Institutionalizing public participation in WTO decision making: Some conceptual hurdles and avenues

Journal of International Economic Law

Volumn 11, Issue 4, 2008, Pages 751-777

  Bonzon, Yves ^a,b  

^a UNIVERSITY OF LAUSANNE   (Switzerland)

^b GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 56749105041     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgn029     Document Type: Article

References (155)

1. See Steve Charnovitz, 'Transparency and Participation in the World Trade Organization', 56 Rutgers Law Review 927 (2004), at 954.
2. See Joost Pauwelyn, 'The Transformation of World Trade', 104 Michigan Law Review 1 (2005), at 57.
3. See Jeffrey Dunoff, 'Public Participation in the Trade Regime: Of Litigation, Frustration, Agitation and Legitimation', 56 Rutgers Law Review 961 (2004), at 970.
4. See Robert Howse, 'From Politics to Technocracy-and Back Again: The Fate of the Multilateral Trading Regime', 96 American Journal of International Law 94 (2001), at 115.
5. See Daniel Esty, 'The World Trade Organization's Legitimacy Crisis', 1 World Trade Review 7 (2002).
6. See Thomas Cottier, 'Preparing for Structural Reform in the WTO', 10 Journal of International Economic Law 497 (2007), at 503.
7. Especially in the treatment of amicus curiae briefs;
8. see Charnovitz, above n 1.
9. See Robert Howse, 'For a Citizen Task Force on the Future of the World Trade Organization', 56 Rutgers Law Review 877 (2004), at 884.
10. See Steve Charnovitz, "The WTO and Cosmopolitics', 7 Journal of International Economic Law 675 (2005), at 689.
11. Ibid.
12. See Robert Keohane and Josef Nye, 'The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy', in Roger B. Porter, Pierre Sauvé, Arvind Subramanian, and Americo Beviglia Zampetti (eds), Efficiency, Equity, Legitimacy: The Multilateral Trading System at the Millennium (Washington, DC: Brookings Institution Press 2001), 227-52.
13. See John H. Jackson, "The WTO "Constitution" and Proposed Reforms: Seven "Mantras" Revisited', 4 Journal of International Economic Law 67 (2001), at 77.
14. See Consultative Board to the Director-General Supachai Panitchpakdi, The Future of the WTO: Addressing Institutional Challenges in the New Millennium (the 'Sutherland Report'), (WTO, 2004) 41 ff.
15. Ibid, para 186.
16. See a definition by Francesca Bignani, 'Three Generations of Participation Rights before the European Commission', 68 Law & Contemporary Problems 61 (2004), at 72: 'Transparency allows for scrutiny of public decision-making but leaves influence to existing political and legal mechanisms. Consultation is a specific form of political and, in some countries, judicially enforceable, influence through a formal and routine sequence of objections from interested parties and reasons and justifications from administrators.'
17. See United States Administrative Procedure Act [5 United States Code (USC) s 500 ff.];
18. Communication from the Commission, "Towards a reinforced culture of consultation and dialogue - General principles and minimum standards for consultation of interested parties by the Commission' ('Commission Guidelines'), COM(2002) 704, Adopted on 11 December 2002;
19. Loi fédérale du 18 mars 2005 sur la procédure de consultation (Federal Law on Procedures for Consultation) (Loi sur la consultation, LCo, 172.061).
20. In both the US and the EU, participation took on this latter function in an ulterior phase after a comparable evolution, being added to original functions of administrative law; on the interest representation's model of US administrative law,
21. see Robert B. Stewart, 'U.S. Administrative Law: A Model for Global Administrative Law', IILJ Working Paper Global Administrative Law Series Number 7, New York University (2005), at 12. For a description of the evolution in the EU,
22. see Bignani, above n 15. The Swiss Law on Consultation is a special case since it relates to the popular right of referendum; it institutionalizes consultations that take place ahead of the adoption of a law by the Parliament in order to prevent an ulterior rejection of that law by the people. However, it also applies in part to acts adopted by the Executive branch.
