(De)legitimation at the WTO dispute settlement mechanism.

Author:Creamer, Cosette D.
 
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ABSTRACT

International courts employ a variety of legitimation strategies in order to establish and maintain a sound basis of support among their constituents. Existing studies on the legitimating efforts and legitimacy of the World Trade Organization's (WTO) judicial bodies have relied largely on theoretical or normative priors about what makes them legitimate. In contrast, this Article directly connects the study of courts' legitimating efforts with their effects by empirically mapping the reception of the WTO Dispute Settlement Mechanism's (DSM) exercise of authority by the system's primary constituents--WTO Members. Using an original dataset of WTO Member statements within meetings of the Dispute Settlement Body from 1995-2013 and a series of interviews, this Article provides a descriptive analysis of expressed views on the DSM's exercise of authority over time and across subsets of Members. Through an in-depth examination of statements on focal reports, this Article sheds new light on the sources of the DSM's legitimacy by identifying practices that contribute to reducing or enhancing it in the eyes of the primary constituents of this international institution.

TABLE OF CONTENTS I. INTRODUCTION II. LEGITIMATION AND LEGITIMACY III. DATA AND METHODS IV. GENERAL PATTERNS IN THE DSM'S PERCEIVED LEGITIMACY V. SOURCES OF THE DSM'S PERCEIVED LEGITIMACY A. The Early Years: 1995-2002 B. Ten Years On: 2003-2006 C. The Recent Years: 2007-2013 D. Summary of Focal Report Statements VI. CONCLUSION I. INTRODUCTION

Since the transition from the ad hoc dispute panels under the General Agreement on Tariffs and Trade (GATT) to the more institutionalized Dispute Settlement Mechanism (DSM) of the World Trade Organization (WTO), legal scholars and trade lawyers have focused extensive commentary on how the WTO's adjudicative bodies seek to gain or maintain legitimacy among various constituents. (1) Some argue that WTO dispute settlement panels exercise judicial economy in order to appease the wider membership when governments are ambivalent about a ruling's future consequences. (2) Others contend that the Organization's Appellate Body (AB) adopted an activist approach to procedural issues during its early years as a means to cultivate its legitimacy among WTO Members, (3) while still others emphasize the AB's use of "majoritarian activism" within rulings as a means to overcome government challenges to its exercise of authority. (4)

Relatedly, a few scholars have sought to understand the effects that various institutional practices have on the legitimacy of these bodies. Some argue that the DSM's legitimacy depends on balancing competing values, such as fair procedures, coherence and integrity in legal interpretation, and institutional sensitivity. (5) Others argue that the dispute panels' and Appellate Body's ability to reconcile multilateral trade liberalization with other, sometimes conflicting, values is crucial for its maintenance of public support. (6) Moreover, a significant number of proposals have been put forward regarding how the DSM's legitimacy may be strengthened. (7)

The vast majority of claims about the DSM's legitimacy and related proposals to strengthen it rely on theoretical priors about what makes international courts (ICs)--and the DSM specifically--legitimate. Very few, if any, are grounded in empirical evidence of what makes them legitimate in the eyes of various constituents. In contrast, studies on the legitimating efforts of panels and the Appellate Body--while empirical in nature--have neglected to evaluate the effects of these efforts on the actual or perceived legitimacy of the DSM. The aim of this Article is to bridge this gap between the legitimating efforts of the DSM and their effects by mapping how the DSM's practices have been received by its main constituents--the WTO Members--and by tracing how specific practices have differentially affected Members' views on the legitimacy of the WTO's adjudicative bodies.

