Public participation and legitimacy in the WTO

PUBLIC PARTICIPATION
AND LEGITIMACY IN THE WTO

The legitimacy of the WTO’s decision-making process has always been
questioned, and many have advocated public participation mechanisms
as a remedy. Yves Bonzon considers the limits and potential of these
mechanisms by advancing a conceptual framework which distinguishes
the four ‘implementation parameters’ of public participation: the goal,
the object, the modalities and the actors. He addresses the issue of
legitimacy by considering to what extent, and by virtue of which legal
developments, one can see implementing the democratic principle as a
goal for public participation in the context of the WTO. By analysing the
institutional structure of the WTO and its different types of decisions, he
then outlines how this goal should influence the object and modalities
of public participation, which decision-making procedures should be
opened to public participation, and how the mechanisms should be
implemented in practice. Finally, he suggests specific amendments to
existing WTO arrangements on public participation.
y v e s b o n z o n holds a PhD in international law from the University of
Lausanne. He was previously a researcher for the NCCR Trade
Regulations project based at the World Trade Institute in Berne and a
visiting researcher at the Institute of International Economic Law,
Georgetown University, Washington, D.C.


cambridge international trade and economic law
Series Editors
Dr Lorand Bartels, University of Cambridge
Professor Thomas Cottier, University of Berne

Professor William Davey, University of Illinois
As the processes of regionalisation and globalisation have intensified,
there have been accompanying increases in the regulations of international trade and economic law at the levels of international, regional and
national laws.
The subject matter of this series is international economic law. Its core
is the regulation of international trade, investment and cognate areas
such as intellectual property and competition policy. The series publishes
books on related regulatory areas, in particular human rights, labour,
environment and culture, as well as sustainable development. These areas
are vertically linked at the international, regional and national level, and
the series extends to the implementation of these rules at these different
levels. The series also includes works on governance, dealing with the
structure and operation of related international organisations in the field
of international economic law, and the way they interact with other
subjects of international and national law.
Books in the series:
Public Participation and Legitimacy in the WTO
Yves Bonzon
The Challenge of Safeguards in the WTO
Fernando Pie´rola
General Interests of Host States in International Investment Law
Edited by Giorgio Sacerdoti, Pia Acconci, Mara Valenti and
Anna De Luca
The Law of Development Cooperation: A Comparative Analysis of the
World Bank, the EU and Germany
Philipp Dann
WTO Disciplines on Subsidies and Countervailing Measures: Balancing
Policy Space and Legal Constraints
Dominic Coppens
Domestic Judicial Review of Trade Remedies: Experiences of the Most

Active WTO Members
Müslüm Yilmaz
International Organizations in WTO Dispute Settlement: How Much
Institutional Sensitivity?
Marina Foltea


Public Services and International Trade Liberalization: Human Rights
and Gender Implications
Barnali Choudhury
The Law and Politics of WTO Waivers: Stability and Flexibility in Public
International Law
Isabel Feichtner
African Regional Trade Agreements as Legal Regimes
James Thuo Gathii
Processes and Production Methods (PPMs) in WTO Law: Interfacing
Trade and Social Goals
Christiane R. Conrad
Non-Discrimination in International Trade in Services: ‘Likeness’
in WTO/GATS
Nicolas Diebold
The Law, Economics and Politics of Retaliation in WTO Dispute
Settlement
Edited by Chad P. Bown and Joost Pauwelyn
The Multilateralization of International Investment Law
Stephan W. Schill
Trade Policy Flexibility and Enforcement in the WTO: A Law
and Economics Analysis
Simon A. B. Schropp

PUBLIC PARTICIPATION
AND LEGITIMACY
IN THE WTO
YVES BONZON


University Printing House, Cambridge CB2 8BS, United Kingdom
Cambridge University Press is part of the University of Cambridge.
It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning and research at the highest international levels of excellence.
www.cambridge.org
Information on this title: www.cambridge.org/9781107067820
© Yves Bonzon 2014
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2014
Printed in the United Kingdom by Clays, St Ives plc
A catalogue record for this publication is available from the British Library
Library of Congress Cataloguing in Publication data
Bonzon, Yves, 1980– author.
Public participation and legitimacy in the WTO / Yves Bonzon.
pages cm – (Cambridge international trade and economic law ; 15)
ISBN 978-1-107-06782-0 (hardback)
1. World Trade Organization. 2. Foreign trade regulation. I. Title.
K4610.B66 2014
3820 .92–dc23

2014012735
ISBN 978-1-107-06782-0 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.


To Leonora



CONTENTS

Acknowledgements
1.

