The Rule(S) of Trade and the Rhetos of Development: Reflections on the Functional and Aspirational Legitimacy of the WTO

Abstract

The article critically analyzes the role of development and poverty alleviation in the legal and institutional workings of the World Trade Organization (WTO). By analogy to Joseph Weiler's analysis of the dynamics of internal and external legitimacy in WTO dispute settlement, I suggest the existence of an asynchronicity in the evolution of the WTO, between the marked shift in the organizational rhetoric of development, and the virtual standstill in the adaptation of the WTO's functional design to its newly trumpeted development goals. One explanation for this suspension of progressive change is an intrinsic conflict within the WTO's legitimation needs, between the functional and aspirational dimensions of legitimacy. The rhetoric of development strays from the WTO's functional trade heritage and challenges it, to the point of depicting development as a metaright in international economic relations. The article discusses in detail four legal areas in which the dissonance between function and aspiration is most acute, and in which fundamental rethinking and reform are required: (i) The unclear, changing telos of the WTO; (ii) The problem of defining development needs, interests and policies for the purpose of implementing differential treatment; (iii) The dilemmas associated with the identification, classification and differentiation of developing countries; and (iv) The inadequacy of reciprocity as an organizing legal principle in the development context.

Keywords: WTO, dispute settlement, development, reciprocity