Unseen Actors

One set of explicit claims in Pauwelyn and Pelc's article concerns the visibility (or otherwise) of various actors in the WTO's dispute settlement system (DSS). In particular, the role of the WTO's Secretariat in the DSS has been “largely overlooked,”Footnote ¹ and its full function has been “kept hidden from view.”Footnote ² That hiddenness is deliberate:Footnote ³ the WTO has a “preference for opacity” and the Secretariat's role is “overlooked by design.”Footnote ⁴ Moreover, since its origins in the 1980s and 1990s, the DSS-centered Secretariat has grown considerably due to several “unforeseen factors.”Footnote ⁵ Notwithstanding efforts to make the WTO's dispute processes “open” and “transparent,”Footnote ⁶ the organization risks becoming seen as illegitimate “[a]s the full role of the Secretariat increasingly comes to light.”Footnote ⁷ The authors therefore prescribe “greater clarity” and “more transparency” about the true role of the Secretariat, increasing the external visibility of staff and their contributions to particular proceedings, and limiting internal legibility by constructing institutional firewalls between staff involved in various aspects of the process.Footnote ⁸ The article thus confirms and extends the findings of Joseph Weiler's classic analysis of “the rule of lawyers and the ethos of diplomats,” which similarly centered on questions of legitimacy,Footnote ⁹ while making an important contribution to a growing literature on the issue of transparency in global governance.Footnote ¹⁰

Much recent scholarship on international organizations aims to bring to light the unseen functions and influence of their administrative organs. At this point, it would be an exaggeration to describe these organs as “invisible,”Footnote ¹¹ though of course considerably more has been written about older and larger international bureaucracies such as the United Nations or the World Bank than the WTO, even including its predecessor, the General Agreement on Tariffs and Trade (GATT).Footnote ¹² There is by now a long tradition of scholarship on the executive heads of international organizations, some of it biographical—on a continuum from the hagiographical to the criticalFootnote ¹³—and some more analytical or normative.Footnote ¹⁴ Multi-volume projects on the history of the United Nations and the International Labour Organization, among others, have illuminated the workings and impacts of their secretariats.Footnote ¹⁵ Exciting new research continues to disclose insights into how international bureaucracies emerged and evolved at crucial moments in the interwar period, during the Cold War, and in the era of decolonization.Footnote ¹⁶

Many of these works are descriptive and focus on international bureaucracies that are not principally concerned with supporting courts and tribunals. Nevertheless, several of their findings align with those of Pauwelyn and Pelc. First, numerous international secretariats besides the WTO's undergo significant expansions, both numerically and in the scope of their activities, in ways that are unforeseen by their founders.Footnote ¹⁷ As a result, they too come to exercise a degree of (bounded) autonomy, unseen—or escaping oversight—by their member states.Footnote ¹⁸ Second, international secretariats exercise significant expert authority,Footnote ¹⁹ and rely on this authority to legitimize expanding beyond their original mandates. In Pauwelyn and Pelc's telling, WTO Secretariat staff exercise a potent mix of expertise in law, economics, and substantive issue areas such as agriculture or sanitary measures. Other organizations’ secretariats may similarly advance claims to expertise in economics (e.g., the World Bank),Footnote ²⁰ in public health (the World Health Organization),Footnote ²¹ or in any of a myriad technical specializations.

Other findings of this broader scholarship on “unseen” actors in international organizations appear to be less present in Pauwelyn and Pelc's account. International organizations are important nodes for exchanges and circulations among transnational networks of experts, or epistemic communities, who are not themselves staff of the organization.Footnote ²² International secretariats establish linkages between, and “borrow” authority from, these networks to expand their own mandates.Footnote ²³ In part through such interactions, international secretariats also often serve as seedbeds or conduits for particular ideas, norms or ideologies, including development, planning, economic growth, and financial liberalization.Footnote ²⁴ Quinn Slobodian has argued that, during the 1980s, lawyers in the GATT's Secretariat championed a version of neoliberalism (“the Geneva School”) through the idea of “‘constitutionalizing’ the world economy.”Footnote ²⁵ Likewise, scholars of international secretariats are increasingly interested in their “hidden” roles in perpetuating and legitimizing unequal power relations between the Global North and South. Pauwelyn and Pelc do not argue that 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. Readers might speculate whether the use of “ad hoc panelists . . . pulled from the ranks of trade policy officials”Footnote ²⁶ would lead to more or less the same legal outcomes, even without such influence, and further studies could helpfully explore this question.