Introduction

page xiii

1

1. Public participation in the WTO: current
arrangements
4
2. The ‘discourse on legitimacy’
2.1.
2.2.
2.3.

8
The rise of international cooperation
9
Non-state actors and global governance
11
Contemporary international law and constitutionalizing
trends
13

3. Scope of the book
4. Limits

16

5. Terminology

part i.
2.

14

18

General notions

21

The notion of public participation: a conceptual
framework

23
1. Public participation in domestic systems
1.1.
1.2.
1.3.

The origin: the American system
25
The EU Commission’s Guidelines
27
The Swiss Federal Act on Consultation (LCo)

2. ‘Implementation parameters’ of public
31
participation
2.1.
2.2.
2.3.
2.4.

The goal of public participation
The object of public participation
Modalities of public participation
Definition of participants
37

ix

32
33

35

25

30


x

contents
2.5.

Binding nature of documents and enforcement
mechanisms
38

3. Conclusion
3.

40

Legitimacy and the ‘constitutionalization’
of international law
42
1. The legitimacy of international law
1.1.
1.2.

43
The notion of legitimacy

43
The legitimacy deficit of international law

45

2. Democracy and constitutionalism at the
international level
50
2.1.
2.2.
2.3.
2.4.

An international principle of democracy
51
International constitutionalism
54
A constitutional principle of international
democracy
56
Deliberative democracy and public participation

57

3. Good governance as a constitutional principle
of the WTO?
63
3.1.
3.2.
3.3.

3.4.
3.5.

The constitutionalization of the WTO regime
64
Article X GATT and related provisions
68
Protocols of accession
70
Impact of WTO accession and the Trade Policy Review
Mechanism (TPRM)
72
The ‘good governance’ vs the ‘effectiveness’ theses
75

4. The notion of a varying legitimization
79
requirement
4.1.
4.2.
4.3.

Analytical frameworks
Types of criteria
85
Assessment
90

5. Conclusion

part ii.
4.

81

92

The WTO regime

The WTO institutional structure

97
99

1. The WTO as an international organization
1.1.
1.2.
1.3.

The origin of GATT
100
The WTO Agreement
102
A ‘member-driven’ organization

103

100

xi

contents

2. WTO political organs
2.1.
2.2.
2.3.
2.4.
2.5.

105
WTO negotiating bodies
106
WTO regular bodies
107
Procedural modes
115
Composition of organs
119
The WTO Secretariat
121

3. Further formalizing political decision-making
4. Conclusion
5.

WTO decisions

127

129

1. From negative to positive integration law
1.1.
1.2.

Instruments of positive integration
In the WTO
134

Substantive nature of WTO decisions
Decisions of WTO bodies
142
Legal nature of WTO decisions
150

130

132

2. WTO decisions: categorization attempts
2.1.
2.2.
2.3.

124

137
138

3. A trend of externalizing political decisions
3.1.
3.2.
3.3.

154
Rule-referencing
154
Other ‘non-WTO law’
162
Comment on positive integration by organs outside
the WTO
167

4. Conclusion

part iii.
6.

168

171

Implementing public participation

Public participation’s modalities: comparative analysis
at the international level
173
1. Preliminary comments on regimes’ characteristics

1.1.
1.2.
1.3.

2. Formal arrangements for public participation
2.1.
2.2.
2.3.
2.4.

174

Substantive aspect
175
Legal nature
176
Institutional structure
179

Legal basis and documents
183
Arrangements for access to documents
187
Goals of public participation (or ‘functions’)
192
Status of participants
194

182

xii

contents
2.5.
2.6.
2.7.
2.8.

