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Contesting constitutionalism: Constitutional discourse at the WTO

Published online by Cambridge University Press:  31 January 2013

JESSICA C LAWRENCE
JESSICA C LAWRENCE*
Affiliation:
VU University, De Boelelaan 1105, 1081 HV Amsterdam, The Netherlands
*
*Email: [email protected]
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Abstract

Debates about ‘constitutionalism’ have become an important trend in WTO scholarship. Despite over two decades of interest, however, a coherent definition of the term and its content remain out of reach. This paper argues that ‘constitutionalism’ should be approached not as something that can be measured or assessed empirically, but rather as a ‘discursive contest’: a debate in which participants intervene on behalf of particular understandings of how the system does or should operate. Approaching constitutionalism as a discursive contest adds to the literature by shifting the focus to an analysis of how ‘constitutional talk’ produces knowledge about the WTO, and how this knowledge in turn structures perceptions about the way government works and the possibilities for action. Providing examples from scholarly debates and WTO practice, the article aims to make concrete the relationship between truth and government and the implications of discursive contests over constitutionalism in the field of WTO law.

Keywords

constitutionalismdiscourseFoucaultinternational economic lawWTO
Type
Research Article
Information
Global Constitutionalism , Volume 2 , Issue 1 , March 2013 , pp. 63 - 90
Copyright
Copyright © Cambridge University Press 2013

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References

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4 Though this will undoubtedly cause some distress for readers familiar with constitutionalism debates, this paper purposefully ignores the careful distinctions that scholars in domestic, European Union, and other contexts have made between the terms ‘constitution’, ‘constitutional’, and ‘constitutionalizing’. Though these distinctions are important and useful, they are not addressed in this analysis, as in WTO-related debates, the three terms all share the same discursive trajectory, with the differences being primarily in terms of concreteness, legality, and degree. The author hopes that readers will indulge this conflation, as it assists in presenting the argument in this essay as clearly and simply as possible.

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9 The ‘we’ here is all the individuals that interact with a particular governmental structure, whether as objects or subjects, governors or governed; creators of knowledge or receivers of knowledge. States, individuals, NGOs, businesses, and other global actors all fall under this definition as complex and shifting agglomerations of individuals that participate in the process of governmentality.

10 Over the past several decades, scholars have begun to make use of Foucault’s theories regarding governmentality to study the international. See, e.g., Larner, W and Walters, W (eds), Global Governmentality: Governing International Spaces (Routledge, New York, 2004)CrossRefGoogle Scholar; Perry, RW and Maurer, B (eds), Globalization Under Construction: Governmentality, Law and Identity (University of Minnesota Press, Minneapolis, 2003)Google Scholar; Neumann, IB and Sending, OJ, Governing the Global Polity: Practice, Mentality, Rationality (University of Michigan Press, Ann Arbor, 2010).Google Scholar However, there has been some discussion regarding whether it is possible to speak of a truly global ‘neoliberal governmentality’. See, e.g., Chandler, D, ‘Critiquing Liberal Cosmopolitanism? The Limits of the Biopolitical Approach’ (2009) 3 International Political Sociology 53Google Scholar; Joseph, J, ‘The Limits of Governmentality: Social Theory and the International’ (2010) 16 European Journal of International Relations 223Google Scholar; Selby, J, ‘Engaging Foucault: Discourse, Liberal Governance, and the Limits of Foucauldian IR’ (2007) 21 International Relations 324.Google Scholar Whether or not neoliberal governmentality can be said to be a truly global phenomenon, this paper maintains that it is possible to use the techniques developed by Foucault – in particular his analysis of the relationship between truth and government – to study institutional operations at the international level.

11 For much more on the specific operation of these systems, see Mitchell Dean’s excellent analysis of Foucault’s work on governmentality: Dean, M, Governmentality: Power and Rule in Modern Society (2nd edn, Sage Publications, London, 2010).Google Scholar

12 The forms of knowledge discussed in this paper are, generally speaking, mid-level institutional values. Though all may be said to draw on liberal and neo-liberal governmental rationalities, they represent distinct iterations within this broader framework of ‘knowledge’ regarding the driving forces behind individual and governmental behaviour.

