This is a guest post from Prof. Ernst-Ulrich Petersmann, European University Institute Florence
Humanity knows from Greek mythology and from the Bible that third-party adjudication emerged and developed in response to never-ending human tragedies (like the pursuit of Orest by the goddesses of revenge punishing Orest’s murder of his mother, because she had killed his father Agamemnon who had sacrificed their daughter Iphigenia on his way to lead the Greek battle against Troye). Since the trial of Orest in Athena’s Aeropag, the trial of Socrates in the ancient constitutional democracy of Athens, or the trial of Jesus under the Roman rulers Herodes and Pilatus, humanity has learned that tribunals – even in constitutional republics since ancient Rome - need to be constrained by principles of justice and due process of law. Like the Permanent Court of International Justice was created in response to World War I, so were the International Court of Justice, the European Court of Human Rights, many national Constitutional Courts (e.g. in Germany) and European Courts responses to the tragedies of World War II. Human tragedies continue, and so do the human responses of establishing new national and international courts, like national criminal courts and the ICC in response to crimes against humanity, or the WTO Appellate Body (AB) in response to the previous failures of the GATT dispute settlement system. Nationalist rulers – also in many democracies, including in European Union countries like Poland - challenge national and international courts, especially if judges (including WTO judges) - or the US Congress - dare holding rulers accountable. The US trade wars against China and US threats of trade sanctions against other WTO members ignore WTO rules and WTO dispute settlement procedures, just as China’s military expansion in the South China Sea ignores the arbitral award rendered under the UN Law of the Sea Convention, and Russia ignores the arbitral award rendered by the Permanent Court of Arbitration in Russia’s investment dispute with the expropriated shareholders of the former Yukos oil company. How should citizens and their democratic institutions respond to the illegal destruction of the WTO’s AB and to intergovernmental power politics (like the US blocking of the AB) disregarding the will of parliaments when they approved the WTO Agreement and, in many countries, incorporated it into their domestic legal systems?
The unprecedented and unconvincing attacks against the WTO Appellate Body in the 2020 USTR Report and in Tom Graham’s speech on 5 March 2020, the United Kingdom’s rejection of any control by the European Court of Justice over the future EU-UK Partnership Agreement, the limitation of investment adjudication in the USMCA Free Trade Agreement, and the reactions of some North-American legal commentators (including also Debra Steger’s comment, published in this Blog on 14 March 2020, that ‘the Appellate Body is gone – Let it rest’) are reminders of the often ambivalent role of lawyers and of advocates of neo-liberalism in humanity’s struggles for constraining political by judicial powers. Court houses in all 164 WTO members are decorated by statues symbolizing justice by blind-folded women holding a scale and a sword. The two statues representing Justice and Peace, which flank the main entrance to the WTO’s headquarter at Lake Geneva, recall what WTO publications, the International Chamber of Commerce and also many US lawyers emphasize long since: rules-based multilateral trading systems play a crucial role in promoting peace. In his book on Supreme Injustice: Slavery in the Nation’s Highest Court’ (Harvard UP 2018), US history professor P.Finkelman recalls how the ‘slavery jurisprudence’ of the three most important, pre-civil war US Supreme Court justices (Marshall, Taney and Story) contributed to the US civil war responding to a systemic hostility in US law to human rights and social justice. US law professor R.H.Fallon, in his book on Law and Legitimacy in the Supreme Court (Harvard UP 2018), concurs with other US constitutional lawyers that the politicization of US Supreme Court judges and judgments calls into question the legitimacy and reputation of the Court. Recent critics of the US Supreme Court, like A.Cohen’s book on Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America (Penguin 2019), point to social injustices, which the Court’s jurisprudence continues to cause by often protecting powerful rather than vulnerable interests. Is the WTO AB crisis just another illustration of this politicization of independent, impartial third-party adjudication by US interest group politics?
