The transition from diplomacy to law has not been easy. Here I wish to point out some of the features of the current system in which the dissonance persists and explore some of the ramifications. My perspective is not judgmental but organic. The dissonance is almost inevitable and its correction, where such correction is needed, will not be painless or without cost especially as there is, in my view, in some cases a certain zero-sum game between internal and external legitimacy.
Words, language and rhetoric are not just communicative instruments. They are oft the signifiers of cultural values, of a certain mindset, of aspirations. They can be, and often are, a mask over a discomforting reality and equally often a slide into self-deception. Here are two examples from the world of sport. The Americans conduct each year a sporting event which comprises teams of only two North American states and yet this event is called "The World Series". In this appellation we have everything: a culture and a mindset which often enough consider that which is between the Atlantic and the Pacific as "the world"; a mask over a discomforting reality that in this all-American sport, baseball, other nations such as Cuba and Japan have achieved an excellence which equals and perhaps surpasses the originators; and, thus, an endearing dose of self-deception not to say self-delusion. No commentary is needed for our continued use of the words Olympic Games to describe an event which is plagued by overt organizational corruption, by a wilful conversion supported by its promoters to the ethos of profit, and the addiction of its participants to the drugs of media celebrityship and corporate sponsorship. The Olympics have lost any vestige of the innocence conveyed by the word "game" but it suits us to pretend otherwise.
Consider now in similar vein the nomenclature such as "dispute settlement" (rather than judicial process) or "Appellate Body" (rather than High Trade Court or something similar) to which the WTO sticks so tenaciously. From interviews with many delegations I have conducted it is clear that, as mentioned above, they saw the logic of the Appellate Body as a kind of Super-Panel to give a losing party another bite at the cherry, given that the losing party could not longer block adoption of the Panel. It is equally clear to me that they did not fully understand the judicial let alone constitutional nature of the Appellate Body.38 And yet the Appellate Body is a court in all but name and it even has a constitutional dimension. De Jure the DSU leaves the final interpretation of the Agreements in the hands of the General Council and Ministerial Conference.39 De facto, unless the Organization is to break the hallowed principle of consensus, that power has shifted to the Appellate Body. The circumstances would have to be utterly unique to envisage a consensus in the General Council and/or Ministerial Conference to overturn an interpretation or decision of the Appellate Body. In interviews many delegations would state, with some incredulity: "We have created a Court...".
They are right. That is exactly what the Appellate Body is. But it serves for the internal legitimacy of the construct to pretend otherwise. And thus the nomenclature is convenient. It is also, perhaps, convenient for some domestic constituencies, notably the United States Congress in which there is a long tradition among some members to abhor all manner of "world courts". On the other hand, the failure to call a court a court actually diminishes the external legitimacy of the WTO in general and the Appellate Body more specifically. It feeds the Gnomes-of-Geneva syndrome. The tireless (and increasingly tiresome) accusation that important issues of world and domestic socio-political and economic policy are being decided by "faceless" bureaucrats et cetera feeds on this. The appellation "Appellate Body" is, indeed, almost as bureaucratic (and hence internally comforting) as is "Panel". But it robs the Appellate Body from the authority and respect which its decisions would have by matching its name to its real function and power: My preference would be for an official name: The International Court of Economic Justice and a diminutive-The World Trade Court.
Very little has changed at the Panel level of the WTO administration of justice. De facto, it is still the Secretariat which, de facto, has the key role in selecting Panellists, in terms of profile of Panellists the rosters have changed only slightly and the profile of Panels has changed only moderately to reflect the new culture of juridification. Panels are still ad-hoc and transient with no coordination among them. Again, all this is comforting and masks the importance of the change that has taken place, thus increasing internal legitimacy and making the transition smoother. It is the same method, the same cast of characters and the same modus operandi.
I would argue that the ad-hoc, individualistic selection of Panellists and the isolated manner in which they operate-each Panel a universe unto its own was consistent perhaps with an era in which the prime task was to resolve discrete disputes, but not with an era in which Panel decisions are part of a broad normative binding matrix, involving delicate socio-economic issues, and in which, consequently outcomes are relevant far beyond the specific parties to the dispute itself.
There must be far more continuity and far more continuous contact among Panellists so that an institutional identity and self understanding emerges and a common ethos and understanding can emerge and develop. This does not necessarily involve the creation of a permanent First Instance in Geneva (though in my view this would be desirable) but it could mean a more stable and limited roster, such as suggested by the EU, greater automaticity of selection and a reconsideration of the nationality-exclusion rule which prevents the selection of the most qualified persons for many of the disputes involving the major players.
