The dynamics of protest
Professor Shaffer's essay provides us with a detailed street map of the political forces that have gone into the making of WTO law. In this sense, his work establishes a “geographical” basis for dealing with criticism of the WTO as an international institution. In many ways, the field of WTO legal studies remains insular, uneasy with either passionate criticism or data from outside the discipline that might indicate something gravely wrong in the effects of liberal trade on human beings.
Professor Shaffer has given us a welcome and pleasant map, one of a city where we are accustomed to walk, and whose contours we know by intuition. At a highly schematic level, the principal question posed by the essay has to do with the increasingly vocal critics of the WTO, those who first gained worldwide notoriety in Seattle in 1999. And his question is, in effect, What do those people want? Professor Shaffer seeks to subject to analysis, based on his map of political inputs, whether or not those with a gripe against the WTO have a legitimate gripe.
While recognizing the great value of this approach, one could, and I do, disagree as to how to frame the basic problem. It strikes me that the challenge raised by the variegated protesters is rather more sophisticated than they, and it, are given credit for. I am not convinced that global critics take as their focus a faceless and unaccountable “WTO, ” except as that is used as shorthand for WTO law itself. And what must be analyzed is the nature of resistance to the legal developments of 1995, which did in fact generate if not a crisis at least a profound problem of legitimacy and accountability. Whatever one may think of “trade sanctions” as a form of discipline, the possibility of retaliatory trade sanctions by the prevailing party to a dispute, along with the proliferation of causes of action in the Uruguay Round Agreements, created a global system that was bound to elicit the sort of criticism that has arisen. It would be astounding, and worrying, if that were not the case.
Indeed, one could see Professor Shaffer's essay as a symbolic acknowledgement that the criticism since Seattle has set down a fundamental challenge to the survival of the WTO system. Trade-law scholars, often preoccupied with a technocratic version of their subject matter, are too close to the workings of that system to understandhowitisreceivedbytheinformedpublic. Ratherthancallforenhancementof the WTO's constitutional profile, scholars in the field should recognize that analogies are properly drawn between trade law and other sectors of law. And as with