Structure of public participation mechanisms
Circle of participants: accreditation schemes
Object of public participation
214
Mechanisms: forms of involvement
216

3. Comment
7.

196
199

225

Further formalizing public participation in WTO
decision-making
229
1. A separate WTO advisory body?

231

2. Improving the WTO Guidelines on public
234
participation
2.1.
2.2.
2.3.
2.4.
2.5.

Current WTO Guidelines on public participation
Goal of public participation
236
Object of public participation
238
Modalities of public participation (forms
of involvement)
243
Circles of participants
250

235

3. Procedural judicial review
3.1.
3.2.
3.3.
3.4.

8.

254
Procedural review of non-WTO law
256
The TBT Decision on Principles for International
Standardization
257
Case law
258
Comment
263

Final conclusion

267

Annexes: WTO documents on public participation (with
proposals for amendments in italic)
273
Annex 1: Guidelines for arrangements on relations with
Non-Governmental Organizations (Decision adopted
by the General Council on 18 July 1996)
273
Annex 2: Procedures for the Circulation and De-restriction
of WTO Documents (Decision adopted by the General
Council on 16 May 2002)
275
Bibliography
278
Secondary literature

278
Cited WTO dispute settlement reports
296
Index
299


ACKNOWLEDGEMENTS

The present book is based on a doctoral thesis that was submitted to
the Faculty of Law of the University of Lausanne, Switzerland, in 2012.
I would first of all like to thank Professor Andreas R. Ziegler for being the
principal instigator of this project and taking it out of Lausanne.
I would also like to thank the following, who have aided in the production
of this book in various ways: the Research Commission of the University of
Lausanne and the Swiss National Science Foundation, for funding an
important part of the research; the Socie´te´ acade´mique vaudoise, in
Lausanne, for contributing to it; Mrs A. Jane Bradley, former Deputy
Director of the Institute of International Economic Law at Georgetown
University, Washington, DC, for welcoming me at the institute, where I was
able to benefit from an optimal environment during an extended research
stay; Mrs Debra Steger, professor at the University of Ottawa, for taking me
on board the Emerging Dynamic Global Economies Network (EDGE)
Project, which proved a very stimulating experience and gave new impulses
to my research; Ryota Jonen, Senior Manager at the National Endowment
for Democracy (NED), Washington, DC; and Mr Philipp Frech, fellow
biker in Washington, DC.
Back in Switzerland, I would like to thank the following for their
financial, technical or artistic support in the final stage of this project:
my brother François, my mother Suzanne, my father Pierre, my aunt

Catherine, Jose´ Antonio Gonzales and Catherine Leutenegger.
Lausanne, January 2014

xiii



1
Introduction

In December 2013, the Ninth Session of the Ministerial Conference in
Bali was an important milestone in the young history of the World Trade
Organization (WTO). For the first time since its creation in 1995, the
WTO succeeded in concluding the negotiation of new rules binding on
its entire membership. To attend this event, 356 non-governmental
organizations (NGOs) had been accredited.1 By contrast, at the Sixth
Session of the Ministerial Conference in Hong Kong in 2005, as concluding
the Doha Round of negotiations seemed a realistic prospect and NGOs’
attendance was at its peak, that accreditation figure had risen to 1,065.2
Are WTO’s activities still a focus of civil society’s interest? With the
achievements – even symbolic – made in Bali, let’s assume that a deadlock has been broken, and take the optimistic view that it is breathing
new life into the negotiating machine of the WTO. In this context, one
can be confident that concluding the Doha Round is on the horizon
again. A new round of negotiations involving new topics will follow,
reviving civil society’s interest in the work of the organization. Against
this background, it is timely to discuss institutional reforms and nonstate actors’ participation in the WTO.
Since its early days, the relevance of involving non-state actors in the
work of the WTO has been a controversial issue. For one thing, Member
States have held back from granting meaningful participatory opportunities to non-state actors, so that the WTO ranks very low in that regard
compared to other intergovernmental organizations.3 For another, the

establishment of the WTO, and the new institutional structure it entailed
for the multilateral trade regime, has given rise to claims of a legitimacy
deficit. Up to 1995, civil society had had little interest in multilateral
1
2
3

See WTO document, WT/MIN(13)/INF/11.
See WTO Annual Report 2006, at 60.
See Peter Van den Bossche, ‘NGO involvement in the WTO: a comparative perspective’
(2008) 11(4) Journal of International Economic Law 717.