23. In this context, it is conceived as an alternative, process-oriented approach to legitimacy that improves the acceptance of decisions through fair procedures;
24. see Renaud Dehousse, 'Beyond Representative Democracy: Constitutionalism in a Polycentric Polity', in J. H. H. Weiler and Marlene Wind (eds), European Constitutionalism beyond the State (New York: Cambridge University Press 2003), 135-156, at 156: 'what matters is not that the eventual decision can be formally reduced to the will of the citizenry, but rather that those who so wish be given a chance to express their view'.
25. See Bignani, above n 15, who argues that public participation entails risks of interests 'capture' that should be checked by an elected body. The author also argues that it can only take place in a polity that shares common traditions of interests' representation, referring to differences, in the European case, between corporatist and pluralist traditions.
26. See Patricia Nanz and Jans Steffek, 'Global Governance, Participation and the Public Sphere', 39 (2) Government and Opposition 314 (2004);
27. Rainer Nickel, 'Participatory Transnational Governance', in Christian Joerges and Ernst-Ulrich Petersmann (eds), Constitutionalism, Multilevel Trade Governance and Social Regulation (Portland: Hart 2006) 157-98.
28. See 5 USC ss 551-53. According to these provisions, 'rule-making' refers to any 'agency process for formulating, amending, or repealing a rule', and 'rule' refers to 'the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy (...)'. The US APA also provides for a particular type of consultation, which is called 'negotiating rule-making' and spells the elements that the head of an agency must take into consideration when assessing the need to open such a consultation
29. [see also 5 USC s 563(a)].
30. See EU Commission's Guidelines, at 16.
31. Ibid, at 18: 'to be effective, consultation must start as early as possible. Interested parties should dierefore be involved in the development of a policy at a stage where they can still have an impact on the formulation of the main aims, methods of delivery, performance indicators and, where appropriate, the initial outlines of that policy' (at 18). In the Swiss Context, Art. 5 of the Law on Consultation, above n 16, provides that consultation shall take place when a bill is in its project phase.
32. For example, US APA 5 USC s 553b, which provides that 'agencies shall give interested persons an opportunity to participate in the rule-making through submission of written data, views or arguments with or without opportunity for oral presentation', prescribing that public notice of proposed rule making shall be published in a register, which shall include several elements like the nature of proceedings, the legal authority under which the rule is proposed, the terms of the proposed rule or description of the issues involved.
33. In this respect, the EU Commission's Guidelines, above n 16, at 12, provide for instance that the 'main mechanism for providing feedback to participants in consultations will be through an official Commission document to be approved by the College of Commissioners, i.e., in particular, the explanatory memoranda accompanying legislative proposals', and that 'receipt of contributions should be acknowledged. Results of open public consultation should be displayed on websites' (Standard E).
34. See 5 USC s 563(b).
35. See EU Commission's Guidelines, above n 16, at 11.
36. Decision by the General Council, 'Procedures for the Circulation and De-restriction of WTO Documents', WT/L/452, Adopted on 16 May 2002.
37. Decision by the General Council, 'Guidelines for Arrangements on Relations with Non-Governmental Organizations', WT/L/162, Adopted on 23 July 1996.
38. These include: Members' submissions for a renewable time at their request, Secretariat's documents for a maximum of ninety days at the request of the body concerned, Minutes of meetings of WTO bodies for a maximum of forty-five days, and negotiations documents relating to accession and renegotiations of schedules until negotiations are concluded. Moreover, it is important to note that the notion of 'WTO official documents' refers to a categorization system that does not cover certain types of documents, which therefore remain restricted. Among those are informal documents produced by WTO bodies (labeled JOB), background papers issued by the Secretariat, Ministerial Conferences' preparatory documents, and draft agendas of forthcoming meetings of WTO bodies prepared by the Secretariat. John Jackson, who argues that this situation creates a transparency deficit, calls these undisclosed documents 'non-documents';
39. see John H. Jackson, Sovereignty, the WTO and Changing Fundamentals of International Law (New York: Cambridge University Press 2006) 119.
