VJIL Symposium: Joost Pauwelyn Comments on “Interpretation and Institutional Choice at the WTO”

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva, Switzerland.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

Thank you to Opinio Juris and the Virginia Journal of International Law for inviting me to participate.

This Article, by Greg Shaffer and Joel Trachtman, makes the important point that choices in treaty drafting and judicial interpretation allocate authority. For example, a choice for rules (instead of standards) or reference to non-WTO norms and expert advice (instead of WTO law only) allocates authority, respectively, to negotiators (instead of the judiciary) and to other bodies or experts (instead of the WTO). This is clear and convincing. From there, however, the authors make an extra and less convincing step: after (descriptively) linking choice to authority they then (normatively) link type of authority to welfare and participation levels arguing, for example, that treaty drafters (setting rules) can be presumed to “maximize welfare” and offer more “transparency, accountability, and legitimacy” than the judiciary (applying standards) (p. 111). A similar hierarchy is presumed putting the WTO above standard-setting bodies such as Codex or the ISO, on the view that the latter “evade the need for consensus within the WTO” (p. 113) and are “subject to capture by certain interests” (p. 114).

I find it extremely difficult to make such generalizations about which type of authority is “better” in welfare and participation terms (Instead of gauging the consequences of interpretative choices it may be more productive to think about the underlying reasons for such choices, as I tried to do here with my co-author Manfred Elsig).

Today’s reality is that authority flows from an increasing diversity of sources (national & international; public & private; political, judicial & expertise etc.). Unless one makes the broadest of assumptions (e.g., “if we ignore strategic problems and asymmetric allocation of power”, at p. 111; elsewhere, equating all of WTO law to trade liberalization and on that basis implying that the WTO is more “efficient”, p. 132), it no longer makes sense to presume that one source is, by definition, “better” than another (e.g. that negotiators or the WTO do a “better job” than judges, experts or other institutions). It all depends on the task at hand (for some things politicians are better; for others, judges, experts or the market) and the detailed set up of the authority in question (how does it operate; who is included; what is its reputation and support?), rather than its type. Nor do we have to make a binary choice between this or that authority: the WTO can refer to outside standards yet at the same time exercise judicial control over those standards (as the recent Panel on US – Tuna Label did, checking the inclusiveness and transparency of the standard); it can refer to scientific or economic experts for factual matters, defer to national authorities for appropriate levels of protection but leave decisions on legal criteria in the hands of WTO panels.

Take the authors’ presumption that the WTO is “better” than standard-setting bodies. Based on a two year research project looking at the practices of standard-setters and makers of what we have called “informal” international law, I have come to the conclusion that in many cases the paradigm of “thin state consent” underlying traditional international law (including WTO law) is less (rather than more) accountable and efficient than the “thick stakeholder consensus” that often (not always) supports standards or informal norms. State consent in the WTO is both too easy and too difficult. Too easy, because all that is required is agreement between state representatives; for there to be a treaty under international law no other requirements of transparency, inclusiveness or stakeholder support are needed; and quite often domestic control over WTO affairs is minimal. Too difficult, since any one of the now close to 160 WTO members can block a deal and the WTO is generally aversive to sub-multilateral deals and anyhow operating under perverse mercantillistic assumptions of reciprocal trade concessions exchanged between increasingly detached trade officials (hence the absence of major WTO agreements for what will soon be 20 years now, 1994-2014; how efficient or accountable is that?). Contrast this to what is emerging as the code of good practice for standard-setting or informal lawmaking: not only issue-specific public officials are involved but also other actors (public and private) in an ongoing process of norm development and adaptation (rather than ossification), deeply involving domestic actors and domestic implementation, subject to transparency and inclusiveness criteria, trial and error in the real world and a decision-making rule not subject to individual state consent or vetoes, but of thick stakeholder “consensus” (defined in ISO/IEC Guide 2 as: “General agreement, characterized by the absence of sustained opposition to substantial issues by any important part of the concerned interests and by a process that involves seeking to take into account the views of all parties concerned and to reconcile any conflicting arguments”).

Interpretative and institutional choice may determine who has authority. However, based only on type of authority (rather than context) generalizations in terms of welfare or participation levels are either hard (if not impossible) to make or of little predictive value (since based on too many/broad assumptions).