I would further argue that the profile of the ideal individual Panellist, or the ideal Panel, given the new reality of WTO dispute resolution, is not reflected in the current roster nor in the selection and composition of Panels. The life experience, professional backgrounds of Panellists have to be commensurate with the evident gravity and profundity of the issues decided in a globalized world. This I submit has conspicuously not been the case in some of the most important instances. Who decides is an important element in the paradigm of legitimacy. Internal legitimacy is, here too, bought at the expense of external legitimacy.
Both Members and the Secretariat have to be far more honest in accepting that the new discipline does not allow a simple continuation of past habits in this respect.
The secrecy of the procedures is a throwback to the diplomatic phase of GATT development. There is still place for it in the consultation phases which lead up to the establishment of the Panels. There is no place for it once a Panel is established. Barring the disclosure of confidential commercial information or secret state documents (a problem that domestic courts face, too, and to which there are many solutions) it should be recognized that we have put in place a judicial process. It is inconsistent with basic principles of open government and transparency of legal proceedings and inconsistent with the very significant issues now under dispute, that the principles of secrecy should still prevail. Only in dictatorships is "justice" administered behind closed doors. Functionally, the Panels and the Appellate Body fulfil the same function and cover the same issue based on similar norms that national courts and the ECJ fulfil in the European Union. It is only the fact that WTO discourse has been dominated for its entire life by civil servants to whom confidentiality and secrecy is both second nature and a source of empowerment and self-importance that this practice has continued to date. Yes, they genuinely believe that opening the process would be bad. They are wrong. Both as regards Panels and as regards the Appellate Body.
This is truly a delicate issue which may be thought as involving primarily a clash of (mostly North American40 v the Rest of the World) legal cultures. The worldwide practice, even within the West, of allowing amici briefs is mixed. Wholesale opening to NGOs (most of which would be Western) could, it is argued, skew the system considerably. There is truth to this even though it must be realized that already now the system is skewed in all kind of directions, principally by unequal access of private actors (notably multinationals) to Governments.41
But there is more to understanding this debate than the discussion of East and West and North and South. This issue, too, plays out to some extent the tension between diplomatic ethos and legal culture. For the diplomats, not only is the WTO historically "their" organization but allowing in NGOs will actually inhibit it from achieving its goals and compromise its integrity.42 Even more profoundly, the basic intergovernmental reflex, part of the diplomatic ethos, views with horror any attempt by the Organization to pierce the State veil and question in any way the legitimacy of formal governmental positions. But for lawyers, and particularly judges one of whose primary tasks is to preserve and guarantee the integrity of a legal process, the notion of excluding voices affected by one's decision and not hearing arguments by them runs counter not only to the ethic of open and public process but to the very principles of natural justice.
The modus-operandi established by the Appellate Body43 seems a perfect example of the interplay between external and internal legitimacy. The audacity of stepping in and allowing amici briefs in principle (external legitimacy) will be counterbalanced, at least at first, by a prudence and conservatism in implementing the principle (internal legitimacy). Go too far in one directions and the Appellate Body would find itself under severe internal challenge. Go too far in the other direction and it will not only become a target of outside sharp attacks but open itself to attack as bowing to political pressure. One should allow a reasonable time to pass before judgment is made as to the success of the "World Trade Court" in finding the appropriate balance. But one word of caution to the Appellate Body: politicians' legitimacy, typically of a short nature, will often depend on outputs (results). Political institutions' legitimacy, of a more enduring nature, will depend on inputs (process). The legitimacy of courts which is meant to transcend specific results and to enjoy long endurance will depend on both the integrity of process but, in addition and uniquely, on the quality both substantive and communicative of its reasoning. To reject, imperiously, with no explanation, applications to submit amici briefs is indeed a privilege of emperors, not of courts. The legitimacy of courts rests in grand part on their capacity to listen to the parties, to deliberate impartially favouring neither the powerful nor the meek, to have the courage to decide and then, crucially, to motivate and explain the decisions.
