WTO COSMOPOLITICS
STEVE CHARNOVITZ*
I. INTRODUCTION
The inspiration for this Article comes from a speech by
European Commissioner for Trade Pascal Lamy in February
2001 entitled Harnessing Globalisation: Do We Need Cosmopolitics?1
Noting that the globalization debate lacks questions of
politics, Lamy says that "conventional politics" does not capture
the essence of the problem. Instead, Lamy proposes a
better word--"cosmopolitics." Referencing Immanuel Kant
among other writers, Lamy avers that cosmopolitics is needed
today to "organise and mediate between different interests"
and to reflect public opinion. Improved global governance,
he maintains, should be found in different international institutions
"pulling on cosmopolitical constituencies for support."
Lamy has hit upon the right word and the right concept
to describe and reorient decisionmaking in the World Trade
Organization (WTO) as well as in other international organizations.
In his short speech, Lamy could not elaborate on this
theme. So what follows is my own attempt to build on Lamy's
insight.
The thesis of this Article is that the WTO needs more
"cosmopolitics," which I define as global political action transcending
a strict state-to-state, or multilateral, basis.2 While
* Steve Charnovitz practices law at Wilmer, Cutler & Pickering, in
Washington, D.C. The author thanks Pascal Lamy and Charlotte Ku for
helpful comments.
1. Pascal Lamy, Speech at London School of Economics (Feb. 1, 2000)
(transcript available at http://europa.eu.int/comm/trade/speeches_arti
cles/spla86_en.htm). Lamy returned to this theme in a speech in November
2001, when he suggested the need for "Weltordnungspolitik," or a world public
order, regarding cosmopolitics. Pascal Lamy, Speech at German Council on
Foreign Relations (Nov. 27, 2001) (transcript available at http://eu-
ropa.eu.int/comm/trade/speeches_articles/spla86_en.htm).
2. For a different definition, see Bruce Robbins, Introduction Part I: Actually
Existing Cosmopolitanism, in COSMOPOLITICS: THINKING AND FEELING BEYOND
THE NATION 1, 12-13 (Pheng Cheah & Bruce Robbins eds., 1998) (calling
cosmopolitics "the genuine striving toward common norms and mutual
translatability that is also part of multiculturalism"); see also Pippa Morris,
Global Governance and Cosmopolitan Citizens, in GOVERNANCE IN A GLOBALIZING
299
300 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
cosmopolitics is already present to some extent in the WTO,
far greater effort will be required to respond to public opinion
and draw support from pluralist constituencies. WTO cosmopolitics
is a departure from the tradition under the pre-WTO
trading system, the General Agreement on Tariffs and Trade
(GATT). In 1970, Kenneth Dam wrote that even when addressing
major issues of policy, the "informal rules" of the
GATT "club" called for resolving problems "without undue recourse
to international public opinion."3 Thirty years later,
the GATŤs successor, the WTO, operates with more formal
rules, is less club-like, and is influenced by a vocal, public polit-
ics.
Like any politics today, cosmopolitics has to be tested
against democratic norms. So calling for the infusion of cosmopolitics
into the WTO is another way of saying that WTO
decisionmaking processes need to become more democratic
vis-`a-vis the public. Whether and how to do so is one of the
most vexing issues in international policy.
The conclusion of this Article is that the public debate on
trade should be moved upward as much as possible, from the
national to the international plane. Obviously, WTO cosmopolitics
cannot replace national trade politics because the national
level is where voters elect politicians. But the debate
leading up to decisionmaking in the WTO can become more
cosmopolitical and less de-centered in 144 member-nation
polities. Such a reformation especially is needed because the
advent of new trade negotiations--approved by the WTO at
Doha, Qatar, in November 2001--will lead to crucial decisionmaking
by the WTO during the next few years.
This Article is divided into four parts. Part I is this introduction.
Part II sketches some of the philosophical origins of
the usage of the term "cosmopolitics." Part III explains why
cosmopolitics generally is desirable in international organizations,
and particularly vital in the WTO. Part IV discusses the
WORLD 155, 159 (Joseph S. Nye, Jr. & John D. Donahue eds., 2000) (defining
cosmopolitans as individuals who identify more broadly with their continents
or with the world as a whole and who have greater faith in the institutions
of global governance).
3. KENNETH W. DAM, THE GATT: LAW AND INTERNATIONAL ECONOMIC
ORGANIZATION 385 (1970); see also GERARD CURZON, MULTILATERAL COMMERCIAL
DIPLOMACY 51 (1965) (calling the GATT a club rather than an international
organization or commercial parliament).
2002] WTO COSMOPOLITICS 301
attributes of cosmopolitics and looks briefly at the WTO controversy
over amicus curiae briefs. Part V concludes the arti-
cle.
II. THE COSMOPOLITICAL TRADITION IN THE WEST
The intellectual history of "cosmopolitics" deserves more
scholarship than it has received. Since no synthesis has come
to the author's attention, I briefly will discuss a few currents of
thinking, including the views of Kant (1795), Friedrich List
(1841), Norman Hill (1929), and Herbert Shenton (1933).4 I
then will note the contribution of one contemporary analyst,
political scientist David Held.
In his celebrated essay "Perpetual Peace," Kant introduces
the idea of "cosmopolitan law," which reflects the way that
"men and nations" stand in "mutually influential relations."5
Kant sees a distinction between cosmopolitan law and two
other types of "just constitution," civil law and the Law of Nations.6
Kant points out that all three are necessary to achieving
perpetual peace.7 One principle common to the constitutional
trichotomy is publicity. Kant posits that "[a]ll actions
that affect the rights of other men are wrong if their maxim is
not consistent with publicity."8
4. The roots of cosmopolitanism go back to Stoic philosophy of the 4th
century B.C. Thus, much is left out in starting Part II with Kant. For background
information on cosmopolitanism and Stoic philosophy, see Edward
Spence, Address to the Second International Conference of the Australian
Institute of Computer Ethics (Nov. 2000) (transcript available at http://
www.geocities.com/stoicvoice/journal/0202/es0202a1.htm) ("Cosmopolitanism
is a central belief in Stoic philosophy.").
5. IMMANUEL KANT, To Perpetual Peace: A Philosophical Sketch, in PERPETUAL
PEACE AND OTHER ESSAYS ON POLITICS, HISTORY, AND MORALS 107, 111-12
note (Ted Humphrey trans., 1983). I have substituted "law" for "right" in
some places following the suggestion of some Kant scholars. See James
Bohman & Matthias Lutz-Bachmann, Introduction to PERPETUAL PEACE: ESSAYS
ON KANŤS COSMOPOLITAN IDEAL 1, 20 n.2 (James Bohman & Matthias
Lutz-Bachmann eds., 1997).
6. KANT, supra note 5, at 112 note.
7. Id. Ernst-Ulrich Petersmann, Constitutionalism and International Adjudication:
How to Constitutionalize the U.N. Dispute Settlement System?, 31 N.Y.U. J.
INTĹ L. & POL. 753, 764 (1999) (explaining Kanťs view that peace requires
an interlocking system of national and international constitutional re-
straints).
8. KANT, supra note 5, at 135.
302 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
In addition to endorsing publicity, Kant calls for governments
to consult with the public. Specifically, he says that
"[t]he maxims of philosophers concerning the conditions
under which public peace is possible shall be consulted by nations
armed for war."9 Admitting that it may seem "humiliating
for the legislative authority of a nation . . . to seek instruction
from subjects (the philosophers) concerning the principles
on which it should act toward other nations," Kant nonetheless
insists that it is "very advisable to do so."10 Governments need
not give precedence to such advice from philosophers, Kant
concedes. The important point is "only that they be heard."11
With piercing precognition, Kant asserts no "special agreement"
among nations is needed to effectuate such consultation
because the offering of advice is "already present as an
obligation in universal (morally legislative) human reason."12
What Kant means by cosmopolitan law is illuminated in
his discussion of international trade. Kant hypothesizes that
"[t]he spirit of trade cannot coexist with war, and sooner or
later this spirit dominates every people."13 Nevertheless, Kant
condemns some of the colonization practices that were associated
with international trade, such as the subjugation of the
natives.14 He finds these practices offensive because in cosmopolitan
law, a "community widely prevails among the Earth's
peoples," and thus "a transgression of rights in one place in the
world is felt everywhere."15 As Charles Covell has pointed out,
Kant believed that the full realization of cosmopolitan law
"would serve to afford a basic minimum of judicial recognition
to each individual as member, or citizen, of a world commu-
nity."16
9. Id. at 126. See James Bohman, The Public Spheres of the World Citizen, in
PERPETUAL PEACE: ESSAYS ON KANŤS COSMOPOLITAN IDEAL, supra note 5, at
179, 181 (noting that in Kanťs cosmopolitan public sphere, "the public
opinions of world citizens can be . . . recognized in such a way that even the
supreme political authorities of the state cannot avoid acknowledging
them").
10. KANT, supra note 5, at 126.
11. Id.
12. Id.
13. Id. at 125.
14. Id. at 119.
15. Id. at 119.
16. CHARLES COVELL, KANT AND THE LAW OF PEACE 161 (1998).
2002] WTO COSMOPOLITICS 303
Kanťs essay defines the normative basis for cosmopolitics.17
First, Kanťs essay imagines new cosmopolitan law that
provides legal space for men and nations to influence each
other.18 Second, he underlines the importance of publicity, or
what today is termed "transparency." Third, he calls for governments
to consult philosophers regarding international relations.
Fourth, he points out that governments need not agree
in advance to seek public input because the philosopher has a
moral obligation to speak out. As Kant observes, philosophers
"do it of their own accord already, if only one does not forbid
it."19
In The National System of Political Economy, Friedrich List
addresses the differences between the political economy of a
nation and a "cosmopolitical economy" of the earth.20 List rejects
the earth-wide approach as impractical. While agreeing
that in a confederation of all nations, the principle of international
free trade would be justified, List points out that such a
confederation does not yet exist.21 Given contemporary conditions
in the world, he fears that free trade in manufactured
products would lead to "a universal subjection of the less advanced
nations to the supremacy of the predominant manufacturing,
commercial, and naval power" (i.e., Great Britain).22
Thus, List condones the use of protection to develop the na-
17. See Daniele Archibugi, Immanuel Kant, Cosmopolitan Law and Peace, 1
EUROP. J. INTĹ REL. 429, 432 (1995) (stating that Kanťs cosmopolitan law
provides a foundation "for projects for the transformation of international
organizations"); Pheng Cheah, Introduction Part II: The Cosmopolitical--Today,
in COSMOPOLITICS, supra note 2, at 23 (Kanťs "vision remains the single most
important philosophical source for contemporary normative theories of international
relations, including accounts of global civil society and the international
public sphere."). For a contrary view on Kanťs cosmopolitan credentials,
see Thomas C. Walker, The Forgotten Prophet: Tom Paine's Cosmopolitanism
and International Relations, 44 INTĹ STUD. Q. 51 (2000) (suggesting
that Paine was more of a cosmopolitan than Kant).
18. Archibugi, supra note 17, at 430 ("cosmopolitan law opens a channel
which allows international society, including individuals, to interfere in the
internal affairs of each state in order to protect certain basic rights").
19. KANT, supra note 5, at 126.
20. FRIEDRICH LIST, THE NATIONAL SYSTEM OF POLITICAL ECONOMY 119
(Sampson S. Lloyd trans., Longmans, Green & Co. 1966) (1841). See DOUGLAS
A. IRWIN, AGAINST THE TIDE: AN INTELLECTUAL HISTORY OF FREE TRADE
124-28 (1996) (discussing and critiquing List).
21. LIST, supra note 20, at 122-23, 126.
22. Id. at 126.
304 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
tional economy until all nations reach the same stage of industrial
development.23 Then, a union of nations would be positioned
to promote "true freedom of trade," he posits.24
List does not actually address the "politics" of cosmopolitics;
he examines the political economy of trade from a historical
perspective. Yet his work is important to the cosmopolitical
idea because he utilizes the term, and also because he presents
a philosophy of protection that resonates strongly in WTO discourse.
The WTO endorses "special and differential treatment,"
which allows developing countries to retain import barriers
for an extended period.25 List would find intelligible the
contemporary debate about trade and globalization because
he was one of the earliest publicists to argue that the theoretical
benefits of free trade might not accrue in reality to some
countries because of asymmetries in economic and political
power. Unlike many of the current critics of globalization,
however, List was optimistic regarding the benefits of technol-
ogy.26
Norman Hill was a political scientist and early analyst of
international organizations. His scholarship takes note of the
relationship between private and public international conferences.
In doing so, Hill distinguishes the public governmental
conference, which he views as "internationalism," from the private
international conference, which he views as "cosmopolitanism."27
Hill sees cosmopolitanism as "an attempt of peoples
to co-operate on the basis of interests apart from national-
ity."28
23. Id. at 127, 131-32.
24. Id. at 127.
25. Americo Beviglia Zampetti, A Rough Map of Challenges to the Multilateral
Trading System at the Millennium, in EFFICIENCY, EQUITY, AND LEGITIMACY:
THE MULTILATERAL TRADING SYSTEM AT THE MILLENNIUM 34, 38 (Roger B.
Porter et al. eds., 2001) (calling special and differential treatment a main
basis of the WTO approach to economic development).
26. See LIST, supra note 20, at 128-29 (noting advances in, and potential
benefits from, agricultural chemistry and potential new energy discoveries).
27. NORMAN L. HILL, THE PUBLIC INTERNATIONAL CONFERENCE: ITS FUNCTION,
ORGANIZATION AND PROCEDURE 164-65 (Graham H. Stuart ed., Stanford
University Press 1929).
28. Id. at 165.
2002] WTO COSMOPOLITICS 305
Herbert Shenton was a sociologist and author of the littleknown
volume Cosmopolitan Conversation.29 The principal topic
of the book is how people speaking different languages communicate
in international conferences. This study provides an
empirical analysis of public and private international conferences.
In the opening chapter, Shenton distinguishes between
"International Conversations" among governments and "Cosmopolitan
Conversations" among private individuals. Shenton
characterizes cosmopolitan conversation as "a new social phenomenon
that may lead to world-wide understanding and
world-wide programs of cooperation."30
Shenton recognizes the implications of this new phenomenon
for the development of legal norms. Taking note of how
common law and governmental regulation are rooted in "folkways,"
Shenton explains that the "new habit of cosmopolitan
conversation is in a sense a new folkway . . . ."31 He predicts
that as these conversations become institutionalized, "they may
in time develop new inter-state ways."32 In other words,
Shenton foresees how cosmopolitan conversation could mature
into customary practice by states.
Of contemporary theorists, David Held is the most prolific
advocate of a "cosmopolitan model of democracy."33 Held insists
that "democratic public law within a political community
requires democratic law in the international sphere."34 In his
view, the "institutional solution to the problems of democracy
in the global order" requires the "opening of international
governmental organizations to public scrutiny and the democratization
of international functional bodies . . . ."35
In summary, Part II provides some historical context for
appreciating Lamy's effort to promote "cosmopolitics" as an
orienting concept for improving global governance. With its
29. HERBERT NEWHARD SHENTON, COSMOPOLITAN CONVERSATION: THE
LANGUAGE PROBLEMS OF INTERNATIONAL CONFERENCES (Columbia University
Press 1933).
30. Id. at 12. Shenton cites Hilľs usage of cosmopolitanism.
31. Id. at 12-13.
32. Id. at 13.
33. For a concise summary of the model, see DAVID HELD, DEMOCRACY
AND THE GLOBAL ORDER: FROM THE MODERN STATE TO COSMOPOLITAN GOVERNANCE
271-72 tbl.12.1 (1995).
34. Id. at 227.
35. Id. at 272-73.
306 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
roots in philosophy, law, economics, political science, and sociology,
the cosmopolitan idea will invite more interdisciplinary
commentary in the years ahead.