1


2

introduction

trade negotiations.4 This was because the GATT regime essentially dealt
with the reduction of tariff barriers and other ‘at-the-border’ measures,
which involved work of a predominantly low-profiled, technocratic nature.5
In 1995, the establishment of the WTO brought two key novelties that
would change that perception. First, it introduced a binding system of
dispute settlement that would lend increased impact to WTO rules.
Second, it made binding upon all Members new agreements – in particular
the Agreement on Technical Barriers to Trade (TBT Agreement) and the
Agreement on the Application of Sanitary and Phytosanitary Measures
(SPS Agreement) – that regulate non-tariff and so-called ‘beyond-theborder’ measures, i.e. domestic regulations with a possible hindering effect
on trade flows. Consequently, a couple of decisions were issued in the

following years by the WTO dispute settlement organs, which challenged
domestic regulations protecting social interests, including health and the
environment.6 These decisions were enough to fuel a perception that the
WTO was hijacking the regulatory power of its Member States, in a manner
escaping due democratic process.7
As a result, the WTO caught the public eye. In the late 1990s, the
organization made media headlines and its Ministerial Conferences –
starting in Geneva in 1998 and culminating in Seattle in 1999 – turned
into settings of mass protest by civil society organizations. Such effervescence was also characteristic of the pre-9/11 era of the second half of the
1990s, which saw the blooming of so-called ‘anti-globalization’ movements.
The latter were taking shape with the advent of the internet and driven
in part by a then en vogue hostility towards the hegemon – the United
States – which was perceived as the main sponsor of the WTO regime.
While things nowadays may have calmed down on that level, academic debates have continued on the relevance of endowing the WTO
with more formalized mechanisms of non-state actor participation
4

5

6

7

See Jens Steffek and Claudia Kissling, ‘Why cooperate? Civil society participation at the
WTO’, in Christian Jeorges and Ernst-Ulrich Petersmann (eds.), Constitutionalism,
Multilevel Trade Governance and Social Regulation, rev. edn (Oxford and Portland,
OR: Hart, 2011).
See Robert Howse, ‘From politics to technocracy – and back again: the fate of the
multilateral trading regime’ (2002) 96 American Journal of International Law 94.
See in particular US–Shrimp (WT/DS58/AB/R), declaring unlawful a regulation of the

United States that banned the import of shrimps caught with nets hurting sea turtles, and
EC–Hormones (WT/DS26/AB/R), challenging a prohibition by the European Communities
on the placing on the market of meat products treated with certain hormones.
Emblematic in this respect is Lori M. Wallach and Patrick Woodall, Whose Trade
Organization? A Comprehensive Guide to the WTO (New York: New Press, 2004).


introduction

3

(or ‘public participation’). In this regard, scholars have been widely discussing the opportunity of granting more access to NGOs in the WTO.
They have essentially been discussing the advantages and disadvantages of
enhanced participation in terms of its impact on the constellation of
interests represented in the decision-making process. In particular, while
some commentators argue that a more open WTO would result in the
effective representation of a more diverse set of interests,8 opponents argue
on the contrary that it would reinforce a system of representation that is
presently biased in favour of business interests and groups from western
countries.9 These debates – which should further distinguish between the
impact of formalized participation on the diversity of interests represented
on the one hand, and its actual impact on policy outcomes on the other
hand – are of a largely empirical nature.10
The present book is an attempt to address the issue of public participation from an institutional and legal perspective. It advances a conceptual framework – modelled on participatory schemes existing at the
domestic level of some States – consisting of the four ‘implementation
parameters’ of public participation: the goal, the object, the mechanisms
and the actors. Accordingly, it raises a couple of core questions. First,
assuming that public participation is an emanation of the democratic
principle, to what extent is democracy a principle relevant to the WTO?
Second, assuming that public participation pursues the goal of implementing the democratic principle, which decisions should be opened

