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Contesting constitutionalism: Constitutional discourse at the WTO

Published online by Cambridge University Press:  31 January 2013

VU University, De Boelelaan 1105, 1081 HV Amsterdam, The Netherlands


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.

Research Article
Copyright © Cambridge University Press 2013

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1 Carroll, Lewis, Alice Through the Looking Glass (Pan Books, London, 1947) 223.

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2 See, e.g., Cass, D, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy and Community in the International Trading System (Oxford University Press, Oxford, 2005); Walker, N, ‘The EU and the WTO: Constitutionalism in a New Key’ in de Búrca, G and Scott, J (eds), The EU and the WTO: Legal and Constitutional Issues (Hart Publishing, Oxford, 2001) 31; Zumbansen, P, ‘Comparative, Global and Transnational Constitutionalism: The Emergence of a Transnational Legal-Pluralism Order’ (2012) 1 Global Constitutionalism 16.

3 Cass, D, ‘The “Constitutionalization” of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade’ (2001) 12 European Journal of International Law 41.

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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.

5 Connolly, WE, The Terms of Political Discourse (Blackwell Publishers, Oxford, 1993) 10. See also Harvey, C, Morison, J, and Shaw, J, ‘Voices, Spaces, and Processes in Constitutionalism’ (2000) 27 Journal of Law and Society 3.

6 Connolly (n 5) 10.

7 Foucault, M, The History of Sexuality, Vol. 1: The Will to Knowledge (Hurley, Robert trans, Allen Lane, London, 1978). Foucault, Michel, Security, Territory, Population: Lectures at the College de France, 1977–1978 (Burchell, Graham trans, Picador, New York, 2007); Foucault, M, The Birth of Biopolitics: Lectures at the College de France, 1978–1979 (Burchell, Graham trans, Palgrave MacMillan, London, 2008).

8 Rose, N and Miller, P, ‘Political Power Beyond the State: Problematics of Government’ (1992) 43(2) British Journal of Sociology 175.

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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); Perry, RW and Maurer, B (eds), Globalization Under Construction: Governmentality, Law and Identity (University of Minnesota Press, Minneapolis, 2003); Neumann, IB and Sending, OJ, Governing the Global Polity: Practice, Mentality, Rationality (University of Michigan Press, Ann Arbor, 2010). 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 53; Joseph, J, ‘The Limits of Governmentality: Social Theory and the International’ (2010) 16 European Journal of International Relations 223; Selby, J, ‘Engaging Foucault: Discourse, Liberal Governance, and the Limits of Foucauldian IR’ (2007) 21 International Relations 324. 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).

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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.

14 Franck, TM, ‘Preface: International Institutions: Why Constitutionalize?’ in Dunoff, JL and Trachtman, JP (eds), Ruling the World?: Constitutionalism, International Law, and Global Governance (Cambridge University Press, Cambridge, 2009) xi.

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15 Joseph Weiler has argued in the EU context that constitutionalization also includes a metaphysical component: the development of a kind of ‘spirit’ that cements the social contract within the constitutional community. See Weiler, JHH, ‘To Be a European Citizen: Eros and Civilization’ in Weiler, JHH, The Constitution of Europe (Cambridge University Press, Cambridge, 1999) 324.

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16 As Wouter Werner wrote, constitutionalism in this sense is employed ‘with the aim of furthering a normative agenda of internationalism, integration and legal control of politics’. Werner, W, ‘The Never-Ending Closure: Constitutionalism and International Law’ in Tsagourias, Nicholas (ed), Transnational Constitutionalism: International and European Models (Cambridge University Press, Cambridge, 2007) 329, 330.

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17 R Ruggiero, ‘The Multilateral Trading System at Fifty’, Address to the Royal Institute of International Affairs in London, United Kingdom, 16 Jan 1998. See also McGinnis, JO and Movsesian, ML, ‘The World Trade Constitution’ (2000) 114 Harvard Law Review 511.

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18 W Saletan, ‘The Trade War’ (3 Dec 1999) Slate.

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.

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20 See Petersmann, E-U, ‘How to Reform the United Nations: Lessons from the International Economic Law Revolution’ (1997) 2 UCLA Journal of International and Foreign Affairs 185; Petersmann, E-U, ‘Dispute Settlement in International Economic Law – Lessons for Strengthening International Dispute Settlement in Non-Economic Areas’ (1999) 2 Journal of International Economic Law 189; Petersmann, E-U, ‘Constitutionalism and WTO Law: From a State-Centered Approach towards a Human Rights Approach in International Economic Law’ in Kennedy, DLM and Southwick, JD (eds), The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec (Cambridge University Press, Cambridge, 2002) 32. See also McGinnis and Movsesian (n 17) 515, arguing that ‘Free trade and democratic government face a common obstacle – the influence of concentrated interest groups. … The WTO and the trade agreements it administers act to restrain protectionist interest groups, thereby promoting free trade and democracy’.

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 815; Howse, R, ‘Human Rights in the WTO: Whose Rights, What Humanity? Comment on Petersmann’ (2002) 13 European Journal of International Law 651.

22 See Howse, R and Nicolaïdis, K, ‘Legitimacy through “Higher Law”: Why Constitutionalizing the WTO is a Step Too Far’ in Cotter, T and Mavroidis, PC (eds), The Role of the Judge in International Trade Regulation (University of Michigan Press, Ann Arbor, 2003) 307.

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23 See Dunoff, JL, ‘Constitutional Conceits: The WTO’s ‘‘Constitution’’ and the Discipline of International Law’ (2006) 17 European Journal of International Law 647; Trachtman, JP, ‘The Constitutions of the WTO’ (2006) 17 European Journal of International Law 623.

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.

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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.

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32 Klabbers, J, ‘Constitutionalism Lite’, 1 International Organizations Law Review (2004) 52.

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33 Lamy, P, ‘The Place of the WTO and its Law in the International Legal Order’, 17 European Journal of International Law (2006) 973–5.

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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.

43 Krisch, N, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press, Oxford, 2010) 215.

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44 Lamy (n 33) 977.

45 Cho, S, ‘Linkage of Free Trade and Social Regulation: Moving beyond the Entropic Dilemma’, 5 Chicago Journal of International Law (2005) 627.

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46 See, e.g., Jackson, JH, World Trade and the Law of GATT (Bobbs-Merrill Co., Indianapolis, 1969).

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

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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.

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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) 603; Hudec, RE, ‘The New WTO Dispute Settlement Procedure: An Overview of the First Three Years’ (1999) 8 Minnesota Journal of Global Trade 1. 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).

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. 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.

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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.

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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).

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69 See generally Guzman, AT, ‘Trade, Labor, Legitimacy’ (2003) 91 California Law Review 885.

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70 See World Trade Organization, Ministerial Declaration of 14 November 2001, WT/MIN(01)/DEC/1, 41 ILM 746 (2002).

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.

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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, 31; Ming Du, M, ‘The Rise of National Regulatory Autonomy in the GATT/WTO Regime’ (2011) 14 Journal of International Economic Law 639.

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.

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