III. THE NEED FOR COSMOPOLITICS
The conventional concept of international politics might
be called "ortho-politics" to signify a straight, correct relationship.
Each state is perceived as a hierarchy, and individuals
participate in international policymaking upward through
their own governments. The unitary states then touch only at
the top. The same idea is reflected in older concepts of international
law. As Philip Jessup explained in 1928, the traditional
view was that states are a "series of detached pyramids
having contact only at the apex of each, that is, solely through
their governments."36 This hoary idea continues to exert influence
on governmental thinking: In 2001, U.S. President
George W. Bush told business leaders "[I]n order for me to be
effective on trade, I need trade promotion authority. I need
the ability to speak with a single voice for our country."37
Ortho-politics is inadequate for two reasons: One, it is a
poor description of reality. Two, it is normatively flawed.
Hardly anyone would assert today that contemporary international
politics and international law remain exclusively
state-centric. The importance of international organizations,
the expansion of transgovernmental regulatory coordination,38
and the enormous contributions of nongovernmental
organizations (NGOs) to international organizations (and particularly
human rights law) all demonstrate that the traditional
pyramid idea is outdated.39
36. Philip C. Jessup, The Functional Approach as Applied to International
Law, in PROCEEDINGS OF THE THIRD CONFERENCE OF TEACHERS OF INTERNATIONAL
LAW, 1928, at 134, 137 (1928).
37. Remarks by the President to the Business Roundtable, 37 WKLY.
COMP. PRES. DOC. 946, 949 (June 25, 2001).
38. An example is the new Global Forum of Food Safety Regulators. For
the reasons behind the establishment of a Global Forum of Food Safety Regulators,
see http://www.foodsafetyforum.org/global/intro_en.htm.
39. See Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International
Governance, 54 INTĹ ORG. 421, 450 (2000) (reporting that in many
issue-areas, individuals and private groups are the actors most responsible
for new international agreements and for resisting new agreements); Dinah
L. Shelton, Human Rights, in MANAGING GLOBAL ISSUES: LESSONS LEARNED
2002] WTO COSMOPOLITICS 307
Actually, its relevance began to erode decades ago. Even
as he devised the pyramid image in 1928, Jessup was quick to
criticize it. It is necessary to realize, he said, "that our State
pyramids have been drawn together so that contacts now exist,
not only at the apex but throughout the length and breadth of
every side."40 It is one thing for analysts to stand by the realism
that states made international policy and authored international
law during the 19th and 20th centuries. It is quite
another to make the untenable assertion that this was purely a
pyramidal process for officialdom that excluded the business
and civic sectors.
A brief look at the early development of the world trading
system demonstrates the practice of cosmopolitics. The first
major multilateral trade treaty was the Convention of 1927 for
the Abolition of Import and Export Prohibitions and Restrictions.41
During the conference that wrote this Convention,
the International Chamber of Commerce (ICC) was permitted
to send a four-person delegation.42 Such participation was not
an anomaly because throughout the 1920s, the ICC played a
significant role in many economic policy activities of the
League of Nations.43 In 1940, Huston Thompson developed a
proposal for an International Trade Tribunal.44 Thompson's
plan provided for the "international public" to "become articulate"
before the Tribunal, and he proposed that groups such
as fabricators or consumers should have standing to initiate
hearings.45 During the mid-1940s, many NGOs supported the
424, 442 (P.J. Simmons & Chantal de Jonge Oudraat eds., 2001) ("Nonstate
actors have been observers/participants in intergovernmental bodies since
the beginning of the modern human rights movement and have often had
an impact on the outcome.").
40. Jessup, supra note 36, at 137.
41. International Convention for the Abolition of Import and Export
Prohibitions and Restrictions, Nov. 8, 1927, 97 L.N.T.S. 393 (not in force).
42. International Conference for the Abolition of Import and Export
Prohibitions and Restrictions, League of Nations Doc. D.559 M.201 1927 at
45 (1927).
43. See generally GEORGE L. RIDGEWAY, MERCHANTS OF PEACE: TWENTY
YEARS OF BUSINESS DIPLOMACY THROUGH THE INTERNATIONAL CHAMBER OF
COMMERCE (Columbia University Press 1938).
44. Huston Thompson, An International Trade Tribunal, 34 ASIL PROC. 1,
6 (1940). Thompson had been Chairman of the U.S. Federal Trade Com-
mission.
45. Id.
308 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
establishment of a better trading system. For example, the
Catholic Association for International Justice condemned "isolationist
protective tariff barriers" and called for "international
economic agreements of world-wide scope."46 At the United
Nations Conference on Trade and Employment (of 1946-48)
that drafted the Charter of the International Trade Organization
(ITO), several NGOs (e.g., the ICC, the International Cooperative
Alliance, and the World Federation of Trade Unions)
were invited to send observers, and did so.47 The ITO
Charter contained a provision providing for "consultation and
co-operation" with NGOs, and in 1948 and 1949, the Interim
ITO took steps to implement this provision.48 A draft report
suggested that the ITO take "full advantage" of the knowledge
and experience of NGOs.49 (The ITO failed to come to fruition,
however.)50 Although the GATT contained no provision
regarding NGO participation, the Contracting Parties initially
continued the pre-war practice of close intergovernmental collaboration
with the ICC.51 In 1955, the GATT governments
sought to establish an Organization for Trade Cooperation.52
The draft international agreement for the Organization included
a provision for consultation and cooperation with
NGOs.53 (As with the ITO, however, the governments failed to
46. ELIOT GRINNELL MEARS, A TRADE AGENCY FOR ONE WORLD 50 (Citizens
Conference on International Economic Union 1945) (quoting statement
of the Catholic Association for International Justice).
47. Steve Charnovitz & John Wickham, Non-Governmental Organizations
and the Original International Trade Regime, J. WORLD TRADE, Oct. 1995, at 111,
113.
48. Id. at 115-20.
49. Id. at 120-21.
50. ROBERT E. HUDEC, ENFORCING INTERNATIONAL TRADE LAW: THE
EVOLUTION OF THE MODERN GATT LEGAL SYSTEM 7 (Butterworth Legal Publishers
1993) (1991).
51. See WILLIAM ADAMS BROWN, JR., THE UNITED STATES AND THE RESTORATION
OF WORLD TRADE 297 (The Brookings Institution 1950) (noting cooperation
with ICC on transport); CURZON, supra note 3, at 41 (noting that the
ICC could submit memoranda to the GATT); World Trade Organization, 1
GUIDE TO GATT LAW AND PRACTICE at 280 (1995) (discussing 1951 ICC proposal
on commercial samples and noting that it led to a convention adopted
by GATT Contracting Parties).
52. DAM, supra note 3, at 337.
53. Organization for Trade Cooperation: Hearing on H.R. 5550 Before the
House Comm. on Ways and Means, 84th Cong. 1356-1357 (1956) (text of the
2002] WTO COSMOPOLITICS 309
consummate this Organization.)54 Thus, the institutional history
from 1927 to 1955 cannot be reconciled with the myth
that the trading system always has been conceived as purely
intergovernmental with no participatory space for non-state ac-
tors.
This historical practice of cosmopolitics implies that there
is a strong normative basis for it, and yet the democratic dimension
of international organizations remains underdeveloped
in political theory. Robert Dahl has written, "I believe we
should openly recognize that international decision-making
will not be democratic."55 Dahl reaches this conclusion by arguing
that the distance of delegation required makes it impractical
to apply the ideas and practices of democratic government
to international organizations, institutions, and
processes.56 In Dahľs view, international organizations are
"bureaucratic bargaining systems" that have a "highly attenuated
kind of responsiveness" to the governed and are too attenuated
to be democratic.57
With due respect to one's former professor, Dahľs democratic
minimalism seems overly pessimistic. One can lament
that international organizations are too attenuated from the
people to be democratic. Or, as other analysts do, one can try
to refute the complaint about a democratic deficit by denying
the existence of a global demos, or community, to which an
international organization could be responsive. Yet neither response
is constructive. The fact is that international organizations
are essential and, for as long as such organizations have
existed, activist individuals and NGOs have worked to lessen
the attenuation of responsiveness to public interests.58 They
agreement on the Organization for Trade Cooperation and article-by-article
analysis).
54. DAM, supra note 3, at 338.
55. Robert A. Dahl, Can International Organizations Be Democratic? A Skeptic's
View, in DEMOCRACY'S EDGES 19, 23 (Ian Shapiro & Casiano Hacker-Cordón
eds., 1999); cf. Martin Wolf, Of Tuna, Turtles and Red Herrings, FIN.
TIMES, Nov. 17, 1999, at 27 ("As an agreement among states, the WTO cannot
itself be democratic.").
56. Dahl, supra note 55, at 30-32. He says that the extent of delegation to
international organizations goes beyond any acceptable threshold of democracy.
Id. at 32.
57. Id. at 33-34.
58. See generally Steve Charnovitz, Two Centuries of Participation: NGOs and
International Governance, 18 MICH. J. INTĹ L. 183 (1997) (tracing the history
310 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
have devised methods for connecting international organizations
more directly to citizens. Several decades ago, David Mitrany
already had taken note of the role of NGOs and the valuable
part they could play in canalizing democratic initiative
and control in specialized international agencies.59 Today, the
notion that international organizations can operate as islands
of non-democracy is no longer acceptable, particularly as the
responsibilities of these organizations grow. As Robert Keohane
and Joseph Nye have explained, today, "democratic
norms are increasingly applied to international institutions as
a test of their legitimacy."60
Skeptics of cosmopolitics typically start with the state as
the fundamental unit of analysis. That is not done in analyzing
domestic politics, where the unit is typically the individual,
public opinion, or "the people." Yet, for various reasons, international
analysis has proceeded in a top-down fashion. To understand
cosmopolitics, one should start with the most basic
unit--the individual person.61 Individuals are in constant tension
with the other key unit of international analysis--the rul-
ers.62
The individual wants legitimate, democratic governance
at all levels, be it the local school board, the city, the province,
of NGO involvement in international organizations from 1775 to the pre-
sent).
59. DAVID MITRANY, A WORKING PEACE SYSTEM 125-26 (1966).
60. Robert O. Keohane & Joseph S. Nye, Jr., The Club Model of Multilateral
Cooperation and Problems of Democratic Legitimacy, in EFFICIENCY, EQUITY, AND
LEGITIMACY, supra note 25, at 264, 281.
61. Derk Bienen, Volker Rittberger & Wolfgang Wagner, Democracy in the
United Nations System: Cosmopolitan and Communitarian Principles, in RE-IMAGINING
POLITICAL COMMUNITY: STUDIES IN COSMOPOLITAN DEMOCRACY 287,
299 (Daniele Archibugi et al. eds., 1998) (explaining that the cosmopolitan
principle of democracy at the international level is that the subject of international
governance is the individual); Markus Krajewski, Democratic Legitimacy
and Constitutional Perspectives of WTO Law, 35 J. WORLD TRADE 167, 181
(2001) ("National or international constitutional theory should be developed
from a strict perspective of the rights and needs of the individual.");
Fernando R. Téson, The Kantian Theory of International Law, 92 COLUM. L.
REV. 53, 71 (1992) ("Kant maintains that the fundamental unit and, at the
same time, fundamental end of both domestic and international law is the
individual human being.").
62. See STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY 7
(1999) (stating that, in his study, the ontological givens are rulers, not states
or the international system).
2002] WTO COSMOPOLITICS 311
the nation, or the WTO.63 An individual may believe that she
is too powerless to have any influence on the WTO; she also
may feel that way about the school board. Yet the urge to use
voice and to act publicly on an issue of concern is the same for
any level of governance. The impetus to do so springs from
"universal human reason," as Kant explained.64 Individuals do
not wait for authoritative decisionmakers to invite their opinion;
individuals act to promote their own concepts of human
progress.
Since individuals want their input to be effective, they will
direct it rationally at the level of government where the decision
is being taken. For many issues, there may be multiple
levels. But the idea, seemingly endorsed by the critics of
NGOs, that individuals will want to limit their lobbying to persons
they have elected within national borders makes no sense
at all if the decision is being made outside those borders.65 If
someone is concerned about an adjudication in the WTO,
then a natural place to direct that concern will be the WTO.66
Individuals and NGOs also will act at the international level as
63. See Krajewski, supra note 61, at 171 ("If governance is shifting in the
process of globalization from national to supranational levels, supranational
governance must meet the standards of legitimacy according to national
constitutional principles.").
64. See supra text accompanying note 12.
65. See Kal Raustiala, Sovereignty and Multilateralism, 1 CHI. J. INTĹ L. 401,
416 (2000) ("As the locus of political decision-making increasingly shifts
upwards, away from the state and toward the international level, rules and
processes should be adjusted to permit interest groups to follow suit.").
66. Martin Wolf espouses a contrary view. He says, "The WTO is merely a
secretariat servicing a structure of intergovernmental agreements. It is not a
government. It follows that the place for democratic accountability is the
legislatures of each of its members." Martin Wolf, What the World Needs from
the Multilateral Trading System, in THE ROLE OF THE WORLD TRADE ORGANIZATION
IN GLOBAL GOVERNANCE 183, 197 (Gary P. Sampson ed., 2001). Wolf is
wrong on one point and partly right on another. The WTO is not just a
secretariat; it is an international organization with the capacity to make binding
decisions on governmental members. Naturally, NGOs want input into
those decisions. If Wolf means to say that many of the key decisions of the
WTO actually are made in national capitals rather than in Geneva, then he is
right. But he goes too far to contend that the WTO government delegates in
Geneva and the WTO Director-General lack any delegated authority and
therefore are irrelevant targets for NGO lobbying.
312 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
a strategy for promoting legal and policy change at the national
level.67
When analysts consider domestic government, the role of
citizen activism is well understood and sometimes glorified.68
No one today seriously would argue that the quintessential
democratic act is what the individual does alone in the voting
booth. Voting is central, but it is not the only way in which
individuals communicate with elected officials.69 Students of
democracy recognize that some of its most important manifestations
(and preconditions) are popular discourse, social action,
and lobbying.70
So if individual participation is an essential part of democracy
at the national level, why do rational individuals forego it
at the international level? The answer is that they do not, and
should not. As Philippe Sands points out, "If participatory democracy
is relevant to the national levels of governance then it
is equally applicable at the international level, particularly
since so many important decisions now are being taken
outside national jurisdictions."71 WTO Director-General Mike
Moore put it well when he said that "[h]ealthy, democratic
67. See Martha Finnemore & Kathryn Sikkink, International Norm Dynamics
and Political Change, 52 INTĹ ORG. 887, 900 (1998).
68. CIVIL SOCIETY AT THE MILLENNIUM (Kumi Naidoo ed., 1999); TO EMPOWER
PEOPLE: FROM STATE TO CIVIL SOCIETY (Michael Novak ed., 2d ed.
1996); JEFFREY M. BERRY, THE NEW LIBERALISM: THE RISING POWER OF CITIZEN
GROUPS (1999).
69. See James N. Rosenau, Citizenship in a Changing Global Order, in GOVERNANCE
WITHOUT GOVERNMENT: ORDER AND CHANGE IN WORLD POLITICS
272, 285 (James N. Rosenau & Ernst-Otto Czempiel eds., 1992) ("Equipped
with greater capacities to fashion scenarios that link them to distant developments,
and thus more acutely aware of how micro actions might aggregate to
collective outcomes, citizens now have many more avenues along which to
pursue their interests.").
70. See, e.g., CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY
22-44 (1970); see also Juan J. Linz & Alfred Stepan, Toward Consolidated Democracies,
in THE CHANGING NATURE OF DEMOCRACY 48 (Takashi Inoguchi et al.
eds., 1998) (stating that a free and lively civil society is necessary for a consolidated
democracy); Organization for Economic Co-operation and Development
(OECD), Engaging Citizens in Policy-making: Information, Consultation
and Public Participation, OECD Public Management Policy Brief No. 10
(2001), at http://www.oecd.org/pdf/M00007000/M00007815.pdf.
