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The WTO as Linkage Machine

  • José E. Alvarez


The contributors to this symposium, both principal authors and commentators, ably demonstrate that there are indeed “overarching constructs” linking the subdisciplines of international law. All of the writers here assume that linkage issues arise for the World Trade Organization, as they have with respect to a number of other intergovernmental organizations, precisely because centralized, quasi-autonomous institutions maybe relatively effective vehicles for the promotion of interstate cooperation between rational, egoistic state actors. All of them assume, as scholars of international relations and economists have long recognized, that many international regimes are linkage machines by their very nature. It is important to recall why this is so in order to consider when or how an organization’s attempts at linkage may fail.



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1 Cf. Ratner, Steven R. & Anne-Marie, Slaughter, Appraising the Methods of International Law: A Prospectus for Readers, 93 AJIL 291 (1999).

2 For an enumeration of the benefits conferred by the “centralization” and “independence” of international organizations, see Abbott, Kenneth W. & Snidal, Duncan, Why States Act Through Formal International Organizations, 42 J. Conflict Resol. 3 (1998).

3 See, e.g., Aceves, William J., Institutionalist Theory and International Legal Scholarship, 12 Am. U.J. Int’l L. & Pol’y 227, 24256 (1997) (summarizing a substantial literature by scholars of international relations and game theory).

4 See, e.g., Vagts, Detlev F., The United States and Its Treaties: Observance and Breach, 95 AJIL 313 (2001).

5 See, e.g., Abbott, Kenneth W., Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale J. Int’l L. 335 (1989); Aceves, supra note 3, at 257; Smith, Edwin M., Understanding Dynamic Obligations: Arms Control Agreements, 64 S. Cal. L. Rev. 1549 (1991). On the role of diffuse and specific reciprocity, see Keohane, Robert O., Reciprocity in International Relations, 40 Int’l Org. 1 (1986).

6 See Hudec, Robert E., The GATT Legal System and World Trade Diplomacy (2d ed. 1990).

7 See, e.g., Churchill, Robin R. & Ulfstein, Geir, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 AJIL 623, 656 (2000) (describing the GATT/WTO as one of the earliest “treaty-management organizations”).

8 See, e.g., Snidal, Duncan, The Game Theory of International Politics, 38 World Pol. 25, 45 (1985) (describing “nesting” within the GATT).

9 See, e.g., Ryan, Michael P., The Function-Specific and Linkage-Bargain Diplomacy of International Intellectual Property Lawmaking, 19 U. Pa. J. Int’l Econ. L. 535, 541& n.25 (1998).

10 See, e.g., id. See generally Putnam, Robert D., Diplomacy and Domestic Politics: The Logic o]Two-Level Games, 42 Int’l Org. 427,(1988).

11 See, e.g., Ryan, supra note 9, at 542.

12 Id. at 543.

13 For a more positive view of how international organizations assist in “laundering,” see Abbott & Snidal, supra note 2.

14 For consideration of three strands of path-dependence theory and its relevance to common-law systems, see Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 Iowa L. Rev. 601 (2001). Hathaway describes “increasing returns path dependence” as stemming primarily from large set-up or fixed costs leading to falling unit costs as output increases; learning effects, which lower costs as a product becomes more common; coordination effects, which confer benefits for taking action similar to others; and self-enforcing or adaptive expectations, which lead actors to react to current conditions in ways that enhance the likelihood that similar conditions will persist in the future. Id. at 609. “Evolutionary path dependence,” by contrast, is characterized by periods of stasis followed by sudden change. Id. at 614. Finally, “sequencing path dependence” draws on the insight that the order in which alternatives are presented to rational actors can significantly affect the outcome. Id. at 617. Hathaway focuses on how the doctrine of stare decisis in the common law reflects all three forms of path dependence. To the extent that the WTO regime encourages reliance on “case law” (especially Appellate Body “precedents”), it appears to reflect all of these strands of path-dependence theory. See generally Bhala, Raj, The Myth About Stare Decisis and International Trade Law (Part One of a Trilogy), 14 Am. U. Int’l L. Rev. 845 (1999); Bhala, Raj, The Precedent Setters: De Facto Stare Decisis in WTO Adjudication (Part Two of a Trilogy), 9 Fla. St. U.J. Transnat’l L. & Pol’y 1 (1999); Bhala, Raj, The Power of the Past: Towards De Jure Stare Decisis in WTO Adjudication (Part Three of a Trilogy), 33 Geo. Wash. Int’l L. Rev. 873 (2001).

