The WTO is an undemocratic institution that limits the

sovereignty of nation states. Discuss.

Part 1
Overview
This essay topic explores two accusations that are often leveled at
the WTO that it is (1) Undemocratic and that it (2) limits the
sovereignty of nation states.
This essay will explore both these claims separately. Part one will
begin by defining the scope of the essay, it will then go on to give a
summary of the issues that will be discussed in part two and three
of the essay regarding the claims that the WTO undermines
sovereignty and that the WTO is an undemocratic institution.
Scope of the Essay
For most of the world democracy is an ideal to aspire to. It is
commonly thought to lend legitimacy to decisions of governments.1
It is argued that sovereignty is what will allow states to protect the
ideals of democracy such as collective decision-making and selfgovernment from the encroachments of international organizations
such as the WTO.2 Although it has been stated above that the essay
will explore both these claims, given the importance of sovereignty
and its vital role in protecting democracy this essay will for the most
part focus its attention on the impact the WTO has had on
sovereignty.
Does the WTO undermine democracy?
This essay will first examine what is meant by the claim that the
WTO is undermining democracy. It will then asses whether or not the
WTO undermines democracy by exploring arguments that state the
WTO does undermine democracy and arguments that state the WTO
strengthens democracy. (note to self WTO may do neither but this is
unlikely). Both arguments will then be critically analyzed by
reference to the criticisms received by the respective arguments.
The essay will then come to a conclusion based on the arguments
discussed. (note to self change this part later to include the
conclusion
Does the WTO limit Sovereignty
Part two of the essay will begin by discussing what is meant by
sovereignty, the impact that the WTO has on sovereignty be it
sovereignty affirming or limiting. It will then critically examine the
arguments regarding the effect WTO has had on sovereignty, and
come to a conclusion based on these arguments as to whether the
1
2 Rethinking the 876-875

WTO has an impact on the sovereignty of states and if so how

significant the impact is.

Part Two WTO and Sovereignty

What is Sovereignty?
Before discussing whether the WTO limits sovereignty and the
degree to which it does so it is important to determine what exactly
is meant by sovereignty. According to some sovereignty is a social
construct. They argue that the modern state system is not based on
a timeless principle of sovereignty.3 By freezing the concept of what
it means to be sovereign we ignore that there are no particular
inherent characteristics in the concept of sovereignty and that it
varies very according to the custom and practices of nation states
and international systems.4Indeed there are many today calling for a
more modern conception of what it means to be sovereign.5 6They
argue that it is necessary to rethink sovereignty to escape the
pitfalls and misuse of older sovereignty ideas and also to escape the
current challenges facing international law thinking such as the
nation-state consent requirement for norm innovation.7
However given that the Westphalia model of sovereignty is the one
that is most commonly reviewed and referred to by scholars or
international law this essay will mostly focus on this definition of
sovereignty.
There are four main characteristics of the Westphalia notion of
sovereignty, they are that the state enjoys a legitimate monopoly
over the use of force in its territory, that it can regulate movements
across its borders, that it can make foreign policy choices freely and
that it is recognized by other governments as an independent
authority free from the threat of external intervention.8
What impact does WTO have on Sovereignty?
According to some the sovereignty of nations are rarely endangered
by institutions such as the WTO. It is claimed that debates about
sovereignty are really debates about power allocation,9 and that the
delegation of power to an institution such as the WTO does not
3 State Sovereignty as Social Construct edited by Thomas J.
Biersteker, Cynthia Weber pg 1-18
4 State Sovereignty as Social Construct edited by Thomas J.
Biersteker, Cynthia Weber pg 1-18 Cambridge University Press 1996
5
6 Page 61 Jackson book soverignity modern
7 Jackson book pg 62
8 Richard N. Haass, Director, Policy Planning Staff Remarks to the
School of Foreign Service and the Mortara Center for International
Studies, Georgetown University Washington, DC January 14, 2003 <
http://2001-2009.state.gov/s/p/rem/2003/16648.htm>
9 The Political Economy of International Trade Law Essays in Honour
of Robert E. Hudec Eds Daniel L M Kennedy, James D Southwick,
Sovereignty subsidiarity and the separation of powers: the high wire
balancing act of globalization Pg 10