Juridification has put the Secretariat in an impossible position. De Jure, they are not even players but facilitators of the play of others. That of course is a comforting nonsense. In dispute settlement the Secretariat is meant to be the purveyors of objective legal advice and legal services to Panels. De facto, inevitably and importantly, they are the repository of institutional memory, of horizontal and temporal coherence, of long term hermeneutic strategy-all the things that the Panel system, as a first instance judicial tier, should be but is unable to be. The Secretariat has, and should have, like the Commission of the European Union, a point of view as to the best legal outcome of the dispute. Supposedly the notion of providing "objective legal advice" should protect them from partisanship and the appearance of partisanship. But only non-lawyers with a primitive understanding of hermeneutics and legal process can believe in that.44
The result is schizophrenia in the self-understanding of the Secretariat as regards its role in the DSU process, and all too often conscious and subconscious subterfuge. Like in Freud's dream theory certain things just have to come out. The views of the Secretariat as to the proper outcome of a dispute will, thus, come out and more invidiously will be consciously and subconsciously pushed upon the Panel. The ability of Panels to be aware of this and to resist it varies considerably. In discussion with quite a few Panellists I have been told that when it came to points of law they did not feel they could meaningfully challenge the legal secretary. This may not have been so critical in the GATT phase of dispute settlement. But when the law controls as much as it does today, this shifts even more power from Panel to Secretariat. This is no big secret and the only novelty, if any, is putting it down on paper so explicitly.45 The only parallel to this situation I can think of is the relationship between the legal secretary and lay magistrate in the English legal system, not something that one would consciously want to emulate. The Secretariat and the legal secretary to the Panel have a point of view as to the best outcome of the process. On the "micro" Panel level, the relationship between Panels and legal secretary is not only skewed in terms of command of the law but is, overall, neither transparent nor healthy for a judicial system. Organically, the legal secretary reports to his or her supervisor. Their de facto primary loyalty is normally not to the "judges" at whose service they are working: The career of the legal secretary does not depend on the views of the Panel. Indeed, Panellists are never officially asked to report back on the legal secretary. The directors of the Secretariat will have no idea as to the working relationship or the satisfaction or otherwise of the Panel with the legal secretary. Generally speaking this double schizophrenia is an invidious position to be put in and many of the young, highly competent and skilled lawyers who fill this essential job, do not know how to find the correct balance and trip.
Organizationally, at the "macro" level, the process is equally unhealthy. The Secretariat ends up giving (and pushing) "objective" legal advice which, inevitably, favours one of the parties over the other. This is an uncomfortable truth that the Members somehow prefer not to recognize. This advice has huge influence over Panellists (in the selection of which the Secretariat plays a key role). Would it not be better to allow the Legal Service of the Secretariat, openly, fully, without subterfuge to present their legal opinion to the Panel (and the Appellate Body) in each and every case so that it can be evaluated and given the huge weight it deserves by the panels and the Appellate Body, and so that it can be contested by the Member disfavoured by this advice? Would the panels and the Appellate Body not profit from having this advice by the secretariat openly and transparently challenged? If this were the case the role of the Legal Secretary to the Panel could be simplified and redefined into something far less complicated and akin to clerks. The diplomatic ethos abhors the notion of the Secretariat "taking sides" in any dispute. But consider the following. The Commission of the European Union is meant to play a non partisan role in Union politics. And yet, this principle of non-partisanship is not considered compromised by their practice to submit a brief with their position in every single dispute that goes before the European Court of Justice. To be sure the Secretariat of the WTO is distinctly not the Commission of the European Union and should not become one. But would its neutrality be compromised if its Legal Service would do openly what it now does surreptitiously? The reason this proposal is considered by many insiders as sacrilegious is precisely because it compromises the intergovernmental self-understanding of the Organization and other features mentioned in my inventory of the diplomatic ethos. Yet again, internal legitimacy is bought at a potentially high price. Making open, transparent and respectable the important role that the Secretariat has to play in the dispute settlement process is another issue whose time will come.
I do not propose in this short article to deal at length with the internal operation of the Appellate Body. On the whole the legitimation strategy practised by the Appellate Body (whether express or implicit)46 has been one of hermeneutic prudence and institutional modesty with a keen eye on balancing internal and external legitimacy. The almost obsessive attempts of the Appellate Body to characterize wherever possible the normal wide-ranging, sophisticated, multifaceted and eminently legitimate interpretations of the Agreement as "textual" resulting from the ordinary meaning of words is another manifestation of the internal-external legitimacy paradigm. There is, however, one issue where the Appellate Body has not itself fully understood the implications of the legal paradigm shift. Both in its decisions (sometimes gratuitously scathing of panel decisions47) and in its organization of its work and self-understanding, it has not grasped that one of its tasks is to be the custodian of the entire judicial element of dispute settlement and that it has an institutional responsibility towards its "first instance"-the Panels. It should be the task of the Appellate Body to socialize, institutionalise and valorise their work of Panels pending a more profound overhaul by the Members of the WTO. This can be done in part in the Appellate Body Reports themselves but also in many discrete actions within the organization. Here, too, there is a lesson to be learnt from the European Court of Justice-different as it is from the Appellate Body. In the EU the ECJ understood early on how critical it was to develop a productive relationship with national courts. One way it did this was to embark on an ambitious program to try and meet as many national judges it could, in Luxembourg and instil in the national judges a relationship of partnership in ensuring the rule of law within the EU. The task of the Appellate Body in this respect, discretely and unobtrusively, is to make the Panellists feel part of the judicial branch of the organization sharing the same ethos and set of values-the pursuit of justice within the oft elusive rule of law.