to public participation? Further, to what extent is the current WTO
decision-making process compatible with formalized mechanisms of
public participation? What reforms would be prerequisites to formalizing public participation?
In the following sections, this introduction briefly reviews participatory mechanisms presently in place at the WTO. The issue of legitimacy
is then introduced by pointing to the variety of rules that come into play
in the WTO context, and the historical evolution they result from.
Finally, the scope of the subsequent analysis is outlined.
8

9

10

See Steve Charnovitz, ‘Opening the WTO to non-governmental interests’ (2000) 24(1)
Fordham International Law Journal 173.
See Gregory C. Shaffer, ‘The World Trade Organization under challenge: democracy and
the law and politics of the WTO’s treatment of trade and environment matters’ (2001) 25
Harvard Environmental Law Review 1.
See Marcel Hanegraaff, Jan Beyers and Caelesta Braun, ‘Open the door to more of the
same? The development of interest group representation at the WTO’ (2011) 10(4)
World Trade Review 447.


4

introduction

1. Public participation in the WTO: current arrangements
The present book understands the notion of ‘public participation’ as including all institutionalized forms of interaction in the decision-making process
between organs of an institution and external actors that are independent

of any governmental entities. Under this conception, public participation
includes two interrelated dimensions: the ‘transparency’ of an institution’s
decision-making process and the ‘engagement’ of non-state actors in that
process (or ‘actual participation’).11 Public participation is anchored in the
Agreement Establishing the World Trade Organization (WTO Agreement).
The latter states at Article V, paragraph 2, that ‘[t]he General Council may
make appropriate arrangements for consultation and cooperation with nongovernmental organizations concerned with matters related to those of the
WTO’. On this basis, arrangements for public participation were adopted
shortly after the establishment of the WTO in 1995, and since then have
borne the mark of deep-rooted political divergences among Member States.
Their genesis can be traced back to controversial debates in the late 1990s
and the atmosphere of popular protests that was characteristic of that
time. As media attention and public focus on the work of the organization intensified, some WTO Members felt compelled to place the issue of
public participation on the agenda, mindful of the image projected by
the organization and of the harm that negative press would be likely to
have on the acceptance of WTO policies. Other factors that seem to have
pushed Members to address the issue of public participation at the time
include the failure of the Multilateral Agreement on Investment (MAI),
which was attributed in part to a failure to gain the support of civil
society.12
In the ensuing debates, WTO Members made a distinction between
‘internal’ transparency – which concerns the fair participation of
all Member States in the decision-making process – and ‘external’
transparency – which deals with the closed character of the organization
towards the outside world. In this context, two opposing strands of
Members emerged, which were quick to emphasize political obstacles
11

12

On a similar distinction, see Georg C. Umbricht, ‘An “amicus curiae brief” on amicus
curiae briefs at the WTO’ (2001) 4(4) Journal of International Economic Law 773, at 773,
and Francesca Bignami, ‘Three generations of participation rights before the European
Commission’ (2004) 68 Law & Contemporary Problems 61, at 72.
See Sol Picciotto, ‘North Atlantic cooperation and democratizing globalism’, in George
A. Bermann, Matthias Herdegen and Peter L. Lindseth (eds.), Transatlantic Regulatory
Cooperation: Legal Problems and Political Prospects (Oxford University Press, 2000).