71. Philippe Sands, Turtles and Torturers: The Transformation of International
Law, 33 N.Y.U. J. INTĹ L. & POL. 527, 540 (2001). For a similar view,
see Chantal Thomas, Constitutional Change and International Government, 52
HASTINGS L.J. 1, 41 (2000) ("Just as domestic legislative processes are open
2002] WTO COSMOPOLITICS 313
and accountable international agencies are now as important
as democracy at home."72
The activist does not stay his passions at the border. The
international level may lack the demos that exists at the national
level.73 The international level also lacks elected decisionmakers.
Yet these omissions do not make the individual
uninterested in participating in international organizations,
institutions, and processes that affect her.
Individuals will create their own cosmopolitan communities
of common concern. These groups then will undertake
conversations with official participants in international organizations.74
The quality of these cosmopolitan conversations will
be one factor that can enhance the legitimacy of an international
organization and reduce its democratic deficit.75 (Of
course, some critics deny that private involvement can make
official processes more legitimate.76)
to public input, the processes of international rulemaking, currently closed
to the public, should also become more transparent.").
72. Mike Moore, Address to the International Union of Socialist Youth
Festival in Praise of the Future (Jul. 26, 2000) (transcript available at the
WTO website at http://www.wto.org/english/news_e/spmm_e/
spmm33_e.htm).
73. Daniel Bodansky, The Legitimacy of International Governance: A Coming
Challenge for International Environmental Law?, 93 AM. J. INTĹ L. 596, 615-16
(1999) (finding that a demos, or shared sense of community, is absent at the
global level).
74. See MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS
2 (1998) ("Transnational advocacy networks are proliferating, and their
goal is to change the behavior of states and of international organizations.");
WOLFGANG REINICKE & FRANCIS DENG, CRITICAL CHOICES: THE UNITED NATIONS,
NETWORKS, AND THE FUTURE OF GLOBAL GOVERNANCE (2000) (discussing
the role of global public policy networks).
75. See Pascal Lamy, Speech at Conference on the Participation and Interface
of Parliamentarians and Civil Societies for Global Policy (Nov. 26,
2001) (transcript available at http://europa.eu.int/comm/trade/speeches_
articles/spla85.en.htm) (stating that NGOs and civil society can contribute
directly to the legitimacy of global governance); Jean-Fran¸cois Rischard,
High Noon: We Need New Approaches to Global Problem-Solving, Fast, 4 J. INTĹ
ECON. L. 507, 522-23 (2001) (explaining how diverse public-private networks
can provide a new source of legitimacy to global governance that is complementary
to traditional representation processes).
76. See, e.g., Kenneth Anderson, The Limits of Pragmatism in American Foreign
Policy: Unsolicited Advice to the Bush Administration on Relations With International
Nongovernmental Organizations, 2 CHI. J. INTĹ L. 371, 382-83 (2001)
(arguing that cooperation with NGOs cannot enhance the democratic legiti-
314 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
A democracy at home may help individuals achieve their
goals in the world arena, but that alone will not be sufficient
for them.77 This can be seen in the following hypothetical.
Suppose that within each country, the elected government
perfectly represents the range of domestic public opinion.
While that ideal would be sufficient to achieve the desired domestic
governance, it would be insufficient to achieve the aggregately
desired global governance because, in a world of interdependence,
cooperation among countries often will be
necessary. An individual may be able to help determine his
national governmenťs policy through his vote, but he will lack
the same electoral influence on other countries whose decisions
affect him.78 In view of the policy differences and collective
action problems that may keep governments from agreeing
to needed cooperation, "the people" in a country may fail
to get the government outputs they want, even if that government
is perfectly representative of them. Given that restrictions often
exist on influencing elections in foreign countries79 and recognizing
that no governments are perfectly representative, the
individual who wants to promote peace or free trade, or who
wants to combat problems like global warming or AIDS, often
will join transnational associations to campaign for such inter-
ests.
macy of an international organization because NGO participation is antidemocratic);
Richard Falk & Andrew Strauss, On the Creation of a Global Peoples
Assembly: Legitimacy and the Power of Popular Sovereignty, 36 STAN. J. INTĹ
L. 191, 214 (2000) (stating that opening up international regulatory bodies
to participation by NGOs cannot solve the problem of the democratic deficit);
John Micklethwait & Adrian Wooldridge, The Globalization Backlash, FOREIGN
POĽY, Sept.-Oct. 2001, at 16, 24 (arguing that "the real democratic deficit
in global institutions is to be found not in the IMF [International Monetary
Fund] and the WTO but in the NGOs that protest against them").
77. Cf. Eric Stein, International Integration and Democracy: No Love at First
Sight, 95 AM. J. INTĹ L. 489, 532 (2001) ("Despite their usefulness, national
procedures alone can hardly be expected to meet the democracy-legitimacy
requirement appropriate to the integration level of an IGO [intergovernmental
organization].").
78. The same problem exists within a federal system. An individual in
Texas might have voted for the person who got elected to be a U.S. congressman,
senator, or president. Yet the individual may still see a need to lobby
the senators from New York even though he has no direct electoral ties to
them.
79. Lori Fisler Damrosch, Politics Across Borders: Nonintervention and
Nonforcible Influence Over Domestic Affairs, 83 AM. J. INTĹ L. 1, 21-28 (1989).
2002] WTO COSMOPOLITICS 315
The political theory of international democracy is reflected
in progressive legal doctrine. International law had a
prolonged state-centric phase, but throughout the 20th century,
there was a steady stream of legal scholarship taking account
of the individual in the international sphere.80 For example,
in 1907, Simeon Baldwin pointed out how the "unofficial
congress" works "to promote the solidarity of the world"
and to help prevent controversies.81 In 1916, Henri La Fontaine
explained that "the international needs of men have induced
them to come into closer relations despite frontiers"
and that the ensuing "numerous free organizations" will want
to transit their wishes to a Conference of States.82 La Fontaine
called for the official conference to admit such petitions and
suggested that this opportunity be limited to "International Associations
legally constituted."83
In 1927, Georges Scelle examined the quest for "democratization"
of the League of Nations. Scelle opposed the idea of
establishing a chamber of popularly elected representatives because
"there is not yet an international people . . . ."84 Instead,
he proposed "another form of democratization" based on
what was already occurring at the League.85 Examining the
practices of the International Labour Organization (ILO),
where employers and workers were represented, and the practices
of the communications and transport organizations of
the League, where private organizations participated, Scelle
80. It began even earlier. For example, in his introductory lecture at
Cambridge in 1888, John Westlake described international law as the body
of rules prevailing among states, but he also saw it in broader terms as encompassing
"human action not internal to a political body." James Crawford,
Democracy and the Body of International Law, in DEMOCRATIC GOVERNANCE
AND INTERNATIONAL LAW 91, 113 (Gregory H. Fox & Brad R. Roth eds.,
2000).
81. Simeon E. Baldwin, The International Congresses and Conferences of the
Last Century as Forces Working Toward the Solidarity of the World, 1 AM. J. INTĹ L.
565, 573 (1907).
82. HENRI LA FONTAINE, THE GREAT SOLUTION: MAGNISSIMA CHARTA 65
(1916).
83. Id.
84. GEORGES SCELLE, UNE CRISE DE LA SOCI ÉT É DES NATIONS 137-40
(1927). The quotations are my own translation. For background on the
Scellian system of international law, see generally Hubert Thierry, The European
Tradition in International Law: Georges Scelle, The Thoughts of Georges
Scelle, 1 EUR. J. INTĹ L. 193 (1990).
85. SCELLE, supra note 84, at 141.
316 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
saw the League moving toward the gradual creation of an international
democracy.86
In the latter half of the 20th century, Myres McDougal
took note of the diverse participants in international law
processes. For example, in 1959, he observed that with the
emergence of new states, the establishment of new intergovernmental
organizations, and the "accelerating multiplication
of private associations and groups of all kinds," participation
in decisionmaking "exhibits a very definite trend toward
greater democracy."87 In McDougaľs view, international law,
like national law, is "most usefully regarded not as a mere body
of rules but as the whole of a specialized process of authoritative
decision."88 The world social process is and should be inclusionary.
According to McDougal, "it is a commonplace that
individuals, private associations, parties, and pressure groups
bring their base values to bear upon all levels of authority, and
with little respect for state boundaries."89 In a later work coauthored
with Harold Lasswell, they criticize the frame of
"power politics" as paying "little attention to authority conceived
in terms of community expectations as a variable affecting
decision" and as excluding "the perception of individual
human beings, cooperating through many associations, including
the nation-state, to clarify and secure their common
interests."90
At the end of the century, Thomas M. Franck authored
The Empowered Self, a study of individualism in international law
and politics. Franck concludes that:
Absent a global parliament, people's interests in intergovernmental
operations are represented primarily
by diplomats, most of whom, at best, inadequately
represent the diverse interests of their citizenry. To
address this "legitimacy deficit" . . . , many non-governmental
organizations (NGOs) have sprung up
86. Id. at 142-46. Furthermore, he predicted that this would occur in the
economic and professional realm before the political realm. Id. at 146.
87. Myres S. McDougal, The Impact of International Law Upon National Law:
A Policy Oriented Perspective (1959), reprinted in INTERNATIONAL LAW ESSAYS
437, 449 (Myres S. McDougal & W. Michael Reisman eds., 1981).
88. Id. at 446.
89. Id. at 447.
90. 1 HAROLD D. LASSWELL & MYRES S. MCDOUGAL, JURISPRUDENCE FOR A
FREE SOCIETY 181 (1997) (footnote omitted).
2002] WTO COSMOPOLITICS 317
across state boundaries. These appear to be becoming
purposeful and expert participants in the intergovernmental
diplomatic process by which new policies
are formulated, implemented and enforced.91
Having sketched out a normative framework for cosmopolitics--in
both political theory and international law--the
Article will briefly note five pragmatic reasons in favor of cos-
mopolitics.
First, the ability to use one's voice outside the channels of
domestic government is particularly important for individuals
in countries that are not democracies.92 Although the WTO
Secretariat has declared that "[c]itizens are expected to be
represented at the WTO through their governments,"93 the
WTO has no rules to fulfil that expectation at the domestic
level. Some international soft law does exist, however.
Agenda 21 calls on governments to "[e]nsure public input in
the formation, negotiation and implementation of trade policies
. . . ."94 This is one example of how the environment regime
tries to inculcate more democratic norms into the trade
regime.
Second, the ability to use one's voice outside the channels
of domestic government is particularly important for individuals
and NGOs from small or weak countries. Ortho-politics
can make it harder to communicate a grass roots perspective
because transmission is limited by the bandwidth of the weak
government. Of course, NGOs from poor countries may not
have the resources to participate effectively in the WTO.
91. THOMAS M. FRANCK, THE EMPOWERED SELF 87-88 (1999).
92. Michael Edwards, Introduction to GLOBAL CITIZEN ACTION 1, 4
(Michael Edwards & John Gaventa eds., 2001) ("For citizens of
nondemocratic regimes, transnational civil society may provide the only
meaningful avenue for voice and participation in decisionmaking."); Daniel
C. Thomas, International NGOs, State Sovereignty, and Democratic Values, 2 CHI.
J. INTĹ L. 389, 392 (2001) ("The emergence of non-governmental organizations
has thus opened international diplomacy to voices and interests that
once would have been stifled by repressive or non-responsive states.").
93. See THE WTO . . . WHY IT MATTERS: A GUIDE FOR OFFICIALS, LEGISLATORS,
CIVIL SOCIETY AND ALL THOSE INTERESTED IN INTERNATIONAL TRADE
AND GLOBAL GOVERNANCE 22 (2001), at http://www.wto.org/english/the
wto_e/minist_e/min01_e/wto_matters_e.pdf.
94. United Nations, Earth Summit Agenda 21, para. 2.22(k), available at
http://www.un.org/esa/sustdev/agenda21chapter2.htm.
318 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
Third, elected officials--who seek to avoid failure--sometimes
are risk-averse in seeking agreements. This can skew
policymaking toward inaction, even when cooperative solutions
are potentially available. Given that potential dysfunction
in global governance, international NGOs may serve as a
catalyst for pushing policymakers toward agreement.
Fourth, national governments suffer the bias of nationalism.
This is not necessarily bad, but nationalism often may not
be the best lens for solving global challenges.95 Indeed, Jacqueline
Peel has hypothesized that NGOs may be better able
than states "to conceptualize problems and solutions without
borders."96
Fifth, cosmopolitical opportunities are appropriate especially
for transnational NGOs like Médicins sans Fronti`eres or
WWF (formerly World Wildlife Fund). Ortho-politics would
reduce the utility of such organizations by demanding that
their advocacy be compartmentalized within political borders.
A theory of cosmopolitics needs to explain not only why
NGOs want to participate in global governance, but also why
international organizations and governments permit them to
do so. To paraphrase Kant, if it is humiliating for diplomats
and international organizations to seek advice from private individuals,
then why do they do so? The answer is that social
and economic actors offer two important services to international
organizations. One is expertise. For example, the
League of Nations and the GATT invited the ICC to participate
because that organization brought commercial expertise.97
The other valuable service is political support. Since all
international organizations are threatened to some extent by
the centrifugal forces of nationalism, international officials
often welcome public participation as a way of generating con-
95. Allyn Young, Economics and War, 16 AM. ECON. REV. 1, 7 (1926) (noting
that national states, each acting for itself, are inefficient guardians of
joint interests).
96. Jacqueline Peel, Giving the Public a Voice in the Protection of the Global
Environment: Avenues for Participation by NGOs in Dispute Resolution at the European
Court of Justice and the World Trade Organization, 12 COLO. J. INTĹ ENVTL.
L. & POĽY 47, 71 (2001) (footnote omitted).
97. See supra text accompanying notes 43 & 51.
2002] WTO COSMOPOLITICS 319
sent for the activities of the institution.98 For example, Director-General
Moore has affirmed that "it is vitally important
that we reconnect international organizations with the political
grassroots."99 Although Moore has not used the term "cosmopolitics,"
his speeches demonstrate an appreciation for that
concept.
Moore's predecessors at the WTO and GATT have not
shown the same appreciation. Consider, for example, the Joint
Statement on the Multilateral Trading System issued in February
2001 (at Davos) by Arthur Dunkel, Peter Sutherland, and
Renato Ruggiero. The former Directors-General state that
there is public and political disenchantment with international
institutions tied in part to the
view that powerful international bodies are less accountable
to the ordinary citizen than should be the
case. It is a view we cannot share. It is governments
which negotiate in institutions like the WTO, and
governments are accountable to their citizens.100
Basically, the three men are espousing the orthodox view,
or what I call ortho-politics. That is a respectable position to
take (albeit an outdated one). Yet they seem to miss the selfcontradictory
nature of their expression. If international bodies
are perfectly accountable transitively through Member governments
to their citizens, then one wonders why the authors
sought to do more than simply offer their views individually to
Switzerland, Ireland, and Italy. Apparently, the three former
Directors-General thought that the world would be interested
in a group statement based on their experience in leading the
trading system. And in that they were right; many observers
took note of their thoughtful commentary on the trading system,
which the WTO Secretariat quickly posted on the WTO's
website. So perhaps without realizing it, the three men were
98. See Anderson, supra note 76, at 379-81 (discussing the symbiosis between
international NGOs and international organizations and how these
organizations engage in mutual legitimation).
99. Director-General Mike Moore, Address to Liberal International on
the Backlash Against Globalization (Oct. 26, 2000) (transcript available at
the WTO website at http://www.wto.org/english/news_e/spmm_e/
spmm39_e.htm).
