Two Snowflakes are Alike: Assumptions Made in the Debate Over Standing Before World Trade Organization Dispute Settlement Boards
Fordham International Law Journal
Copyright c 2000 by the authors. Fordham International Law Journal is produced by The
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Two Snowflakes are Alike: Assumptions Made
in the Debate Over Standing Before World
Trade Organization Dispute Settlement Boards
Philip M. Nichols
This Essay identifies five assumptions that have worked their way into the debate on standing
before the dispute settlement panels of the World Trade Organization (“WTO”). The dispute
settlement process is one of the most visible — and most scrutinized — activities of the WTO.
Moreover, the dispute settlement process constitutes an integral part of the international trade regime.
The five assumptions discussed in this Essay are assumptions; they have neither been proven nor
disproven by either side of the debate. This Essay does not empirically treat any of these
assumptions, other than to demonstrate that they are assumptions. Rather, this Essay discusses the
degradation to the debate over standing that could be caused by acceptance of these assumptions,
and sets out ground rules for avoiding these harms. A real understanding of the WTO, and real
progress in improving the international trade regime, will only be achieved through meticulous
study that avoids easy assumptions.
Philip M. Nichols*
No two snowflakes are alike. This enduring "fact" has
become a cornerstone of Western culture-it finds expression in
prose, in poetry,1 in exposition, 2 and even in legal scholarship.'
The assumption that no two snowflakes are alike, however,
in not just an assumption, it is an erroneous assumption. At least
two like snowflakes have been found in nature,4 and in
controlled conditions physicists can produce myriad identical
snowflakes.5 Two snowflakes are alike.
* Associate Professor of Legal Studies, The Wharton School of the University of
Pennsylvania. Ethan Kay provided valuable research assistance for this Essay.
1. See, e.g., Ted Kooser, FirstSnow, in NEW AND SELECTED POEMS (1980) ("This is the
night / when one of us gets to say, as if it were news / that no two snowflakes are ever
alike .. "); Maxine Kumin, ShellingJacobsCattleBeans, in SELECTED POEMS 1960-1990, at
227, 227 ("Each its own example; / a rare bird's egg / cranberry- or blood-flecked / as
cool in the hand / as a beach stone / no two exactly alike / yet as close as snowflakes.");
Betsy Scholl, The World Snow Posits, in THE RED LINE 69, 69 (1992) ("I'd been listening to
your voice on the phone / suggesting that if no two are alike, / then difference is what
we all share ..... ).
2. See, e.g., Gregory Rabassa, No Two Snowflakes are Alike: Translationas Metaphor,in
THE CRAFT OF TRANSLATION 1 (John Biguenet & Rainer Schulte eds., 1989); Don J.
DeBenedictis, An Experiment in Reform; Like Snowflakes, No Two Plansfor Reducing Civil
Delays Are Alike, ABAJ., Aug. 1992, at 16; Brian K. Schimoller, PowerPlants Go Modular,
POWER ENGINEERING, Jan. 1998, at 14, 14 (comparing power plants to snowflakes
because no two are alike).
3. See, e.g., John D. Leshy, Special Water Districts-TheHistoricalBackground, in SPE
CIAL WATER DISTRICTS: CHALLENGE FOR THE FUTURE 11, 23 (James N. Corbridge, Jr. ed.,
1983) (suggesting that special water districts resemble snowflakes because no two are
alike); MariJ. Matsuda, PragmatismModified and the FalseConsciousnessProblem, 63 S. CAL.
L. REv. 1763, 1776 (1990) ("Complexity is not the same as chaos. No two snowflakes
are alike, but when it is snowing, it is cold outside."); Barton H. Thompson, Jr., The
ContinuingInnovation of Citizen Enforcement, 2000 U. ILL. L. REv. 185, 221 ("Keepers, like
monitoring organizations generally, are akin to snowflakes-no two are alike.").
4. Arthur Fisher, PinheadScience; Scanning Transmission Electron Microscope Use in
Data Storage, POPULAR ScI., Apr. 1989, at 17 (describing discovery by Nancy Knight, a
meteorologist at the National Center for Atmospheric Research, of two snowflakes that
were alike); Alfie Kohn, Folk Wisdom is All Wet, SAN FRANCISCO CHRON., Mar. 15, 1992, at
lI/Z1 (describing discovery by Nancy Knight and debunking other popular myths).