introduction

5

to enhanced public participation, and have survived to this day.13
While most western countries supported reforms to improve external
transparency – such as opening sessions of WTO committees to nonstate actors and extending disclosure of WTO documents14 – developing countries opposed such reforms on several grounds, pointing in
particular to their lack of resources to manage increased participation.
Against this background, current arrangements of public participation in the WTO reflect the minimum consensus that Members could
agree upon. They are based on two documents – the Decision of the
General Council on the Procedures for the Circulation and Derestriction
of WTO Documents (hereafter: ‘Decision on Derestriction’)15 and the
Guidelines for Arrangements on Relations with Non-Governmental
Organizations (hereafter: ‘WTO Guidelines on public participation’).16
While the former regulates the transparency aspect of public participation –
setting the general principle that ‘all WTO official documents shall be
unrestricted’ with some limited exceptions – the latter address the
WTO’s relationship with non-governmental organizations (NGOs).
Essentially, these Guidelines include the possibility for NGOs to attend
the Plenary Sessions of the WTO Ministerial Conference, without the
right to speak, after going through an accreditation procedure that is

intended to ensure that they are ‘concerned with matters related to those
of the WTO’.17 For the rest, they empower the WTO Secretariat to
organize regular symposia, public forums, and other informal meetings
where NGOs make presentations to chairpersons of WTO bodies and
13

14

15

16

17

Arguments of both sides on external transparency are reflected in the deliberations of
one session of the General Council in 1998; see General Council – Minutes of Meeting –
15, 16 and 22 July 1998, WT/GC/M/29.
See a submission paper by the United States issued two years later suggesting that some
meetings of WTO bodies be opened to observers, with the opportunity for them to make
written submissions (General Council – General Council Informal Consultation on
External Transparency – October 2000 – Submission from the United States –
Revision, WT/GC/W/413/Rev.).
See Decision by the General Council, Procedures for the Circulation and Derestriction of
WTO Documents, WT/L/452, dated 16 May 2002. In addition, the General Council
adopted a Decision on Derestriction of Official GATT 1947 Documents, WT/L647, 13
June 2006, providing that ‘[a]ll official restricted GATT 1947 documents shall be
derestricted as of 1 June 2006’.
See Decision by the General Council, Guidelines for Arrangements on Relations with
Non-Governmental Organizations, WT/L/162, dated 23 July 1996. Since the adoption of
the Guidelines, the General Council has addressed the issue of external transparency in

its meetings: WT/GC/M/29, 35, 45, 57, 58, 66.
See WTO General Council, WT/GC/M/145, 4 June 2013, para. 4.8.


6

introduction

officials of the WTO Secretariat. Further, an NGO page has been set up
on the WTO website where a monthly list of position papers posted by
NGOs is compiled.
Characteristically, the WTO Guidelines on public participation state that
closer consultation and cooperation with NGOs should occur first and
foremost at the national level, and confer upon the Secretariat – which is
not granted any formal decision-making power in the organization’s institutional setting – the primary role in interacting with NGOs. Accordingly,
it can be said that these Guidelines remain firmly consistent with the
state-centred nature of the WTO and therefore provide for mechanisms of
public participation that are of a rudimentary nature.
Besides participatory opportunities granted by political bodies, the WTO
dispute settlement organs, as well as individual Members, have taken some
steps of their own to enhance public participation. In US–Shrimp, the
Appellate Body stated for the first time that panels are entitled to accept
amicus curiae briefs from non-state actors as part of their right to seek
information in accordance with Article 13 of the Understanding on the
Rules and Procedures Governing the Settlement of Disputes (DSU).18 In
2000, it further adopted in the context of the EC–Asbestos case a document
entitled ‘Additional Procedure for the submission of amicus curiae briefs’,
which was to be applied to that particular proceeding only.19 At the time of
the US–Shrimp case as well as in the following years, a majority of Members,
however, voiced opposition against the Appellate Body’s initiative to accept

amicus curiae briefs. They primarily invoked procedural grounds and
expressed disapproval at the way the Appellate Body had addressed what
they believed was a political matter to be decided by Members themselves.20
As a result of this opposition, the panels and Appellate Body have regularly
reasserted their authority to receive unsolicited amicus curiae briefs, but
have refrained from referring to them in their rulings. Recently, in a possible
change of attitude, a panel did refer to information contained in one such
unsolicited brief in the US–Tuna II (Mexico) case.21
18
19
20

