been more or less inducted into the global trade policy elite, or those of the WTO Secretariat, or those of interests who are using the notion of WTO illegality to block a policy they oppose for other reasons. Today, however, NGOs are playing an increasingly useful role in entering policy debates and contesting interpretations that are particularly restrictive of policy space (ICTSD’s work on TRIPs is a good example). To be able to do this NGOs had to reposition themselves at least partly from being anti-globalization advocates trying to oppose and delegitimate the system to knowledgeable and shrewd lawyers who see the tensions, flexibilities, and balances in the existing norms that can be a basis for contestation within the legal framework as it stands. I am still struck by how journalists (many, though not all), who can be important in transmitting the meaning of WTO law in a domestic policy debate, will go to the same experts-mostly trade officials, lobbyists, or retired officials, and a few professors who are also consultants or closely connected to the WTO Secretariat-and take their views as the correct ones concerning the meaning of WTO law. When they are writing about questions of criminal law or constitutional law, journalists are much less naive: They often will try and get the views of experts with conflicting opinions, and they know that, at some level, political or social or philosophical views can matter to how one thinks the law should be interpreted and applied. In the case of trade law, they are often just looking for the conventional wisdom.

When the WTO Secretariat trains officials on the meaning of WTO law, this assistance is far from “technical.” Despite the disclaimers, it transmits one particular outlook on the law. There are numerous Secretariat documents that contain interpretations of WTO rules in sensitive policy areas like trade and health (despite disclaimers that there is no authority to the interpretations). I haven’t made a systematic study of such documents but the ones I’ve read persistently adopt readings that minimize or de-emphasize policy flexibilities, and they especially neglect or underplay interpretations of the Appellate Body that support such flexibilities. One wonders whether for some countries, however, these documents, coming from the Secretariat, don’t carry more weight than the differing views of activists and academics.

I have often thought that there could be a role for law school clinics in providing alternative legal advice to countries without independent in-house expertise; as well such clinics could assist various groups who are faced with arguing about the meaning of the WTO when WTO legality becomes an issue in domestic policy debate. Perhaps Professor Santos, Greg Shaffer, myself and others should get such a project going.

In sum the question is how we can extend to other countries and contexts the lessons of Brazil’s and Mexico’s successes with the WTO dispute settlement system that are well-articulated in Professor Santos’ excellent Article.