5. See SFU Physicist Debunks Myth: Two Snowflakes Can Look Alike, at http://
The cultural repetition of an erroneous assumption about
snowflakes probably does not cause a great deal of harm.
References to snowflakes are usually meant as metaphor rather than
as a statement of fact. The concept of uniqueness is more
important than the scientific accuracy of the metaphor that
transmits it. The fact that two snowflakes are alike, for example, does
not detract from the individuality or specialness of each person,
nor does it mean that uniqueness does not exist in the world.
Assumptions in scholarly debate, on the other hand, can be
deleterious. This Essay identifies five assumptions that have
worked their way into the debate on standing before the dispute
settlement panels of the World Trade Organization.6 The
dispute settlement process is one of the most visible-and most
scrutinized-activities of the World Trade Organization.
Moreover, the dispute settlement process constitutes an integral part of
the international trade regime.
The five assumptions discussed in this Essay are
assumptions; they have neither been proven nor disproven by either
side of the debate. This Essay does not empirically treat any of
these assumptions, other than to demonstrate that they are
assumptions. Rather, this Essay discusses the degradation to the
debate over standing that could be caused by acceptance of
these assumptions, and sets out ground rules for avoiding these
harms. A real understanding of the World Trade Organization,
and real progress in improving the international trade regime,
will only be achieved through meticulous study that avoids easy
The purpose of the World Trade Organization is to
facilitate international trade.7 In order to do so, it imposes limits on
www.sfu.ca/-science/media/snowflakes.html ("'If two snowflakes are grown under
identical conditions, they will appear almost identical."') (quoting John Bechhoefer,
physicist at Simon Fraser University).
6. Marrakesh Agreement Establishing the World Trade Organization, LEGAL
INSTRUMENTS-RESULTS OF THE URUGUAY ROUND vol. 1, 33 I.L.M. 1144 (1994)
[hereinafter ITO Agreement].
7. The World Trade Organization's organic documents, of course, state this goal
somewhat less starkly. See WTO Agreement pmbl. (stating a goal of "raising standards
of living, ensuring full employment and a large and steadily growing volume of real
income and effective demand, and expanding the production of and trade in goods
its members: tariffs and other trade barriers are minimized and,
aside from a set of specified exceptions, members' laws and
bureaucratic procedures must not discriminate against goods or
services from other members." These limits are imposed in the
first few paragraphs of the three trade agreements annexed to
the Organization's charter;' the remainders of the three
agreements deal with the intricacies of imposing those simple
What sets the World Trade Organization apart from most
international organizations is its enforcement process." The
World Trade Organization does not enforce its own rules and
guidelines. Instead, members enforce the rules by bringing
complaints when a benefit that should accrue to them under
and services, while allowing for the optimal use of the world's resources in accordance
with the objective of sustainable development, seeking both to protect and preserve the
8. SeeJOHN JACKSON, THE WORLD TRADING SYSTEM 115-19 (1989) (describing the
process of tariff reduction). Prior to the creation of the World Trade Organization,
tariff reduction pursuant to the General Agreement was very successful. See
Claus-Dieter Ehlermann, The InternationalDimensions of CompetitionPolicy, 17 FORDHAM INT'L L.J.
833, 840 (1994) (stating that trade negotiations had "reduced tariffs to overall levels at
which they no longer create a serious obstacle to trade"). The World Trade
Organization has not yet undertaken a multilateral round of negotiations to further reduce
tariffs or other trade barriers.
9. See Multilateral Agreements on Trade in Goods, Apr. 15, 1994, WTO
Agreement, Annex IA, LEGAL INSTRUMENTS-RESULTS OF THE URUGUAY ROUND vol. 28, 33
I.L.M. 1154 (1994); General Agreement on Trade in Services, Apr. 15, 1994, WTO
Agreement, Annex IB, LEGAL INSTRUMENTS-RESULTS OF THE URUGUAY ROUND vol. 1,
33 I.L.M. 1168 (1994); Agreement on Trade-Related Aspects of Intellectual Property
Rights, Apr. 15, 1994, WTO Agreement, Annex IC, LEGAL INSTRUMENTS-RESULTS OF
THE URUGUAY ROUND vol. 31, 33 I.L.M. 1197 (1994).