40. See WTO, 'Annual Report 2007', at 60, http://www.wto.org/english/res-e/ booksp-e/anrep-e/anrep07-e.pdf (visited 4 September 2008).
41. See also Peter Van den Bossche in this volume.
42. On WTO bodies' limited interaction with nonstate actors, see: Jens Steffek and Claudia Kissling, 'Why Co-operate? Civil Society Participation at the WTO', in Joerges and Petersmann (eds), above n 20, 135-56.
43. WT/DS58/AB/R, Adopted on 6 November 1998.
44. WTO, The Results of the Uruguay Round of Multilateral Trade Negotiations, the Legal Texts (Geneva 2003), 354.
45. WT/DS135/AB/R, Adopted on 5 April 2001.
46. See Rüdiger Wolfrum, Peter Tobais Stoll, and Karen Kaiser, WTO: Institutions and Dispute Settlement (Boston: Martinus Nijhoff 2006) 421.
47. WTO Panel Report, WT/DS/320, circulated 31 March 2008. On 29 May 2008, the EC notified the Appellate Body of its intent to appeal elements of the panel report.
48. Most recent cases whose proceedings were open to the public include United States - Continued Existence and Application of Zeroing Methodology, WT/DS/350, and Australia - Measures Affecting the Importation of Apples from New Zealand, WT/DS367.
49. Other factors that seem to have pushed Members to address the issue of public participation at that time include the failure of the Multilateral Agreement on Investment (MAI), which was attributed in part to a failure to gain the support of civil society, as well as, in the case of the US, the Clinton administration's failure to obtain the approval of Fast Track legislation by Congress in 1997. These facts are recalled by Sol Picciotto, 'North Atlantic Cooperation and Democratizing Globalism', in Georges A. Bermann, Matthias Herdegen, and Peter L. Lindseth (eds), Transatlantic Regulatory Cooperation: Legal Problems and Political Prospects (New York: Oxford University Press 2000), 495-520.
50. Arguments of both sides are reflected in the deliberations of one session of the General Council in 1998;
51. see: General Council, 'Minutes of Meeting-15, 16, and 22 July 1998', WT/GC/M/29.
52. See a submission paper by the United States issued two years later suggesting that some meetings of WTO bodies be opened to observers, with the opportunity for them to make written submissions: General Council, 'Informal Consultation on External Transparency - Submission from the United States - Revision', WT/GC/W/413/Rev, Adopted on 13 October 2000.
53. See General Council, 'Minutes of the Special Meeting of the General Council on 22nd November 2000' (WT/GC/M/60).
54. See Sutherland Report, above n 13, at 43.
55. In this respect, see also Sungjoon Cho, 'A Quest for WTO's Legitimacy', 4 World Trade Review 391 (2005), at 395 arguing that 'education and social marketing' can contribute to enhancing WTO's legitimacy.
56. Political scientists have used the concept of 'legalization' to consider the impact of international regimes.
57. See Judith Goldstein Miles Kahler, Robert O. Keohane, and Anne-Marie Slaughter, 'Introduction: Legalization and World Politics', 54 International Organization 385 (2000).
58. Or a shift from high to low politics at the international level, with the consequence that traditional boundaries separating it from the domestic level have blurred;
59. see J. H. H. Weiler and Iulia Motoc, 'Taking Democracy Seriously: The Normative Challenges to the International System', in Stefan Griller (ed.), International Governance and Non-Economic Concerns. New Challenges for the International Legal Order (New York: Springer 2003) 47-78.
60. Linking these features with the existence of a binding system of dispute settlement to enforce decisions, some author has gone so far as to argue that the nature of WTO rules are functionally equivalent to supranational law, with a similar impact on national law as EU law and its application through the European Court of Justice.
61. See Markus Krajewski, 'Democratic Legitimacy and Constitutional Perspectives of WTO', 35 Journal of World Trade 167 (2001), at 170.