13 See also Walker (n 2) 38–9.

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19 For an excellent analysis of the lessons that can be drawn from this debate, see Zang, D, ‘Textualism in GATT/WTO Jurisprudence: Lessons from the Constitutionalization Debate’ (2006) 33 Syracuse Journal of International Law and Commerce 393.Google Scholar

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21 Alston, P, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’ (2002) 13 European Journal of International Law 815CrossRefGoogle Scholar; Howse, R, ‘Human Rights in the WTO: Whose Rights, What Humanity? Comment on Petersmann’ (2002) 13 European Journal of International Law 651.CrossRefGoogle Scholar

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24 Dunoff (n 23) 648.

25 Trachtman (n 23) 627.

26 Ibid 624.

27 Ibid 628.

28 See, e.g., Dunoff, JL and Trachtman, JP, ‘A Functional Approach to International Constitutionalism’ in Dunoff, JL and Trachtman, JP (eds), Ruling the World?: Constitutionalism, International Law, and Global Governance (Cambridge University Press, Cambridge, 2009) 3.Google Scholar

29 See Cass (n 2) 61–94.

30 Joel Trachtman refers to this as the issue of ‘tertiary rules’: ‘In the US and EU systems of dual constitutions, at the local and at the central levels, a third type of rule has developed in the H.L.A. Hart hierarchy. Primary rules are normal legislation. Secondary rules are more in the nature of constitutional rules, determining authority to legislate, interpret and determine conflicts between primary rules. But there can also be conflicts between secondary rules. A special type of secondary rule, or perhaps one would call it a ‘‘tertiary rule’’, determines the allocation of authority between constitutions.’ Trachtman (n 23) 627.

31 See, e.g., Koskenniemi, M and Leino, P, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) 15 Leiden Journal of International Law 553.Google Scholar

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34 This view is supported by the Panel’s statement in the Korea–Government Procurement case that ‘Customary international law applies generally to the agreements between members’. Korea–Measures Affecting Government Procurement, WT/DS163/R (19 Jan 2000) para 7.96.

35 Trachtman (n 23) 624.

36 Trachtman (n 23) 625.

37 Cass (n 3) 43.

38 Ibid 44.

39 Ibid 50.

40 Trachtman (n 23) 635.

41 Chile–Measures Affecting the Transit and Importing of Swordfish, WT/DS193 (2000).

42 European Communities, Second Written Submission in EC–Measures Affecting the Approval and Marketing of Biotech Products (19 July 2004) para 8.

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47 Jackson, JH, Restructuring the GATT System (Council on Foreign Relations Press, New York, 1990).Google Scholar

48 The GATT was enacted ‘provisionally’ pending the coming into force of the never-enacted International Trade Agreement.

49 Jackson (n 47) 52.

50 Jeffrey Dunoff describes how Jackson presented his ideas at a London seminar attended by Uruguay Round negotiators, following which they were taken up by then-GATT Director-General Arthur Dunkel and included in his Draft proposal for the formation of a WTO. Dunoff (n 23) 652. See also Howse, R, ‘Tribute – the House that Jackson Built: Restructuring the GATT’(1999) 20 Michigan Journal of International Law 107.Google Scholar

51 Cass (n 3) 42. As a caveat, it should be pointed out that this question – like several of those discussed in the second and third sections, is not necessarily a ‘constitutional’ one. Rather, it becomes a ‘constitutional’ question when someone – in this case, a noted WTO scholar – describes it as such. This in itself is a constitutional assertion that should be analysed as part of the overlapping contests regarding the meaning and purpose of constitutionalism.

52 See United States–Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (6 Nov 1998) para 102.

53 Cass (n 3) 42.

54 Ibid 61.

55 Ibid 61–2.

56 For arguments in favour of the diplomatic approach, see, e.g., Goldstein, J and Martin, LL, ‘Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note’, 54 International Organization (2000) 603Google Scholar; Hudec, RE, ‘The New WTO Dispute Settlement Procedure: An Overview of the First Three Years’ (1999) 8 Minnesota Journal of Global Trade 1.Google Scholar For arguments in favour of a more legalistic approach, see, e.g., Jackson (n 47) 56–80; Petersmann, E-U, The GATT/WTO Dispute Settlement System: International Law, International Organizations and Dispute Settlement (Kluwer Law International, London, 1997).Google Scholar

57 Indeed, the WTO Agreement prohibits the Appellate Body from making definitive interpretations. WTO Agreement Article IX:2 (‘The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements.’).

58 See Appellate Body Report, European Communities–Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, WT/DS141/AB/R (12 Mar 2001); Appellate Body Report, United States–Final Dumping Determination on Softwood Lumber from Canada, WT/DS264/AB/R (11 Aug 2004); Appellate Body Report, United States–Laws, Regulations, and Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294/AB/R (14 May 2006).

