Academic journal article Boston College Law Review

Power, Rules, and the WTO

Academic journal article Boston College Law Review

Power, Rules, and the WTO

Article excerpt

Power in international politics is like the weather. Everyone talks about it, but few understand it.

-Joseph S. Nye, Jr.1

Introduction

As Joseph Nye's quotation reveals, it is easy to talk about legitimate power in international politics without really understanding it.2 Defining what power is in the World Trade Organization (WTO) is especially challenging because the WTO is a highly complex and developed insti- tutional response to the coordination of international political relation- ships between states in the context of trade.

As an academic specializing in doctrinal analysis of the WTO's rules, I am interested in what place rules could occupy in a theory of legitimate power for the WTO.3 This Article does not claim to resolve this question. Instead, as a first step toward deeper reflection in later work, it tries to tease out how the rules work when they are interpreted by the panels and Appellate Body in WTO dispute settlement proceed- ings. Specifically, this Article examines the dynamic, almost autono- mous, character of the WTO rules. To do this, the analysis focuses on one of the leading accounts of public international law to give an ac- count of rules and their interaction with state power in international politics, Martti Koskenniemi's From Apology to Utopia.4 Koskenniemi's theory attempts to give concrete expression to legal practitioners' intui- tive sense that the rules of international law actively inhibit states' use of power in this context.5 He recognizes that the ability to inhibit is connected to the fact that rules must be interpreted by an adjudicator in a dispute to bring them into play so that penalties can be imposed for any violation.6 Yet he denies that the power to decide on meaning rests with the adjudicator guided solely by canons of treaty interpreta- tion.7 Rather, he reaches for the elusive intuition that something else about the rules is shaping which meanings the adjudicator can find when she uses canons of treaty interpretation.8

Ultimately Koskenniemi did not satisfactorily elaborate what that elusive "something else" was to his critics' satisfaction.9 Indeed, his the- ory was criticized as a deconstructivist account of public international law because he presented a vision of rules as either tethered to states' power or wholly distinct from it, with the result that the rules appeared to lack any inherent, independent character of their own.10 In an ex- planatory epilogue to the 2005 reprinted edition of his theory, Kosken- niemi disputed this deconstructivist interpretation of his ideas, insisting that he did in fact give expression to the independent character of rules.11 Such advocacy for his ideas, in the face of criticism to the con- trary, merely underscores how difficult it is to explicate precisely what phenomenon practitioners perceive when they work with rules.

The aim in choosing Koskenniemi's theory from a plethora of work on power, rules, and law in international politics is not to argue defi- nitely whether it correctly identifies rules' character so that this theory can be extrapolated straight to the WTO to the exclusion of other theo- ries. Nor is this Article's aim to reject the published criticisms and offer this Article as the definitive work in an ever-growing and complex area of scholarship. Rather, this Article uses Koskenniemi's theory as a way of inching ever closer to the elusive character of rules-that "something else" about the rules that is intuitively recognized by legal practitioners.

Thus, this Article argues that the language of the WTO rules plays a dynamic role in entrenching the meaning of the rules and that the in- herited intellectual tradition of the WTO protects the rules from suc- cumbing to the permanent slide between apology and utopia that Koskenniemi claimed. Part I reviews Koskenniemi's critique of interna- tional law.12 Part II examines how Koskenniemi's theory, which was originally crafted before the WTO's creation, would apply to the WTO. …

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