affect sovereignty because these delegated powers can be

reclaimed by states.10 For instance Article XV of the WTO Treaty
makes it relatively simple for states to withdraw unilaterally with
only 6 months notice.11 It is claimed that even though it may be
costly for states to withdraw where there are no express prohibitions
to withdraw states retain ultimate sovereignty.12
It has also been stated that conceptualizing the allocation of power
to organizations such as the WTO as a zero sum game is inaccurate
as the establishment of international economic institutions expands
the depth and scope of government power rather than merely
appropriating aspects of government powers It states that these
powers that were given to the WTO arose out of a regulatory
vacuum similar to the powers that were given to the federal
government during the new deal era.13
Limitations with arguments
While it has been argued that the impact WTO has on the
sovereignty of nations is limited there are a number of flaws with
these arguments. The criticisms of these arguments are listed
below.
The first argument presented above states that formal sovereignty
is not affected because the states entered in to the WTO treaty by
their own free will and consent. However this argument is weakened
by the interpretation approaches the Appellate body of the WTO has
taken.14 It has raised doubts as to whether a meaningful consent
could have been given by states when the WTO treaty was signed,
given that the appellate body is interpreting articles in a way that
deprives it of any meaningful content, and in a manner that was
highly unlikely to have been contemplated by the parties when
consent was given.15
For instance when the treaty was signed a natural reading of article
XX would have led most nations to believe that they were agreeing
to a treaty that would allow them to prohibit the importation of
10 Rethinking The Sovereignty Debate in International Economic
Law, Kal Raustiala Journal of International Economic Law 6(4)
Oxform University Press pg 846
11 WTO Article XV; The Law and Policy of the World Trade
Organization: Text, Cases and Materials By Peter Van den Bossche
116
12Rethinking The Sovereignty Debate in International Economic
Law, Kal Raustiala Journal of International Economic Law 6(4)
Oxform University Press pg 847
13 Stephen Gardbaum New Deal Constitutionalism and the
Unshackling of the States University of Chicago Law Review.* pg 487
(483-506)
14 One Economy Peter Singer Pg 90
15 One Economy Peter Singer Pg 66-68, 90

goods obtained in ways that would threaten dolphins or cause them

suffering based on clause (b) or (g) of article XX which allows
exceptions based on the need to protect human animal or plant life,
or when relating to the conservation of exhaustible natural
resources if such measures were made effective n conjunction with
restriction on domestic production.16 However in sea turtle case the
US ban on shrimp caught by fishing fleets, not using devices to
exclude sea turtles was found to be violation of the WTO treaty,17
and its defense of relying on Article XX (b) and (g) was rejected on
the basis that all other avenues for achieving the desired objective
should have been exhausted and also because it required the same
methods of excluding turtles used by domestic vessels to be used
by other nations instead of allowing other methods of avoiding harm
to turtles.18
Furthermore it is clear as Charles Barfield argues in his book that the
appellate body appears to have succumbed to pressures and is
including soft and customary law as precedents for their decisions
to fill in the gaps that have that have arisen as result of the
inefficient mechanism of rule creation in the WTO. Often times the
underlying treaty text contains gaps ambiguities and contradictory
language in order to full these gaps Barfield argues that eh
appellate body is increasingly being pressured to create law. Raising
issues of consent from states and also questions of democratic
legitimacy.
Some have responded to claims that sovereignty is not
compromised by WTO as nations are free to leave as a too simplistic
view of sovereignty especially when governments remain under
constant pressure to remain within the WTO.19
They point to the fact that once a government is part of the WTO
whole industries form, which are based on free trade. These
industries employ a large number of people and the likelihood these
industries will collapse should the government withdraw from the
treaty is so great that withdrawing becomes almost unthinkable. 20

16 One Economy Peter Singer Pg 66-68, WTO Article XX (b), (g)

17 US Imprt Prohibition of Certain Shrimp and Shrimp Products
(Shrimp- Turtle case), WTO doc. WT/DS58/AB/R, adopted November
6, 1998
18 US Imprt Prohibition of Certain Shrimp and Shrimp Products
(Shrimp- Turtle case), WTO doc. WT/DS58/AB/R, adopted November
6, 1998
19 One Economy Peter Singer Pg 70-71
20 One Economy Peter Singer Pg 70-71

Democracy and the WTO (Part 3)