15 Cf Franck, Thomas M., Fairness in International Law and Institutions 173217 (1995) (discussing the legitimacy conferred on the UN by its Secretary-General’s reputation for impartiality).

16 See Johnstone, Ian, Treaty Interpretation: The Authority of Interpretive Communities, 12 Mich. J. Int’l L. 371 (1991).

17 Robert W. Cox & Harold K. Jacobson, The Anatomy of Influence 10, 381–87 (1974). The GATT portion of that study examined how, under external pressure brought by the United Nations Conference on Trade and Development (UNCTAD), the GATT expanded to embrace the goal of economic development. See Gerard & Victoria Curzon, GATT: Traders’ Club, in id. at 298.

18 See , e.g., Einhorn, Jessica, The World Bank’s Mission Creep, Foreign Aff., Sept./Oct. 2001, at 22 .

19 Id. at 29.

20 See, e.g., id. at 29–30.

21 See Szasz, Paul C., The World Bank and Tobacco, in Liber Amicorum Ibrahim F. I. Shihata 793 (Schlemmer-Schulte, Sabine & Ko-Yung, Tung eds., 2001).

22 Taylor, Allyn L. & Bettcher, Douglas W., WHO Framework Convention on Tobacco Control: A Global “Good “for Public Health, 78 WHO Bull. 920, 925 (2000).

23 Leebron, David W., Linkages, 96 AJIL 5 (2002).

24 See Taylor & Bettcher, supra note 22, at 10.

25 Einhorn, supra note 18, at 30.

26 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996ICJ REP. 66 (July 8).

27 For an account of the perceived failings of the “package deal” reached at the Third UN Conference on the Law of the Sea in the immediate wake of those negotiations, see, for example, Caminos, Hugo & Molitor, Michael R., Progressive Development of International Law and the Package Deal, 79 AJIL 871 (1985).

28 For the uncompleted text of one of the most well-known of these code efforts, the UN Ecosoc Draft Code of Conduct on Transnational Corporations, see 1 Basic Documents of International Economic Law 533 (Stephen Zamora & Ronald A. Brand eds., 1990).

29 See, e.g., Walter, Andrew, NGOs, Business, and International Investment: The Multilateral Agreement on Investment, Seattle, and Beyond, 7 Global Governance 51 (2001).

30 See, e.g., Barnett, Michael N. & Finnemore, Martha, The Politics, Power and Pathologies of International Organizations, 53 Int’l Org. 699 (1999).

31 See, e.g., id. at 721.

32 See, e.g., Bagwell, Kyle, Mavroidis, Petros C., & Staiger, Robert W., It’s a Question of Market Access, 96 AJIL 56 (2002); see also Abbott, Kenneth W., Rule-Making in the WTO: Lessons from the Case of Bribery and Corruption, 4 J. Int’l Econ. L. 275, 28691 (2001) (discussing the WTO’s failures to entertain bribery and corruption concerns because of these aspects of institutional culture).

33 Snidal, supra note 8, at 49–50 (discussing continued plays of coordination games).

34 Id. al 51.

35 Robert O. Keohane, After Hegemony 71–73 (1984).

36 See, e.g., Haas, Ernst B., Why Collaborate? Issue-Linkage and International Regimes, 32 World Pol. 357, 373 (1980). Similarly, regime theorists readily concede that there is no guarantee that international regimes will yield overall welfare benefits. Keohane, supra note 35, at 72.

37 See, e.g., Downs, George W., Rocke, David M., & Barsoom, Peter N., Managing the Evolution of Multilateralism, 52 Int’l Org. 387 (1998) (discussing the relative merits of different kinds of multilateral cooperation, such as organizations with more or less inclusive memberships).