21

See US–Shrimp (WT/DS58/AB/R), para. 105.
See EC–Asbestos (WT/DS135/AB/R), at 50.
See Dispute Settlement Body, Minutes of the Meeting, WT/DSB/M/50, 14 December
1998. Further: General Council, Minutes of the Special Meeting of the General Council
on 22 November 2000 (WT/GC/M/60). Also: Members’ statements: WT/GC/38 (2000)
(Uruguay); TN/DS/W/15 (2002) (Kenya representing the African Group); TN/DS/W/18
(2002) (various countries); TN/DS/W/25 (2002) (various countries).
See US–Tuna II (Mexico) (WT/DS/381/R), paras. 7.182, 7.288, and 7.363. However, the
panel was cautious to specify that it was referring to the brief to the extent that one of the
parties had cited it during the proceedings (at para. 7.9).


introduction

7

In addition, regarding the transparency of the dispute settlement
proceedings, some Members have taken the initiative to open to the
public sessions of disputes they were involved in. This practice was
initiated before a panel in 2005 at the request of the EU, the US and
Canada in US – Continued Suspension and allows the public to watch the
proceedings at WTO headquarters in Geneva via a live, closed-circuit
broadcast.22
Since the turn of the twenty-first century, a growing number of
commentators have expressed the view that the WTO should increase
its interaction with external actors. Proposals in this respect have
included making negotiation proposals and drafts of WTO rules
more systematically available to the public,23 allowing non-state actors
to attend some meetings of WTO bodies other than the Ministerial
Conference,24 establishing an Advisory Economic and Social Committee,25
holding public hearings on trade policy,26 or introducing a system of
accreditation for non-state actors.27 Most prominently, a report to the
Director-General of the WTO issued in 2005 devoted a whole chapter
to ‘Transparency and Dialogue with Civil Society’, stating in particular
that ‘today, the issue is no longer whether, but how to partner and
collaborate effectively’ with civil society.28 Recalling that ‘each [international] organization’s mandate and structure may call for specific
objectives, modes of engagement and the choice of civil society organizations with whom to collaborate’, the Report specifically pointed to
the need for a more structured relationship between the WTO and
civil society.

22
23

24

25

26

27

28

See US – Continued Suspension (WT/DS/320), paras 4.1–4.24.
See Robert Howse, ‘For a citizen task force on the future of the World Trade
Organization’ (2004) 56(4) Rutgers Law Review 877, at 884.
See Steve Charnovitz, ‘The WTO and cosmopolitics’ (2005) 7 Journal of International
Economic Law 675.
Ibid.
See Robert O. Keohane and Joseph S. Nye, Jr, ‘The club model of multilateral cooperation and problems of democratic legitimacy’, in Roger B. Porter, Pierre Sauve´,
Arvind Subramanian and Americo Beviglia-Zampetti (eds.), Efficiency, Equity, and
Legitimacy: The Multilateral Trading System at the Millennium (Washington, DC:
Brookings Institution Press, 2001).
See John H. Jackson, ‘The WTO “constitution” and proposed reforms: seven “mantras”
revisited’, 4 Journal of International Economic Law 67, at 77.
See ‘The future of the WTO: addressing institutional challenges in the new millennium,
report by the Consultative Board to the Director-General Supachai Panitchpakdi’ (hereafter:
Sutherland Report), chapter 5 on ‘Transparency and dialogue with civil society’.


8

introduction

2. The ‘discourse on legitimacy’
Proposals for further formalizing public participation are commonly put
forward as a means to improve the legitimacy of WTO decision-making.

