Constitutions of Politics and Legitimacy

It is obvious but nonetheless important to acknowledge that the WTO will never look like a state. There will never be WTO anthems or a pledge of allegiance to the WTO, even in economics classrooms. Constitutions are associated with nationhood, or better, peoplehood. Noted EU scholar Joseph Weiler points out that the European Union itself lacks a “constitutional demos,” and so is not rooted in a central federal-type power. The WTO has much less of a constitutional demos. Could a pretense of this type of constitution at the WTO level hollow the real constitutional politics of the state?

Notwithstanding this shared concern for maintaining local identity and coherence, many cosmopolitans wish for a sense of global solidarity and social justice. The WTO represents for them a welcome rejection of irredentism and the establishment of a global community of trade that ignores ethnic and historical divisions. Protectionism has its strongest roots in irredentism. Which comes first—the constitutional governance structures or the social feeling in which the governance structures must be rooted? They clearly have a dialectical relationship, but the force is not always centripetal.

If the imbalance between adjudicative power and legislative power, or between trade values and other values, were addressed by enhanced legislative power at the WTO, another concern would be exacerbated: the lack of democratic accountability at the WTO. Increased legislative power could take the form of majority, or supermajority, voting at the WTO. The democracy deficit in international organizations is really a combined question of the degree of distance from parliamentary accountability. It could be addressed by enhancing parliamentary accountability at the WTO, either by making domestic arrangements for greater domestic parliamentary involvement in WTO legislation, or through a WTO parliamentary body. But even with more democracy at the WTO, the question would still remain of whether the WTO is the right place to address particular issues.

Redistribution

We must also recognize that constitutions may serve distributive functions. For example, constitutions may produce the kind of solidarity that can serve as the basis for economic redistribution. The WTO is an engine for creating global wealth. It has not yet directly confronted questions regarding the global distribution of its benefits, although the Cancún demarche of cotton-producing countries Benin, Burkina Faso, Chad, and Mali might be seen as the opening move toward direct confrontation. Every society needs a mechanism to express solidarity with those who are in need, especially those whose need results from the structure of society itself. To avoid disruption of the global society by demarches in trade, economic catastrophes or violent upheavals in member states, or terrorism, it is morally and politically necessary to develop mechanisms to enhance the position of the poor.

Constitutional reforms may be a necessary part of a redistributive settlement at the WTO. These constitutional reforms may include modifications to the decision-making process that would provide more power to the poor. Much would depend on the structure of voting—for example, whether it is based on sovereign equality or population.

The Elephant and the Responsible Organization

It is clear that the six constitutional facets of the WTO presented above—economic, human rights, functional, legal, political and redistributive—interact with each other. They impose constraints on each other and call for advances in each other. They are part of a larger system. The WTO will clearly never be a state, but it will change in response to the changing needs of society.

The WTO’s constitution is malleable. This essay began the discussion of some of the bases and dynamics of change, and was intended to promote a dialogue of possibility rather than of false limitation. We must avoid the false limitation assumed by those who say the WTO can never have a constitution. To the extent that the WTO is understood as a “member-driven organization,” we must look to member states as the parties responsible for continuing problems. However, these member states experience difficult collective action problems under regimes of unanimous approval. To resolve these problems and create arrangements that benefit individual WTO constituents, it may become necessary to extend the constitution and responsibility of the WTO.