38 See, e.g., David, Paul A., Clio and the Economics of Qwerty, 75 Am. Econ. Rev. 332 (1985) (discussing how QWERTY emerged as the dominant, if inferior, computer keyboard thanks to path dependencies). But see Liebowitz, S.J. & Margolis, Stephen E., Path Dependence, Lock-in, and History, 11 J. L. Econ. & Org. 205 (1995) (arguing that the examples of inefficient path dependencies, such as QWERTY and the victory of VHS over BETA, are misleading and that such forms of path dependencies are a great deal rarer than has been suggested).

39 Liebowitz & Margolis, supra note 38, at 223.

40 Barnett & Finnemore, supra note 30, at 714. This is suggested by Jagdish Bhagwati’s critique of the TRIPS Agreement in his Afterword in this symposium, infra note 66.

41 See generally Gruber, Lloyd, Ruling the World (2000) (arguing that membership in supranational institutions, often imposed by the North on the South, is neither genuinely voluntary nor always welfare promoting). Nor is the critique of the results of multilateralism limited to one side of the political spectrum or to certain schools within political science. Neorealists have also warned that the norms promulgated by institutions, both domestic and international, may be “both revolutionary and evil.” Jervis, Robert, Realism in the Study of World Politics, 52 Int’l Org. 971, 974 (1998) (citing, as examples, Hitler’s Germany and Stalin’s Soviet Union).

42 See, e.g., Sandholtz, Wayne, Institutions and Collective Action: The New Telecommunications in Western Europe, 45 World Pol. 242, 25152 (1993) (discussing how these factors helped the European Commission to take the lead on telecommunications policy).

43 Haas, Ernst B., When Knowledge is Power (1990).

44 For an example of such an effort, see, for instance, Vines, David, The WTO in Relation to the Fund and the Bank: Competences, Agendas, and Linkages, in The WTO as an International Organization 59 (Krueger, Anne O. ed., 1998).

45 For a recent survey of the compliance literature, see Simmons, Beth, International Law and International Relations: Scholarship at the Intersection of Principles/Politics, 95 ASIL Proc. 271 (2001). See also Compliance with International Environmental Agreements (Brown Weiss, Edith & Jacobson, Harold K. eds., 1996); Alvarez, Jose E., Why Nations Behave, 19 Mich. J. Int’l L. 303 (1998); Koh, Harold H., Why Do Nations Obey International Law? 106 Yale J. Int’l L. 2599 (1997). For consideration of the endemic difficulties faced by compliance scholars, see Simmons, Beth, Compliance with International Agreements, 1 Ann. Rev. Pol. Sci. 75 (1998).

46 See Understanding on Rules and Procedures Governing the Setdement of Disputes, Art, 3.2, Marrakesh Agreement Establishing the World Trade Organization, Apr. 15,1994, Annex 2, in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 354 (1999).

42 See e.g., Trachtman, Joel P., Bananas, Direct Effect and Compliance, 10 Eur. J. Int’l L. 655, 655 (1999) (arguing that “hard law is not necessarily good law, and . . . strengthened implementation, including possible direct effect, is not necessarily desirable”).

48 See, e.g., Downs, George W., Danish, Kyle W., & Barsoom, Peter N., The Transformative Model of International Regime Design: Triumph of Hope orExperience’?’ 38 Colum. J. Transnat’l L. 465 (2000) (summarizing the arguments for and against managerial regimes); see also Commitment and Compliance (Dinah Shelton ed., 2000) (case studies of compliance with “non-binding” norms).

49 Compare, e.g., Steiner, Henry J., Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee? in The Future of UN Human Rights Treaty Monitoring 15 (Alston, Philip & Crawford, James eds., 2000) (suggesting reforms to the Human Rights Committee, which monitors compliance with the International Covenant for Civil and Political Rights, that would make that entity less like a court for the resolution of individual disputes and more like a deliberative body for iterative discourse), with Heifer, Laurence R. & Anne-Marie, Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L. J. 273 (1997) (proposing changes to the Human Rights Committee that would bring its operation closer to that of the Strasbourg Court for human rights). Cf Ragosta, John A., Unmasking the WTO—Access to the D.B. System: Can the WTO D.B. Live up to the Moniker “World Trade Court”? 31 L. & Pol’y Int’l Bus. 739 (2000) (challenging the WTO dispute resolution system for being insufficiently like a domestic court and for operating in a system lacking in “democratic” controls on its judges).