10. In describing the General Agreement on Tariffs and Trade, which preceded
the trade agreements of the World Trade Organization and which essentially became
the World Trade Organization's agreement on trade in goods, Peter Ehrenhaft notes
that "[i]ts simple theses of unconditional, multilateral 'most-favored-nation' and
'national' treatment for all imported merchandise consume but a page of the General
Agreement's voluminous text. The balance is a crust of barnacles, weighing it down
with provisos and exclusions." Peter D. Ehrenhaft, Book Review, 84 AM.J. INT'L L. 334,
335 (1990); see also Catherine Curtiss & Kathryn C. Atkinson, United States-LatinAmerican
Trade Laws, 21 N.C.J. INT'L L. & COM. REG. 111, 127-28 (1995) (noting that the
Multilateral Agreements in Trade in Goods includes the General Agreement).
11. See Adrian T.L. Chua, Precedent and Principles of WTO PanelJurisprudence, 16
BERK. J. INT'L L. 171, 171 (1998) ("The central pillar of the WTO multilateral trading
system and its 'most individual contribution' is the dispute settlement mechanism
....");Michael D. Pendleton, A New Human Right-The Right to Globalization, 22
FORDHAM INT'L LJ. 2052, 2083 (1999) (stating that the former Director-General of the World
Trade Organization described the dispute settlement process as the Organization's
"most individual contribution to the stability of the global economy").
one of the trade agreements is "nullified or impaired" by the
actions of another member. 12 Disputing parties must consult
with one another; if consultations do not yield a satisfactory
result, a panel is formed to hear the complaint and recommend a
course of action for the parties and for the World Trade
Organization. The hearing is quasijudicial in nature1" and is closed to
nonparticipants. 4 The conclusions and recommendation of a
panel may be appealed to an appellate board before they are
adopted by the World Trade Organization.15 The panel or
appellate body recommendations are straightforward. If a panel
finds that a member is acting inconsistently with an agreement,
the panel is to recommend that the complained of member
"bring the measure back into conformity" with that agreement. 6
If a member fails to comply with a recommendation to
behave within the bounds of the rules set out by the World Trade
Organization, then the real teeth of the World Trade
Organization are exposed. If a member continues to nullify and impair a
benefit that should accrue to the complaining party, then the
World Trade Organization may authorize the complaining party
to suspend concessions or other benefits that are given to the
violating member by the complaining party under the trade
putes, Apr. 15, 1994, WTO Agreement, Annex 2, art. 19, LEGAL INSTRUMENTS-RESULTS
OF THE URUGUAY ROUND Vol. 31, 33 I.L.M. 1226 (1994) [hereinafter Understanding].
The panel also may "suggest ways in which the [complained of member] could
implement the recommendations." Id.; see William J. Aceves, Lost Sovereignty? The Implications
of the Uruguay Round Agreements, 19 FORDHAM INT'L L.J. 427, 470 (1995) (discussing
process of recommendation to bring measures into conformity).
agreements.1 7 Suspension of benefits is compensatory rather
than punitive; it is limited in amount to the amount of the
nullification and impairment. 8
II. THE DEBATE OVER STANDING
As could be expected, the creation within an international
organization of a quasi-judicial process has engendered a great
deal of scrutiny and a number of debates among legal scholars.1 9
One particularly vigorous debate concerns the issue of standing
before dispute settlement panels, which currently extends only
to member polities of the World Trade Organization.2 ° Some
scholars advocate expanding standing so that it includes private,
nongovernmental parties; a common version of this suggestion is
17. Understanding art. 22(1). The complaining member is authorizedto retaliate;
it is not required to retaliate nor may the World Trade Organization itself take action
against the offending member. See Thomas A. Dillon, Jr., The World Trade Organization:
A New Legal Orderfor World Trade?, 16 MICH. J. INT'L L. 349, 360 (1995) (noting that the
World Trade Organization "presently lacks executive authority to bring action on its
own initiative against Member Nations").
