Does the World Trade Organization (WTO) have a constitutional future? It is not too soon to reexamine the institutional structure for global trade relations. The WTO is a young organization, barely more than a decade old, and it is a work in progress. The WTO, and the General Agreement on Tariffs and Trade before it, greatly reduced tariffs and other protectionist measures and, in doing so, fostered economic growth.
Some ask whether the WTO is good or bad. Some ask whether the WTO will survive its shortcomings, including its slow response to the AIDS crisis, or its inability to address the needs of poor people, or its failure to incorporate environmental protections or human rights norms. These are not well-posed questions. In fact, by focusing on these questions about the responsibility of the WTO, instead of the real questions about state and individual responsibility, we delay potential remedies, and hide our inaction by making a scapegoat of the WTO.
The WTO today is little more than a complex set of rules amalgamated under a rather flimsy institutional umbrella. In WTO lingo, it is a "member-driven organization" with little independent power and therefore little responsibility. The WTO has more transnational power than most international organizations, but it has little autonomous authority to make new rules. Thus, the WTO must be understood as a relatively static contract. The responsibility for any sins of commission or omission by the WTO remains largely with the signatories of that contract--the states themselves and their citizens.
The WTO cannot be understood without considering the broader international institutional framework in which it exists. For example, criticizing the WTO for excluding environmental protection without examining the broader environmental regime misses an important dimension. Even more saliently, blaming the WTO for the persistence of poverty is merely attacking a straw man. It might also miss the opportunity to attack the real problem, for which the WTO might not be responsible, but perhaps can address.
Will the WTO survive? If the WTO did not exist, it would immediately need to be invented; if demolished, it would immediately be re-established. Although withdrawal from the WTO is legally permissible, no member state has expressed any serious plans to withdraw. At the core of the WTO are rules restricting protectionism, albeit in incomplete terms. There is little doubt that these rules are in the aggregate beneficial. If they were not, why would states adhere to the WTO; why would states like China struggle to accede? But there is also little doubt that these rules could be improved and that they have distributive effects that could be altered.
The rules contained in the WTO treaty affect state behavior, as well as the international distribution of wealth. Thus, the most important questions to ask today about the WTO are whether particular rules under the WTO umbrella, and those rules proposed to be placed under the WTO umbrella, are beneficial or detrimental, and to whom.
This article is concerned with a second set of questions that concern the institutional structure of the WTO and how its rules are made. It speculates on the potential areas of "constitutional" growth for the WTO. The discussion is motivated by the question of how to open the WTO to changes that would increase its aggregate benefits and distribute those benefits increasingly to poor people.
The Blind Men and the Six Constitutions
A constitution is like the fabled elephant at the hands of six blind men, each of whom thinks he is encountering a different animal because he touches a different part of the elephant. To grapple with the constitutional structure of the WTO, it is necessary to recognize the different parts of the elephant and then try to envision the entire animal. There are those who touch a constitution and perceive only one of the following--an economic constitution in the sense of a set of rules for exchange of value and authority, a political constitution that reflects the cultural and democratic integrity of a people, a human rights constitution that limits the sphere of governmental authority, a functional constitution that allows for the integration of various social values, a legal constitution that provides rules for the making of other rules, or a redistributive constitution founded on social solidarity. …