62. In practice, such an assessment according to democratic standards of legitimacy can be an issue when domestic courts decide on the possible direct applicability of WTO decisions;
63. see Ernst-Ulrich Petersmann, 'Multilevel Trade Governance in the WTO Requires Multilevel Constitutionalism', in Joerges and Petersmann (eds), above n 20, 5-58, at 51;
64. Mattias Kumm, 'The Legitimacy of International Law: A Constitutonalist Framework of Analysis', 15 European Journal of International Law 907 (2004).
65. On the degree of legitimization requirement's concept, see Markus Krajewski, Verfassungsperspektiven und Legitimation des Rechts der Welthandelsorganisation (WTO) (Berlin: Duncker & Humblot 2001) 217.
66. See Cottier, above n 6; focusing on the WTO, the author applies the concept in a broad perspective that does not only relate to normative concerns of legitimacy, but also to functional aspects. Further on the substance-structure pairing concept,
67. see: Thomas Cottier, 'Constitutional Trade Regulation in National and International Law: Structure-Substance Pairings in the EFTA Experience', in Meinhard Hilf and Ernst-Ulrich Petersmann (eds), National Constitutions and International Economic Law (Boston: Kluwer 1993) 409-42.
68. See Armin von Bogdandy, 'Law and Politics in the WTO - Strategies to Cope with a Deficient Relationship', 5 Max Planck Yearbook of United Nations Law 614 (2001).
69. See also Thomas Cottier and Satoko Takenoshita, 'The Balance of Power in WTO Decision-Making: Towards Weighted Voting in Legislative Response', 58 Aussenwirtschaft 171 (2003).
70. See Steve Charnovitz, 'Participation of Nongovernmental Organizations in the World Trade Organization', 17 University of Pennsylvania Journal of International Economic Law 331 (1996), at 351. With respect to environmental matters, the author refers to members' handling of certain disputes and mentions cases where the US Trade Representatives would withhold proenvironment arguments (in the Tuna-Dolphin case) for fear that the EU Commission would turn these arguments against him in subsequent cases. He also shows how States' delegations can use panel disputes as a lever to influence domestic politics in a manner detrimental to the general interest.
71. See Krajewski, above n 47, on the chain of legitimization concept. Also Robert Howse, 'How to Begin to Think About the "Democratic Deficit" at the WTO', in Griller (ed.), above n 46, 79-102.
72. See James Bacchus, 'A Few Thoughts on Legitimacy, Democracy, and the WTO', 7 Journal of International Economic Law 667 (2004).
73. See Rudolf Adlung, 'GATS and Democratic Legitimacy', 59 Aussenwirtschaft 127 (2004).
74. See for example the Sutherland Report, above n 13, in its chapter on sovereignty (Chapter III).
75. It is important to stress that not all authors observing a legitimacy deficit in the WTO advocate enhanced public participation as a way to address it.
76. Some international documents implementing this latter approach have been recently adopted in the environmental field
77. (see 'United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters', Adopted on June 25 1998 (Aarhus Convention);
78. see also, in the WTO context, a proposal based on provisions of the Trade Policy Review Mechanisms: Sylvia Ostry, 'What are the Necessary Ingredients for the World Trading Order?', in Horst Siebert (ed.), Global Governance, an Architecture for the World Economy (New York: Springer 2003) 123-47.
79. The 'government-to-government' character of the WTO constitutes the second of John Jackson's seven mantras, and, according to the author, should be thought through;
80. see Jackson, above n 12, at 71.
81. The Sutherland Report, above n 13, at 43, acknowledges this to a certain extend when it says that 'it should be recognized that the WTO is not a sum of its parts: it does have an image and personality of its own which must be perceived to be democratic and transparent'.
82. See Petersmann, above n 48. The author refers to the 'cosmopolitan conception of citizens in UN human rights law' (at 23). UN Resolutions referred to include Resolution 2004/64 of the UN Commission on Human Rights, 'Promotion of a democratic and equitable international order', E/CN4/2004/127, Adopted on 21 April 2004.
