19 Dec 2011    Working Papers

The Democratic Legitimacy of WTO Law – On the Dangers of Fast-food Democracy

by Samantha Besson, Professor of Public International Law and European Law and Co-director of the European Law Institute, University of Fribourg

For the last fifteen years or so, the democratic deficit of Word Trade Organization (WTO)’s law has been a recurrent and dominant concern among international economic lawyers and international relations specialists alike. The impact of those debates on the democratic deficit of the WTO has been surprisingly limited, however. This may be explained, the paper argues, by the way in which the debates have been conducted. To start with, recent discussions of the democratic legitimacy of WTO law have taken place in isolation of those pertaining to that of international law in general, as if it were possible to enhance the democratic legitimacy of the WTO regime without considering that of other international law regimes at the same time. Furthermore, discussions of the democratic legitimacy of WTO law focus almost exclusively on what can be done at the level of international institutions, without reference to domestic democratic processes that transpose and enforce WTO law, and how those subject to both WTO law and domestic law can participate in them. Finally, the way authors usually proceed is by identifying and isolating certain democratic building blocks within (domestic) democratic theory or practice which they then re-assemble in different ways and add to the WTO institutional structure, hoping thereby to ‘democratize’ WTO lawmaking. The problem with those approaches to what the paper calls ‘fast-food democracy’ is that they are oblivious to the most important element in democracy: its subjects. Those subjects are also subjects to other norms of international law and to other norms of domestic law whose legitimacy is therefore better approached as a whole, and it is by reference to their political equality that reforms of WTO law-making processes may be devised most successfully.

Working Paper No 2011/72|