18. Understanding art. 22(4). Andreas Lowenfeld, Remedies Along With Rights:
InstitutionalReform in the New GAT, 88 AM. J. INT'L L. 477, 487 (1994) ("Punishment for
unlawful conduct is not contemplated or permitted."). The World Trade Organization
has so far authorized suspension of benefits five times. Seejoost Paulwelyn, Enforcement
and Countermeasures in the WTO: Rules are Rules-Toward a More Collective Approach, 94
AM.J. INT'L L. 335, 335 (2000) (reporting five authorizations and noting that that
number surpasses in five years the number of times that countermeasures were authorized
in the 47 years of the General Agreement).
19. See Ragosta, supranote 13, at 739 (stating that the dispute settlement process is
"lionized by government officials, academics, and practitioners as the single most
important development in the post-World War II trading regime").
20. See Eyal Benvenita, Exit and Voice in the Age of Globalization,98 MICH. L. REv. 167,
210-11 (1999) (noting the importance of the debate); Ronald A. Brand,
SemanticDistinctions in an Age of Legal Convergence, 17 U. PA.J. INT'L ECON. L. 3, 6 n.12 (1996)
(discussing the debate); Chi Carmody, Of SubstantialInterest: Third PartiesUnder GATT, 18 MICH.
J. INT'L L. 615, 617 n.10 (1997) (discussing the debate); Mark Edward Foster, Making
Room for Environmental Trade Measures Within the GATT, 71 S. CAL. L. REV. 393, 435
(1998) (focussing on the debate); Kevin C. Kennedy, The Illegality of UnilateralTrade
Measures to Resolve Trade-EnvironmentDisputes, 22 WM. & MARv ENwr'L L. & PoL' REV.
375, 422 & n.255 (1998) (noting the debate);Julie Mertus, ConsideringNonstate Actors in
the New Millennium: Toward Expanded Participationin Norm Generation and Norm
Application, 32 N.Y.U. J. INT'L L. & POL'Y 537 (2000) (entering the debate); Karsten Nowrot,
Legal Consequences of Globalization: The Status of Non-Governmental Organizations Under In
ternationalLaw, 6 INDIANAJ. GLOBAL STUD. 579, 627 & n.281 (1999) (noting the debate);
Arie Reich, From Diplomacy to Law: The Juridicizationof InternationalTrade Relations, 17
Nw.J. INT'L L. & Bus. 775, 847 & n.342 (1997) (discussing the debate).
to extend standing only to nongovernment interest groups.2 ' A
number of bases are suggested for such expansion. Some
suggest that a paradigmatic shift in the theoretical understanding of
international institutions mandates expansion of standing, 22
others argue that pragmatic concerns dictate expansion of
standing," and others state that expansion would simply make dejure
what is already de facto.2 4 Other scholars oppose expansion of
standing, on the same grounds.2 5
Jeffrey Dunoff has aptly summarized the substantive
arguments of this debate. 26 Those arguments are
interesting-indeed, perhaps too interesting. Scholars have gone so far down
the road with the substantive arguments that they have stopped
scrutinizing the starting point of the case for expansion of
standing. That case rests on several assumptions. Unless those
assumptions are revealed as assumptions, unless they are
scrutinized and hopefully put to empirical test, then the debate
21. See G. Richard Shell, The Trade Stakeholder Model and Participationby Nonstate
Parties in the World Trade Organization,17 U. PA. J. INT'L ECON. L. 359 (1996).
22. See G. Richard Shell, TradeLegalism and InternationalRelations Theory: An
Analysis of the World Trade Organization,44 DUKE L.J. 829, 911 (1995) (discarding the realist
theory of international law and applying a stakeholder model to the World Trade
23. See Sung-Jun Cho, GA77 Non-Violative Issues in the W'O Framework: Are T/hey the
Achille's Heel of the Dispute Settlement Process?, 39 HARV. INT'L L.J. 311, 348 (1998) (sug
gesting that access by private parties to the dispute settlement process will provide
better information to the panel more efficiently); Daniel C. Esty, Non-Governmental
Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, I J. INT'L
ECON. L. 123, 129 (1998) (offering a number of pragmatic reasons for extending
standing to interest groups); Michael Laidhold, Private Party Access to the WTO: Do Recent
Developments in International Trade Dispute Resolution Really Give Private Organizations a
Voice in the WfO?, 12 TRANSNAT'L LAw. 427, 431 (1999) (arguing that granting standing
to private parties would preclude capture of the World Trade Organization by interest
24. SeeJeffrey L. Dunoff, The Misguided Debate OverNGO Participationat the WJ'O, 1
J. INT'L ECON. L. 433 (1998) (arguing that standing exists). One of the more
interesting arguments offered on these grounds is not that private parties already have standing
but instead that the dispute settlement process is already understood to be the "world
trade court" and therefore should behave like a court in extending standing to all
interested parties. Ragosta, supra note 13, at 747-48.