100. Arthur Dunkel et al., Joint Statement on the Multilateral Trading System
(Feb. 1, 2001) (transcript available at the WTO website at http://www.
wto.org/english/news_e/news01_e/jointstatdavos_jan01_e.htm).
320 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
engaging in cosmopolitics--seeking to influence the WTO
from the outside and circumventing the political channels of
their home governments.
A. WTO Exceptionalism and the Response
Commentators sometimes suggest that even if NGO participation
is suitable for the United Nations or other international
organizations, it ill fits the WTO.101 This idea can be
called "WTO Exceptionalism." It is reflected in the Guidelines
for Arrangements on Relations with Non-Governmental Organizations
adopted by the WTO General Council in 1996, which states, in
part:
Members have pointed to the special character of the
WTO, which is both a legally binding intergovernmental
treaty of rights and obligations among its
members and a forum for negotiations. As a result of
extensive discussions, there is currently a broadly
held view that it would not be possible for NGOs to
be directly involved in the work of the WTO or its
meetings.102
It was a missed opportunity for the General Council to
illuminate why the U.N. system--which contains many treaties
with rights and obligations and many fora for negotiations--
can allow NGOs to participate in its work and some of its meetings,
and yet the WTO cannot.
The leading explanation is that interest groups are anathema
to the trading system. As the WTO website explains:
"The system shields governments from narrow interests."103 In
other words, given that the WTO was set up to help governments
"ward off powerful lobbies"104 at home, it would be selfdefeating
for the WTO to be exposed to those lobbies in Ge-
101. See, e.g., CLAUDE BARFIELD, FREE TRADE, SOVEREIGNTY, DEMOCRACY:
THE FUTURE OF THE WORLD TRADE ORGANIZATION 81, 102, 106 (2001).
102. Guidelines for Arrangements on Relations with Non-governmental Organizations,
WTO Doc. WT/L/162 (July 23, 1996) (emphasis added), at http://
www.wto.org/english/forums_e/ngo_e/guide_e.htm.
103. World Trade Organization, 10 Benefits of the WTO Trading System,
at http://www.wto.org/english/thewto_e/whatis_e/10ben_e/10b09_e.htm
("The system shields governments from narrow interests.").
104. See id.
2002] WTO COSMOPOLITICS 321
neva. From this perspective, the ideal WTO would be impenetrable
or, even better, invisible.
In a recent commentary on the "World Trade Constitution,"
John O. McGinnis and Mark L. Movsesian offer a
"blueprint for the proper structure of the WTO."105 They contend
that the principal task of the WTO "should be to restrain
protectionist interest groups and thereby promote both free
trade and representative democracy."106 Positing that "protectionist
interest groups are, in fact, a particular bane of democracy,"
they claim that "[i]t is hardly undemocratic for the majority
to create institutions that will muffle the predictably powerful
cries of special interests."107 Based on their framework,
the authors assert that "providing NGOs with special access
would undermine the key benefits of a properly constructed
international trade regime--mechanisms that reduce the
power of interest groups in order to permit trade and democracy
to flourish."108 McGinnis and Movsesian make an important
point about the WTO's raison ď^etre, but draw an unjustified
conclusion.
Even assuming that WTO rules are intended to help governments
ward off lobbies and muffle special interests, the
performance of that function is separable from the process of
setting world trade rules. Within national polities, the WTO
does not restrict debate on trade questions such as whether a
new round should be launched. Thus, normal domestic politics
reigns with interest groups, including protectionist groups,
having a voice in such decisions. So, if the WTO does not seek
to prevent public debate on trade policy at the national level,
why should it do so at the international level? In my view, it
should not. The fact that WTO rules place limits on the use of
national trade measures provides no justification to limit pluralist
participation in the WTO. On the contrary, because
NGOs lose some opportunities for influence at the national
105. John O. McGinnis & Mark L. Movsesian, The World Trade Constitution,
114 HARV. L. REV. 511, 514 (2000).
106. Id. at 536.
107. Id. at 527, 542.
108. Id. at 571-72. In another passage, the authors say that their jurisprudence
only is designed to raise hurdles for protectionist groups, not "valuedriven
groups." Id. at 529. Unfortunately, the authors do not explain how
to distinguish one from the other in an objective manner.
322 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
level, they may need to expand their influence at the international
level.
The current WTO constitution would permit greater participation
than WTO governments have been willing to allow
so far. Article V, Section 2 of the Marrakesh Agreement Establishing
the World Trade Organization states: "The General
Council may make appropriate arrangements for consultation
and cooperation with non-governmental organizations concerned
with matters relating to those of the WTO."109 Because
this provision is merely permissive, one cannot say that it has
gone unimplemented. Yet, similar provisions in other international
treaties have led to much greater NGO participation
than occurs in the WTO.110
Although opponents of NGO participation claim that the
WTO is based on different principles from other international
organizations, the most salient difference undermines the argument
for exclusive WTO intergovernmentalism. In his
Hague Academy lecture, Donald McRae postulates that international
trade law differs from traditional international law because
trade law is "individual and welfare-based," while international
law is "State and security-based."111 Noting that international
law has rested on "sovereignty" and "States
surrounded by national boundaries," McRae contends that
world trade law "views national boundaries as an impediment"
and "is not based on a model of State sovereignty."112 McRae
does not speculate on the implications of his thesis for the
WTO debate on private participation. In my view, however, a
trading system based on the individual lacks any theoretical
reason to preclude persons from participating as individuals.
109. Marrakesh Agreement Establishing the World Trade Organization
art. V, § 2, Apr. 15, 1994, 33 I.L.M. 1125, 1146 (1994).
110. John H. Jackson, The WTO "Constitution" and Proposed Reforms: Seven
"Mantras" Revisited, 4 J. INTĹ ECON. L. 67, 77 (2001) ("It is surprising how far
behind the WTO is, compared to most of the international organizations in
Geneva and other cities, with respect to how it handles NGOs."). See generally
WHOSE WORLD IS IT ANYWAY: CIVIL SOCIETY, THE UNITED NATIONS AND THE
MULTILATERAL FUTURE (John W. Foster & Anita Anand eds., 1999) (discussing
NGO participation in the U.N. system).
111. Donald M. McRae, The Contribution of International Trade Law to the
Development of International Law, 260 RECUEIL DES COURS 109, 215 (1996).
112. Id. at 215, 219.
2002] WTO COSMOPOLITICS 323
Even if it were true that in the GATT era (1947-94) the
trading system operated effectively by keeping interest groups
at bay, the failed Seattle Ministerial Conference of 1999 shattered
any illusion about the continuing viability of that closed
style of politics.113 Although some protestors came to Seattle
to engage in disruption and violence, many protestors came to
debate the future direction of the WTO and to show by their
presence in the streets that the WTO lacks opportunities for
indoor participation by civic society organizations.
A trading system recognizing and promoting the benefits
of economic competition should be eager to promote intellectual
competition on the key issues before it.114 If the WTO
were willing to institutionalize NGO-government discourse,
that would demonstrate self-confidence and over time the
WTO might gain better ideas for how to address the challenges
of economic globalization.115 The official WTO position--that
NGOs participate only through the channels of
their national governments116--is counterproductive because
it dilutes the quality of debate within the WTO by excluding
divergent views that WTO Member governments may not be
willing to express. The WTO mindset continues to see each
WTO Member as a pyramid.
Critics of expanded NGO participation counter that
NGOs are constituted to promote only a single interest, while
democratic governments are elected to represent the general
or national interest. While that is true formalistically, one can-
113. Jeffrey L. Dunoff, The WTO in Transition: Of Constituents, Competence
and Coherence, 33 GEO. WASH. INTĹ L. REV. 979, 982-83 (2001); Rorden Wilkinson,
The WTO in Crisis: Exploring the Dimensions of Institutional Inertia, 35 J.
WORLD TRADE 397 (2001).
114. Daniel C. Esty, Non-governmental Organizations at the World Trade Organization:
Cooperation, Competition, or Exclusion, 1 J. INTĹ ECON. L. 123, 135-37
(1998).
115. Jan Aart Scholte (with Robert O'Brien & Marc Williams), The WTO
and Civil Society, J. WORLD TRADE, Feb. 1999, at 107, 111 (stating that civil
society groups can push the WTO to clarify, explain, justify, and perhaps
rethink its positions).
116. World Trade Organization, 10 Common Misunderstandings About
the WTO 9 (1999), at http://www.wto.org/english/res_e/doload_e/
10mis_e.pdf ("The private sector, non-governmental organizations and
other lobbying groups do not participate in WTO activities except in special
events such as seminars and symposiums. They can only exert their influence
on WTO decisions through their governments.").
324 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
not always depend on government officials to promote a national
interest, or a planetary interest. As Antoine-Augustin
Cournot perceptively noted 125 years ago, the legislator must
entrust execution "to a large number of agents of undistinguished
capacity and morality . . . ."117 In other words, the
pristine representation of the national interest can be distorted
by the bureaucrats in power. I am not contending that
NGO spokesmen have greater insight into the public interest
than government bureaucrats do. Rather, my point is that a
well functioning trading system requires vigorous debate in
which all ideas--and especially ideas from trade bureaucrats--
are contestable.
Another argument against NGO participation is that trade
politics should be cabined at the national level and screened
out of the WTO. This view is puzzling because the WTO is
solely about politics. In contrast to many other international
organizations that address market failure, the WTO addresses
mainly government failure. So the idea of preserving an unpolitical
WTO is fantasy.
The mission of the WTO is not to enable trade between
individuals.118 Rather, its mission is to put controls on the way
governments use discriminatory and protectionist trade measures.
That is an additional reason why the WTO should not
insist that NGOs filter their ideas through national governments.
A consumer NGO may advocate an idea like free trade
that its government will be unwilling to relay to the WTO.
Instead of taking politics out of the WTO, it is time to put
more politics in. Keohane and Nye make this recommendation
in a recent study where they point to the problem of "insufficient
politicization" of the WTO.119 They explain that
"[t]he lack of intermediating politicians is the most serious
democratic deficit of international organizations in general
and the WTO in particular."120 The prescription they offer is
117. From REVUE SOMMAIRE DES DOCTRINES ECONOMIQUES (1877), quoted
in 8 WORLD ECON. 298 (1985).
118. See Pierre Lemieux, Free Trade Doesnť Require Treaties, WALL ST. J., Apr.
24, 2001, at A24.
119. Keohane & Nye, supra note 60, at 264-65.
120. Id. at 280. See also Robert Howse & Kalypso Nicola¨idis, Legitimacy and
Global Governance: Why Constitutionalizing the WTO Is a Step Too Far, in EFFICIENCY,
EQUITY, AND LEGITIMACY, supra note 25, at 227, 229 (stating that the
WTO needs more politics, not less).
2002] WTO COSMOPOLITICS 325
that "[a]ny sustainable pattern of governance will have to institutionalize
channels of contact between international organizations
and constituencies within civil society. The international
regimes, broadly conceived, must be political rather
than technocratic."121
Director-General Moore also has called attention to the
need for more politics in international organizations, observing
that "[a]s Governments have gradually contracted out certain
limited functions to international institutions, treaties and
agreements, there has not been a corresponding evolution
and focus of political oversight."122
B. What Kind of Politics?
Ortho-politics is one approach for applying political supervision
to the WTO. Elected presidents and prime ministers
could begin regular attendance of WTO sessions.123 That
seems impractical. Another approach is to provide for parliamentary
participation in the WTO. A group of parliamentarians
met informally in Seattle in 1999, and did so again at
Doha. Yet such parliamentary participation is not strictly
ortho-politics because the elected legislators are not representing
a government.
The other way to provide a firmer political base for the
WTO is through cosmopolitics. This path does not require
the consolidation of a global demos. The only precondition is
that there are publics in different countries that have common
interests. As Keohane and Nye explain, "In this sense of
shared externalities and a degree of shared understanding,
there may be some global publics even if there is no global
community."124
121. Keohane & Nye, supra note 60, at 290.
122. Mike Moore, Speech at the European Parliament Seminar on Trade,
Development, and Democracy: The Need for Reform of the WTO (Apr. 10,
2001) (transcript available at the WTO website at http://www.wto.org/eng
lish/news_e/spmm_e/spmm57_e.htm).
123. In some governments, the trade minister may be an elected member
of parliament. Thus, some of the trade ministers at the Doha conference
could have been elected officials. At present, no country has national elections
for the trade minister.
124. Keohane & Nye, supra note 60, at 284. For an extended discussion of
how NGOs are reconstructing global civil society, see generally CRAIG
326 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
Over the past several years, many government officials
and analysts have postulated that the WTO needs to rely on
cosmopolitical constituencies for guidance and support.125
No one other than Lamy has used that term, yet the ideas are
similar. During the Seattle Ministerial, then-U.S. President Bill
Clinton remarked: "If the WTO expects to have public support
grow for our endeavors, the public must see and hear and
in a very real sense actually join in the deliberations. Thaťs
the only way that they can know the process is fair and know
their concerns were at least considered."126 Keohane and Nye
state that "some form of NGO representation in the institutions
involved in multilateral governance, and in particular the
WTO, could help to maintain their legitimacy."127 Antonio
Perez writes that "[c]reating real channels of representation
for communities and interest groups is critical to sustaining
the WTO's legitimacy."128 Esty contends that "[a]ccordingly,
the WTO needs to develop a higher degree of connectedness
to the peoples of the world. This kind of relationship can be
achieved--in the absence of global politicians--through the
non-governmental organizations (NGOs) that represent civil
society."129
WARKENTIN, RESHAPING WORLD POLITICS: NGOS, THE INTERNET, AND GLOBAL
CIVIL SOCIETY (2001).
125. See, e.g., Frank Loy, Public Participation in the World Trade Organization,
in THE ROLE OF THE WORLD TRADE ORGANIZATION IN GLOBAL GOVERNANCE,
supra note 66, at 113, 119 ("Clearly, the way to develop a free trade constituency
is to engage the opposition and address their legitimate concerns. Intergovernmental
institutions such as the WTO . . . must make an effort to
satisfy and address the principal concerns of NGO groups by inviting them
in from outside the closed doors."); BRUCE STOKES & PAT CHOATE, DEMOCRATIZING
U.S. TRADE POLICY, COUNCIL ON FOREIGN RELATIONS PAPER 60 (2001)
("The lack of public accessibility, transparency, and due process in the functioning
of the WTO is the source of mounting public criticism of that organization,
its decisions, and, most important, the trade that it regulates.").
126. Remarks at a World Trade Organization Luncheon in Seattle, PUB.
PAPERS 2192 (Dec. 1, 1999).
127. Keohane & Nye, supra note 60, at 289-90.
128. Antonio F. Perez, International Recognition of Judgments: The Debate Between
Private and Public Law Solutions, 19 BERKELEY J. INTĹ L. 44, 85 (2001).
129. Daniel C. Esty, We the People: Civil Society and the World Trade Organization,
in NEW DIRECTIONS IN INTERNATIONAL ECONOMIC LAW: ESSAYS IN HONOUR
OF JOHN H. JACKSON 87, 91 (Marco Bronckers & Reinhard Quick eds.,
2000).
2002] WTO COSMOPOLITICS 327
In a recent article, Markus Krajewski analyzes the legitimacy
of WTO processes.130 In his view, the democratic legitimacy
of international trade law is based on a "legitimacy
chain" in which national elections choose governments that
negotiate in the WTO.131 When the chain is lengthy, as it is
for the WTO, then international processes suffer from "intransparency,"
and the result is a democratic deficit.132 Krajewski
discusses some approaches for increasing the "supply"
of legitimacy, including opening the WTO to NGOs, enhancing
the role of national parliaments, and establishing a parliamentary
assembly at the WTO.133 He concludes that these
supply measures will not succeed, and therefore he calls for
reducing the "demand" for WTO legitimacy by resisting a
broader WTO mandate.134 I agree with Krajewski's analytical
framework, but not his pessimistic conclusion.135 The WTO
can become more accountable and effective through cosmo-
politics.
