Opportunism and Trade Law Revisited: The Pseudo-Constitution of the WTO

The language of the WTO, like the language of NAFTA, is "constitutional." It sets up supranational governance with powers to override what had previ- ously been the province of sovereign states. . . . [B]oth NAFTA and the WTO perform the traditional role of constitutions. They entrench certain inviolate principles or norms that are above the reach of any national legislature to al- ter; set limits on the behavior of governments; define rights of citizenship; es- tablish a judicial system to interpret its own texts in the case of conflicts; and provide for the enforcement of the court's decision.-Jeff Faux1Introduction: The Importance of Being a Trade Law Dissident: On the Geography of the ScholarI recall a conversation I had with a trade law academic after a con- ference on various aspects of contemporary trade regulation. I ex- pressed my objections to the whole logic and schema of global trade regulation, especially the degree to which trade law had been "constitu- tionalized"2 without affected populations understanding the relation between global trade rules and their own economic fortunes.3 My inter- locutor countered that global job sharing, for instance, was a positive thing, and that the movement of jobs to the more optimally efficient locales was similarly to be welcomed. I presented him in turn with a hypothetical: what if an academic located in another country-take South Africa or India, for instance-could do his university job for one- half or one-third the salary.4 Would he still espouse the benefits of job movement? Would the doctrine of comparative advantage, the founda- tion of our free trade system, cover this situation as well? Would he still support the logic of free trade in goods and services, regardless of ac- tual effects, but rather in the name of some higher concept?His answer was certainly less assured when the topic of conversa- tion turned on his own economic well-being. My very simple point is that it is far easier to support, or at least accept, the application in law of a concept when its adverse effects fall on others. When legal academ- ics fail to grapple with the inconsistencies, perversities, and likely ad- verse effects of the laws about which they otherwise think and write, they also fail to engage in one of their core tasks: the process of legal reform. Law does not exist simply to give them something to write about; rather, it is the site where the legal academic intervenes on be- half of those affected by the laws in question. In the area of trade law, legal academics have failed in this all-important task.5The geographical location of the scholar is surely relevant to the enterprise of analyzing international trade law. The effects of global trade rules fall unevenly on different nations and groups within na- tions. If international trade law and policy adversely affect American labor, for instance, can or should U.S. trade scholars simply continue to describe trade law and trade disputes as if their work was disconnected from the surrounding geographical reality? It could be argued that it is possible, even desirable, for the trade law scholar to study these rules from a neutral point of view, much like the study of human rights law, but that is to abdicate the role of the scholar as a public intellectual, in favor of the scholar as an informed technician.I always tell my trade law students that "globalization" is not just an idea that an enlightened international populace embraced as a good one. It is not just a policy choice, or even just an aspiration, but rather a reality created, at least in large measure, through the operation of real laws reflecting particular commercial ambitions.6 If one sees interna- tional and regional trade agreements as transnational constitutional law (or at least as international statutes) and trade disputes as providing interpretative case law, there is an unmistakable link between global trade regulation and the economies within which we all live and work. …