25. See Meinhard Hilf, The Role of National Courts in InternationalTrade Relations, 18
MICH.J. INT'L L. 321, 354 (arguing that private access to the World Trade Organization
is not the status quo and that allowing participation "would require reforming the
entire WTO system"); Kennedy, supranote 20, at 424-25 (opposing expansion of standing
on pragmatic grounds); Philip M. Nichols, Extension of Standingin the World Trade
Organization to Nongovernmental Parties,17 U. PA. J. INT'L & ECON. L. 295 (cautioning against
expanding standing on pragmatic and theoretical grounds).
26. Dunoff, supra note 24.
degenerates into a situation in which advocates of each side
simply hurl their assumptions at each other rather than building on
one another's scholarship and developing an empirically
accurate understanding of the international trade regime.27 This is
unfortunate because the World Trade Organization does have a
significant influence on global well being, the dispute settlement
process is an integral component of the World Trade
Organization, 282 and legal scholarship is important to both.29
III. ASSUMPTIONS THAT HAVE ENTERED THE DEBATE OVER
Five assumptions entered this debate from the very
begin27. The "is too, is not, is too, is not" nature of the debate over expansion of
standing is exacerbated by the unclear line in legal writing between advocacy and
scholarship. Unlike other scholarly disciplines, legal scholars in countries that use the
adversarial system have been trained to advocate a position as vigorously as possible and let a
neutral party evaluate the truth and merit of their arguments. Some critics have
expressed concern that this tendency diminishes the value of some legal scholarship. See
R.L. Bard, Advocacy Masqueradingas Scholarship: Or Why Legal Scholars Cannot Be Trusted,
55 BROOK L. REv. 853, 855 (1989) (describing and criticizing advocacy scholarship);
Paul Brest, The FundamentalRights Controversy: The Essential Contradictionof Normative
ConstitutionalScholarship, 90 YALE L.J. 1063, 1109 (1981) (discussing advocacy
scholarship). Edward Rubin, in contrast, argues that legal scholarship should have a
prescriptive component. See Edward L. Rubin, Law and the Methodology of Law, Wisc. L. REv. 521,
522 (1997) (stating that legal scholarship "frames recommendations, or prescriptions,
to legal decisionmakers").
28. See Pendleton, supranote 11, at 2083 ("'Without enforcement, the rules-based
system would be worthless. The WTO's procedure underscores the rules of law, and
makes the trading system more secure.'") (quoting Renato Ruggiero, then
DirectorGeneral of the World Trade Organization).
29. SeeJeffrey L: Dunoff, "Trade And": Recent Developments in TradePolicy and
Scholarship-and Their SurprisingPoliticalImplications, 17 Nw. J. INT'L L, & Bus. 759 (1997).
Indeed, the very creation of the World Trade Organization resulted from legal
scholarship. At the outset of the Uruguay Round of negotiations, which eventually lead to the
creation of the World Trade Organization, participants contemplated only the
improvement of the existing trade regime. Britain's Royal Institute of International Affairs
commissioned Professor John Jackson to evaluate the international trade regime. Jackson
reported that only the creation of an international organization could bring coherency
to the regime. Although Jackson himself discussed an international organization only
as an "improbable" hypothetical useful for demonstrating existing problems, the
European Union embraced his idea and formally proposed the creation of an international
organization. Eventually, the European Union's proposal prevailed. See Gardner
Patterson & Eliza Patterson, The Roadfrom GATT to MTO, 3 MINN. J. GLOBAL TRADE 35,
4142 (1994); see a/soJOHN H. JACKSON, RESTRUCTURING THE GATT SYSTEM 91-103 (1990)
(proposing and describing a hypothetical international organization). John Jackson
also describes the formation of a real international organization as "improbable" and
suggesting that his hypothetical "might further stimulate thought about some of the
difficult institutional problems of the GATT system." Id. at 93.