By insisting that the debate on trade policy take place
within national borders, the WTO forgoes the learning that
can emerge from cosmopolitan conversation.136 Domestic
trade debates are held in the desolate sands of nationalism,
isolationism, and protectionism. Given that the trading system
was set up to overcome economic nationalism, it is perverse to
rely on communication channels owned by national governments.
By elevating the debate to the WTO level, civil society
and political leaders can seek to replace economic nationalism
with interdependence, isolation with engagement, and trade
130. See Krajewski, supra note 61.
131. Id. at 175-76.
132. Id. at 176.
133. Id. at 183.
134. Id. at 186; cf. B. K. Zutshi, Comment, in EFFICIENCY, EQUITY, AND LEGITIMACY,
supra note 25, at 387 (stating that as an intergovernmental institution,
the WTO "is as democratic as it can ever get").
135. Cf. Daniel C. Esty, Comment (on the paper by Robert Keohane and
Joseph Nye), in EFFICIENCY, EQUITY, AND LEGITIMACY, supra note 25, at 301,
304-05 ("I find their suggestion that the best answer to the WTO's legitimacy
crisis lies in a step back from full-scale globalization based on the presumed
dominance of nation-states to be both descriptively incomplete and normatively
unsatisfactory.").
136. See MICHAEL EDWARDS, FUTURE POSITIVE: INTERNATIONAL CO-OPERATION
IN THE 21ST CENTURY 209 (2000) ("Learning requires an active conversation
between institutions and their clients.").
328 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
barriers with human freedom. Cosmopolitical debate will provide
fertile soil for an open trade policy.
In conclusion, Part III lays out the normative basis for
WTO cosmopolitics and suggests that it can boost public support
for the trading system. The transparency and participatory
practices of other international organizations are
relevant models for the WTO.137 Indeed, the pervasiveness of
international economic law may necessitate more cosmopolitics
than other branches of international law have.138
IV. COSMOPOLITICS IN ACTION
Part IV of this Article seeks to clarify the concept of cosmopolitics,
with particular reference to the WTO. The first
section discusses eight types of cosmopolitical process. All of
these processes grow out of traditional international politics
(ortho-politics) and can be reconciled with it to some extent.
Nevertheless, they are classified here as cosmopolitics because
they prefigure a more deliberative and participatory world
public sphere. The second section looks briefly at what has
been the biggest controversy in the WTO about NGOs:
whether private groups should be able to file amicus curiae
briefs in WTO dispute settlement.
A. Eight Faces of Cosmopolitics
Cosmopolitics is practiced in the following ways.
1. Market Orientation
Markets are often the target of government policy, yet
they also provide a guidepost for the use of market-like policy
instruments. Private actors use the market to influence other
137. Wolfgang Benedek, Developing the Constitutional Order of the WTO: The
Role of NGOs, in DEVELOPMENT AND DEVELOPING INTERNATIONAL AND EUROPEAN
LAW: ESSAYS IN HONOUR OF KONRAD GINTHER ON THE OCCASION OF HIS
65TH BIRTHDAY 228, 245-48 (Wolfgang Benedek et al. eds., 1999).
138. ROBERT O'BRIEN ET AL., CONTESTING GLOBAL GOVERNANCE: MULTILATERAL
ECONOMIC INSTITUTIONS AND GLOBAL SOCIAL MOVEMENTS 226
(2000) (stating that compared to the U.N. system, opening up the IMF,
World Bank, and WTO to non-state influence may be more important because
of their institutional power). Chi Carmody, Beyond the Proposals: Public
Participation in International Economic Law, 15 AM. U. INTĹ L. REV. 1321
(2000) (calling for genuine public participation in the institutions of international
economic law).
2002] WTO COSMOPOLITICS 329
private actors and governments.139 Such activities are a central
feature in the domestic political arena and now are becoming
more common on a global scale.
Cosmopolitics can manifest considerable market orientation
and attention to transborder economic activity. This is
not surprising, since cosmopolitics is a response to economic
interdependence. Consider the following: Seeing the benefits
of working directly with the private sector, U.N. Secretary-General
Kofi Annan launched the Global Compact, in which subscribing
corporations commit to follow human rights, labor,
and environmental principles.140 The emerging Climate
Change Protocol will make extensive use of market-based instruments,
such as the clean development mechanism and
emissions trading.141 In July 2000, the U.N. Security Council
enacted a resolution regarding Sierra Leone in which the
Council made recommendations to states, international organizations,
and various diamond industry associations.142
The controversy regarding the impact of the WTO Agreement
on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) on public health has wrought a significant change in
trade politics.143 It has brought new actors (e.g., health
NGOs) into the WTO arena and has led to public protests
against drug companies and trade officials who have been accused
of making medicine for AIDS too costly.144 In April
139. See generally Sylvia Ostry, World Trade Organization: Institutional Design
for Better Governance, in EFFICIENCY, EQUITY, AND LEGITIMACY, supra note 25, at
361, 377 (discussing the example of Social Accountability 8000); PRIVATE AUTHORITY
AND INTERNATIONAL AFFAIRS (A. Claire Cutler et al. eds., 1999).
140. The nine principles of the Global Compact can be found at the
Global Compacťs website at http://www.unglobalcompact.org/un/gc/un
web.nsf/content/thenine.htm.
141. See Jonathan B. Wiener, Something Borrowed for Something Blue: Legal
Transplants and the Evolution of Global Environmental Law, 27 ECOLOGY L.Q.
1295 (2001).
142. S. Res. 1306, U.N. SCOR, 4168th mtg. (2000), available at http://
www.un.org/Docs/scres/2000/res1306e.pdf.
143. See J.H. Reichman, Taking the Medicine, with "Angst": An Economisťs
View of the TRIPS Agreement, 4 J. INTĹ ECON. L. 795, 795 (2001) (reviewing
KEITH E. MASKUS, INTELLECTUAL PROPERTY RIGHTS IN THE GLOBAL ECONOMY
(2000)).
144. LORI WALLACH & MICHELLE SFORZA, WHOSE TRADE ORGANIZATION?
CORPORATE GLOBALIZATION AND THE EROSION OF DEMOCRACY: AN ASSESSMENT
OF THE WORLD TRADE ORGANIZATION 100-29 (1999). See also Geeta
Anand, Why Rapid HIV Tests, Widely Sold Overseas, Have Eluded the U.S., WALL
330 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
2001, several entities--including the WTO, the World Health
Organization, the Norwegian government, and the Global
Health Council--teamed up to sponsor a Workshop on Drug
Pricing and Financing.145 The Workshop had broad participation,
including pharmaceutical companies and associations,
NGOs, academics, and foundations, as well as governments
and international organizations. Although some WTO governments
may deny that the WTO has any responsibility for
health care, the WTO has become part of global health policymaking
because the WTO is prescribing patentability--and
hence prolonged monopoly pricing--for medicine.146 Enhancing
both public health and medical innovation may require
a reexamination of the incentive structure embedded in
TRIPS rules. It is hard to imagine this occuring through exclusively
state-to-state conversation because the needed expertise
and stakeholders would not be at the table.
At Doha, the WTO Ministerial Conference issued a "Declaration
on the TRIPS Agreement and Public Health" in which
the ministers stressed the need for the TRIPS Agreement "to
be part of the wider national and international action" to address
public health problems.147 The Declaration also affirmed
that TRIPS "can and should be interpreted and implemented
in a manner supportive of WTO Members' right to
protect public health and, in particular, to promote access to
medicines for all."148 Some pharmaceutical associations and
ST. J., Dec. 20, 2001, at A1 (discussing how patents prevent access to medical
technology).
145. Further illumination on the workshop on affordable drugs held by
the WTO and World Health Organization's Secretariats can be found at the
WTO website at http://www.wto.org/english/tratop_e/trips_e/tn_
hosbjor_e.htm.
146. Agreement on Trade-Related Aspects of Intellectual Property Rights,
Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization
[hereinafter WTO Agreement], Annex 1C, LEGAL INSTRUMENTS--RESULTS
OF THE URUGUAY ROUND, 33 I.L.M. 1125 [hereinafter TRIPS or TRIPS
Agreement], art. 27 (1994). Technically, TRIPS requires protection of intellectual
property for only foreign inventors. Id. art. 1:3. In practice, however,
governments are backed into granting equivalent protection to domestic in-
ventors.
147. Ministerial Conference, Declaration on the TRIPS Agreement and
Public Health, WT/MIN(01)/DEC/2, paras. 1-2 (Nov. 14, 2001), at http://
www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm.
148. Id. para. 4.
2002] WTO COSMOPOLITICS 331
health-related NGOs went to the Doha conference to assist
governments in the negotiation of this Declaration.149
2. Publicity and Transparency
Democratic control over international policy requires information
about what governments are doing. Kant advocated
"publicity" in an era when treaties themselves often were kept
secret. The Covenant of the League of Nations established the
principle that all treaties should be registered and published.150
When the League was constituted in 1920, the
League Council approved a memorandum on treaty registration
that contained a strong (and unduly optimistic) statement
about the value of publicity:
Publicity has for a long time been considered a
source of moral strength in the administration of National
Law. It should equally strengthen the laws and
engagements which exist between nations. It will promote
public control. It will awaken public interest. It
will remove causes for distrust and conflict. Publicity
alone will enable the League of Nations to extend a
moral sanction to the contractual obligations of its
Members. It will, moreover, contribute to the formation
of a clear and indisputable system of International
Law.151
The principle of publicity commonly is called "transparency"
now. This term has been employed to describe the
informational openness of treaty systems and international organizations.
In one usage, transparency refers to informational
flows among the parties to a treaty that are essential for
monitoring implementation.152 In another usage, which ap-
149. See Paul Blustein, Getting WTO's Attention: Activists, Developing Nations
Make Gains, WASH. POST, Nov. 16, 2001, at E1; Geoff Winestock & Helene
Cooper, Activists Outmaneuver Drug Makers at WTO, WALL ST. J., Nov. 14,
2001, at A2. See also Daniel Pruzin, Global Drug Industry Association Blasts
`Nutty' WTO Text on TRIPS, Public Health, BNA DAILY REP. FOR EXECUTIVES,
Nov. 2, 2001, at A-26.
150. See LEAGUE OF NATIONS COVENANT art. 18.
151. The Registration and Publication of Treaties as Prescribed Under Article
18 of the Covenant of the League of Nations, 4 LEAGUE OF NATIONS O.J.
154 (1920).
152. ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY:
COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 22-23 (1995).
332 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
parently began in trade policy discourse, transparency refers
to informational flows from a treaty system or international organization
down to the interested public.
In the early 1990s, NGOs (particularly environmental
groups) started complaining about the closed processes of the
GATT.153 These critiques elicited sympathy from some GATT
experts. For example, John Jackson wrote that the environmentalists
"have several legitimate complaints about the GATT
dispute settlement procedures, among others . . . and note appropriately
that the GATT lacks a certain amount of transparency."154
Jackson urged that "[f]or purposes of gaining a
broader constituency among the various policy interested communities
in the world, . . . the GATT could go much further in
providing `transparency' of its processes."155
In the ensuing years, the WTO has achieved much greater
transparency. In a recent study, Gregory Shaffer concludes
that U.S. and European environmental groups were successful
in their persistent critiques of WTO and its Committee on
Trade and Environment. According to Shaffer, the NGOs
"have opened up the WTO decision-making process and initiated
a trend toward greater transparency in WTO operations
that is unlikely to change."156 Shaffer's study is valuable in
demonstrating the positive contributions of nongovernmental
pressure to the trading system.
Nevertheless, with the exception of ceremonial sessions at
ministerial conferences, NGOs today are not permitted to be
observers at any WTO meetings. Many governments resist further
openness. Writing in a law journal, one of Argentina's
longtime delegates to the WTO asks: "Can anyone imagine a
trade negotiator agreeing to reasonable trade and environment
disciplines while the representatives of the business sector
and the local branch of Greenpeace or the World Wildlife
153. See, e.g., Ralph Nader, Introduction, THE CASE AGAINST FREE TRADE:
GATT, NAFTA AND THE GLOBALIZATION OF CORPORATE POWER 1, 3 (1993) (suggesting
that secrecy, abstruseness, and unaccountability are the watchwords
of global trade policymaking).
154. John H. Jackson, World Trade Rules and Environmental Policies: Congruence
or Conflict?, 49 WASH. & LEE L. REV. 1227, 1255 (1992).
155. Id. at 1255.
156. Gregory C. Shaffer, The World Trade Organization Under Challenge: Democracy
and the Law and Politics of the WTO's Treatment of Trade and Environmental
Matters, 25 HARV. ENVTL. L. REV. 1, 84 (2001).
2002] WTO COSMOPOLITICS 333
Fund for Nature ("WWF") are seated next to each other and
him or her at the WTO?"157 The delegate gave no answer to
his question. In view of how little the Committee on Trade
and Environment has accomplished in seven years, one might
pose the inverse question: Can anyone imagine WTO governments
achieving any fruitful outcome without environmental
and business experts being part of the process? I cannot. Recently,
The Economist magazine wrote that proponents of liberal
trade no longer can expect trade policymaking and WTO dispute
settlement to be sheltered from the demands for honest,
open, and accountable governance.158
In announcing that the WTO Secretariat had given tentative
approval to over six hundred NGOs to attend the Doha
Ministerial conference, Moore stated that "[t]he input and involvement
of NGOs is important to our shared objective of a
successful meeting. I welcome scrutiny from civil society, it is
healthy and makes us more accountable."159
Because of concerns about insecurity at Doha, and the difficulty
of traveling there, only 365 NGOs actually went to the
conference. Unlike the Seattle Conference, NGOs did not
have the opportunity to hold panel sessions for the government
delegates and the press. Unfortunately, the Doha Ministerial
Conference took no action to expand the opportunities
for NGO cooperation and consultation in the forthcoming
WTO negotiations. But the Doha Declaration states a commitment
of the trade ministers to "improve dialogue with the pub-
lic."160
3. Persuasion and Debate
The conception of cosmopolitics presented here emphasizes
decisionmaking through persuasion rather than power,
157. Jorge B. Riaboi, Trade Liberalization and Dangerous Political Games, 24
FORDHAM INTĹ L.J. 572, 593 (2000).
158. Who Elected the WTO?, ECONOMIST, Sept. 27, 2001, at 26, 28.
159. Press Release, World Trade Organization, 647 Non-governmental Organizations
Eligible to Attend the Doha Ministerial (Aug. 13, 2001) (on file
at WTO website as Press/240 at http://www.wto.org/english/news_e/pres
01_e/pr240_e.htm). The WTO insisted that each NGO delegation be limited
to one person.
160. Ministerial Conference, Ministerial Declaration, WT/MIN(01)/
DEC/1, para. 10 (Nov. 14, 2001), at http://www.wto.org/english/thewto_e/
minist_e/min01_e/mindecl_e.htm.
334 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
and borrows from Thomas Risse's work on "communicative action
in world politics."161 Risse contends that under certain
conditions, multilateral negotiating processes will exhibit "arguing
and communication geared toward a reasoned consensus
. . . ."162 Risse further points out that world politics occurs
not just in secret negotiations, but also in the "international
public sphere," where debates "touch on normative issues that
are directly linked to the social identities of actors."163 For
both contexts, Risse explains that "arguing is likely to increase
the influence of the materially less powerful, be it small states
or nonstate actors such as INGOs [international nongovernmental
organizations]."164
As many analysts have noted, the trading system is characterized
by dealmaking and bargaining rather than deliberation
and argument. Krajewski explains:
Besides its intransparency, the WTO decision-making
process does not meet the conditions of deliberation
on a more fundamental level. As mentioned above,
deliberation is defined as a process of exchanging arguments
in order to convince each other. The WTO
decision-making process, however, is dominated by
bargaining instead of arguing. . . . Different interests
are combined, but are not integrated into a common
framework.165
Kenneth Abbott lodges a similar critique in observing that
the WTO "remains mired in the obsessive quid pro quo thinking
that has always dominated tariff negotiations . . . ."166 He
points out that the WTO needs to engage in rulemaking to
produce mutual benefits for countries, but cannot do so because
some parties demand linkage to market access.167
A good example of the obsession with linkage came in the
commitment in the Doha Declaration to negotiate on "procedures
for regular information exchange between MEA [multi-
161. Thomas Risse, "Leťs Argue!": Communicative Action in World Politics, 54
INTĹ ORG. 1, 1 (2000).
