GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2001

Status

Accepted

Abstract

The Marrakesh Agreement Establishing the World Trade Organization (WTO) is silent regarding its relationship to the individual. One might presume that an international organization set up to emancipate trade could have no purpose other than upholding trading rights of private actors. But the WTO was not established to achieve "free trade". That goal is absent from the Marrakesh Agreement. Instead, the goals of the Agreement are "reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade" and the "elimination of discriminatory treatment in international trade relations". The term "reciprocal arrangements" makes clear that the focus of the Marrakesh Agreement is not on the individual trader, but rather on the meshing of governmental trade policies. This is confirmed by the object of the quoted provision, namely, "international trade relations". A visitor from another planet who takes a quick look at the Marrakesh Agreement could draw an erroneous conclusion about the Earth's economy. The visitor could infer that international trade is carried on between governments (or between nations) and that the intended beneficiaries of the Marrakesh Agreement are the government Members of the WTO.

Such a hasty inference would be wrong however. Although the subjects of the Marrakesh Agreement are the governments, a closer look at the multilateral trading system shows that individual economic actors are assimilated. Annexed to the Marrakesh Agreement are 17 interwoven trade agreements, most of which accord rights indirectly to the individual. This important feature of WTO law has not received the attention that it deserves.

In recent years, some commentators have called the WTO the "World Trade Constitution". Paralleling constitutions at the national level, the Marrakesh Agreement specifies decision rules and delineates the separation of powers among the WTO organs. In this way, the Marrakesh Agreement also resembles charters of other international agencies, such as the "Constitution" of the World Health Organization. But the constitutional underpinnings of the WTO go deeper than that. The WTO is constitution-like in reaching into the nation-state to guarantees rights to individuals.

The purpose of this article is to explore this little-noted dimension of international economic law. The article proceeds as follows: Part I examines the way that WTO agreements mandate certain rights for the individual in national law. Part II looks at the limited way in which the WTO agreements provide procedural rights to individuals at the WTO. Part III discusses how the WTO's emerging jurisprudence expounds this new relationship and interprets WTO rules in light of the needs of economic actors. Part IV proposes ways that a new WTO trade round could build on these developments in order to strengthen private rights.

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