This is not the place to list the factually and legally false USTR criticisms of the AB, some of which I identified in my Guest Post: Neo-liberalism vs Ordo-liberalism – Beware the 2020 USTR Report on the WTO Appellate Body (IEL Blog 28 February 2020). Nor shall I repeat here the contradictions between the praise by former AB member T.Graham for the WTO AB, its AB staff, and for the WTO dispute settlement system as ‘the most successful dispute settlement system in the history of the world’ (Graham’s 2013 speech) and his support for the populist USTR assaults on the AB (in Graham’s speech on 5 March 2020 as a trade remedy lawyer back in Washington; cf. Henry Gao’s and my comments published in this IEL Blog on 11/13 March 2020). The more important policy question is: How should citizens, democratic institutions and WTO institutions respond at a time when the USTR is waging ever more trade wars and denies global public goods treaties (e.g. on climate change mitigation, which seems impossible without a functioning WTO legal and dispute settlement system)? Can the ‘global readership’ of this IEL Blog contribute to ‘public reason’ by challenging Graham’s conclusion (in his Washington speech): ‘The Appellate Body is gone and it is not returning’ (p.6)? This conclusion flatters the USTR, but fails to convince the 120 WTO members requesting, at each DSB meeting, to proceed to the filling of AB vacancies. Neither any of the 164 WTO members nor their citizens have reasonable self-interests in destroying what Graham himself called, in 2013, ‘the most successful dispute settlement system in the history of the world’. How should reasonable actors respond?
Global public goods (res publica) – like the WTO legal and dispute settlement as an indispensable building block for realizing the UN 2030 sustainable development goals (SDGs) and climate change mitigation – cannot be effectively protected without support from civil societies and democratic institutions (e.g. limiting fossil fuel consumption, fishery subsidies and ‘green house gas emissions’): the ‘law in the books’ depends on social support and respect by citizens in order to remain an effective ‘law in action’ (e.g. limiting environmental pollution by millions of citizens). In order to protect global public goods, civil societies must hold accountable – as a ‘global virtual republic’ representing ‘the willing world’ (J.Bacchus) supporting global public goods protecting existential citizen interests –, governments and democratic institutions. As the AB remains part of the ‘WTO law in the books’, all 164 WTO members remain legally required to honor their obligations to protect the AB as defined in Article 17 Dispute Settlement Understanding (e.g. by filling AB vacancies by majority decisions as prescribed in Article IX:1 of the WTO Agreement, with a pragmatic ‘opt out’ for WTO members illegally abusing their veto-powers). As long as no parliament has approved the illegal and undemocratic de facto amendment of the DSU imposed by the USTR, the ‘virtual cosmopolitan republic’ of responsible citizens should remind their WTO governments of the fact (albeit ‘hidden in plain sight’) that WTO law prescribes impartial, independent and compulsory third-party adjudication of WTO disputes. Notwithstanding the deliberate avoidance, at the insistence of USTR negotiators in 1993, of references to ‘judges’, ‘courts’ and ‘adjudication’ in the DSU treaty provisions, the (quasi)judicial dispute settlement mandate is emphasized in the DSU (again, ‘hidden in plain sight’), in WTO working procedures for WTO panelists, AB members and arbitrators, in numerous WTO dispute settlement reports, annual AB reports, official WTO publications, hundreds of books and thousands of articles published by WTO lawyers over the past 25 years. People have no reason to deny this fact only because the USTR wishes to impose its power on the rest of the world without judicial constraints.
Of course, the WTO system of third-party adjudication remains uniquely sui generis (e.g. the discussion, criticism, adoption and supervision of more than 400 WTO panel and appellate reports by the Dispute Settlement Body on behalf of all WTO members, the institutionalized discussion also of dozens of WTO arbitration awards in the DSB, the worldwide discussion of WTO jurisprudence). Yet, prior to the conversion (with his speech of 5 March 2020) of T.Graham from a ‘WTO Paulus to a WTO Saulus’, all practicing WTO adjudicators (panelists, AB members, arbitrators) and WTO litigators representing WTO member governments (except some USTR lawyers and their trade remedy clientele) have consistently acknowledged the (quasi)judicial duties for independent, impartial, ‘prompt settlement’ of WTO disputes through, inter alia, clarifications of ‘the existing provisions of those agreements in accordance with customary rules of interpretation of public international law’ (Article 3 DSU). In his 2013 speech, Graham convincingly described the tasks of AB members as ‘judges applying a legal craft – not statesmen’ (p.11). What are the lessons from his 2020 speech from his different ‘statesmanship’ and trade remedy law perspectives?