38 I use constitutional with a lower case "c" to connote court interpreting the constituent document.
39 The definite or authoritative interpretation of a specific treaty provision, which involves rights and obligations of Member States and is tantamount to amending the treaty, is in the hands of the General Council. See WTO Agreement, as note 1, above, art. IX, para. 2 ("The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements."). See DSU, as note 3, above, art. 3, para. 2 ("Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements."), and para. 9 ("The provisions of this Understanding are without prejudice to the rights of Members to seek authoritative interpretation of provisions of a covered agreement through decision-making under the WTO Agreement or a covered agreement which is a Plurilateral Trade Agreement.").
40 Many scholars advocate openness and transparency in the WTO dispute settlement system. See e.g., Steve Charnovitz, Participation of Nongovernmental Organizations in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. (1996), p. 331 (advocating the idea of the WTO's providing systematic participation rights for NGOs regarding both in the policy-making process under the committees and in the dispute resolution process as plaintiffs, amicus curiae, witnesses, or observers); Daniel C. Esty, Linkages and Governance: NGOs at the World Trade Organization, 19 U. Pa. J. Int'l Econ (1998), p. 709 (arguing that "a more open WTO decision-making process that includes non-governmental entities, operating both as intellectual competitors to and support mechanisms for governments, offers the promise of strengthening the international trading system, thereby enhancing the WTO's legitimacy, authority, and effectiveness").
41 Philip M. Nichols, Extension of Standing in World Trade Organization Disputes to Nongovernment Parties, 17 U. Pa. J. Int'l Econ. L (1996), p. 295 (challenging Shell's argument for the expansion of standing as unrealistic and warning that "far from `democratizing' the process, expanded standing could create a forum only for well-monied special interest groups", the author alternatively proposes that an exception that will accommodate societal values be created and that the composition of Panels be also changed to include nontrade experts to protect such values).
42 Cf. Philip M. Nichols, Realism, Liberalism, Values, and the World Trade Organization, 17 U. Pa. J. Int'l Econ (1996), p. 851 (criticizing both Richard Shell and Steve Charnovitz's argument for expanding standing before the WTO dispute settlement system to include private (non-government) parties as slighting the importance of form and nature of the international trade regime, the author attempts to provide an "institutional counterweight to their membership arguments").
43 See Turtle, as note 34, above, at paras 101-109; see also United States-Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, Appellate Body Report adopted on 7 June 2000, WTO Document WT/DS/138/AB/R, paras. 40-42. Recently, in connection with the Asbestos case (WTO Document WT/DS/135/R), the Appellate Body laid down some guidelines regarding how to file amici briefs. In these guidelines, the Appellate Body highlights, inter alia, that a written brief shall "identify the specific issues of law", "state why it would be desirable, in the interests of achieving a satisfactory settlement of the matter at issue", and "contain a statement disclosing whether the applicant has, or will, receive any assistance, financial or otherwise, from a party or a third party to this dispute in the preparation of its application for leave or its written brief". See European Communities-Measures Affecting Asbestos and Asbestos-Containing Products, Communication from the Appellate Body, WTO Document WT/DS135/9, 8 November 2000, <www.wto.org/english/news_e/news00_e/ds135_9.doc>.
44 This is not meant to imply bad faith. Just that objectivity in areas of high legal indeterminacy and judicial discretion is a complicated matter. In legal disputes the lawyers on both sides claim to present objective legal arguments etc. and yet they disagree.
45 The situation is different in most other judicial settings. Legal clerks to judges in international tribunals even if on the "organigram" of the tribunal are appointed by, work permanently with, and are answerable to "their" judge. In other "Panel" situations such as the NAFTA and other FTAs, professional support stuff are appointed ad-hoc to assist the panellists. In this respect the WTO practice is more the exception than the rule. I say this with no prejudice either to the integrity or the extraordinary high legal competence of legal secretaries both in the Secretariat and the Appellate Body.
46 See Howse, as note 15, above.
47 See e.g. India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, Appellate Body Report adopted on January 16 1998, WTO Document WT/DS50/AB/R, para. 46:
"46. (...) The Panel in this case has created its own interpretative principle, which is consistent with neither the customary rules of interpretation of public international law nor established GATT/WTO practice. Both panels and the Appellate Body must be guided by the rules of treaty interpretation set out in the Vienna Convention, and must not add to or diminish rights and obligations provided in the WTO Agreement".
See too., United States-Standards for Reformulated and Conventional Gasoline, Appellate Body Report adopted on 20 May 1996, WTO Document WT/DS2/AB/R, pp. 16-17; European Communities-Measures Affecting Meat and Meat Products, Appellate Body report adopted on 13 February 1998), WTO Document WT/DS26/AB/R, WT/DS48/AB/R, para. 221. One could cite other examples galore.