To the Editor:
In the January/February 2003 issue of Foreign Affairs ("The WTO on Trial"), Susan Esserman and Robert Howse review the World Trade Organization's dispute-settlement record and conclude that critics' claims of judicial activism are largely unfounded. If only that were true.
As Esserman and Howse correctly note, binding dispute settlement is one of the most important innovations in the WTO, and this innovation brings with it great promise. Yet, with that promise comes great danger as well.
The authors examine three alleged instances of activism: the anti-globalization movement's claimsregarding the beef hormones case, the environmental community's concerns with the shrimp-turtle dispute, and the question of the WTO Appellate Body's acceptance of amicus curiae briefs. Having analyzed these three claims, the authors conclude that the Appellate Body has not engaged in judicial activism and that it has followed the "cautious approach" of adopting legal interpretations most deferential to sovereignty in cases where the treaty texts haveb been ambiguous.
The claims the authors chose to evaluate, however, are hardly the strongest ones that can be leveled at the Appellate Body's judicial activism. Having erected this straw man, they breezily conclude that "sweeping criticisms of judicial activism ... do not ... withstand scrutiny." In fact, they grossly understate the problem. The legality of national trade-remedy laws was enshrined in the original WTO agreements, yet the dispute-settlement body has consistently engaged in rule creation, protecting unfair traders and striking down domestic remedies imposed by, for example, the European Union, the United States, Argentina, Thailand, and Mexico. The Appellate Body has failed to uphold a single safeguard measure challenged at the WTO (striking down measures by the United States, Argentina, Chile, and South Korea), effectively rendering the Agreement on Safeguards useless. In several unfair-trade cases, WTO decisions have simply rejected prior General Agreement on Tariffs and Trade determinations that supported the use of trade remedies, without any basis to conclude that the members intended to reverse the prior holdings. It is difficult to see how the Appellate Body's (and the panels') actions in the area of trade remedy do not constitute the very judicial activism of which the authors have seemingly acquitted it. As Daniel Tarullo of Georgetown University has warned, support for future international agreements and liberalization will inevitably be undermined by the WTO's activism.
Nor does this new "world trade court" provide even a modicum of the procedural protection expected of any court empowered to dispense binding justice. Private parties do not have the right to appear to protect their interests, which is utterly inconsistent with the notion of a "judicial" system. Transparency is lacking, panel members are appointed ad hoc, and WTO Secretariat officials "staff" panel decisions.
In recent years, we have seen waves of protests -- e.g., Seattle, European reaction to beef hormones, environmentalists' reaction to shrimp-turtle, congressional denunciations of judicial activism, etc. Although some will dismiss such concerns as being "beneath" a "judicial" system, in fact, if we expect any democratic influence on the international system, such concerns, rather than lawyers' analyses, may prove to be the real test of whether or not the system is too "judicially active."
The members of the WTO must insist that panels stop "making" law. Internationally, if a sovereign nation has not agreed to give up its right to do something, it retains that right. Internationally, if the rules are ambiguous, they are to be interpreted in favor of the challenged nation's sovereign rights (as Esserman and Howse note, unclear rules are "another reason for the Appellate Body to exercise restraint"). Until the WTO dispute-settlement body understands and applies these crucial doctrines, it will put the entire system at risk.
John Ragosta, Navin Joneja, and Mikhail Zeldovich
International trade attorneys, Washington, D.C., and Toronto