59 See Panel Report, United States–Measures Relating to Zeroing and Sunset Reviews, WT/DS322/R (20 Sept 2006) para 7.99, noting that: ‘while we recognize the important systemic considerations in favour of following adopted panel and Appellate Body reports, we have decided not to adopt that approach …’.

60 See Appellate Body Report, United States–Measures Relating to Zeroing and Sunset Reviews, WT/DS322/AB/R (9 Jan 2007).

61 Panel Report, United States–Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/R (20 Dec 2007) para 7.102, emphasizing that panels ‘are not, strictly speaking, bound by previous Appellate Body or panel decisions that have addressed the same issue’. Overturned in Appellate Body Report, United States–Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R (30 Apr 2008).

62 Cho, S, ‘Global Constitutional Lawmaking’, 31 University of Pennsylvania Journal of International Law (2010) 622.Google Scholar Again, here, it should be noted that the debate over zeroing is not necessarily ‘constitutional’, but is made so as a result of work like Cho’s. It could also be seen as a debate about different understandings of balancing, about proportionality, about sovereignty, about jurisdiction, or any number of other topics that themselves may or may not fall under a particular understanding of constitutionalism.

63 Ibid 626.

64 Several scholars make reference to this facet of constitutionalism. Dunoff, for example, argues that ‘we can understand … constitutionalism at the WTO as offering constitutionalism as a mechanism for withdrawing an issue from the battleground of power politics and as a vehicle for resolving otherwise politically destabilizing political disputes through reference to a meta-agreement’. Dunoff (n 23) 662; Jan Klabbers, similarly, notes that ‘one of the main attractions of constitutionalism is to suggest that there is a sphere beyond everyday politics comprising values that cannot … be affected or changed’. Klabbers (n 32) 31.

65 See, e.g., E-U Petersmann (n 56); Petersmann, E-U, ‘Theories of Justice, Human Rights, and the Constitution of International Markets’ (2003) 37 Loyola Los Angeles Law Review 457.Google Scholar

66 Alston (n 21); Howse (n 21).

67 Alston (n 21) 836.

68 There is an incredibly extensive literature on this topic. See generally Esty, DC, Greening the GATT: Trade, Environment, and the Future (Institute for International Economics, Washington, DC, 1994).Google Scholar

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71 Trachtman (n 23) 635.

72 United States–Standards of Reformulated and Conventional Gasoline, WT/DS2/AB/R (20 May 1996) 16.

73 European Communities–Measures Concerning Meat and Meat Products, WT/DS26/AB/R, WT/DS48/AB/R (13 Feb 1998) paras 123–125.

74 European Communities–Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291-293/R (29 Sept 2006) para 7.74.

75 See DiMascio, N and Pauwelyn, J, ‘Nondiscrimination in Trade and Investment Treaties: Worlds Apart or Two Sides of the Same Coin?’ (2008) 102 American Journal of International Law 48.Google Scholar

76 Ibid 65.

77 Horn, H and Weiler, JHH, ‘EC–Asbestos’ in Horn, H and Mavroidis, PC (eds), The WTO Case Law of 2001 (Cambridge University Press, Cambridge, 2002) 14, 31Google Scholar; Ming Du, M, ‘The Rise of National Regulatory Autonomy in the GATT/WTO Regime’ (2011) 14 Journal of International Economic Law 639.CrossRefGoogle Scholar

78 DiMascio and Pauwelyn (n 75) 83. Horn and Weiler note that the competition test does limit legitimate policy objectives to those listed in Article XX, but stressing that this is compensated for somewhat by the fact that Article XX is broad and open-textured. Horn and Weiler (n 77) 29.

79 DiMascio and Pauwelyn argue that ‘in trade law, the ‘competition test’ is gradually being – and, in our view, should be – supplemented by an examination of the policy justifications for the regulation in question’. DiMascio and Pauwelyn (n 75) 83.

80 Horn and Weiler (n 77) 31.

81 Theodore Kill provides an interesting concrete example, arguing that ‘the concept of “rights-based constitutionalism” was central to the coherence of the Panel Report in Mexico–Measures Affecting Telecommunications Services’. Kill, T, ‘The Evidence for Constitutionalization of the WTO: Revisiting the Telmex Report’ (2011) 20 Minnesota Journal of International Law 65.Google Scholar