University of California at BerkeleySchool of Law byAndrew T. GuzmanUC Berkeley School of LawPublic Law and Legal TheoryResearch Paper No. 892002UC Berkeley Public Law andLegal Theory Research Paper SeriesUC Berkeley School of Law, Boalt Hall, Berkeley, CA 94720-7200This paper can be downloaded without charge from theSocial Science Research Network Paper Collection athttp://ssrn.com/abstract_id=321365GLOBAL GOVERNANCE AND THE WTOGLOBAL GOVERNANCE AND THE WTOAndrew T. Guzman1 1 Assistant Professor of Law, Boalt Hall School of Law, University of California atBerkeley. I owe thanks to Jeff Atik, Stephen Choi, and Robert Howse for helpful comments.Special thanks to Jeannie Sears and Nicholas James. Jennie Wang and Ryan Waterman providedoutstanding research assistance. E-mail: [email protected]; web:<http://www.law.berkeley.edu/faculty/guzmana/>.ABSTRACTThe international trading system, embodied in the World Trade Organization(WTO), is rightly celebrated as one of the great successes of internationalcooperation. The success of that system, however, has not been matched in otherimportant areas of international policymaking, including environmental, labor,human rights, and competition policy. In recent years, the trading system hascome under stress because the impact of its success has been felt in these “non-trade” areas. The liberalization of trade and the establishment of multilateraltrading rules, for example, have made it more difficult for nation-states to imposetrade sanctions on states that fail to undertake certain environmental measures.Governments, non-governmental organizations (NGOs), and individualsconcerned about the impact of the trading system on these non-trade issues havechallenged the WTO to address this concern. As of yet no consensus has emergedon the question of how to balance existing trade interests against these otherinterests.This Article proposes a strategy that would allow states to discuss trade and non-trade interests in a single forum. With a single place for the negotiation of arange of issues, states will be able to negotiate rules to govern the balancebetween trade and non-trade concerns. No such forum exists today.The best starting point for this effort is the WTO. The WTO has the advantage ofbeing an established and successful organization that has proven itself capable ofmanaging complex negotiations and administering the resulting agreements. Italso has the advantage of a well functioning dispute resolution system. Theprimary problem with the WTO as the single home for these diverse issues is thefact that it is a trade organization, staffed by trade specialists, and prone tofavoring trade interests over others. If it is to be an effective and accepted forumfor non-trade issues, this trade bias must be eliminated.To overcome the trade bias of the institution, this Article advances a novelproposal to create autonomous, topical departments within the WTO. Eachdepartment would represent a single area, such as trade, environment, humanrights, and so on. The departments would organize rounds of negotiation withintheir issue areas, leading to WTO obligations. In addition, to permit negotiationacross issue areas, periodic “Mega-Rounds” would be convened in which tradeconcerns could be balanced against, for example, environmental concerns. Theresulting agreements from the Mega-Rounds would also represent WTOobligations. The departmental structure would avoid the problems of a trade biaswithin the organization and retain the advantages of specialization. At the sametime, the organization would have a mechanism to undertake the difficult butcritical tasks of determining how trade and non-trade interests will interact.GLOBAL GOVERNANCE AND THE WTOI. Introduction...........................................................................................................1II. A Proposal for Reform....................................................................................... 8III. The Case For a Single Global Organization....................................................15A. Broader Perspective ......................................................................................15B. Linkage..........................................................................................................19C. Dispute Resolution........................................................................................281. Extending the Benefits of Dispute Resolution............................................282. Which Obligations Get Dispute Resolution?.............................................32D. Universal Membership................................................................................. 34E. Disincentives to Exit......................................................................................35IV. The Case Against a Single Global Organization............................................39A. Institutional Competence .............................................................................401. Changing the Organization....................................................................... 402. Acquiring Expertise ...................................................................................433. Trade Bias..................................................................................................464. Dispute Resolution.....................................................................................51B. Democracy and Transparency.......................................................................551. Direct Democratic Input............................................................................562. Panels as Adjudicators of International Law............................................613. The Limits of the Democracy Critique.......................................................71C. Sovereignty Concerns ...................................................................................75V. Conclusion........................................................................................................80I. INTRODUCTIONWe live in a world of national governments and international economicactivity. As states attempt to manage the international system, the globalcommunity – from time to time – reaches moments of stress when powerfuleconomic and social pressures force it to consider reform of its institutions andpractices. The aftermath of the Second World War was probably the greatestsuch
View Full Document
Unlocking...