ning, and the debate seems to have rushed past any recognition
that these assumptions are assumptions. Just as the notion that
no two snowflakes are alike took on the appearance of fact, so
too have these assumptions. Unlike, however, the assumption
regarding snowflakes, the assumptions regarding the World
Trade Organization could work to the detriment of global well
Two of the five assumptions possibly distort the debate;
clarification of the debate thus requires discussing these
assumptions first. The first of these assumptions is that the same
arguments apply to participation in the rulemaking process and in
the dispute settlement process. This assumption is made both
explicitly and implicitly in broad arguments that encompass
private participation in all activities of the World Trade
Organization.3 ° This assumption is dubious on its face. 1 Indeed, the fact
that persons intimately familiar with the U.S. system can make
this argument is somewhat incredible.32 One would hardly give
credence, for instance, to an assumption that a detailed
discussion of standing before a U.S. court involves the same issues as a
discussion of participation in the deliberations of the U.S.
Congress or the rulemaking of an administrative agency.3 3
If this assumption is false, its continued promulgation
damages the discussion in at least three ways. First, it moves the
discussion in a counterproductive direction. Rather than
becoming more refined, the discussion of the World Trade
Organization becomes coarser and less focused. 4 Second, insight is lost;
an observation that may apply only to one of the World Trade
Organization's activities may be overlooked in the broader
view.35 Third, if the assumption is false, mistakes probably will
be made. An observation that is true of one World Trade
Organization activity could easily be untrue of others. Again using the
United States as an example, prescriptions for improving
democratic representation in the legislature would most likely prove
deleterious for the court system.3 6
The assumption that processes within the World Trade
Organization are similar for purposes of standing could be correct.
Nonetheless, there are reasons not to accept the assumption
without some form of empirical proof. Moreover, if the
assumption is wrong its acceptance as a fact could seriously degrade the
debate over standing before dispute settlement panels. A
ground rule of the debate, therefore, should be that advocates of
either side must either ground their arguments only in the
dispute process or must empirically demonstrate that the processes
within the World Trade Organization are similar enough to
allow broader arguments.
The second assumption is similar to the first. Rather than
suggesting that all processes within the World Trade
Organization are the same, however, this assumption holds that all
international organizations are the same. This assumption does not
appear in explicit form; rather, it appears in the use of analogy.
Interest group participation works in other international
organizations, therefore it will work in the World Trade
Organization. 7 Like the assumption that all activities within the World
Trade Organization are the same, this assumption is dubious on
its face.3" There are myriad forms of international
38. Indeed, it is interesting that many of the advocates who make this implicit
assumption begin their arguments with a discussion of the uniqueness and importance of
the World Trade Organization's disputes settlement process.
tions, with myriad purposes.3 9 The International Labor
Organization, for example, includes labor unions among its voting
members.4" The International Telecommunications Satellite
Organization ("INTELSAT") includes quasi-private
corporations. 4 1 Moreover, as it becomes easier for people to create
relationships without regard for distance or political boundaries,4 2
even transnational,4 4
becomes blurred. The International Chamber of Commerce, for
example, does not include governments among its
membership,45 yet it creates rules that are incorporated into the laws of
most of the major trading countries.4 6
If the assumption that international organizations are
similar with respect to standing before dispute resolution bodies is
false, similar degradations of the discussion could occur. Rather
than moving the discussion toward more refined scrutiny of the
World Trade Organization, the assumption leads to a coarser,
more general type of analysis. The international trade regime
can be analyzed through analogy rather than on its own terms.