What does democracy mean in the international context?
Democracy is a contested concept with many different meanings.21
Traditionally it has included ideas of self-government on an equal
footing by citizens or striving to achieve this ideal.22 There are many
forms of democracy but as this is a short essay it will focus mainly
on representative democracy. In the international context nations
are the representatives of their population when participating in the
WTO.23 International democracy may include matters such as
nations being able to make decisions within the WTO in a process
that is democratic and gives all nations an equal chance to
participate in the decision making process. It may also mean that
the rules of WTO should not undermine the ideals of democracy by
interfering in the democratic processes of states.
WTO is democratic:
(a) WTO helps promote democracy at a domestic level
According to the public choice theory the WTO may be a democracy
enhancing institution because it helps governments remain faithful
to popular choices rather than limited self-interest of narrow group
interests.24 This theory presumes that government policy reflects the
equilibrium outcome of a rivalrous process among competing
interest groups who try to influence governmental policy to further
their own ends (this might be through influencing the legislature
through financial contributions to campaigns of government officials
or through other kinds of lobbying),25 and as a result resources are
diverted away from popular choices in to serving these limited ends.
This theory suggests that WTO may depoliticize policy options there
by enabling these matters to be dealt with in a principled manner
that limits the power and access of these narrow interest groups.26
However it should be noted that one weakness of this argument is
that it does not adequately explain why the same narrow interest
groups do not dominate the WTO.27 Indeed it is often argued that
this is just what happens with national governments being used by
corporations to fight for their own narrow interests. For instance the
fact the Kodak/Fuji case is commonly referred to by the names of
21 The Riddle of All Constitutions International Law, Democracy, and
the Critique of Ideology Susan Marks 2 (Oxford 2000)
22 The Riddle of All Constitutions International Law, Democracy, and
the Critique of Ideology Susan Marks 2 (Oxford 2000)
23 student essay
24 863 rethinking the
25 26 Harv. Int'l. L. J. 501 (1985) Trading Nation's Dilemma: The
Functions of the Law of International Trade, The, Abbott, Kenneth W.
514 ,521-525
26 864 rethinking the
27 866 rethinking the

the private interests behind the litigation, rather than that of the
states seems to indicate how influential these narrow interests can
be even within the WTO, which operates on the international level.28
(b) WTO makes decsions by consensus
An information leaflet issued by the WTO states that the WTO is
not undemocratic as it takes decisions by consensus. It argues that
this is in practice more democratic than rule by majority as all the
nations have to agree.
However this statement has been criticized by Singer who argues
that this is a strange conception of democracy as this allows the
status quo to be protected as there will always be one member that
will prefer that which they are familiar with this means that the rules
and decisions do not reflect what the majority of nations may want.
This argument is also criticized in a memorandum submitted to the
WTO by ten NGOs which included Oxfam and the Third World
Network. The memorandum states that in practice consensus has a
double standard meaning whereby whenever major developed
countries reach an agreement amongst themselves an emerging
consensus is said to exist but when the majority of countries and
agree but the few major countries do not a consensus is said not to
exist.
WTO is undemocratic
(a) WTO does not allow for all decision makers to take part
on an equal footing
One of the reasons that the WTO attracts criticism that it is an
undemocratic is because developing states which make up over half
of the WTO membership are not able to participate meaningfully in
the decision making process, their voices often times remain
unheard.
For instance nations with limited resources are often barred from
effectively participating and pursuing negotiations due to the costs
of doing so. 29Such states are unable to maintain a full time office in
Geneva and if they are able to the staff they may be able to spare
will not be enough to deal with an overloaded agenda with various
meetings scheduled which are often scheduled simultaneously. This
situation is doubly worsened by the fact that if the members are not
in attendance they are counted as part of the consensus.
Another glaring example of the lack of democracy in decision
making are the infamous green room deals. Where major countries
such as the US Japan Canada and the EU reach agreements on
important issues and present it fiat accompli to other states with no
input from any other state.30
28 The World Trade Organization and Human Rights Interdisciplinary
Perspectives320 Eds Sarah Joseph
29 Peter singer and TWN memo page 10
30 Peter singer 76 TWN

However it should be noted that there have been some attempts at

reforming this situation. For instance the WTO has committed itself
to providing resources for smaller nations to enable them to
participate in the negotiations
The lack of resources by smaller nations may also to a small
measure be mititgated by the resourcs provided by NGOs such as
the Cathloc which has provided valuable insight for many of these
countries
Although small green room type meetings stil occure here have
been attempts at making it more nclusive by incudiing variojs
countries in this process
(B) The dispute resolution system
One of the reasons for the criticism directed at the WTO is that the
appellate body is seen to be undermining the rule making function
of the WTO members by interpreting the treaty in a manner that
was not foreseen by the WTO members,31 and also by legislating to
fill in the gaps in the WTO treaty.32.
For instance Singer referes to the fact that although the WTO trade
rules were negotiated by member governments and ratified in their
parliaments the interpretation method of the DSB has prevented
articles such as article XX from being given full effect. He argues
that although the countries knew about the product process
distinction when they signed the WTO treaty they had reason to
believe that this argle XX guaranteed them that the agreement
would not prevent them from acting in good faith to protect public
morals other matters mentioned in the article. However as
discussed above the WTO interepeted this article very restrictively
depriving the article of its full effect. Singer argues that if a court
were to interpret an article in tis manner in a domestic context the
parliament wold be able to legislat to give effect to its intention but
in the WTO all it takes is one member to block the consens from
achiving this aim
It is also argued that the DSB is undermining the ability member
economys legislature to make choices based on the domestic
democratic will. Critics refer to cases such as the Beef Hormone
case where the EU banned beef imports from the US which had
However it should be noted that in cases such as the Beef case the
howswer

31 peter singer
32 Charles barrfield page 11 chapter 4