83. WTO, above n 34, at 423.
84. Ibid, 284.
85. Ibid, 320.
86. See Charnovitz, above n 1, at 942, who answers affirmatively the question as to 'whedier the WTO's requirements for publication, notice and comment, and judicial review at the national level are relevant principles to be applied reflexively to the intergovernmental WTO', arguing further that the basis for the application of administrative law principles to the WTO is to be found in the fact that the WTO is in some respects similar to a domestic agency (at 944). I argue however that in this context transparency obligations are of a rather contractual nature, serving first and foremost to ensure the predictability of transactions and Member's compliance with their trade commitments.
87. See MERCOSUR, 'Olivos Protocol for the Settlement of Disputes in MERCOSUR', done at Olivos, 18 February 2002;
88. English translation, http://www.mercosur.int/msweb/portal% 20intermediario/es/index.htm (visited 4 September 2008).
89. Institutions of Mercosur are established by the Ouro Preto Protocol ('Additional Protocol to the Treaty of Asuncion, on the Institutional Structure of MERCOSUR') (POP), signed on 17 December 1994 by Argentina, Uruguay, Brazil, and Paraguay.
90. On the influence of Heads of State' participation, see: H. Moavro, 'Nuevas Articulationes de Los Actores Sociales en el Mercosur: el Caso de los Sindicatos', in Alma Espino (ed.), MERCOSUR: Los Desafios de la Integración : Trabajo, Participación y Ambiente (Montevideo, Uruguay : Red de Apoyo a Organizaciones Sociales del Mercosur 1998).
91. The Forum's internal regulation solely states that there must be parity of representation between labor and business organizations. See: Reglamento Interno del Foro Consultivo Economico Social, MERCOSUR/GMC/RES No 68/96.
92. See Celina Pena and Ricardo Rozemberg, 'MERCOSUR: A Different Approach to Institutional Development', FOCAL Policy Paper FPP-05-06 (2005), at 4.
93. Protocolo Constitutivo del Parlamento del MERCOSUR, MERCOSUR/CPC/CP ACTA N705.
94. See ASEAN Protocol on Enhanced Dispute Settlement Mechanism, done at Vientiane, 29 November 2004, http://www.aseansec.org/4924.htm (visited 4 September 2008).
95. See Paul J. Davidson, ASEAN: The Evolving Legal Framework for Economic Cooperation (Singapore: Times Academic Press 2002).
96. Ministerial bodies in charge of trade (implementation of the Common Exterior Preferential Tariff Agreement (CEPT/AFTA), and that consult with the ASEAN-CCI include the Economic Ministers and Senior Economic Officials Meeting (SEOM).
97. As regards other civil society organizations, it has been criticized that these are widely excluded from the Track Two policy dialogues and isolated in a 'Track Three' layer, having to rely on Track Two academic think tanks to find 'entry-points' and 'bridge the gap' with Track One officials.
98. See: Michael Chai, 'Civil Society Making Headway in the Association of Southeast Asian Nations', 7(2) The Social Development Review (2003), http://www.icsw.org/publications/sdr/2003-dec/Commentary3.html (visited 4 September 2008).
99. See ASEAN, 'Guidelines on ASEAN's Relations with Civil Society Organizations (CSOs)', 3 April 2006, http://www.aseansec.org/18362.htm (visited 4 September 2008).
100. See ASEAN, 'Charter of the Association of Southeast Asian Nations', 20 November 2007. Article 16, http://www.aseansec.org/21069.pdf (visited 3 September 2008) (giving competence to the Committee of Permanent Representatives to enact 'rules of procedure and criteria for engagement' upon the recommendation of the Secretary-General of ASEAN).
101. The 2007 statement emphasized the need for institutional reforms regarding consultation, including better accreditation procedures in order for ASEAN's engagement with CSOs to be on par with business and other groups, and the appointment of a senior office holder to specifically liaise with CSOs as a focal point for the ASEAN Secretariat and Member Countries.
102. See: ASEAN, Civil Society Conference, 'Chairman's Statement', 26-28 October 2007, para 15, http://www.siiaonline.org/?q=news/asean-civil-society- conference-%E2%80%93-october-26-28-2007 (visited 3 September 2008).