The list of legal methodology questions drawn up by Graham for his former AB colleagues remains a distraction: in any judicial system, interpretative methods – within the constraints prescribed by the applicable law - remain a matter for each individual Justice to decide, as long as each Justice adopts a legally consistent method in good faith and remains open to modifying her interpretive method in response to the judicial arguments of her colleagues (as acknowledged also in the above-mentioned book by Fanon, at p.131). Judicial responses to external criticism of the AB (e.g. from the USTR) may be legally justifiable, even if judges inspired by R.Dworkin’s ‘Justice Hercules’ may resist political pressures. But Graham’s advice to give up the AB’s collegiality tradition is toxic for an appeal body deciding by consensus or majority: as the interpretive methods of judges may legitimately differ (as reflected in some of Graham’s dissenting opinions in AB reports), collegial deliberations among judges are the essence of the social and legal legitimacy of their (majority) judgments. In the DSB, government representatives legitimately challenge some legal AB interpretations (e.g. of ‘public bodies’ in WTO subsidy disciplines) on political grounds; yet, most WTO diplomats wisely avoid political interferences with judicial methodology issues (e.g. judicial duties of justifying ‘right interpretations’), for example in view of the WTO’s separation of legislative, executive and judicial governance functions (cf. Article III WTO) and the dishonest USTR denial of (quasi)judicial functions of the WTO dispute settlement system. So far, the USTR has failed in its efforts at destroying the social and legal legitimacy of AB jurisprudence, even if ‘the crown jewel’ of the WTO dispute settlement system has been stolen by the USTR without any intention of giving it back. Compared with other WTO members, the USTR seems to have been the most successful litigator in past WTO dispute settlement practices. Yet, it remains isolated in its efforts at de-legitimizing the AB; most AB findings continue being supported and implemented by the WTO membership. Can the legal and democratic legitimacy dilemmas of the WTO’s ‘AB crisis’, and the ‘political failures’ of WTO governments to adjust WTO law to the regulatory challenges of the 21st century, be reduced by enhancing ‘social legitimacy’ and ‘public reason’ through more inclusive WTO deliberations?
Responsible citizens – as a cosmopolitan ‘[email protected] republic’ - should promote not only human rights, gender equality and climate change mitigation, but also other global public goods in order to prevent autocratic rulers from destroying ‘global public goods treaties’ to the detriment of citizens all over the world. Readers should start a WTO [email protected] ‘enlightenment campaign’– regardless of one’s views about the obvious need for reforming the WTO dispute settlement system (the DSB and the USTR have grossly failed in this task of ‘institutionalizing public reason’ in WTO adjudication) and the ruthless neo-liberalism and illegal power politics dominating WTO negotiations. Especially the younger ‘social media generation’ – which, according to the 2019 UN ‘Sustainable Development Goals’ Report, risks being confronted with 140 million climate change refugees by 2050 – should follow the courageous example of Swedish climate activist Greta Thunberg by challenging their local teachers and democratic representatives. For example, why do most worldwide organizations and related textbooks on the politics (‘member-driven WTO governance’), economics and law of governing international public goods – with few exceptions (like human rights and ILO bodies, the 17 UN sustainable development goals, EU law, my own International Economic Law in the 21st Century textbook of 2012) - avoid ‘embedding’ international rules and institutions into ‘principles of justice’, which citizens can understand, invoke, support and enforce in domestic jurisdictions? Why do Washington trade remedy lawyers, who pity themselves as ‘losers’ of AB jurisprudence, have such disproportionate influence on US and WTO politics? Why do ‘realist US lawyers’ ridicule proposals that citizens must assume ‘cosmopolitan responsibility’ for protecting public goods in a globalizing world without strong democratic leadership and with an increasing number of autocratic rulers, who disdain judicial accountability and cosmopolitan conceptions of the international law community as including citizens?
