Sui or Ejusdem Generis? The Contributors Weigh in

Influential secretariats have been identified as both a common feature of international decision making, and as a potential threat to their legitimacy.Footnote ¹¹ While acknowledging that the rise of international secretariats constitutes a feature of contemporary governance, Pauwelyn and Pelc argue that, “even amidst this general trend toward greater delegation of power to legal bureaucracies, the WTO remains exceptional: all things considered, its Secretariat exerts more influence over dispute settlement proceedings than the staff of any comparable state-to-state tribunal.”Footnote ¹²

Is this level of influence in fact exceptional, and, if so, does it raise the legitimacy concerns that Pauwelyn and Pelc identify? Tommaso Soave, of Central European University, and Guy Fiti Sinclair, of the University of Auckland, agree with Pauwelyn and Pelc's analysis of increased influence, and accompanying legitimacy concerns, but depart from Pauwelyn and Pelc with respect to the claim of WTO exceptionalism. Rather, they see the WTO Secretariat as of a piece with a more general rise of secretariats noted in emerging scholarship. Tommaso Soave offers a framework for comparative analysis of secretariats, for example assessing secretariat institutional design according to whether it is closer to a model of “individual clerks . . . called to serve individual adjudicators,” or of “collective bureaucracies” that support adjudicators as a whole “in a collegial capacity.”Footnote ¹³ The WTO Secretariat in its current configuration exemplifies the bureaucratic collective model, Soave agrees; but he declines to see the WTO as particularly unique. Instead, he argues that the agency issues that Pauwelyn and Pelc explore not only “pervade the whole spectrum of international courts,” but to one or another degree can be “found in all governance systems.”Footnote ¹⁴

Guy Fiti Sinclair also situates Pauwelyn and Pelc within a broader assessment of international secretariats, and the ways in which their “unseen” or “hidden” qualities seem to have accompanied their expansion. Sinclair encourages an ethnographic lens that would yield more granular understandings not only of the “everyday practices” through which this influence has arisen, but also of the “contingencies” and “contestations” that continually stand to make or unmake it.Footnote ¹⁵ Sinclair also notes that Pauwelyn and Pelc do not devote much attention to whether the procedural and institutional dimensions of the Secretariat's influence that they identify yield a particular set of substantive outcomes. He notes that the question goes unanswered whether “the Secretariat's unseen influence on DSS proceedings has infused trade law doctrine with any ideological or normative bias, or led to any particular distributive consequences.”Footnote ¹⁶

Another set of essays, one by Olabisi Akinkugbe and Morris Odeh, both of Dalhousie University, on the African Court of Human and People's Rights, and one by Pablo González Domínguez, of the Inter-American Court of Human Rights, do not so much contest the Pauwelyn and Pelc thesis with respect to the WTO, as they seek to show that those claims do not characterize the secretariats of the tribunals they analyze. Additionally, they provide a more global view of international tribunals, broadening the scope of the brief comparative analysis that Pauwelyn and Pelc offer, that, as Akinkugbe and Odeh point out,Footnote ¹⁷ only discusses tribunals in the Global North.

Through a close examination of the African Court Registry and Legal Division staff, Akinkugbe and Odeh note that, although the staff perform some tasks that are comparable to those of the WTO Secretariat, key differences mean that African Court staff “influence in the dispute settlement process is . . . limited.”Footnote ¹⁸ Akinkugbe and Odeh indicate that the African Court staff wield no control over either the appointment or the remuneration processes of African Court judges, a “critical difference” from Pauwelyn and Pelc's descriptions of the WTO Secretariat; nor do they provide non-legal expert advice.Footnote ¹⁹ Additionally, Akinkugbe and Odeh report that the asymmetries that Pauwelyn and Pelc note in the WTO Secretariat case, in which WTO Secretariat staff often possess deeper legal expertise and also accumulate far greater institutional knowledge than judges, do not pertain to the African Court. Instead, the judges of the African Court, with whom the staff work in individual relationships rather than collectively, maintain overall control over the staff rather than vice versa.

In assessing the secretariat of the Inter-American Court on Human Rights, Pablo González Domínguez similarly points to the appointment and remuneration functions as key differences between the Inter-American Court and the WTO DSS. González Domínguez stresses that judicial appointment is within the “exclusive competence of states acting within the framework of the Organization of American States.”Footnote ²⁰ González Domínguez contemplates that the human rights focus of the Inter-American Court may explain why more institutional emphasis has been placed on ensuring judicial independence, though he also describes the judicial appointment process as “mainly political and diplomatic.”Footnote ²¹ Although González Domínguez differentiates the Inter-American Court secretariat in key respects from the WTO, he notes that “material circumstances,” such as the fact that judicial appointments are part-time while secretariat positions are full-time, might in the end lead to some, if not all, of the asymmetries that Pauwelyn and Pelc describe.Footnote ²²

A final set of essays neither disputes the WTO exceptionalism claim on its own terms, nor accepts (at least provisionally) the exceptionalism claim while showing that other secretariats differ. Rather, this final set of essays questions the accuracy of the description that Pauwelyn and Pelc offer as the basis for their analysis.