162. Id. at 19 (listing conditions), 20.
163. Id. at 21-22.
164. Id. at 33.
165. Krajewski, supra note 61, at 177.
166. Kenneth W. Abbott, Rule-Making in the WTO: Lessons from the Case of
Bribery and Corruption, 4 J. INTĹ ECON. L. 275, 293 (2001).
167. Id. at 293.
2002] WTO COSMOPOLITICS 335
lateral environmental agreement] Secretariats and the relevant
WTO committees, and the criteria for the granting of observer
status."168 In view of the importance of securing closer
cooperation between the WTO and the MEAs, one could have
imagined the Doha Ministerial legislating a decision in favor of
regular information exchange with simple criteria for granting
observer status. Instead, the trade ministers launched a threeyear
negotiation on this and other environmental issues, and
made clear that they were not prejudging the outcome of such
negotiations.169
4. Issue-Based Alliances
The formation of leagues among governments is an ancient
practice, but the establishment of transparent, issuebased
alliances in international negotiations is a relatively new
phenomenon. For example, during the Uruguay Round, the
Cairns Group of agricultural export nations was launched to
carry out joint advocacy.170 Developing countries that export
textiles and clothing used a similar approach through the International
Textiles and Clothing Bureau.171 In recent years
in the WTO, we have seen the creation of "Friends of Fish,"
"Friends of a New Round," and various "like-minded" groups
of WTO governments.172 This same phenomenon occurs in
other regimes too--for example, the Umbrella Group in climate
change negotiations that promotes emissions trading.
Why is this cosmopolitics? It is because a particular issue
catalyzes a unique constellation of governments to work to-
168. Ministerial Declaration, supra note 160, para. 31(ii).
169. Id. paras. 31, 45.
170. JOHN CROOME, RESHAPING THE WORLD TRADING SYSTEM: A HISTORY
OF THE URUGUAY ROUND 30-31, passim (1995). The Cairns Group boasts that
the Group "has effectively put agriculture on the multilateral trade agenda
and kept it there." See http://www.cairnsgroup.org. The Uruguay Round of
trade negotiations occurred between 1986 and 1994.
171. CROOME, supra note 170, at 109, passim. Information on the International
Textiles and Clothing Bureau can be found on its website at http://
www.itcb.org/About.htm.
172. Rufus Yerxa takes note of the importance of the informal groups that
promoted a successful conclusion of the Uruguay Round in 1993. Rufus H.
Yerxa, Comment, in EFFICIENCY, EQUITY, AND LEGITIMACY, supra note 25, at 381,
383. It is not clear from his description whether all of the groups he lists
were brought together for a particular policy purpose, or were back-channel
groups seeking to promote mutual understanding.
336 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
gether as a unit so as to promote shared interests. When such
efforts are purely intergovernmental, then they could still be
ortho-politics, although distinguishable in seeking group goals
other than power. But when such groups cooperate with similarly
motivated private actors, then the ensuing efforts are cosmopolitics.
For example, Australia has circulated within the
WTO a position paper of "farm leaders" in Cairns Group coun-
tries.173
5. International Organizations
Because the influence of international organizations is so
pervasive, it is easy to forget that such organizations are themselves
non-state actors. The WTO has legal personality and defined
functions.174 The treaty establishing the WTO contains
multilateral trade agreements that are "binding on all Mem-
bers."175
The WTO Secretariat is headed by a Director-General
(DG) whose responsibilities are "exclusively international in
character."176 In carrying out his independent role, the DG
has a license to persuade, but he always will have to be careful
not to get too far out on a limb. An active DG exemplifies
cosmopolitics because the DG can have conversations with
governments without being a government. To better prepare
himself, Moore recently set up an advisory panel consisting of
seven individuals from academia, three from NGOs, and two
former government officials.177 Moore met with the panel for
the first time in January 2002.
In early 2001, Moore came under criticism from a coalition
of southern and northern NGOs for his efforts to launch
a new trade round. According to the NGOs, "Since many
WTO members are not in favour of a new Round, or are
against it, it is unacceptable for a staff member of an international
organisation to take sides with some Members against
173. Cairns Group Farm Leaders Presentation to Cairns Group Ministers,
WT/L/368 (Oct. 11, 2000).
174. See Marrakesh Agreement Establishing the World Trade Organization,
arts. III, VIII:1.
175. Id. art. II:2.
176. Id. art. VI.
177. Press Release, World Trade Organization, Moore Appoints Advisory
Panel on WTO Affairs (July 5, 2001) (available at the WTO website as Press/
236 at http://www.wto.org/english/news_e/pres01_e/pr236_e.htm).
2002] WTO COSMOPOLITICS 337
other members."178 This ill-considered attack is noteworthy
because the NGOs--who are themselves engaging in cosmopolitics--apparently
seek to take away the voice of the independent
DG on the grounds that he is not a government and
should stay neutral in trade affairs.
The WTO Secretariat has become more activist in recent
years and is entering the cosmopolitical fray. Before the Seattle
Ministerial, the Secretariat began using the WTO website to
respond to criticisms from anti-WTO activists.179 In March
2001, the Secretariat released GATS--Fact and Fiction, which illustrates
complaints about the WTO (for example, from Ralph
Nader) and then debunks them.180
International organizations also engage in cosmopolitics
via their relationships with other international organizations.
For example, in February 2002, top officials of the six core
agencies in the Integrated Framework held a final plenary
meeting. The participants were the heads or deputies of the
International Monetary Fund, the International Trade Centre,
the U.N. Conference on Trade and Development, the U.N.
Development Programme, the World Bank, and the WTO.
Following the meeting, the agency officials issued a joint communiqué
reaffirming their "collective commitment to assist
the meaningful integration of developing and least-developed
countries into the multilateral trading system and the global
economy."181 Meetings of governments--for example, the G-
7--routinely issue similar communiqués following summits.
178. Joint NGO Statement, NGOs Urge Governments to Call Off "New
Round" Proposal (Mar. 19, 2001) (available at Third World Network's website
at http://www.twnside.org.sg/title/joint3.htm).
179. World Trade Organization, Criticism, Yes . . . Misinformation, No!, at
http://www.wto.org/english/thewto_e/minist_e/min99_e/english/misinf_
e/10tide_e.htm.
180. World Trade Organization, GATS--Fact and Fiction 7 (2001), at
http://www.wto.org/english/tratop_e/serv_e/gatsfacts1004_e.pdf.
181. See WTO News, Final Joint Communique by the Six Core Agencies of
the Integrated Framework--IMF, ITC, UNCTAD, UNDP, World Bank and
WTO (Feb. 26, 2002), at http://www.wto.org/english/news_e/news02_e/
ifjointm_washington_feb02_e.htm. Information on the Integrated Framework
can be found at the WTO website at http://www.wto.org/english/
tratop_e/devel_e/teccop_e/if_e.htm. The IMF also has tried to be a "good
neighbor" in Washington D.C. See IMF, Community Relations--Helping
Achieve a Better Tomorrow, at http://www.imf.org/external/np/cpac/in-
dex.htm.
338 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
But for a group of U.N. and non-U.N. civil servants to make
such a public commitment is unusual and demonstrates how
international agencies can join together to make political
statements.
6. Parliamentary Participation
Elected parliamentarians have no official role in the
WTO, but since 1999, they have begun to work together transnationally
to influence WTO processes. Director General
Moore addressed the Legislators Assembly in Seattle and since
then has invited legislators to take a greater interest in the
WTO.182 Addressing a European Parliament seminar in April
2001, he reported that "more might be done to involve Parliamentarians
in the WTO's work. I believe Parliamentarians
could, if given the opportunity, assist governments to bridge
the gap between the WTO and voters by holding public hearings
and better engaging the public at home in the creation
and implementation of policy."183
In June 2001, the Inter-Parliamentary Union (IPU) sponsored
a world parliamentary meeting on international trade in
which elected officials from seventy-one parliaments participated.184
Speaking to that meeting, Moore said: "I would like
to see a regular week put aside in Geneva with parliamentarians
and NGOs to work with all the agencies and institu-
tions."185
At Doha, over one hundred parliamentarians from different
countries convened to discuss the trade negotiations and
the possibilities for more systematic involvement of parliamentarians
in the work of the WTO.186 The parliamentarians is-
182. Director-General Mike Moore, Speech Notes to Legislators Assembly
(Dec. 2, 1999) (transcript available at the WTO website at http://www.
wto.org/english/news_e/pres99_e/pr159_e.htm).
183. Moore, supra note 122.
184. Press Release, Inter-Parliamentary Union, WTO Director General Dialogues
with MPs at IPU Meeting on International Trade (June 9, 2001) (on
file with the Inter-Parliamentary Union's website at http://www.ipu.org/
press-e/gen119.htm).
185. Mike Moore, Address to Inter-Parliamentary Union Meeting on International
Trade on Promoting Openness, Fairness and Predictability in International
Trade for the Benefit of Humanity (June 8, 2001) (transcript available
at http://www.wto.org/english/news_e/spmm_e/spmm64_e.htm).
186. Press Release, Inter-Parliamentary Union, Parliamentarians for More
Transparency and Accountability of World Trade Negotiations (Nov. 12,
2002] WTO COSMOPOLITICS 339
sued a Final Declaration calling for "a parliamentary dimension
to the WTO."187
Inter-parliamentary meetings began in the 19th century
and so are hardly a new practice. By contrast, holding parliamentary
meetings alongside global negotiations is a late 20thcentury
development with important potential. The Global
Legislators Organization for a Balanced Environment
(GLOBE) and Parliamentarians for Global Action have done
this for several years.188 Such parliamentary meetings likely
will play a heightened role in the cosmopolitics of the future.
7. Broadening Official Delegations
The practice of putting nongovernment individuals on a
government delegation to an international negotiation began
in the 19th century, driven by the need for expertise and the
hope for public support. In 1930, William Rappard observed
that government delegations entrusted with commercial negotiations
sometimes included the heads or permanent secretaries
of associations set up to defend interests of industries,
crafts, and agriculture.189 He lamented that this factor
"tended to favor a protective and restrictive trade policy."190
This problem points to the questionable value of having
governments select private individuals to put on an official delegation.
Rather than selecting persons with a broad range of
views for the purpose of improving dialogue, a government
may add private individuals to its delegation simply to reinforce
the policy preferences of the officials doing the selecting.
As Jagdish Bhagwati explains, "[I]t is evident that it is up
to the governments that negotiate to give their preferred
NGOs, business and union lobbies a place on their negotiating
teams."191
2001) (on file with the Inter-Parliamentary Union at http://www.ipu.org/
press-e/gen124.htm).
187. A copy of the declaration by the Inter-Parliamentary Union on Nov.
11, 2001, is available at its website at http://www.ipu.org/splz-e/doha.htm.
188. See HILARY FRENCH, VANISHING BORDERS 171-72 (2000) (discussing
GLOBE).
189. WILLIAM E. RAPPARD, UNITING EUROPE 141 (1930).
190. Id.
191. Jagdish Bhagwati, After Seattle: Free Trade and the WTO, 77 INTĹ AFF.
15, 29 (2001).
340 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
Several governments put NGOs on their delegations to
the Seattle and Doha ministerial conferences. No overall
study as to what those NGOs did in Seattle or Doha has come
to the attention of this author. A recent paper by Hilary
Coulby analyzes the experiences of the British and Kenyan
NGOs in Seattle, and concludes that it was positive.192
8. NGOs Speaking for Themselves
The defining feature of cosmopolitics is broad participation
in governance. Actors participate as individuals or as representatives
of groups. Keen observers recognize the heterogeneous
nature of participation, and learn to be skeptical of
anyone's self-description of for whom they speak. Thus, if a
delegate from a development NGO asserts that she speaks for
poor people, no one should assume that this claim is literally
true. Similarly, when an elected official asserts that he is the
"single voice" of an entire country on trade, that claim should
be met with skepticism.
An individual may, in his mind, delegate to several actors
the responsibility of speaking for him in world cosmopolitics.
These delegations may occur simultaneously--for example, to
a government, a professional association, a religion, and an
environmental NGO.193 The individual knows that in domestic
law, his government speaks for him whether or not he
agrees to such delegation. But he may view other institutions
as better champions of his views, on a particular issue, than the
elected government of his country of citizenship.194
Broad participation does not mean that all players have
identical rights and roles. Some tasks--like signing treaties--
192. Hilary Coulby, Going to Qatar: How to Get an NGO Representative on
Your Government Delegation, CATHOLIC AGENCY FOR OVERSEAS DEVELOPMENT
POLICY REPORT (2001), at http://www.cafod.org.uk/policy/qatarngorep.
shtml.
193. Cf. LASSWELL & MCDOUGAL, supra note 90, at 188 (noting that individuals
"identify and affiliate with, and make demands on behalf of, many different
groups--including not merely nation-states, but lesser territorial communities,
international governmental organizations, political parties, pressure
groups, tribes, families, and private associations of all kinds").
194. Cf. David Held, The Transformation of Political Community: Rethinking
Democracy in the Context of Globalization, in DEMOCRACY'S EDGES, supra note 55,
at 84, 107 ("In this system of cosmopolitan governance, people would come
to enjoy multiple citizenships--political membership in the diverse political
communities which significantly affect them.").
2002] WTO COSMOPOLITICS 341
generally are reserved only to governments, while other
tasks--like proposing treaties--can be engaged in by individuals
and NGOs. For example, Jody Williams and the International
Campaign to Ban Landmines had key roles in the
treatymaking process.195
The mantras that the WTO is strictly "government-to-government"
and "member-driven" may have some descriptive validity,
but are useless guides for determining how the WTO
should interact with NGOs.196 As noted above, the Agreement
Establishing the WTO gave the intergovernmental General
Council the responsibility to make "appropriate arrangements
for consultation and cooperation" with NGOs.197 Yet so far,
the Council has avoided the hard work of thinking through
these potential relationships.
It might be said in response that the General Council carried
out its responsibility by approving the NGO Guidelines of
1996,198 and ruling out, as inappropriate, any direct involvement
by NGOs in the work of the WTO or its meetings. But
that gives the Council too much credit for policy consistency
because the WTO permits involvement by some business
NGOs. For example, the WTO has cooperated with the ICC
and the International Federation of Inspection Agencies
(IFIA) to carry out the Agreement on Preshipment Inspection.199
The ICC also attends on a regular basis the Technical
Committees established under the WTO Agreements on Rules
of Origin and Customs Valuation.200
195. See Motoko Makata, Building Partnerships Toward a Common Goal: Experiences
of the International Campaign to Ban Landmines, in THE THIRD FORCE:
THE RISE OF TRANSNATIONAL CIVIL SOCIETY 143 (Ann M. Florini ed., 2000);
Richard Price, Reversing the Gun Sights: Transnational Civil Society Targets Land
Mines, 52 INTĹ ORG. 613 (1998).
196. See Jackson, supra note 110, at 67, 71-72, 76-77 (questioning the man-
tras).