50 See Heifer & Slaughter, supra note 49 (drawing lessons for universal human rights enforcement from the Strasbourg model); Keohane, Robert O., Moravcsik, Andrew, & Anne-Marie, Slaughter, Legalized Dispute Resolution: Interstate and Transnational, 54 Int’l Org. 457 (2000). Keohane, Moravcsik, and Slaughter define “interstate” dispute settlement, as in the International Court ofjustice, as primarily between states, and “transnational” dispute settlement, as in the European Court of Justice and the European Court of Human Rights, as open to individuals and groups. They argue that the latter form of dispute resolution offers greater potential for widening and deepening cooperation, for unintended consequences, and for progressive restrictions on the behavior of national governments. Id. at 487. They classify WTO dispute settlement as an “intermediate” form of dispute settlement in which, although only governments bring disputes, the principal actors are firms or industry groups. Id. at 486. But see Alter, Karen J., The European Union’s Legal System and Domestic Policy: Spillover or Backlash? 54 Int’l Org. 489 (2000) (arguing that the European Union’s successful legalization efforts vary with the particular members of the EU and may not be replicable elsewhere).

51 See generally Knop, Karen, Here and There: International Law in Domestic Courts, 32 N.Y.U. J. Int’l L. & Pol. 501 (2000); Romano, Cesare P. R., The Proliferation of International judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U.J. Int’l L. & Pol. 709 (1999); Anne-Marie, Slaughter, A Topology of Transjudicial Communication, 29 U. Rich. L. Rev. 99 (1995). As this literature suggests, WTO linkage debates are part of a larger conversation about whether the proliferation of international dispute settlers is desirable or only encourages forum shopping and inconsistent legal determinations.

52 Charnovitz, Steve, Triangulating the World Trade Organization, 96 AJIL 28, 44 (2002).

53 Moravcsik, Anrew, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int’l Org. 513 (1997); Anne-Marie, Slaughter, International Law in a World of Liberal States, 6 Eur. J. Int’l L. 503 (1995).

54 Charnovitz, supra note 52, at 45; see Moravcsik, Andrew, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 Int’l Org. 217 (2000). As Charnovitz indicates, this is a common justification for the WTO regime. See, e.g., McGinnis, John O. & Movsesian, Mark L., Commentary: The World Trade Constitution, 114 Harv. L. Rev. 511 (2000).

55 See, e.g., Dunoff, Jeffrey L., The Death of the Trade Regime, 10 Eur. J. Int’l L. 733 (1999).

56 See, e.g., Charnovitz, Steve, Opening the WTO to Nongovernmental Interests, 24 Fordham Int’l L. J. 173 (2000).

57 Abbott, Frederick M., Distributed Governance at the WTO-WIPO: An Evolving Model for Open-Architecture Integrated Governance, 3 J. Int’l Econ. L. 63 (2000); see, e.g., Howse, Robert & Mutua, Makau, Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization (International Centre for Human Rights and Democratic Development, Policy Paper, 2000) (suggesting that the WTO and its dispute settlers should take seriously the preambular language in the covered agreements enjoining the institution to promote “sustainable development”); see also Garcia, Frank J., Trade and Inequality: Economic Justice and the Developing World., 21 Mich. J. Int’l L. 975 (2000) (discussing the links between global and regional trade regimes and economic inequality).

58 Pauwelyn, Joost, The Role of Public International Law in the WTO: How Far Can We Go? 95 AJIL 535, 552 (2001).

59 See, e.g., Cass, Deborah Z., The ‘Constitutionalization’ of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade, 12 Eur. J. Int’l L. 39 (2001); Charnovitz, supra note 52, at 42, 45–46; see also Ernst-Ulrich, Petersmann, Constitutionalism and International Organizations, 17 Nw.J. Int’l L. & Bus. 398 (1996/97). Concerns over how the WTO manages to link to nontrade issues also emerge in debates over whether the trade regime encourages the rule of law or “democratization” elsewhere, see, e.g., McGinnis & Movsesian, supra note 54, at 588–89 (contending that the WTO’s responsiveness to democratic values encourages the spread of democracy). See generally Ernst-Ulrich, Petersmann, How to Promote the International Rule of Law? 1 J. Int’l Econ. L. 25 (1998).