103. See AEAN, 'Declaration on the ASEAN Economic Community Blueprint' ('Communication'), 20 November 2007, at 21, http://www.aseansec.org/21083.pdf (visited 4 September 2008).
104. See Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (1999/468/EC; OJ L 184/23 of 17.7.1999) (Comitobgy Decision).
105. See ECJ, Case 26-62, Van Gend & Loos v Netherlands (1963) ECR 1.
106. See Bignami, above n 15, at 81.
107. See Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council, and Commission documents, OJ/L/145/43.
108. COM(2001)428, July 2001.
109. See Communication from the Commission-towards a reinforced culture of consultation and dialogue-general principles and minimum standards for consultation of interested parties by the Commission, COM(2002) 704 final, Adopted on 11 December 2002. It has no binding forces and excludes some processes from the consultation process (comitology, at 16).
110. Regarding timeframes, these consultation standards are to be applied at the policy-shaping phase of major proposals and thus do not apply to the formal stages of decision making as prescribed in the Treaty and in other EU legislations. In particular, the exercise of the Commission's implementing powers with the assistance of 'Comitology' committees referred to above is excluded.
111. See Register of Comitology of the European Commission: http://ec.europa.eu/transparency/regcomitology/registre.cfm?CL=en (visited 28 September 2008).
112. The supranational nature of EU law was defined by the European Court of Justice in Van Gend En Loos (above n 81): 'EC law constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.'
113. See Benedict Kingsbury, Nico Krisch, and Robert B. Stewart, 'The Emergence of Global Administrative Law', IIIJ Working Paper 2004-1, New York University School of Law (2004), at 29.
114. What the authors call 'normative bases of global administrative law';
115. see ibid, at 42.
116. See Stewart, above n 17, at 28.
117. Ibid, at 43.
118. Stewart also considers the perspective where the collectivity of members is the legislative body, the Member States individually the administrative bodies, and the DSB the reviewing body, which can be identified when the DSB reviews national procedures pursuant to Art. X of the GATT 1994, Art. Ill of the GATS, or Art. 63 of the TRIPS. We leave this perspective aside since in that case the object of public participation is not an international decision but a national one.
119. See Stewart, above n 17, at 44.
120. WTO, above n 34, at 3.
121. Other powers of the Ministerial Conference include modification of schedules, accessions, and waivers.
122. See: WTO, General Council, 'Amendment of the TRIPS Agreement', WT/L/641 (2005), http://www.wto.org/english/tratop-e/trips-e/wtl641-e.htm (visited 3 September 2008).
123. Bodies that have been given such tasks include: the TBT Committee on Technical Barriers to Trade (TBT Committee), the Council for Trade in Goods in the context of Trade-Related Investment measures (TRIMs), the Committee on Anti-Dumping Practice, the Committee on Customs Valuation, the Committee on Rules of Origin, the Committee on Import Licensing, the Committee on Safeguard, the Committee on Subsidies and Countervailing measures, the Council for Trade in Services (GATS Council), and the Council for TRIPS.
124. See Article 3 of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) in WTO, above n 34, at 59;
125. Article VI:4 of the GATS.
126. See Peter Van den Bossche, The Law and Policy of the World Trade Organization: Texts, Cases and Materials (New York: Oxford University Press 2005) 128.
127. In this respect, the 'Centralizing procedural rule' (Rule 33 of most bodies' Rules of procedure) could play a role. By providing that a decision that cannot be reached by consensus must be moved to the higher organ, the effect of this rule remains however unclear, since it leaves open the question as to whether a decision reached by consensus in a lower organ is definitive, or if it requires the 'benediction' of a higher organ. This issue has been raised by Pieter Jan Kuijper, 'Some Institutional Issues Presently before the WTO', in Daniel L. M. Kennedy and James D. Soudiwick (eds), The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec (Cambridge: Cambridge University Press 2002), 81-110.
