Democratizing the WTO

INTRODUCTION The 1999 Seattle riots vaulted the legitimacy crisis surrounding the World Trade Organization (WTO) into the public consciousness. The protestors attacked the WTO's policies as well as its authority to countermand national and local regulation. Fairly or not, the WTO was painted as sinister and uncaring, dedicated to advancing corporate interests at the expense of social values. The WTO is feared as a super-government, driven by the logic of free trade to override national preferences. Perhaps the most frightening aspect of the WTO is its facelessness. The absence of identifiable personalities in the WTO invites the projection of our worst fears about globalization. The WTO ministerial conference collapsed in the halls of Seattle for reasons largely unrelated to the actions in the streets. Certain WTO members, particularly Third World countries, rejected much of the agenda proposed by the developed block.1 The contest in the halls was a disagreement over WTO authority-a realization that what had been achieved in the Uruguay Round might prove to be a bad deal for many countries. Yet more was at play than remorse; doubts about the distribution of power within the WTO contributed to the stall of the Millennial Round. Structural weaknesses in the WTO linked the protests in the streets with the political crisis within the conference. Although the WTO is still of recent origin2 it yields considerable (and unexpected) power. The substantive terms of its agreements limit the scope of action for national regulation,3 stripping power away from states.4 Its enhanced dispute resolution mimics a form of hierarchical supremacy:5 WTO rules act as a super-constitutional text with a force superior to national enactments.6 Once the WTO Dispute Settlement Body finds that a national measure is inconsistent with a WTO obligation, the WTO member is expected to bring its law into conformity. Although national law does not automatically melt away like inconsistent state law in the United States, the mark of WTO supremacy is apparent: national law is expected to give way.7 But despite these extraordinary powers the WTO feigns the status of an ordinary international organization, a simple meeting place for club members to do their business where the public is unwanted and unneeded.8 Public interest groups,9 public intellectuals' and trade scholars10 had underscored the WTO's legitimacy problem before the Seattle talks even began. This essay will explore a particular style of legitimacy critique: the alleged lack of democracy within the WTO.12 There are other legitimacy critiques that were shouted in the streets of Seattle and elsewhere. These tend to focus on the WTO's disregard for particular values, such as its alleged indifference to environmental harms or its failure to appropriately assess health risks. The democracy critique is a special critique.13 It is based on fundamental and increasingly universal values, and it reaches to the foundations of the TO.14 Democracy is an elusive concept. It is used to refer both to process (such as the New England town meeting) and to political outcomes (such as desegregation). Democratic critics have most frequently quarreled with the lack of democratic process in the WTO, but one suspects there is also disagreement about the democratic character of particular WTO policies, such as the alleged placement of trade interests above other values. We are familiar with democratic paradoxes: that democratic processes can lead to undemocratic results.15 We also recognize that democracy is practiced in very different ways. This variety results in part from cultural particularities and historical path dependence, and in part from structural determinants such as national wealth distribution, ethnic composition and scale effects (e.g. what works for Switzerland or Canada will not function in China). Most societies, left to their own devices, can describe a style of democratic process satisfactory to them. …

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