The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System by Deborah Z. Cass

Author:Deborah Z. Cass
Language: eng
Format: epub
Published: 2014-11-23T05:00:00+00:00

4.3 Conclusion

To sum up, institutional managerialism, according to its advocates, is about the management of trade disputes, using neutral rules, in order to preserve decision-making flexibility, safeguard national diversity, and exclude a too-rapid extension of WTO law. One purpose of the management techniques of institutional managerialism is to substitute management for diplomacy and politics, and yet the form of deliberation substituted is a weak one. The institutional focus of the approach suggests the system’s practices have achieved a level of coherence that signals the emergence of a new Grundnorm, and its conflation of institutions with constitutions lends the approach an air of legitimacy. Institutional managerial constitutionalization is factual in its method of derivation, and transformative in its goals. To the critics, however, the deliberative process it promotes is essentially unsatisfactory. Institutional managerialism is suffused with the values of free trade, unable to reconcile an inherent tension between protecting and disturbing national sovereignty, and subject to claims of political influence. Moreover, it is criticized because any legitimacy it finds is based on a conflation of the institution with a constitution. Likewise, any new basic norm is derived from facts which do not necessarily show that constitutionalization has occurred. In respect of the received tradition of constitutionalization defined in the first chapter, this model is focused strongly, though not always successfully, on issues ofGrundnorm change, legitimacy, and deliberative process. It is cognizant of the problems of modification of relationships between the state and the international entity, but does not address the issue of the nature of the community that authorizes the purported constitutionalization process. In short, the approach does not satisfy the core elements of constitutionalization defined at the outset.

In relation to the appropriateness of the received account in the light of the WTO experience of institutional managerialism, a number of adjustments to traditional theory follow from the WTO experiment. First, it is apparent that assessing whether Grundnorm change has occurred is a complex matter of interpretation which may be circular and self-serving: a system is said to have developed a new Grundnorm when the facts change, and the facts change when the new Grundnorm is apparent. The actual conditions of Grundnorm change require further thought when applying the notion to the international legal context. Secondly, it is possible to utilize the legitimacy of the constitutionalization process by reconceiving a simple institution in constitutional terms. The idea of legitimacy needs clarification in the international law context (p.144) in order to avoid the outcome that any strong institution can be automatically equated with a new constitutional structure. Thirdly, the requirement of deliberative process is inadequately met by the WTO experience of decisionmaking by management technique. Again, in the international context, a stronger form of deliberation should be assumed. In short, the institutional managerial model of WTO constitutionalization discloses significant gaps in the traditional account of constitutionalization which was, largely, conceived of as a state-centred account. In order to rethink constitutionalization at the international level, the basic requirements would need to be reconfigured in light of the WTO experience.

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