60 Cf Weiler, J. H. H. & Trachtman, Joel P., European Constitutionalism and Its Discontents, 17 Nw.J. Int’l L. & Bus. 354 (1996/97) (discussing the polity served by the European Union and the viability of a European demos).

61 Cf. Steger, Debra, Afterword: The “Trade and . . . “ Conundrum—A Commentary, 96 AJIL 135, 137 (2002) (discussing how the GATT “became something greater than a contract”).

62 Of course, to the extent the WTO’s covered agreements are seen as an evolving “constitution,” differences are likely to arise concerning the significance and meaning of the “original intent” of its drafters. Compare Howse, Robert, From Politics to Technocracy—and Back Again: The Fate of the Multilateral Trading Regime, 96 AJIL 94, 9697 (2002) (discussing the original design for the ITO), with Alben, Elissa, Note, GATT and the Fair Wage: A Historical Perspective on the Labor-Trade Link, 101 Colum. L. Rev. 1410 (2001) (arguing that while the early years of the GATT evinced abundant discussions of the trade-labor link, those discussions reflected a wage-based view of labor standards very different from modern human rights conceptions of labor rights).

63 See, e.g., Haas, Peter M., Knowledge, Power and International Policy Coordination, 46 Int’l Org. 1 (Special Issue, 1992); see also Keck, Margaret E. & Sikkink, Kathryn, Activists Beyond Borders (1998); Finnemore, Martha & Sikkink, Kathryn, International Norm Dynamics and Political Change, 52 Int’L Org. 887 (1998) (discussing how “norm promoters” facilitate “norm cascades”).

64 See, e.g., Picciotto, Sol, Networks in International Economic Integration: Fragmented States and the Dilemmas of Neo-Liberalism, 17 Nw. J. Int’l L. & Bus. 1014 (1996/97); Anne-Marie, Slaughter, Governing the Global Economy Through Government Networks, in The Role of Law in International Politics; Essays in International Relations and International Law 177 (Byers, Michael ed., 2000); Anne-Marie, Slaughter, Governmental Networks: The Heart of the Liberal Democratic Order, in Democratic Governance and International Law 199 (Fox, Gregory H. & Roth, Brad R. eds., 2000).

65 See, e.g., Gerard Ruggie, John, What Makes the World Hang Together? Neo-Utilitarianism and the Social Constructivist Challenge, 52 Int’l Org. 855 (1998). See generally Marks, Susan, The Riddle of all Constitutions (2000) (discussing the role of ideology in international legal scholarship); Marks, Susan, Big Brother Is Bleeping Us—With the Message That Ideology Doesn’t Matter, 12 Eur. J. Int’l L. 109 (2001) [hereinafter Marks, Big Brother] (discussing the need for international lawyers to consider whether what appears “necessary” entrenches historical injustices, whether what serves “universal” interests serves the particular, and whether what purports to be “rational” functions as an argument against redistributivist claims). As might be expected, the notion that “trade insiders” as distinct from “governments” are influential or have successfully pursued an ideological agenda is contested. See, e.g., Steger, supra note 61, at 139 (criticizing as “preposterous” the suggestion of a GATT/WTO “insider network”).

66 Bhagwati, Jagdish, Afterword: The Question of Linkage, 96 AJIL 126, 127 (2002).

67 Steger, supra note 61, at 139. Concerns over the meaning and impact of demands for transparency are also emerging in other treaty regimes, as under the investment chapter of the North American Free Trade Agreement. Compare Metalclad Corp. v. United Mexican States, No. Arb(AF)/97/l (International Centre for Settlement of Investment Disputes (Additional Facility), Aug. 30, 2000), 40 ILM 36 (2001) (finding that the NAFTA’s Chapter 11 requires that all foreign investors in Mexico be given clear notice of all relevant legal requirements, including the scope of authorized action by both municipal and federal authorities), with United Mexican States v. Metalclad, 664 Docket: L002904 (Sup. Ct. Brit.Colum., May 22, 2001) (finding no transparency requirements either in Chapter 11 or as part of customary international law).