128. Adopted by the GATS Council on 28 May 1997 (S/L/38).
129. Adopted by the GATS Council on 14 December 1998 (S/I764). These disciplines come with a 'standstill provision' (a promise not to adopt new measures in violation of the disciplines).
130. See WTO Annual Report 2007, at 14.
131. Adopted by the SPS Committee on 26 October 2001, revised on 2 April 2004 (G/SPS/19/Rev. 1). Further guidelines on the recognition of equivalence were adopted in 2005;
132. see WTO Annual Report 2007, above n 104, at 11.
133. Adopted by the SPS Committee on 14 July 2000 (G/SPS/15).
134. See WTO Annual Report 2007, above n 104, at 18. The EU proposal is named 'Proposal for a Decision of the Ministerial Conference on Trade and Environment', TN/TE/W/68, Adopted on 30 June 2006.
135. For a useful clarification on that point, see: Alan O. Sykes, 'The (Limited) Role of Regulatory Harmonization in International Goods and Services Markets', 2 Journal of International Economic Law 49 (1999).
136. In this respect, a commentator has described the DSB process as a 'dynamic of judicialization and de-polticization' that allows the DSB to create chains of precedent out of vague treaty clause, leading itself the deliberative process that the substantiation of these rules should imply', characterizing the DSB as a 'catalyst for deliberative process';
137. see Patricia Nanz, 'Democratic Legitimacy and Constitutionalisation of Transnational Trade Governance: A View from Political Theory', in Jeorges and Petersmann (eds), above n 20, 59-84.
138. WTO, above n 34, at 17
139. Ibid, at 121.
140. Ibid, at 59.
141. See Article 2:2 of the TBT Agreement, and Article 5 of the SPS Agreement, concerning the scientific parameters that Members must take into account in assessing the risks to prevent when adopting measures of sanitary protection (scientific evidence).
142. See Article 2:4 of the TBT Agreement and Article 3:1 of the SPS Agreement.
143. On international standards acquiring legal force by virtue of rule referencing, see Robert Howse, 'A New Device for Creating International Legal Normativity: The WTO Technical Barriers to Trade Agreement and 'International Standards', in Jeorges and Petersmann (eds), above n 20, 383-96.
144. See Stewart, above n 17, at 40.
145. On the process of the Codex Alimentarius Commission, see e.g. Thorsten Huller and Matthias Leonard Maier, 'Fixing the Codex?: Global Food-Safety Governance under Review, in Jeorges and Petersmann (eds), above n 20, 267-300.
146. Indeed, as sole conditions set in the agreements for standards to be taken into consideration, the standards-setting body that adopted them must either be listed in the Agreements, or be open to the participation of all members, without further requirement regarding its composition and mode of functioning.
147. See: Harm Schepel, 'The Empire's Drains: Sources of Legal Recognition of Private Standardisation under the TBT Agreement', in Jeorges and Petersmann (eds), above n 20, 397-412, at 409;
148. Joost Pauwelyn, 'Non-traditional patterns of global regulation: Is the WTO "missing the boat"?', in Jeorges and Petersmann (eds) above n 20, 199-227;
149. von Bogdandy, above n 51, at 636.
150. See, Joanne Scott, 'International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO', 15 European Journal of International Law 307 (2004), at 310 and 330.
151. Ibid, at 312.
152. In: Decisions and Recommendations Adopted by the Committee since 1 January 1995, WTO Committee on Technical Barriers to Trade, G/TBT/1/Rev. 8, 23 may 2002. This decision was dismissed by a Panel as a 'mere policy statement of preference' in the Sardines case (European Communities-Trade Description of Sardines, Report of the Appellate Body, 26 September 2002, WT/DS231/AB/R, para. 7.91);
153. see: Schepel, above n 118, at 408. However, as Howse notes, panels have in the past taken similar kind of Committee decisions as legal basis to fill a treaty gap (for example in: European Communities-Antidumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil, WTO Doc. WT/DS219/R, Adopted on 7 March 2003, 7.321);
154. see Howse, above n 115, at 393.
155. See Howse, ibid, at 392.