197. See supra text accompanying note 109.
198. See supra text accompanying note 102.
199. Richard Blackhurst, The Capacity of the WTO to Fulfill Its Mandate, in
THE WTO AS AN INTERNATIONAL ORGANIZATION 31, 43-44 (Anne O. Krueger
ed., 1998). The IFIA is a trade association for inspection agencies, laboratories,
and allied businesses. Further information on the IFIA can be found at
its website at www.ifia-federation.org.
200. Agreement on Rules of Origin, art. 4:2 & Annex 1:6, Apr. 15, 1994,
Marrakesh Agreement Establishing the World Trade Organization, Annex
1A, at http://www.wto.org/english/docs_e/legal_e/22-roo.pdf; E-mail from
342 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
In his recent speech to the WTO's 2001 symposium for
NGOs, Director-General Moore pointed out the need to recognize
that appropriate NGO participation varies according to
the WTO task at issue.201 Specifically, he called for an NGO
"code of conduct" and then suggested that governments and
their institutions give those who follow such rules "a stake in
the process."202 Then he said, "And we need to accept that
there is a fundamental difference between transparency and
participation on the one hand and negotiations on the
other--which in the end only Governments can do."203
Moore seems to be suggesting that NGO "participation" is appropriate
for some WTO processes yet not for negotiations.204
In making that point, Moore is a few steps ahead of most WTO
Member governments who see no role for NGOs, so his disFred
Wong, WTO Secretariat, to Steve Charnovitz (Apr. 25, 2001) (on file
with author); Agreement on Implementation of Article VII of the General
Agreement on Tariffs and Trade, art. 18:2, Apr. 15, 1994 [Customs Valuation],
at http://www.wto.org/english/docs_e/legal_e/20-val.pdf; E-mail
from Aziz El Kassimy, Deputy Director Valuation Sub-Directorate World Customs
Organization, to Steve Charnovitz (Apr. 25, 2001) (on file with au-
thor).
201. Mike Moore, Address to WTO Symposium on Issues Confronting the
World Trading System on Open Societies, Freedom, Development and
Trade (July 6, 2001) (transcript available at the WTO website at www.
wto.org/english/news_e/spmm_e/spmm67_e.htm).
202. Id.
203. Id. For further analysis along these lines, see José E. Alvarez, How Not
to Link: Institutional Conundrums of an Expanded Trade Regime, 7 WIDENER L.
SYMP. J. 1, 8 (2001) ("The question of NGO participation within the WTO is
not one policy question but many, probably requiring distinct responses depending
on the type of participation envisioned, the entity seeking access,
and the level of WTO action under discussion.").
204. Cf. Keohane & Nye, supra note 60, at 289 ("It would be problematic,
however, to give NGOs the right to participate in trade bargaining sessions,
since consummating deals often requires a certain degree of obfuscation of
the trade-offs being made."); David Robertson, Australia's Relationship with the
World Trade Organization 5 (Aug. 23, 2000) (submission to Joint Standing
Committee on Treaties, on file with author) ("Since trade negotiations are
about bargaining which depends on confidentiality, there is a philosophical
conflict between the craft of trade negotiations and the art of propaganda
used by lobby groups."); WTO General Council, WTO: External Transparency--General
Principles, Communication from Hong Kong, China, WT/GC/
W/418 at 3 (Oct. 31, 2000) ("It will be impossible for the WTO to function
as a negotiation forum on international trade should it be required to reconcile
the interests and positions of different political factions and domestic
constituencies of individual Members.").
2002] WTO COSMOPOLITICS 343
tinction can suffice for now. Eventually however, governments
will need to divide the broad function of "negotiations" into
those tasks that would benefit from NGO participation and
those that need to be performed solely by diplomats and bureaucrats.
For instance, the ongoing discussions in the WTO's
Working Group on Transparency in Government Procurement
might benefit from the participation of Transparency International
(TI) and other NGOs.205 What is needed is a matrix
listing the discursive processes in the WTO, and then
designating the appropriate form of NGO consultation and
cooperation for each of them.
Two main strategies exist for how the WTO can involve
NGOs. The WTO can marginalize the NGOs or can mainstream
them. So far, the WTO has marginalized most NGOs by not
allowing them to do anything more than attend symposia. A
better strategy would be to mainstream NGOs into the regular
work sessions of WTO councils, committees, and bodies. As
former GATT and WTO legal adviser Ernst-Ulrich Petersmann
explains, "[The symposia are] no substitute for institutionalizing
civil society representatives as an advisory body with access
to WTO documents and the right to submit recommendations
to all WTO bodies subject to procedures which ensure
more accountability of NGOs and check their democratic legitimacy."206
Other trade experts also have endorsed an NGO
consultative body. For example, Americo Beviglia Zampetti
suggests that a WTO advisory body would give civil society
groups "a microphone to replace the megaphone."207 Some
205. Abbott, supra note 166, at 294. He notes that the OECD received
input from NGOs in preparing its Convention on Bribery of Foreign Government
Officials.
206. Ernst-Ulrich Petersmann, Human Rights and International Economic
Law in the 21st Century: The Need to Clarify Their Interrelationships, 4 J. INTĹ
ECON. L. 3, 37 (2001) (footnote omitted). In quoting Petersmann, I am not
endorsing his use of the word "representative." In my view, the rationale for
NGO participation in the WTO is that they can present ideas overlooked or
undervalued by governments. I do not see NGOs as performing the same
representative function that elected officials do, and hence I am not as concerned
as Petersmann is about the accountability and democratic legitimacy
of NGOs.
207. Zampetti, supra note 25, at 45-46.
344 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
analysts have suggested that the WTO hold public hearings on
specific issues and give NGOs an opportunity to testify.208
If organized consultation and cooperation with NGOs is
too bold a step for WTO governments, then the General
Council could start by authorizing NGO input into the WTO
subsidiary bodies that study and debate issues, rather than negotiate
them. Two such bodies are the Committee on Trade
and Development and the Committee on Trade and Environment.
The Doha Declaration gives these Committees a new
mandate for the new trade round to "act as a forum to identify
and debate developmental and environmental aspects of the
negotiations, in order to help achieve the objective of having
sustainable development appropriately reflected."209 Such a
forum could become useful if the participation were more diverse
than the trade bureaucrats who typically attend WTO
committee meetings.
As of March 2002, the WTO has engaged in only a few
instances of mainstreaming NGOs. The main arena of progress
is in WTO dispute settlement where a courageous Appellate
Body has held out a possibility for an NGO to submit an
amicus brief in WTO adversary proceedings. This experience
will be discussed in the next section.
B. The Controversy Over Amicus Briefs
This article will provide only a very brief summary of the
WTO jurisprudence on amicus briefs.210 The WTO Under-
208. See, e.g., Bernhard May, Globalisation, Democracy and Trade Policy, in
THE WORLD TRADE ORGANIZATION MILLENNIUM ROUND: FREER TRADE IN THE
TWENTY-FIRST CENTURY 72 (Klaus G¨unter Deutsch & Bernhard Speyer eds.,
2001).
209. Ministerial Declaration, supra note 160, para. 51.
210. For greater detail, readers may consult the growing legal literature
on this topic. See, e.g., Padideh Ala'i, Judicial Lobbying at the WTO: The Debate
Over the Use of Amicus Curiae Briefs and the U.S. Experience, 24 FORDHAM INTĹ
L.J. 62 (2000); Arthur E. Appleton, Amicus Curiae Submissions in the Carbon
Steel Case: Another Rabbit from the Appellate Body's Hat?, 3 J. INTĹ ECON. L. 691
(2000); Ernesto Hernández-López, Recent Trends and Perspectives for Non-State
Actor Participation in World Trade Organization Disputes, 35 J. WORLD TRADE 469
(2001); Gabrielle Marceau & Matthew Stilwell, Practical Suggestions for "Amicus
Curiae" Briefs Before WTO Adjudicating Bodies, 4 J. INTĹ ECON. L. 155, 156-
64 (2001); Petros C. Mavroidis, "Amicus Curiae" Briefs Before the WTO: Much
Ado About Nothing, Jean Monnet Working Paper (Feb. 2001), at http://www.
jeanmonnetprogram.org/papers/01/010201.html; Denise Prévost, WTO
2002] WTO COSMOPOLITICS 345
standing on Rules and Procedures Governing the Settlement
of Disputes does not specifically open the door to amicus curiae
briefs.211 In its Shrimp-Turtle decision in 1998, the Appellate
Body ruled that panels may solicit an NGO brief and may
consider an unsolicited brief.212 In its Carbon Steel decision
in May 2000, the Appellate Body ruled that it had the legal
authority to accept and consider an NGO brief in an appeal in
which "we find it pertinent and useful to do so."213
The Carbon Steel decision provoked consternation
among governments. During a June 2000 session of the Dispute
Settlement Body, several government delegates complained
that the Appellate Body had not provided sufficient
guidance as to when it would accept an NGO brief.214 In view
Subsidies Agreement and Privatised Companies: Appellate Body "Amicus Curiae"
Briefs, 27 LEGAL ISSUES OF ECON. INTEGRATION 279 (2000); Andrea Kupfer
Schneider, Unfriendly Actions: The Amicus Brief Battle at the WTO, 7 WIDENER L.
SYMP. J. 87 (2001); Georg C. Umbricht, An `Amicus Curiae Brief' on Amicus
Curiae Briefs at the WTO, 4 J. INTĹ ECON. L. 773 (2001); Issues of "Amicus
Curiae" Submissions: Note by the Editors, 4 J. INTĹ ECON. L. 701 (2000); Geert
A. Zonnekeyn, The Appellate Body's Communication on "Amicus Curiae" Briefs in
the "Asbestos" Case. An Echternach Procession?, 35 J. WORLD TRADE 553 (2001);
August Reinisch & Christina Irgel, The Participation of Non-governmental Organisations
(NGOs) in the WTO Dispute Settlement System, 1 NON-STATE ACTORS
& INTĹ L. 127 (2001), at http://www.kluweronline.com/issn/1567-7125/
current.
211. See Understanding on Rules and Procedures Governing the Settlement
of Disputes, Apr. 14, 1994, Marrakesh Agreement Agreement Establishing
the World Trade Organization, Annex 2 [hereinafter DSU]. The
lack of a specific provision may not be surprising. U.S. federal law has no
such provision either. Courts have filled in this lacuna with their own rules.
See Ala'i, supra note 210, at 86-93 (discussing U.S. Supreme Court rules);
Natĺ Org. for Women, Inc. v. Scheidler, 223 F.3d 615 (7th Cir. 2000) (clarifying
the policy in the Seventh Circuit on consideration of amicus briefs).
212. WTO Appellate Body Report, United States--Import Prohibitions of
Certain Shrimp and Shrimp Products, WT/DS58/AB/R, paras. 104, 110
(Oct. 12, 1998) [hereinafter Shrimp and Shrimp Products].
213. WTO Appellate Body Report, United States--Imposition of Countervailing
Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products
Originating in the United Kingdom, WT/DS138/AB/R, para. 42 (May
10, 2000).
214. WTO Dispute Settlement Body, Minutes of Meeting, WT/DSB/M/
83, para. 5 (quoting the EC as saying that the Appellate Body (AB) did not
provide any guidance), para. 12 (quoting Canada as saying that the AB had
provided no guidance), para. 15 (quoting Hong Kong as saying that the AB
decision was practically problematic and not a model of clarity), para. 16
(quoting Hungary as saying that the AB had not elaborated on criteria for
346 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
of the short time frames in an appeal,215 the litigant governments
and the third parties need to know immediately if "useful"
NGO views are being considered in order to be able to
respond to them. Yet the imprecise Appellate Body decision
left open the possibility that an NGO brief might be accepted
and read without transparency.
The next opportunity for the Appellate Body to provide
greater clarity occurred in the appeal of the Asbestos dispute,
and the jurists acted to do so.216 On November 7, 2000, the
division of the Appellate Body considering the appeal adopted
an "Additional Procedure" to govern non-party briefs in the
Asbestos dispute.217 The Appellate Body notified the Dispute
Settlement Body of this procedure the following day on November
8th and the WTO Secretariat posted the communication
on the WTO website that evening.218 The new Procedure
was adopted pursuant to the Working Procedures for Appellate
Review, which provide:
In the interests of fairness and orderly procedure in
the conduct of an appeal, where a procedural question
arises that is not covered by these Rules, a divifuture
decisions) (July 7, 2000), WT/DSB/M83. It should also be noted that
many of these governments and other governments stated that the Appellate
Body's decision was incorrect as to the legality of an amicus submission in
the WTO system. Nevertheless, the Dispute Settlement Body adopted the
Appellate Body decision. Id. para. 35. The Dispute Settlement Body is composed
of representatives of all WTO Member governments.
215. DSU, supra note 211, art. 17:5 establishes a normal time limit of sixty
days that can be extended up to ninety days.
216. This was a dispute between Canada (plaintiff) and the European
Communities (defendant) about a French ban on the importation of asbestos
fiber. Laura Yavitz, The World Trade Organization Appellate Body Report, European
Communities--Measures Affecting Asbestos and Asbestos-Containing Products,
Mar. 12, 2001, WT/DS135/AB/R, 11 MINN. J. GLOBAL TRADE 43, 56-57
(2002).
217. Communication from the Appellate Body, European Communities--
Measures Affecting Asbestos and Asbestos Containing Products, WT/
DS135/9 (Nov. 8, 2000) [hereinafter Communication on Measures Affecting
Asbestos]. The division are the three members of the Appellate Body hearing
that particular case.
218. See WTO Appellate Body Report, European Communities--Measures
Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R,
paras. 50-51 (March 12, 2001) [hereinafter Report on Measures Affecting
Asbestos]. This report was adopted by the Dispute Settlement Body on April
5, 2001.
2002] WTO COSMOPOLITICS 347
sion may adopt an appropriate procedure for the
purposes of that appeal only, provided that it is not
inconsistent with the DSU [Dispute Settlement Understanding],
the other covered agreements and
these Rules.219
According to the Procedure, any person, whether legal or
natural, would have until noon on November 16, 2000, to file
an application for leave to submit a written brief in the case.220
The Procedure made clear that the governmental parties to
the case would be given a "full and adequate opportunity" to
respond to any amicus brief accepted by the Appellate
Body.221 The Appellate Body probably was proud of this effort
to provide for an orderly consideration of NGO briefs and to
address the procedural concerns voiced by governments a few
months earlier. The use of the WTO website was apposite,
given the need to alert NGOs around the world to the immediate
window of fewer than eight days.
The Appellate Body's action evoked conflicting reactions.
Some social and economic actors around the world were enthusiastic.
Eleven applications were made within the time
deadline, but six arrived too late and were denied.222 In addition,
about thirteen briefs came in before the announcement
of the Procedure or without awareness of it, and were all rejected.223
Together, private submissions came from nineteen
countries.224 The attitude of most governments, however, was
219. WTO Appellate Body--Working Procedures for Appellate Review,
WT/AB/WP/3, para. 16(1) (Feb. 28, 1997).
220. Communication on Measures Affecting Asbestos, supra note 217,
para. 2.
221. Id. para. 9.
222. Report on Measures Affecting Asbestos, supra note 218, para. 55.
223. Id. para. 53 & n.30. Nine briefs had already arrived at the Appellate
Body before the Additional Procedure was finalized. WTO, Special General
Council Meeting on 22 November 2000, Factual Background Note Relating
to the Issue Raised by Certain Members (undated WTO document not in the
public domain).
224. Americas (Argentina, Canada, Colombia, El Salvador, and the United
States); Europe (Belgium, France, Portugal, Switzerland, the Netherlands,
and the United Kingdom); Africa (Senegal and South Africa); and Asia
(Australia, India, Japan, Korea, Sri Lanka, and Thailand). Id. paras. 53 n.30,
55 n.31, 56 n.32.