68 Bhagwati, supra note 66, at 128 n.9.

69 Steger, supra note 61, at 144.

70 This notion is characteristic of much of the trade literature, at least in the United States. See, e.g., Ryan, supra note 9, at 585 (distinguishing between two distinct types of lawmaking activity by international organizations, “function-specific diplomacy”—engaged in by technocratically expert institutions such as WIPO—and “linkage-bargaining diplomacy”—which characterizes the WTO). Ryan argues that function-specific diplomacy, even with respect to the international regulation of intellectual property, remains the “grist of the law-creation mill,” while WTO-style linkage diplomacy exists to fix “the breakdowns.” Id. From this perspective, developing the WTO’s links to labor concerns within the domain of the ILO would require a demonstration that the function-specific regime (the ILO) has “broken down” and that the use of the trade regime’s more ample linkage leverage is needed.

71 It accordingly appears that all the contributors here are engaged in “problem solving” intended to stabilize a desirable institution. Cf. Marks, Big Brother, supra note 65, at 119 (discussing the need for more radical or “skeptical” critiques intended to bring about an alternative order).

72 For consideration of the influence of the United States on the WTO, see, for example, Paul B. Stephan, Sheriff or Prisoner’? The United States and the World Trade Organization, 1 Chi. J. Int’l L. 49 (2000). ,s For a thoughtful view of “insider/ outsider” perspectives, see Mutua, Makau, Critical Race Theory and International Law: The View of an Insider-Outsider, 45 Vill. L. Rev. 841 (2000) (discussing Third World commentators’ approaches to international law perspectives, as well as those writing within critical race theory). Mutua contends that mainstream international law, the normative center and legitimizing code of conduct for international society, is “founded on European biases that treat the universe as a theater for European and North American military, political, economic and cultural interests,” and he sees such Third World and critical race methodologies as tools for transforming international norms, process, and institutions, including the WTO, that “subordinate the Third World to the European West.” Id. at 849, 852.

WTO linkage debates also need to include feminist or gender-based critiques. See, e.g., Richard Paul, Joel, Cultural Resistance to Global Governance, 22 Mich. J. Int’l L. 1 (2000). Indeed, all layers of feminist critiques, whether addressing the relative absence of women in relevant trade epistemic communities, the gender impact of “neutral” trade terms (such as Article XX exceptions for “health”), or the nature of the limits artificially imposed on questions of permissible linkage subtly established through the uncontested limits on participation in either legislative or judicial WTO processes, appear applicable to the WTO’s linkage worries. Cf. Charlesworth, Hilary, Feminist Methods in International Law, 93 AJIL 379, 381 (1999).

* See, e.g., Salazar-Xirinachs, Jose M., The Trade-Labor Nexus: Developing Countries’ Perspectives, 3 J. Int’l Econ. L. 377 (2000).

75 Cf. Shaffer, Gregory C., The World Trade Organization Under Challenge: Democracy and the Law and Politics of the WTO’s Treatment of Trade and Environment Matters, 25 Harv. Envtl. L. Rev. 1 (2001) (concluding that divisions between North and South within the WTO largely mirror divisions between northern and southern NGOs with respect to environmental issues and that the WTO is, at least on such issues, not an “antidemocratic institution”).

76 See , for example, views expressed by groups such as Consumer Unity and Trust Society (CUTS), based in India. See generally CUTS, Campaign on Linkages, at <> (visited Feb. 8, 2002). Other NGOs based in developing countries argue that child labor is not synonymous with abuse and that in some sectors, as with respect to traditional fisher folk around the world, children are expected and need to learn the art of fishing or other trades from their parents at an early age. International Collective in Support of Fishworkers, Samudra Report, No. 24, at 1, 32–33 (Dec. 1999), at <>.

The WTO as Linkage Machine

  • José E. Alvarez


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