Academic journal article The George Washington International Law Review

The WTO in Transition: Of Constituents, Competence and Coherence

Academic journal article The George Washington International Law Review

The WTO in Transition: Of Constituents, Competence and Coherence

Article excerpt

INTRODUCTION

The Seattle Ministerial meeting marked a watershed for the international trading system. This Article reflects on the failure to launch a new round of trade negotiations in Seattle and outlines three claims concerning the state of the international trade regime.

The first claim is that as we enter the new millennium the trade regime is in a time of fundamental transition and, perhaps, transformation. The issues driving this transition are at once political, institutional, and jurisprudential. While the Seattle Ministerial's failure was more a symptom than a cause of this transition, it raised both the visibility and the political salience of the pressures driving this transitional era.

The second claim is that the strategies used thus far to address these transition issues have been, for the most part, relatively conventional strategies. But, as demonstrated more fully below, these strategies have been ineffectual at best, and, at worst, counterproductive.

The third claim is that the pressures driving the World Trade Organization's (WTOs) transitional era illuminate the limits of our current understandings of the trade regime. Hence, they highlight the need for new understandings that more fully capture the realities of the international trading system.

This Article develops these claims through examination of the simple-sounding questions of "who," "what," and "where." By asking "who," this Article raises a question about constituencies. Who does the trade system serve? Who has a meaningful voice in the system? By asking "what," this Article raises a question about competencies. What subject areas fall within the trade regime? Labor? Competition? Environment? What principle defines the line distinguishing the issues that are properly within, and those properly without, the trade regime? Finally, by asking "where," this Article raises a question about institutional and doctrinal coherence. Where does the WTO fit within the larger universe of international law and international organizations? Is the WTO one among many international organizations? Or does WTO law have a "constitutional" dimension, rendering trade law superior to other forms of international law and the WTO more "equal" than other international organizations?

These questions help define the scope and dimensions of the current transitional era. But exploration of these questions will, in turn, raise two other fundamental questions: "why" and "how." Why is the trade system in the midst of a dramatic transition period now, especially so soon after the lengthy bargaining that produced the Uruguay Round Agreements? And, finally, how are the various problems at issue during the transition related, and how might they be solved? Discussion of these questions will show that, ironically, many of the issues driving the transition result from past successes of the trade regime. But it will also show why the strategies that were successful in the past are unlikely to be so in the future. The transition issues signal that the stakes in trade disputes have significantly changed.

1. WHO?

To understand the present transition period, we should start with the "who" question. This question asks who benefits from and who drives the trade system? Who sets the agenda, and who has a meaningful voice in the WTO? While each of these queries deserves attention, for present purposes this Article focuses on the question of who meaningfully participates in the WTO as a proxy for the larger "who" question.

Until 1990, there was a short and simple answer to the question of who meaningfully participates in the trade regime. Until then, the system was primarily driven by the U.S.-EU relationship. Major proposals for change often originated with one of these parties, and the success of any proposal invariably required the support, or at least acquiescence, of both parties.

But, after the Uruguay Round, increasing pressure from both inside and outside of the WTO signaled that this succinct answer to the participation question was no longer adequate. …

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