Constitutional Conceits: The WTO's 'Constitution' and the Discipline of International Law

Abstract

International legal scholarship, particularly trade scholarship, is preoccupied with questions of constitutionalism. However, neither WTO texts nor practice suggest that the WTO is a constitutional entity. The disjunction between scholarship and practice is puzzling: Why would scholars debate the WTO’s (non-existent) constitutional features? Although the term is used in different ways, leading accounts of constitutionalism at the WTO share an impulse to channel or minimize world trade politics. Paradoxically, however, the call for constitutionalism triggers precisely the contestation and politics that it seeks to pre-empt. This creates an even larger puzzle: If constitutional discourse sparks the very politics it seeks to avoid, why do scholars continue to use this discourse? This paper explores the conditions that give rise to debates over constitutionalism, and explores whether the timing and prominence of constitutional debates reflect disciplinary anxieties that have been heightened by recent geopolitical developments. Might international lawyers use constitutional discourse as a rhetorical strategy designed to invest international law with the power and authority that domestic constitutional structures and norms possess? If so, this strategy may be self-defeating. Critical evaluation of constitutional claims may highlight the lack of constitutional structure or legitimating foundations of the WTO, and international law more generally. The paper closes by suggesting that other forms of constitutionalism may be imagined, including those designed to invite political debate and contestation, or to empower democratic and deliberative decision-making. The problem of international constitutionalism is the central challenge faced by international philosophers in the 21st century.1

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