The WTO practice of legality is ensuring transparency forself-enforcing trade

Author:Abdulmalik Altamimi
Position:Yong Pung How Research Fellow, Singapore Management University, Singapore
Pages:132-155
SUMMARY

Purpose One of the core objectives of the World Trade Organisation (WTO) is to maintain a practice of legality, including guaranteeing state and non-state actors interact based on the world trade norms. In seeking to achieve this objective, the WTO aims to uphold the trade rule of law by emphasising compliance with specified rules and procedures during the accession process, dispute... (see full summary)

 
FREE EXCERPT
The WTO practice of legality is
ensuring transparency for
self-enforcing trade
Abdulmalik Altamimi
Yong Pung How Research Fellow, Singapore Management University, Singapore
Abstract
Purpose One of the core objectivesof the World Trade Organisation (WTO)is to maintain a practice of
legality, including guaranteeing state and non-state actors interact based on the world trade norms. In
seeking to achieve this objective,the WTO aims to uphold the trade rule of law by emphasising compliance
with specied rules and procedures during the accession process, dispute settlement and trade policy
review. This study aims to review these compliance procedures by invoking the interactionalinternational
law concept of a community of legal practice. Second, it briey illuminates Chad Bowns proposal to
establish an institute for assessing WTO commitmentsto improve member statesremit to detect, challenge
and deter noncompliance.
Design/methodology/approach This paper is based on Jutta Brunnée and Stephen Toopes
InteractionalTheory of International Law.
Findings There is a strong linkbetween transparency and enforcement in WTO law. The efcacyof the
WTO law depends not only on its role in adjudication, but also on facilitatinginteractional legal practices,
within and outsidethe WTO.
Originality/value This paper offers an original analysis of the practices of compliance with WTO
obligations and illuminates a new proposalfor improving compliance. To attract and maintain compliance,
the WTO needs to facilitatetransparent interactional legal practices for states and non-state actors.
Keywords Transparency, Interactional international law, WTO accession,
WTO dispute settlement, WTO trade policy review
Paper type Research paper
1. Introduction
The World Trade Organisation (WTO) was founded to uphold and maintain a practice of
legality aligned with the purpose of the world trade norms for reciprocal and non-
discriminatory interaction. The WTO was principally inuenced by the laws and practices
set out in the 1948 General Agreement on Tariffs and Trade (GATT). In particular, the
GATT principle of non-discriminationwas considered the most important general principle
of the trade rule of law, and it sustained legal practice under multilateral trade agreements
(Ethier, 2004). Nonetheless,legal practice under the WTO law cannot be fully deconstructed
without invoking the interactional theoryof international law (hereinafter interactionalism),
which underpins the formation, interpretation and implementation of the law. The three
elements of interactionalism are best understood as a circular model of law-making, which
starts with shared legal and political understandingsthat correspond with Lon Fullers
eight constitutive principles of legality; these then become enmeshed in a practice of
legalitythat revolvesaround the ideal of delity to law(Brunnée and Toope, 2010, p. 123).
According to Fuller, to encourage delity, a social norm must satisfy the following eight
principles of legality: generality, promulgation, prospectivity, clarity, non-contradictory, not
asking the impossible, constancy and congruence between ofcial action and the law (Fuller,
JITLP
17,3
132
Received28 February 2018
Revised13 July 2018
Accepted30 July 2018
Journalof International Trade
Lawand Policy
Vol.17 No. 3, 2018
pp. 132-155
© Emerald Publishing Limited
1477-0024
DOI 10.1108/JITLP-02-2018-0013
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1477-0024.htm
1969a, p. 39). If these principles are substantially met by law-makers, any interaction
between parties will be legal (Fuller,1969a, pp. 197-200). The eighth principle, of congruence
between ofcial actions and declared rules, is the most salient to achieve legality, as its
primary focus is on legal practicesthat conform to the intended purpose and process of law.
Interactionalism assumes that transparency and enforcement are interlinked and mutually
reinforcing. The following application of interactionalism, using the element of practice of
legality, will demonstrate its suitability for illuminating the often-distorted notion of legal
obligation under the WTO law. The primary task of the WTO is to improve the
transparency of trade-related practices, with the primary intent of effectively enforcing the
law. The future of the WTO is, thus, intrinsically linked to sustaining ongoing practices of
legality that correspond with the international trade norms. To this end, the efcacy of the
WTO law depends not only on its role in adjudication, but also on facilitating interactional
legal practices.
To fully address the practice of legality under the WTO, this article will rst provide a
brief overview of the concept of a community of legal practice in interactionalism, and
second, examine, in light of the interactional approach, those WTO procedures that are
primarily concerned with building and sustaining compliance, namely, the accession
process, dispute settlement system and trade policy review mechanism (TPRM). Third, it
will consider Chad Bowns original proposal for establishing the institute for assessing
WTO commitments (IAWC)as a forum for fostering a continuous practice of legality(Bown,
2010, pp. 208-237). The reasons and objectives for establishing the IAWC, which include
facilitating legal interactions between member states to ensure compliance with WTO
commitments, willbe explicated.
2. The community of legal practice in interactional international law theory
State practice plays a key role in agreements to adopt customary international law and the
interpretation and amendment of treaties. The notion of a community of practiceimplies
that institutional rules and the behaviour of states within an international institutional
framework are largely formed through discourse (Adler, 2005, p. 15). However,
interactionalism maintainsthat the practice of legality in this community of state practice is
founded on the ideal of delity to law, which all legal orders were founded in order to
uphold (Brunnée and Toope, 2010, pp. 44-45). Legal norms are derived from the shared
commitments of actors and must comply with the Fullerian principles of legality to inspire
delity (Brunnée and Toope, 2010, p. 27). According to Brunnée and Toope, delity is
generated, and in ourterminology obligation is felt, because adherenceto the eight criteria of
legality (a practice of legality) produceslaw that is legitimate in the eyes of the persons to
whom it is addressed(Brunnée and Toope, 2010, p. 27). However, for law to exert such a
distinctive inuence, it is essential to cultivate spaces and opportunities for engagement
with and around legal norms(Brunnée and Toope, 2010, p. 100). Interactionalism focuses
on legal practices designed to appreciate the roles and limitations of the sources and
enforcement mechanisms of international law and to demonstrate how best to cultivate
constructive interactionsrelated to the idea of law (Brunnée and Toope, 2011, p. 110; Fuller,
1969b).
Brunnée and Toope further argue the law is not a xed artifact, a product to be
consumed by actors in a system. It is a mutually constituting process of interaction
involving a diversity of actors and structures in overlapping communities of legal practice
(Brunnée and Toope, 2011, p. 116). Moreover, law should be practised to allow political
expressions and actions to be pursued withinopen, interactive legal channels (Brunnée and
Toope, 2011, p. 72). According to Fuller, one of the primary aims of law is to open up,
WTO practice
of legality
133

To continue reading

REQUEST YOUR TRIAL