The WTO practice of legality is ensuring transparency for self-enforcing trade

• DOI: https://doi.org/10.1108/JITLP-02-2018-0013
• Pages: 132-155
• Date: 30 October 2018
• Published date: 30 October 2018
• Author: Abdulmalik Altamimi
• Subject Matter: International economics,International business law,International business,Economics

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 specif‌ied 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 brief‌ly illuminates Chad Bown’s proposal to

establish an institute for assessing WTO commitmentsto improve member states’remit to detect, challenge

and deter noncompliance.

Design/methodology/approach –This paper is based on Jutta Brunnée and Stephen Toope’s

InteractionalTheory of International Law.

Findings –There is a strong linkbetween transparency and enforcement in WTO law. The eff‌icacyof 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 inf‌luenced 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 understandings”that correspond with Lon Fuller’s

“eight constitutive principles of legality”; these then become enmeshed in a “practice of

legality”that revolvesaround the ideal of ‘f‌idelity to law’(Brunnée and Toope, 2010, p. 123).

According to Fuller, to encourage f‌idelity, 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 off‌icial 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 off‌icial 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 eff‌icacy 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 f‌irst 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 Bown’s 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 practice”implies

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 “f‌idelity 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

f‌idelity (Brunnée and Toope, 2010, p. 27). According to Brunnée and Toope, “f‌idelity 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 inf‌luence, 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 f‌ixed 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