In from the cold: Canada's WTO obligations & incompletely theorized agreements in contemporary international law.

• Author: Hoben, John
• Position: The Impact of International Law on Canadian Law

A NEW ERA IN INTERNATIONAL LAW

Referring to the internationalization of law, in 2001 Schwartz declared: "we are in the midst of creating a constitution for the entire world." (1) While it is unclear whether it can in fact be said that the world is moving towards such a supra-national constitutional order, it is readily evident that the past twenty-five years have witnessed the emergence of a more integrated and authoritative international socioeconomic infrastructure that requires deeper civic engagement on a truly global scale. In the words of former Supreme Court Justice Bastarache, "internationalization of the law" in Canada is a "bottom up exercise" whereby "universal values reflecting a commonality of objectives facilitates a certain form of harmonization". (2) This conception of what some scholars have termed the "selective adaptation" (3) of international law demands, first and foremost, that the requirements of trade be subordinated to those of fundamental justice and to the sovereignty of democratic peoples. For Clarkson, while in many respects unjust and unfair, the rules and rulings of supranational private arbiters represent an "external constitution" since "they prevail over domestic legislative or administrative powers [and] because they cannot be amended by domestic democratic processes or law and regulation making". (4)

Although both the modern system of international trade law and the international human rights regime emerged in the immediate aftermath of the Second World War, as Biukovic asserts, "the two systems appear to be completely separate even though both have the same normative underpinnings--those associated with the Western ideas of liberal democratic capitalism". (5) More accurately, perhaps, both regimes highlight a longstanding tension in modern democracies between liberty and equality interests and the need to situate liberal aims within a broader social justice framework. As Bronckers asks, "does the principle of better market access always prevail, or do other objectives (such as the protection of intellectual property, or of the environment) carry equal weight?" (6) Although the nation state occupies a key position in international law, when states fail to pursue democratic aims the internationalization of legal authority does not necessarily create a more representative international legal system. Likewise, although recent decades have witnessed a distinct proliferation of NGOs at the international level, as many NGOs have little connection with popular interests, their spread does not necessarily translate into a more democratic or inclusive legal order. A central question, therefore, concerns "the accountability effects on the global regulatory agency of civil society involvement, or, in other words, how citizen group interventions have and have not advanced transparency, consultation, evaluation and redress in respect of the global regulatory agency concerned...and filled the gaps left by those other channels". (7)

The incremental advancement of public international law represents the efforts of lobbyists, international law scholars, legal professionals, and members of international legal organizations, a community that is often uniquely and expertly trained. Unfortunately, many domestic courts often lack the expertise of international experts who could provide guidance on international law in an efficient, inexpensive, and competent manner. (8) While the conventional theory of accountability assumes that states are alone responsible for the well-being of their citizens and for safeguarding their own autonomy, this model is quickly becoming antiquated. Realistically, many developing or non-democratic nation states are either unable or unwilling to put the interests of citizens at the forefront of global trade negotiations, just as multilateral treaties and forums can be dominated by a small number of powerful "first world" states. (9) Compounding this democratic deficit at the international level is the increasing separation of trade-related forums and laws from the international legal system.

Another problem is simply that much contemporary concern over human rights has failed to recognize the importance of democratic rights. This emphasis on democratic principles as a central aspect of international human rights can be found in Article 1(2) of the Charter of the United Nations, which provides that one of the purposes of the United Nations (UN) is "To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples". (10) As noted in Article 21 of The Universal Declaration of Human Rights, voting rights are a vital human right. Moreover, they are rights that, like freedom of expression, ensure that state governments respect and foster an environment that is generally more conducive to the creation of rights cultures. These two documents are well established as important sources of international law, meaning that these provisions should be given careful consideration by jurists and scholars alike. Further expression of a democratic human right can be found in Article 1 of both the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), which refer to the right of peoples to "freely determine their political status". Similarly, Article 25 of the ICCPR provides that "Every citizen shall have the right and the opportunity ... To take part in the conduct of public affairs, directly or through freely chosen representatives". While Article 25 has been very broadly interpreted, especially during the Cold War era, it does reflect an important regard for representative democratic principles whose time may have finally arrived. (11)

While the link between free trade and democracy is often viewed as being integral to neoliberal ideologies, it is also a potential site of strategic convergence for human rights advocates and proponents of international trade. If state agreement and internal ratification is seen as an important requirement for the application of international conventions, and democratic rights are important human rights, then why have we not extended the notion of popular sovereignty as an element of a signatory's consent, particularly where an agreement has a direct effect upon the scope of the state's sovereign power? Careful scrutiny of what Harrington terms "a treaty's democratic credentials" (12) must become commonplace for elected representatives and members of the judiciary alike. Not only is there no obligation for executives to consult legislatures, even when entering into treaties that impose permanent changes in domestic law, but there are also longstanding common law presumptions of conformity with international conventions. (13)

There is a deeply disconcerting jurisdictional and legitimization problem with the World Trade Organization (WTO) Treaty and its impact upon domestic legal systems. The WTO Treaty resembles an agreement that is partial in the sense that it has never quite fully been understood by the constituents--and perhaps too often the legislatures--of its nation members, and because it has incongruously defined itself as both a legal agreement between nations and as a quasi-legal body in terms of its dispute resolution process that does not take full account of other sources of international law. Integration, then, requires that courts and legislatures bring the executive to task by fully scrutinizing the domestic effect of the WTO Treaty and the international legal obligations that the agreement has created that may have serious implications for parliamentary sovereignty. Likewise, the WTO needs to recognize that the only way for it to overcome this legitimization problem is by making itself more transparent, more representative, and by respecting and considering broader principles of human rights. As Trachtman reminds us, whether or not integration between trade and other important issues is desirable is determined by the simple issue of utility:

The general issue raised by most linkage claims is whether trade rules and environmental, labor, human rights, or other nontrade rules should somehow be combined at the WTO in a different way than they now are. The fundamental basis for responding to such a question is welfare, broadly understood: does it make individuals, in the aggregate, better off to do so? (14) To such an end, less than a decade ago Cass Sunstein wrote about what he termed "incompletely theorized agreements": agreements that are made even when parties have very different views but share common goals and interests. (15) Incomplete theorization often allows progress and compromise to be made on problems that would otherwise appear to be intractable and irresolvable. (16) Rather than arguing about abstract differences, parties focus on achieving compromises that are both possible and mutually advantageous. While incomplete theorization can be a problem if, for example, one is talking about an institution that fails to have some distinct institution identity, (17) incompletely theorized agreements are particularly advantageous where consensus is necessary for both parties, compromise has otherwise been difficult to achieve, and stakes are relatively high. Sunstein distinguishes between three types of incompletely theorized agreements: i) incompletely specified agreements (e.g., "constitutional provisions and regulatory standards in administrative law"); ii) mid-tier incompletely theorized agreements where there is "agreement on a mid-level principle" but disagreement "about the more general theory that accounts for it and about outcomes in a particular case"; and iii) "incompletely theorized agreements on particular outcomes, accompanied by agreements on the low-level principles that account for them". (18) According to Sunstein, incompletely theorized agreements offer a...