I want to address briefly what I consider to be two possible reasons for the move by states in some circumstances away from acting within international organizations. First is the question of values and second is the problem of accountability of these organizations, as Justice Kennedy mentioned yesterday in his speech.
THE QUESTION OF VALUES
In my recent book, International Organizations and Their Exercise of Sovereign Powers (2005), I spend a considerable amount of time establishing that the very existence of international organizations, such as the World Trade Organization (WTO), performs an important ontological function because these organizations provide a forum, transcendental to the state, where conceptions of sovereignty--and more specifically the content of sovereign values-can be contested on the international plane.
And this question of values is a causal factor that runs both ways in examining the extent to which states choose to use or, as the case may be, not to use international organizations. States may wish to resolve a problem outside the context of an organization precisely for the reason that an organization has adopted a particular value as part of its approach to solving certain types of problems; but, on the other hand, other states may seek to use an organization precisely for this reason. I want to examine briefly this issue of values in the context of the WTO by reference to the value of "equality."
The WTO and the Value of Equality
The WTO attempts to guarantee an "equality" of opportunity for firms to be able to compete in a competitive global market--the idea that a state should not through discriminatory regulatory measures affect the competitive relationship between foreign and local producers or indeed between competing foreign producers, but also that states should refrain from using subsidies to upset this "level playing field."
Discrimination and the Value of Equality
In the WTO, the two nondiscrimination principles of Most Favored Nation Treatment (MFN) and National Treatment are in substance a reflection of the application of the value of equality--that governments should ensure that like cases are treated equally. It is thus no surprise that in the WTO jurisprudence on these two non-discrimination principles the most controversial issue has been the test to determine "likeness": for this is the touchstone for determining the application of the value of equality in a particular case.
I should say for purposes of accuracy that the application of the value of equality within these two nondiscrimination principles is itself subject to considerable constraint. There is, for example, the significant exception for customs unions and free trade areas as provided for by Article 24 of GATT 1994 and on this I would refer you to the WTO case of EC-Turkey--Restrictions on Imports of Textile and Clothing Products (1999). However, let us now turn to look at the value of equality and the idea of the so-called -level playing field."
The Level Playing Field and the Value of Equality
A key element of the WTO Subsidies and Countervailing Measures Agreement which entered into force in 1995 is that a WTO member should not confer financial...