The Politics of International Constitutions: The Curious Case of the World Trade Organization

Abstract

Introduction Not terribly long ago, conventional wisdom held that ours was an “age of rights.” But perhaps ages lack the staying power that they used to, for we now seem to be entering an “age of international constitutions” – at least, if legal scholarship is to be believed. In addition to this volume, a raft of new books address the topic, and international law scholarship seems fixated on analyzing and critiquing various constitutional orders said to be found in diverse international legal regimes. The constitutional turn has been particularly pronounced in writing about international trade, with much of this literature detailing particular visions of the development, nature and features of the World Trade Organization's (WTO) constitution. These writings presuppose precisely the question this paper addresses: is the trade regime properly understood as a constitutional entity? As demonstrated in this chapter, neither WTO texts nor practice support this understanding. The curious disjunction between trade scholarship and trade practice presents a puzzle: why would prominent trade scholars devote their energies to debating the WTO's (nonexistent) constitutional features? As developed more fully below, the leading scholarly accounts of the WTO's constitution highlight the trade regime's increasing legalization, but underplay or elide the effect that constitutionalization would have on the nature and quality of world trade politics. Stated more starkly, the constitutional turn in much trade scholarship can be understood as a mechanism for withdrawing controversial and potentially destabilizing issues from the parry and thrust of ordinary politics to a less inclusive constitutional domain.

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