Everyday Practices

A second, implicit theme in the article concerns the significance of everyday practices of international secretariats. Over several pages, the authors detail the various tasks undertaken by the WTO's Secretariat in relation to the dispute settlement mechanism: the procedures for the appointment of panelists and Appellate Body members; guidelines and decisions relating to compensation and reimbursements; the establishment of timetables, working procedures, and best practices; the preparation of the “issues paper,” distilling the “voluminous filing and exhibits” submitted by the parties to the dispute; the drafting of questions to be put to the parties; the provision of expert advice on non-legal issues; participation in hearings and internal deliberations and drafting of reports.Footnote ²⁷ While some of these practices are drawn from rules in the Dispute Settlement Understanding (DSU), working procedures, other official guidance notes, and case law, these sources are supplemented with observations from participants, including panelists and Appellate Body members.

These passages connect the article, however tacitly, to a small but growing body of international law scholarship that seeks to pay attention to everyday practices—the quotidian, the mundane, the routine, and the technical—in the inner lives of international organizations. These kinds of practices often constitute the “backstage” to the more conspicuous performances and stagings that scholars and practitioners typically recognize as constituting international law; a “new way of looking” may therefore be needed to see them and appreciate their significance.Footnote ²⁸ The work of WTO committees, for example, is often overlooked, but deserves study because “it is precisely on the basis of this ordinary world of apparently mundane activity, on the day-to-day interactions which together constitute the practice of governing, that we ought to build our understanding of what global governance is and ought to be.”Footnote ²⁹ References to the “everyday” typically signal a sociological or anthropological orientation.Footnote ³⁰ One strand of this scholarship builds on Weber's account of bureaucratic practices to identify sources of authority, pathology, and change in international secretariats.Footnote ³¹ Others follow Foucault, Bourdieu, Latour, Butler, and others, extending theoretical and empirical work in disparate disciplines concerning practices and performativity, assemblage, and materiality.Footnote ³²

Several of Pauwelyn and Pelc's findings resonate with recent works on everyday practices in international organizations. They do not aim, of course, to undertake a thorough ethnographic investigation into panel and Appellate Body proceedings. Rather, their article astutely analyzes the complications arising from WTO members having “install[ed] a second agent [Secretariat staff] to oversee the work of the first [the adjudicators],” with the result that the Secretariat “effectively became a free agent” and “accountable to no one.”Footnote ³³ Nevertheless, their description of timetabling and drafting practices in the WTO Secretariat recalls scholarship that traces the circulation of documents through international organizations.Footnote ³⁴ Similarly, their observations on the placement and positioning of Secretariat staff in hearings and confidential deliberations,Footnote ³⁵ and the significance of buildings and spatial relationality for the work of the adjudicators,Footnote ³⁶ bring to mind ethnographic work that attends to bodily postures and performances as means of enacting the law.Footnote ³⁷ These elements of Pauwelyn and Pelc's account connect closely with their argument that the DSU should be understood as “a sui generis process of international administrative review”;Footnote ³⁸ as such, they recall other quasi-judicial bodies like the World Bank's Inspection Panel.Footnote ³⁹

These evocative passages in the article suggest some promising lines of inquiry for scholars who might wish to approach the same settings with a different set of theoretical and empirical tools. Such approaches will inevitably produce much more complex pictures of international secretariats than those suggested by a principal-agent analysis. Through the lens of the “everyday,” these are entities teeming with actors, actions, performances, and practices. Documents and other material objects have agency, and there is a continuous struggle to hold actants of all kinds together in stable arrangements. In international organizations, both principals and agents are fragmented.Footnote ⁴⁰ Their secretariats draw on (and are constrained by) multiple sources of authority in addition to (and in interaction with) law, and must manage diverse relationships with other “global governors,” both “internal” and “external” to the organization.Footnote ⁴¹ Coherence must be viewed as “an accomplishment rather than a given.”Footnote ⁴²

Closer attention to the everyday practices of the Secretariat might thus reveal the contingencies, contestations, and transformations encountered as the WTO's Secretariat rose to dominance in the DSS; the multivalent roles played by law and lawyers in enabling and restraining that rise; and thereby the possibilities and perils of countering bureaucratic pathologies with yet more law. Moreover, as noted above, further exploration of the unseen lines of influence running through the Secretariat promises to illuminate the power dynamics and ideological currents that shape international trade law. We are indebted to Pauwelyn and Pelc for raising these questions and opening up new opportunities to examine a key institutional formation of our time—the international secretariat.