Public Participation and Legitimacy in the WTO (Cambridge International Trade and Economic Law)

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. Cover 1 Half-title page 3 Series page 4 Title page 7 Copyright page 8 Dedication 9 Contents 11 Acknowledgements 15 1 Introduction 17 1. Public participation in the WTO: current arrangements 20 2. The ‘discourse on legitimacy’ 24 2.1. The rise of international cooperation 25 2.2. Non-state actors and global governance 27 2.3. Contemporary international law and constitutionalizing trends 29 3. Scope of the book 30 4. Limits 32 5. Terminology 34 Part I General notions 37 2 The notion of public participation: a conceptual framework 39 1. Public participation in domestic systems 41 1.1. The origin: the American system 41 1.2. The EU Commission’s Guidelines 43 1.3. The Swiss Federal Act on Consultation (LCo) 46 2. ‘Implementation parameters’ of public participation 47 2.1. The goal of public participation 48 2.2. The object of public participation 49 2.3. Modalities of public participation 51 2.4. Definition of participants 53 2.5. Binding nature of documents and enforcement mechanisms 54 3. Conclusion 56 3 Legitimacy and the ‘constitutionalization’ of international law 58 1. The legitimacy of international law 59 1.1. The notion of legitimacy 59 1.2. The legitimacy deficit of international law 61 2. Democracy and constitutionalism at the international level 66 2.1. An international principle of democracy 67 2.2. International constitutionalism 70 2.3. A constitutional principle of international democracy 72 2.4. Deliberative democracy and public participation 73 3. Good governance as a constitutional principle of the WTO? 79 3.1. The constitutionalization of the WTO regime 80 3.2. Article X GATT and related provisions 84 3.3. Protocols of accession 86 3.4. Impact of WTO accession and the Trade Policy Review Mechanism (TPRM) 88 3.5. The ‘good governance’ vs the ‘effectiveness’ theses 91 4. The notion of a varying legitimization requirement 95 4.1. Analytical frameworks 97 4.2. Types of criteria 101 4.3. Assessment 106 5. Conclusion 108 Part II The WTO regime 113 4 The WTO institutional structure 115 1. The WTO as an international organization 116 1.1. The origin of GATT 116 1.2. The WTO Agreement 118 1.3. A ‘member-driven’ organization 119 2. WTO political organs 121 2.1. WTO negotiating bodies 122 2.2. WTO regular bodies 123 2.3. Procedural modes 131 2.4. Composition of organs 135 2.5. The WTO Secretariat 137 3. Further formalizing political decision-making 140 4. Conclusion 143 5 WTO decisions 145 1. From negative to positive integration law 146 1.1. Instruments of positive integration 148 1.2. In the WTO 150 2. WTO decisions: categorization attempts 153 2.1. Substantive nature of WTO decisions 154 2.2. Decisions of WTO bodies 158 2.3. Legal nature of WTO decisions 166 3. A trend of externalizing political decisions 170 3.1. Rule-referencing 170 3.2. Other ‘non-WTO law’ 178 3.3. Comment on positive integration by organs outside the WTO 183 4. Conclusion 184 Part III Implementing public participation 187 6 Public participation’s modalities: comparative analysis at the international level 189 1. Preliminary comments on regimes’ characteristics 190 1.1. Substantive aspect 191 1.2. Legal nature 192 1.3. Institutional structure 195 2. Formal arrangements for public participation 198 2.1. Legal basis and documents 199 2.2. Arrangements for access to documents 203 2.3. Goals of public participation (or ‘functions’) 208 2.4. Status of participants 210 2.5. Structure of public participation mechanisms 212 2.6. Circle of participants: accreditation schemes 215 2.7. Object of public participation 230 2.8. Mechanisms: forms of involvement 232 3. Comment 241 7 Further formalizing public participation in WTO decision-making 245 1. A separate WTO advisory body? 247 2. Improving the WTO Guidelines on public participation 250 2.1. Current WTO Guidelines on public participation 251 2.2. Goal of public participation 252 2.3. Object of public participation 254 2.4. Modalities of public participation (forms of involvement) 259 2.5. Circles of participants 266 3. Procedural judicial review 270 3.1. Procedural review of non-WTO law 272 3.2. The TBT Decision on Principles for International Standardization 273 3.3. Case law 274 3.4. Comment 279 8 Final conclusion 283 Annexes: WTO documents on public participation (with proposals for amendments in italic) 289 Annex 1: Guidelines for arrangements on relations with Non-Governmental Organizations (Decision adopted by the General Council on 18 July 1996) 289 Annex 2: Procedures for the Circulation and De-restriction of WTO Documents (Decision adopted by the General Council on 16 May 2002) 291 Bibliography 294 Secondary literature 294 Cited WTO dispute settlement reports (in alphabetical orderby short name, with circulation date) 312 Index 315 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 Principles, 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-- 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-- Machine Generated Contents Note: 1. Introduction; 2. Legitimacy And The 'constitutionalization' Of International Law; 3. Public Participation: A Conceptual Framework; 4. Public Participation: Comparative Analysis At The International Level; 5. The Institutional Structure Of The Wto; 6. Wto Decisions; 7. Further Formalizing Public Participation In The Wto; 8. Conclusion. Yves Bonzon. Includes Bibliographical References And Index. 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 principles, 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.--Résumé de l'éditeur "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"-- Provided by publisher 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.--Résumé de l'éditeur To what extent can democratic values support the development of public participation mechanisms in the WTO? How can such mechanisms be implemented in practice? This book answers these questions from a legal perspective, and will interest anyone involved in international negotiations or studying global governance and the WTO regime.