348 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
condemnatory.225 Egypt, acting on behalf of the Informal
Group of Developing Countries, immediately called a meeting
of the WTO General Council to discuss this situation.226 At
the special meeting, twenty-four governments criticized the
Appellate Body (with four of those governments speaking for a
larger group of countries).227 Four governments did not criticize
the Appellate Body, and only one of those (the United
States) endorsed the Appellate Body's action.228
The criticism by the governments went across the board.
Some delegates called the Additional Procedure a substantive
rather than a procedural matter and hence not justifiable
under the Appellate Body Working Procedures.229 Some governments
objected to the posting of the notice on the WTO
website because that would invite briefs from the public.230
Many of the governments criticized the entire idea of panel or
Appellate Body consideration of amicus briefs and asserted
that WTO rules did not permit this practice. For example,
Hong Kong China said that the issue of amicus briefs had
been considered in the Uruguay Round but rejected.231 Korea
declared that acceptance of amicus briefs should be sus-
225. Daniel Pruzin, WTO Appellate Body Under Fire for Move on Acceptance of
Amicus Briefs, BNA INTĹ TRADE DAILY REP. FOR EXECUTIVES, Nov. 27, 2000, at
A1; International Centre for Trade & Sustainable Development, Amicus Brief
Storm Highlights WTO's Unease with External Transparency, BRIDGES, Nov.-Dec.
2000, at 1, available at http://www.ictsd.org/English/BRIDGES4-9.pdf.
226. World Trade Organization General Council, Minutes of Meeting
Held in the Centre William Rappard on 22 November 2000, WT/GC/M/60,
para. 1 (Jan. 23, 2001) [hereinafter General Council Minutes].
227. These included: Argentina, Bolivia, Brazil, Canada, Chile, Colombia
(on behalf of Andean countries), Costa Rica, Cuba, Egypt (on behalf of the
Informal Group of Developing Countries), Hong Kong China, Hungary (on
behalf of itself and six other Eastern European countries), India, Jamaica,
Japan, Korea, Mexico, New Zealand, Pakistan, Singapore (on behalf of
ASEAN countries), Switzerland, Tanzania, Turkey, Uruguay, and Zimbabwe.
General Council Minutes, supra note 226.
228. These included: Australia, the European Communities, Norway, and
the United States. Id.
229. Id. para. 12 (Egypt).
230. Id. para. 35 (India). Even though India's delegates to the WTO have
argued against NGO participation in dispute settlement, an NGO in India--
the CUTS Centre--has been one of the most articulate advocates for NGO
access. NGO Participation in the WTO Dispute Settlement, ECONOMIQUITY (CUTS
Centre for International Trade, Economics & Environment, Jaipur, India),
July-Oct. 2000, at 1.
231. General Council Minutes, supra note 226, para. 23.
2002] WTO COSMOPOLITICS 349
pended pending further deliberations of the General Council.232
At the end of the meeting, the chair said that he would
communicate to the Appellate Body the points raised at the
meeting and suggest that it "exercise extreme caution."233
By the time that the General Council met on November
22, 2000, the Appellate Body had already exercised such caution.234
All eleven of the timely amicus applications were denied
on, or shortly after, November 16th.235 This has fed speculation
as to how much of the previous Appellate Body holdings
on the legality of amicus briefs survive. Subsequent to
that General Council meeting, no WTO panel or Appellate
Body division has indicated acceptance of an NGO brief.
The controversy over amicus briefs provides a case study
of cosmopolitics in action. Beginning in the Hormones dispute
in 1996, NGOs have drafted briefs for WTO panels and
sent them in unbidden.236 The WTO had no rule specifically
permitting such briefs. Nevertheless, the NGOs acted on their
own to change WTO practice regarding the admissibility of
private briefs in dispute settlement.237 As Kant would have understood,
no special agreement among nations was needed for
such NGO activism because the offering of advice to governments
exists as an obligation of universal human reason.238 In
the Shrimp-Turtle litigation, some of the NGOs underlined
232. Id. para. 85.
233. Id. paras. 123, 131.
234. Zonnekeyn, supra note 210, at 563 (suggesting that the U-turn by the
Appellate Body arose because of opposition by WTO Members); Duncan B.
Hollis, Private Actors in Public International Law: Amicus Curiae and the Case for
the Retention of State Sovereignty, 25 B.C. INTĹ & COMP. L. REV. 235, 254 (2002)
(suggesting that the General Council meeting motivated the Appellate Body
to reject the amicus briefs).
235. Report on Measures Affecting Asbestos, supra note 218, at para. 56;
Ala'i, supra note 210, at 82.
236. See Steve Charnovitz, The World Trade Organization, Meat Hormones, and
Food Safety, 14 INTĹ TRADE REP. 1781, 1786 (1997).
237. See Sir John Fischer Williams, The Legal Character of the Bank for International
Settlements, 24 AM. J. INTĹ L. 665, 665 (1930) ("The admission of the
individual to the international world will perhaps result rather from the extension
and development of current practice than from any formal act definitely
opening to him the international doors.").
238. See supra text accompanying note 12.
350 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
the cosmopolitical nature of their action by authoring briefs as
a coalition of NGOs from both the south and north.239
At the vortex stands the Appellate Body. Unlike the legislative
bodies of the WTO--which have a ready excuse (i.e., the
WTO consensus rule240) for their inaction on a wide range of
important trade issues241--the Appellate Body has to make difficult
decisions regularly and on a tight timeframe.242 The
WTO treaty has no provision for an amicus brief and yet this
silence is hardly dispositive, as the Appellate Body is charged
with interpreting the treaty in accordance with the customary
rules of interpretation of public international law.243 Although
the Appellate Body was pressing the limits of reasonable
interpretation in perceiving opportunities for amicus
briefs within the contours of WTO rules, its actions were justifiable
in the absence of any specific WTO legislation on the is-
sue.244
In Joseph Weiler's analysis, the Appellate Body was pulled
between the challenges of internal and external legitimacy in
deciding the issue of amicus briefs.245 The challenge of internal
legitimacy is to act as a trade court inside an organization
239. WTO Appellate Body Report, United States--Import Prohibitions of
Certain Shrimp and Shrimp Products, WT/DS58/AB/R, para. 79 (Oct. 12,
1998), at http://www.wto.org/english/tratop_e/dispu_e/distabase_e.htm;
WTO Panel Report, United States--Import Prohibitions of Certain Shrimp
and Shrimp Products, Recourse to Article 21.5 by Malaysia, WT/DS58/RW,
para. 5.14 (June 15, 2001).
240. WTO Agreement, supra note 145, art. IX:1.
241. Writing a few weeks before the Doha conference, a former WTO Director-General
did not soft-pedal his disappointment at the poor record of
the WTO. Peter Sutherland, Doha and the Crisis in Global Trade, FIN. TIMES,
Sept. 4, 2001, at 21 ("Yet in some ways the difference between the foolish
activists on the streets who seek to destroy the institution and those supposedly
responsible political leaders who are prepared to stand on the sidelines
and allow the WTO to become moribund is slight.").
242. See DSU, supra note 211, arts. 17.5, 17.12.
243. Id. art. 3.2. See Joost Pauwelyn, The Role of Public International Law in
the WTO: How Far Can We Go?, 95 AM. J. INTĹ L. 535 (2001).
244. Zonnekeyn, supra note 210, at 558, 62-63 (stating that the Additional
Procedure was within the boundaries of WTO law and caselaw and was not
ultra vires).
245. J.H.H. Weiler, The Rule of Lawyers and the Ethos of Diplomats: Reflections
on the Internal and External Legitimacy of WTO Dispute Settlement, 35 J. WORLD
TRADE 191, 204 (2001). Weiler suggests that the Appellate Body take measured
steps: "Go too far in one direction and the Appellate Body will find
itself under severe internal challenge. Go too far in the other direction and
2002] WTO COSMOPOLITICS 351
with a diplomatic ethos and intergovernmental reflex.246 The
challenge of external legitimacy is to preserve the integrity of a
legal process where the notion of excluding voices affected by
one's decision runs counter to the very principles of natural
justice.247
Even as the Appellate Body was being attacked within the
WTO, its rulings on amicus briefs were having a progressive
impact outside the WTO on the jurisprudence of the North
American Free Trade Agreement (NAFTA). In the Methanex
dispute brought under the NAFTA investment chapter, Chapter
Eleven, the arbitral tribunal ruled that it had the power to
accept amicus briefs from private actors even though NAFTA
lacks any provision specifically permitting such briefs.248 The
tribunal reasoned such "WTO practice demonstrates that the
scope of a procedural power can extend to the receipt of written
submissions from non-party third persons, even in a judicial
procedure affecting the rights and obligations of state parties
. . . ."249 Furthermore, the tribunal noted, as a public interest
factor, that the Chapter Eleven arbitral process "could
benefit from being perceived as more open or transparent; or
conversely be harmed if seen as unduly secretive."250 It is init
will not only become a target of outside sharp attacks but open itself to
attack as bowing to political pressure." Id. at 204.
246. Id. at 201, 203-04.
247. Id. at 204.
248. Methanex v. United States, Decision of the Tribunal on Petitions from
Third Persons to Intervene as "Amici Curiae" [hereinafter Methanex], paras.
24, 47, 52 (Jan. 15, 2001), at http://iisd1.iisd.ca/pdf/methanex_tri
bunal_first_amicus_decision.pdf. This dispute was brought by Methanex
Corporation (a Canadian company) against the United States claiming that
California's ban on a gasoline additive violated the NAFTA investment provisions
on national treatment, a minimum international standard of treatment,
and expropriation. Peter Menyasz, NAFTA Panel Says NGOs Can Intervene
in Cases Brought for Arbitration Purposes, BNA DAILY REP. FOR EXECUTIVES,
Jan. 30, 2001, at A-5. This phase of the case began when the International
Institute for Sustainable Development submitted a petition to the tribunal
requesting permission to submit an amicus curiae brief. Chapter 11 Decision,
para. 1. The tribunal took note of the petition, which was the first
procedural step to its decision that it was presently minded to receive such
submissions. Id. para. 53. Methanex sought to keep out the amicus briefs.
Id. para. 11. The U.S. government replied that the Tribunal should allow
the amicus briefs. Id. para. 16.
249. Methanex, supra note 248, para. 33.
250. Id. para. 49.
352 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
teresting to note that the Government of Mexico submitted a
brief (as a non-disputing State party to NAFTA) arguing that
NAFTA did not permit consideration of amicus briefs.251 One
of Mexico's arguments was that there was no power under
Mexican law for domestic courts to receive amicus briefs.252
The tribunal apparently was not persuaded that its procedures
needed to be a lowest common denominator of the parties to
the treaty.
Writing many years ago about the law of international organizations,
Louis B. Sohn explained that a "difficult balance"
would need to be found, on the one hand, between the sanctity
of the constitution and the rule of law, and on the other
hand, "ensuring through imaginative interpretation the survival
of the organization in the stress and strain of modern civilization."253
In making its decisions regarding amicus briefs,
the Appellate Body used imaginative interpretation to promote
the survival of the WTO amid the stress and strains of
cosmopolitics.
V. CONCLUSION
Cosmopolitics is the new world order.254 NGO activism
does not reflect "disorder."255 Rather, it is natural for individuals
to want to participate in governance decisions that affect
them, from the village to the international organization. Beginning
with Kant, a cosmopolitical tradition has flowered as a
challenge to state-centric authority.
251. Id. para. 9.
252. Id. paras. 9, 15.
253. Louis B. Sohn, Expulsion or Forced Withdrawal from an International Organization,
77 HARV. L. REV. 1381, 1423 (1964).
254. See FREDERICK CHARLES HICKS, THE NEW WORLD ORDER 280 (1920)
("Practically all public international unions owe their origin to private initiative;
and when they are organized they prosper or are allowed to lapse according
as they are suited to the needs of citizens of the various states.").
255. The terrorism of September 11, 2001, has altered NGO tactics away
from physical demonstrations and violence. Alan Beattie, Anti-globalization
Warriors Shift Their Ground: The Appetite for Mass Confrontations at International
Conferences Has Diminished, FIN. TIMES, Nov. 9, 2001, at 10. This is a positive
development. But governments also may be less tolerant of dissent. On September
11, the Wall Street Journal ran a little-noticed front page story about
how governments were stepping up efforts to infiltrate NGOs. See Michael
M. Phillips, Police Go Undercover to Thwart Protesters Against Globalization, WALL
ST. J., Sept. 11, 2001, at A1.
2002] WTO COSMOPOLITICS 353
Ironically, cosmopolitics is less advanced in the WTO than
in other international organizations, and yet the WTO may
need more of it than other organizations do. Since the main
role of WTO rules is to supervise governmental trade restrictions,
the voices of those hurt by such restrictions should be
part of the policy conversation at the WTO. Concern about
protectionism is a core theme of southern NGOs, but this
problem has not yet become a priority of northern NGOs.
Rather, many northern NGOs have focused their attention on
the way that trade rules can restrict domestic regulation. With
the initiation of a new trade round, NGOs are likely to step up
their efforts to monitor and influence the WTO. Other intergovernmental
organizations are likely also to watch WTO developments
more closely than in the past. In future trade disputes,
some intergovernmental organizations may consider
the possibility of offering an amicus curiae submission to a
WTO dispute panel.
In advocating that the WTO engage in more consultation
and cooperation with civic society, I am not suggesting that the
most vocal NGO criticism of the WTO is justified. In my view,
many of the leading WTO critics are anti-trade, anti-development,
anti-technology, and anti-international law. Rather than
"think[ing] globally, but act[ing] locally" (to quote René
Dubos256), or trying to think globally and act globally, many of
the anti-globalization critics are "thinking locally and acting
globally."257 That is a dangerous brew.
More WTO cosmopolitics could improve the WTO, but it
also could improve the quality of debate by civil society groups.
It is easy to chant nonsense slogans in the streets, yet harder to
offer sensible criticism that can be challenged by countervailing
views. The best way to promote more constructive
NGO participation is by making the WTO a better marketplace
of ideas.258
256. REN É DUBOS, CELEBRATIONS OF LIFE 83 (1981).
257. SUSAN ARIEL AARONSON, TAKING TRADE TO THE STREETS 187 (2001).
For an example, see COLIN HINES, LOCALIZATION: A GLOBAL MANIFESTO
(2000).
258. Globalization and Its Impact on the Full Enjoyment of Human Rights, U.N
Commission on Human Rights, Sub-commission on the Promotion and Protection
of Human Rights, 53d Sess., Agenda Item 4, para. 68, U.N. Doc. E/
CN.4/Sub.2/2001/10 (Aug. 2, 2001) ("Given the diverse points of view articulated
by different groups in society, it is imperative that there be space
354 INTERNATIONAL LAW AND POLITICS [Vol. 34:299
To return to Commissioner Lamy's question, the answer
is yes: We need cosmopolitics in order to harness globalization.
Nearly two hundred years ago, David Ricardo provided
the vision of how "a system of perfectly free commerce" would
bind together, "by one common tie of interest and intercourse,
the universal society of nations throughout the civilized
world."259 Free commerce is certainly a step in the right
direction, but the society of nations also needs a governance
structure to supervise the ties of interest and intercourse in an
interdependent world.
both at the domestic and international levels for enhanced dialogue between
civil society and local and global macroeconomic decision-makers
. . . ."); Julie Mertus, Considering Nonstate Actors in the New Millennium:
Toward Expanded Participation in Norm Generation and Norm Application, 32
N.Y.U. J. INTĹ L. & POL. 537, 554-55 (2000) (noting the new ideas, approaches,
and solutions that spring forth from NGOs); see also JOHN KEANE,
CIVIL SOCIETY 50 (1998) ("Modern civil society is a restless battlefield where
interest meets interest.").
259. DAVID RICARDO, PRINCIPLES OF POLITICAL ECONOMY AND TAXATION 93
(Prometheus Books 1996) (1817).