Snakepit of Alternatives to Consensus Rulemaking
Letter to the Editor

Sir, Regarding Prof Claus-Dieter Ehlermann's letter (April 4), and his comments on my recent book on the future of the World Trade Organisation, I welcome this debate and critique, while disagreeing with the analysis.

First, regarding the negative consequences of the WTO's traditional consensus decision-making and the book's alleged failure to deal with the issue, the minority blocking mechanism for appellate body decisions that I recommend clearly breaks with the WTO consensus tradition and offers a means of overcoming the current stasis on the judicial front. More difficult political and democratic legitimacy questions, however, arise with proposals to "strengthen" the legislative arm of the WTO. For instance, Prof Ehlermann understandably avoids the snakepit of issues surrounding alternatives to consensus rulemaking--one nation, one vote; trade-weighted voting; or, as China and India insisted in recent deliberations, voting based on population. As I state in the book, any of these remedies would be anathema to the US Congress and key constituencies and interest groups (and indeed to other WTO members that have hidden behind US skirts on this issue). Further, with the mercantilist negotiating mindset still firmly in place, I doubt that WTO members are ready to accept new WTO rules, or amendments and major interpretations of existing rules, outside the reciprocal trade-offs of a major trade round.

But under all of these considerations, as also stressed repeatedly in the book, is the necessity, given the penetration of WTO rules into national political, social and economic systems and customs, to rethink the relations between national democratic governments, particularly national legislatures, and a sanctions-based WTO. This is particularly urgent because, as Prof Ehlermann has candidly admitted, WTO rules contain numerous "gaps and ambiguities", outright contradictions and unbreached policy differences. Easing the process by which new international regulatory mandates (or amendments to negotiated mandates) are enacted by the WTO will have dangerous anti-democratic consequences in the absence of the strong and continuous voice of national elected officials--something that is not achievable in my judgment. Neither Prof Ehlermann nor any other scholar or politician that I know of has proposed a mechanism by which democratic accountability at the national level can be integrated into international bodies like the WTO.

The creation of the WTO represents a significant advance in furthering the cause of free markets and open competition, but there is the real prospect that narrow technocratic legalism, operating outside realistic political and diplomatic bounds, will roll back that advance unless significant corrections are put in place.

Claude E. Barfield is a resident scholar at AEI.

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