A Global Constitutional Crisis

Abstract

The Trump administration has recently pushed the World Trade Organization (WTO) into a crisis by gutting its court and waging trade wars. Conventional narratives on this crisis have been state-centered as they ascribe origins of the crisis to domestic politics in key WTO members, especially the United States. This Article divulges both analytical and normative blind spots left by these narratives. This Article, in a Copernican turn, submits a system-driven alternative, in terms of the “World Trade Constitution” (WTC), which generates rich insights in both diagnosing and prescribing the crisis. The WTC, for the purpose of the Article, does not denotes a formal document; rather, it signifies a broad sense of “constitutionalism” consonant with a total set of fundamental normative products, such as practice and precedent, which have historically emerged in the world trading community. This Article tests the resiliency of the WTC by demonstrating various system-maintaining behaviors of WTO members in the face of the crisis. This Article views that the WTC is culturally stickier than many would believe in that its stakeholders incorporate, by reference, the WTC into the domestic legal and political discourse, even without a formal transposition mechanism. The incoming Biden administration’s gesture to return to the WTO order is emblematic of the WTC’s resiliency. The legal gravitational force of the WTC can also shape daily operations of private businesses at a granular level, even if such force may remain unrecognizable on a surficial level. This Article finally argues that political constitutionalism, through a collective decision-making mechanism (voting), must complement the WTC for the latter’s lasting sustainability.

Keywords: WTO, trade constitution, trade war, appellate body crisis, WTC, collective decision-making, political constitutionalsim

JEL Classification: k1, k33, k20