For Gabrielle Marceau and Akshaya Venkataraman, of the University of Geneva and the Geneva Graduate Institute, the Secretariat that Pauwelyn and Pelc portray is more “phantom” than reality.Footnote ²³ With respect to appointments, Marceau and Venkataraman point out that the parties to the dispute “are involved in every step of the process” in panelist appointments and that the Secretariat plays “no role” in Appellate Body appointments, which instead are “chosen directly by the WTO membership.”Footnote ²⁴ With respect to remuneration, the Secretariat's involvement is more clerical than substantive. Moreover, Marceau and Venkataraman argue that the Secretariat fulfills a role that is both important and actively sought by the WTO membership—that of institutional memory and legal stability. The Secretariat's presence constitutes a “powerful tool to ensure consistency and coherence in the resolution of disputes.”Footnote ²⁵ The value that Secretariat capacity affords is demonstrated by the fact that, in instances where the Secretariat faced a shortage of staff and recommended that disputes proceed without these staff, members “preferred to defer the dispute settlement process until . . . necessary Secretariat staff were available.”Footnote ²⁶

Kathleen Claussen, of the University of Miami, picks up on this proposition that the Secretariat's role is both valuable to and sought after by the membership. Like Soave and Sinclair, she first asserts that the WTO Secretariat resembles other international secretariats in many of the qualities that Pauwelyn and Pelc identify.Footnote ²⁷ Like Marceau and Venkataraman, Claussen's essay also questions the Pauwelyn and Pelc thesis that these qualities represent unintended consequences and that they lack legitimacy. Claussen surmises that the fact that secretariats “operate as bureaucracies does not necessarily make them administrative reviewers or judicial surrogates.”Footnote ²⁸ Rather, particularly when understood to be shared across a variety of secretariats, “these common attributes suggest that the purpose of these secretariats, as foreseen by those that created them, may be to serve these very functions and to operate in these ways, even if not expressly articulated.”Footnote ²⁹ Whereas Marceau and Venkataraman note that states parties have overwhelmingly chosen the WTO DSS over regional trade agreement systems, Claussen sees a potential future where regional systems are ascendant. Although one might take the rise of regional systems as an implicit rebuke of the qualities that both Marceau and Venkataraman, and Claussen, suggest are supported by states parties, Claussen argues that these regional systems may need to incorporate more of the infrastructure that the WTO system features. In foregrounding the proliferation of regional dispute settlement systems that vary markedly from the WTO, Claussen adds a further comparative dimension to the Symposium's assessment of trade dispute settlement.

Blind Spots and Stakes

The Symposium essays offer a rich and fine-grained analysis of “Who Guards the Guardians?,” by examining the claims that Pauwelyn and Pelc make both about the WTO DSS itself, and about its exceptionalism in comparison to other secretariats. Across the essays, a range of views arises that sheds light on the nuanced and complex institutional and normative questions that “Who Guards the Guardians?” so skillfully raises.

Overall, “Who Guards the Guardians?” persuasively shows the vital importance of developing these questions further, and the Symposium essays show how much both analytically and normatively remains to be interrogated. Future research would benefit from attending to some of the blind spots, and the stakes, highlighted by these essays. As analysis of international secretariats moves forward, it should avoid regional blind spots that might reinforce narratives emphasizing the hegemony of the Global North. The study presented by Akinkugbe and Odeh references Africa's seven international tribunals and offers a promising avenue for further research by suggesting directions that other research paths might take.

Moreover, the distributive consequences—the stakes—of these various arrangements should be centered further. Pauwelyn and Pelc refer only in passing to the substantive crux of the United States’ disagreement with a series of WTO DSS rulings on trade remedies issues, which rulings seem at least partially to have been attributed to the influence exerted by the Director of the Appellate Body Secretariat at the time, Werner Zdouc.Footnote ³⁰ Himself a noted trade law scholar, Zdouc is not mentioned by name in “Who Guards the Guardians?,” and the analysis of his involvement in the outcomes of trade remedy disputes between the United States and China is incorporated only indirectly through sources that Pauwelyn and Pelc cite.Footnote ³¹ If indeed Zdouc's office, or any other particular official or set of officials, exerted an identifiable influence on the outcomes of these disputes, that fact by itself raises a set of rich and complicated questions. Should this influence be deemed, as Pauwelyn and Pelc do, a purely “technocratic exercise”?Footnote ³² If so, the normative question that arises pertains to the legitimacy of technocracy over national sovereignty and/or democratic political processes. On the other hand, if the putative objectivity of “technocracy” actually tracks a particular ideological orientation—along the lines of the genealogies of Quinn Slobodian and others that Sinclair citesFootnote ³³—the debate must consider the implications not only of “technocracy” but also of institutional capture.

Yet another perspective would consider this fact in relation to the historical and current role of the United States, in particular, in first shaping and then undermining the DSS. Was U.S. antagonism toward the DSS, as Pauwelyn and Pelc suggest, a result of valid objections to a Secretariat that had overstepped its bounds along the lines of the criticisms that the United States raised, relating to the interpretation of covered agreements, the establishment of precedent, and other issues?Footnote ³⁴ If so, then U.S. objections would appear aligned with the reassertion of an international rule of law and, along with it, a more expansive role for national sovereignty and democracy, by constraining the Secretariat to the role initially set out for it. Such a recalibration then gestures toward the need to re-“embed” trade liberalization within national policy and political constraints such as those afforded by trade remedy provisions. An entirely different interpretation of the U.S. objections, however, would portray them as a reassertion of aggressive unilateralism, and a reaction to the U.S. loss of control over a dispute settlement system that it perhaps had anticipated maintaining in one form or another.

These and many other questions flow from the excellent analysis offered by “Who Guards the Guardians?” As the contributions to this Symposium indicate, Pauwelyn and Pelc have both provided important insight, and pointed to vital questions for future research and dialogue.