In other words, proponents of public participation base their argument
on assessments that emphasize the ‘legitimacy deficit’ of WTO law.
Such assessments are part of a wider ‘discourse on legitimacy’ that
emerged in the 1990s in legal and political scholarship as a consequence
of the expanding reach of international law.29 Referring to constitutional
standards of liberal democracy, this discourse essentially assumes that
some decisions, because of their impact, should be reached in accordance
with appropriate procedures that have the potential of legitimizing
them. In other words, it implies that a specific ‘degree of legitimization
requirement’ is attached to a given type of decision depending on its
impact.30 While several analytical frameworks have been applied to
assess the impact of contemporary international law, pioneering in this
respect was Professor John Jackson’s use of the concept of sovereignty.
Referring to the debate on the United States’ ratification of the results
of the Uruguay Round, Jackson elaborated a framework around the
concept of sovereignty to characterize the impact of the WTO agreements. In doing so, he was referring to several parameters, which taken
in the aggregate define the restrictive influence of international law on
the regulatory capacity of States (or ‘amount of constraint’). Relevant
parameters in this respect include the applicability (direct or indirect)
of international rules in each domestic order, the law-making procedures
of international institutions – in particular their ability to generate
secondary norms – and the modalities of international dispute settlement
mechanisms.31
In assessing the legitimacy of the WTO, relevant rules to be taken into
account reach beyond those adopted by WTO organs. Indeed, as a result
29

30

31

See Eric Stein, ‘International integration and democracy: no love at first sight’ (2001)
95(3) American Journal of International Law 489.
The concept of a varying ‘legitimization requirement’ (‘Legitimationsbedürfnis’) is to be
found in Markus Krajewski, Verfassungsperspektiven und Legitimation des Rechts der
Welthandelsorganisation (WTO) (Berlin: Duncker & Humblot, 2001), at 217.
Accordingly, in Eric Stein’s words, the ‘intensity of the [legitimacy deficit] argument
depends . . . on the scope of the competence transferred to an IGO and the structure and
impact of its institutions, that is, on the “level of its integration”’; see Stein, ‘No love at
first sight’, at 493.
See John H. Jackson, ‘The great 1994 sovereignty debate: United States acceptance and
implementation of the Uruguay Round results’ (1997) 36 Colum. J. Transnat’l L. 157, at 171.


introduction

9

of various ‘regime-linkage’ techniques provided in the WTO agreements
or performed by judicial initiatives, the WTO dispute settlement organs
sometimes apply rules adopted outside the WTO.
The following section provides a short historical overview of international relations and the transformation of international law following
the advent of an era of positive cooperation in the mid-nineteenth
century. This will help explain the nature of contemporary international
law, the way it relates to recent discourses on legitimacy, and how it is
simultaneously the cause and result of non-state actors’ emergence on
the international plane – the institutionalization of public participation
being one dimension of this phenomenon. Further, it will put in
perspective the multiplicity of ‘non-WTO’ rules that the WTO dispute
settlement organs may apply or refer to and which therefore can potentially be relevant objects of public participation.

2.1. The rise of international cooperation
While early international conventions to facilitate trade were adopted in the
wake of the first Industrial Revolution,32 international cooperation mainly
builds on the doctrine of functionalism that emerged at the end of World
War I. This doctrine assumes that international peace depends on a gradual
cooperation among States at a ‘low’ – namely social and economic – level. It
was consecrated in Article 23 of the Covenant of the League of Nations,
which provided for cooperation in matters of labour, crime, arms traffic,
communications and the control of disease.33 After World War II, such
cooperation was decisively reinforced with the establishment of the United
Nations (UN), whose architecture assigned social and economic activities to
specialized agencies with a large degree of autonomy.34
32

33

34

Early international conventions and commissions included the Central Commission for
Navigation on the Rhine in 1815, the European Commission of the Danube in 1856, the
International Telecommunication Union in 1865, the Meteorology Organization in
1873, the Universal Postal Union in 1874, or the Paris Convention on Industrial
Property in 1883.
See David Armstrong, Lorna Lloyd and John Redmond, From Versailles to Maastricht:
International Organisation in the Twentieth Century (Basingstoke: Macmillan, 1996), at
54. Also on the Bruce Report, see Victor-Yves Ghebali, La Socie´te´ des Nations et la
re´forme Bruce, 1939–1940 (Geneva: Centre europe´en de la Dotation Carnegie pour la
paix internationale, 1970).
See chapter 9 of the UN Charter. See further: Robert Kolb, An Introduction to the Law of the

United Nations (Oxford and Portland, OR: Hart, 2010), at 13; Philippe Sands and Pierre Klein,
Bowett’s Law of International Institutions (London: Sweet & Maxwell / Thomson Reuters,