To that end, this Article systematically maps WTO member states' expressed views on the DSM's exercise of its judicial authority, drawing on an original dataset of statements made by WTO Members within meetings of the WTO Dispute Settlement Body (DSB) from 1995-2013. (8) The Article applies a mixed methods approach, combining individual text classification with in-depth analysis of statements of interest. The former provides an analysis of fluctuations over time and variation across governments in the perceived legitimacy of the DSM. Qualitative textual analysis is then used to uncover practices that have elicited substantial (DIS) satisfaction among various subsets of Members over the years, thereby shedding light on the sources of the DSM's perceived legitimacy. In order to better understand the context, practices, and motivations of statements made within DSB meetings, this Article also draws from a series of interviews with Member representatives and WTO Secretariat officials. (9)

Political scientists and socio-legal scholars have long recognized that the legitimacy of judicial institutions--and courts in particular--proves central to the exercise of their authority, decisional outcomes, and second-order compliance. (10) Despite the large number of comparative studies (both theoretical and empirical) on the legitimacy of domestic courts, little systematic or empirical analysis has been conducted on the perceived legitimacy of international judicial bodies, such as the WTO DSM. (11) Yet this research is just as--if not more--important than studies on their domestic counterparts, particularly given that ICs cannot rely upon the same "presumption of legitimacy" typically enjoyed by national institutions. Moreover, such studies are critical given the fact that the perceived legitimacy of ICs may have intermediate effects on their independence, authority, and effectiveness. (12)

By identifying when the membership as a whole has expressed relative (dis)satisfaction with the DSM's operation, this Article contributes to separating out the institution's perceived legitimacy from regular complaining or griping by individual governments whose interests are directly affected by the DSM's ruling (i.e., the parties to the dispute). (13) Understanding when and why the DSM's exercise of authority has been challenged provides important insights into which of the DSM's practices are viewed as (de)legitimating in the eyes of its primary constituents--WTO Members. In doing so, this Article lays important groundwork for future research dealing with issues related to the causes and consequences of the perceived legitimacy of the WTO's adjudicative bodies. (14)

The Article proceeds as follows. Part II further unpacks the related concepts of legitimation and legitimacy and describes how we operationalize the latter in the context of the WTO DSM. Part III briefly outlines the data and methods employed to assess the DSM's perceived legitimacy, namely text classification and analysis of government statements within the primary political body responsible for the dispute settlement system, the Dispute Settlement Body. Part IV describes aggregate trends in these revealed views, or the perceived legitimacy of the DSM, focusing on statements issued in the context of report adoption as those most likely to express a view on the DSM's exercise of authority. Part V turns to an in-depth analysis of individual statements on "focal" reports--those that elicited widespread engagement by WTO Members--over the past twenty years. Part VI concludes with a discussion of the Article's implications for our understanding of the WTO's legitimacy and outlines directions for future research.

  1. LEGITIMATION AND LEGITIMACY

    International courts--like many other institutions--employ a wide variety of legitimation strategies in order to establish and maintain a sound basis of support among their constituents. (15) Existing scholarship has focused on a court's selection of justiciable cases, (16) interpretation techniques, (17) and citation practices, (18) providing insights into how various ICs attempt to acquire or maintain legitimacy. Yet research on such legitimation efforts falls prey to the criticism that the underlying rationales of international judges are not directly observable. (19) Scholars thus infer legitimating motivations from revealed behavior, which is classified as "legitimating" in reference to some prior (normative) conception of legitimacy.

    In contrast, assessment of the effects of various judicial practices on a court's legitimacy has both a normative and an empirical dimension. In the normative sense, an IC is legitimate when it is considered worthy of support. (20) Evaluation of the normative legitimacy of the WTO's DSM requires evaluation of the conditions under which it should be considered legitimate, drawing from moral, political, and legal theory. (21) In the descriptive sense, on the other hand, legitimacy relates to whether an IC is "widely believed to have the right to rule," (22) a factual question susceptible to empirical evaluation of constituents' views on the institution's exercise of authority. (23) Such empirical evaluation in the context of the WTO requires addressing two relevant issues.

    The first relates to the conceptual boundaries of the legitimacy of the DSM. While scholarly discussion about the legitimacy of institutions is wide-ranging, considerable disagreement remains over the concept's definition and the methods employed to evaluate its presence empirically. At a very basic level, legitimacy relates to constituents' beliefs about the right of an actor or institution to exercise authority, a concept that can be further disaggregated by drawing on David Easton's distinction between specific and diffuse support of political authority. (24) In the context of the WTO, specific support for the DSM's exercise of authority refers to Members' satisfaction with particular dispute...

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