1. The Legitimacy of the WTO
Prof. Thomas Cottier
7th Annual WTO Conference BIILC/IIEL
London, May 23, 2007
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Introductory
Legitimacy v. legality
Trust, confidence, reliance and voluntary compliance of law: authority
Benchmark: rules and processes not perfect in any polity
Urgent need to clarify issues in an era of disintegration of WTO law
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Agenda
Main objections to WTO legitimacy
Theories of legitimacy
The impact of multi-layered governance
Substantive issues
Procedural issues, in particular decision-making and democracy
Conclusions
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4. Main Objections to WTO Legitimacy
The fatal attraction of WTO
Lack of domestic policy space
Fragmentation and incoherence in relation to other areas of international law and policy
The challenge of distributive justice and poverty alleviation; imbalances (no trickling down)
Dealing with MS as a black box
The challenge of democratic legitimacy
Inefficiency of the negotiating process
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Theories
Input and output legitimacy (political science)
International Relations Theory
Realist schools
Liberal schools
Idealist schools
Law: Theory of Multi-layered Governance, vertical checks and balances, separation of powers
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6. Multi-layered Governance
WTO law is part of multi-layered governance based upon negotiated delegations of MS powers
WTO law is a response to deficiencies and failures of the Nation State
WTO essentially overcomes vested interested and rent-seeking protectionism in MS
WTO essentially stabilises and contributes to international peace and prosperity
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Achievements
Multilateralisation of tariff and non-tariff policies and law
Progressive liberalisation (goods and services)
Principles of non-discrimination
Most favoured Nation Treatment
National Treatment
Transparency
The Rule of law (DSU)
Economic growth
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10. Issues of Substantive Law
Does WTO law prevent MS from pursuing policies of redistribution at home?
Human Rights policies (e.g. TRIPs)
Climate change (PPMs)
Single undertaking, graduation and variable geometry
The role and impact of other international bodies
Do WTO MS fail to use existing policy spaces?
Competition law and policy
Labour standards and social policies?
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11. Issues of Procedural Law
Democracy starts at home
Should WTO law support and coin democratic trade policy formulation? How to amend transparency and the rule of law?
Democracy at the WTO
Consensus based decision-making
From de facto to de jure weighted voting
The formal status of the Secretariat
The formal role of the private sector and NGOs
A Parliamentary Assembly
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Conclusions
Non-exclusive factors of legitimacy encountered:
Economic growth and prosperity
Stability and peaceful relations
Rule of law, transparency
Participatory decision-making and democratic accountability
WTO deserves high level of legitimacy as backbone of the multilateral, multi-layered trading system
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13. Thank you for your attention!
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