Constitutional Conceits: The Wto's Constitution and the Discipline of International Law

Abstract

Trade scholars are preoccupied with the debate over constitutionalism at the WTO. Much of this literature presupposes that the trade regime is properly understood as a constitutional entity. However, neither WTO texts nor practice supports this understanding. The striking disjunction between trade scholarship and trade practice gives rise to a puzzle: why do prominent trade scholars devote their energies to debating the WTO's (nonexistent) constitutional features?

Trade scholars use the term constitutionalism in different ways; however, all of the leading accounts of constitutionalism at the WTO implicitly view constitutionalism as a mechanism for withdrawing controversial and potentially destabilizing issues from the domain of ordinary politics. Paradoxically, however, the call for constitutionalism has sparked the very contestation and politics that it seeks to preempt.

This raises an even larger puzzle: if there is no trade constitution, and if constitutionalism's advocates trigger the very politics that constitutionalism seeks to avoid, why do international trade scholars continue to use constitutional discourse? This question leads to deeper and more troubling questions about international law's current status. The geopolitical environment - where the war on terror occupies center stage and realist approaches to international relations are ascendent - challenges international law's relevance and efficacy. In this context, the constitutional turn may grow out of deep disciplinary anxieties about the current status and role of international law. In short, the invocation of constitutional discourse at the WTO - and elsewhere in international law - may be a rhetorical strategy designed to invest international law with the power and authority that domestic constitutional structures and norms possess. However, this effort may be self-defeating. Critical evaluation of constitutional claims may simply highlight the lack of constitutional structure, legitimating foundations, or popular acceptance of the WTO, and international law more generally.

Keywords: GATT, WTO, trade, international trade, constitutionalism, institutionalism, constructivism, international relations, international law, globalization, international trade law, World Trade Organization, Appellate Body, WTO, constitutions, institutional architecture

JEL Classification: F1, F13, F15, K33