The assumption also risks stymieing innovation by making what
other international organizations have done the path of least
re39. International organizations can no longer be categorized simply as
intergovernmental or other. Paul Taylor's useful taxonomy, for example, first divides
international organizations into three groups based on how that organization fits into theories
of international relations; each of the three categories is then divided into a number of
categories that also reflect different means of creating relationships. Taylor's scheme
envisions a spectrum of organization types rather than a few simple boxes. See Paul
Taylor, A Conceptual Typology of InternationalOrganization,in FRAMEWORKS FOR
INTERNATIONAL CO-OPERATION 12, 12-17 (A.J.R. Groom & Paul Taylor eds., 1990).
40. See International Labour Organization, Structure of the ILO, available at http://
www.ilo.org/public/english/depts/fact.htm (describing the "tripartite structure" of the
International Labour Organization in which governments, workers, and employers are
41. See INTELSAT, INTELSAT-Connecting With Customers to Bring Their Worlds
Together, available at http://www.intelsat.int/about/profile.htm (describing INTELSAT as
"an international commercial cooperative").
42. SeeJessica Matthews, PowerShift, FOREIGN AFF.,Jan.-Feb. 1997, at 50 (noting that
relationships are now created with little regard for political boundaries).
43. Which generally means between political nations.
44. Which generally means between geographic units.
45. See International Chamber of Commerce, ICC Membership at http://
www.iccwbo.org/home/menu-membership.asp (stating that membership is open to
businesses, professional associations, employer federations, law firms and consultancies,
chambers of commerce, and individuals involved in international business).
46. See Boris Kozolchyk, The Immunization of Fraudulently Procured Letters of Credit
Acceptances, 58 BROOK. L. REv. 369, 381 n.32 (1992) (discussing general acceptance of
the Chamber's rules on international collection).
sistance for those who offer prescriptions for the World Trade
The assumption that the World Trade Organization is
similar enough to other international organizations to allow for
meaningful comparison with respect to the extension of
standing may or may not be valid. If, however, the assumption is false,
then its assimilation into the debate could degrade the
discussion of standing. A ground rule for advocates of either position,
therefore, should be that discussions of standing in other
international organizations will not be offered as proof of the viability
or unworkability of extension of standing in the World Trade
Organization unless that advocate offers rigorous evidence of
the comparability of the international organizations in question.
The third and most pernicious assumption that permeates
the debate on standing is that participation by interest groups in
the World Trade Organization will enhance the legitimacy of the
World Trade Organization among the world's populace." This
assumption is forcefully stated, often in very elegant terms. Dan
Esty, for example, argues that interest groups "offer the promise
of serving as 'connective tissue' that will help to bridge the gap
between the WTO decision-makers and the distant constituents
which they are meant to serve, thereby ensuring that the WTO's
actions are perceived as responsive and fair,"4 9 evoking images of
the law and legal institutions as living things.5"
47. See Edward L. Rubin, On Beyond Truth: A Theory for EvaluatingLegal Scholarship,
80 CAL. L. REv. 889, 900 (1992) (noting that methodological commitment tends to bind
scholars and blind them to alternatives).
48. See Daniel C. Esty, Linkage and Governance: NGOs at the World TradeOrganization,
19 U. PA, J. INT'L ECON. L. 709, 711 (1998); Reich, supra note 20, at 848; Richards &
McCrory, supra note 30, at 334; Andrea K. Schnieder, Individual Rights in International
Trade Organizations,19 U. PA.J. INT'L ECON. L. 587, 627 (1998); see also Bruce A.
Silverglade, The Impact of International Trade Agreements on U.S. Food Safety and Labeling
Standards, 53 FooD & DRUG L.J. 537, 541 (1998) (arguing that the exclusion of interest
groups from standing before dispute settlement panels "offend[s] American notions of
due process and reinforce the impression hat the WTO dispute resolution process
inevitably will erode the rights of consumers to high levels of health and safety protection").
This assumption has also worked its way into student notes. See, e.g., Suzanne Pyatt,
Note, The WTO Sea Turtle Case, 26 ECOLOGY L.Q. 815, 816 (1999); Glen T. Schleyer,
Note, Power to the People: Allowing PrivateParties to Raise Claims Before the WTO Dispute
Resolution System, 65 FORDHAM L. REV. 2275, 2278 (1997).
49. Esty, supra note 23, at 125-26.
50. Cf Oppenheim v. Kridel, 140 N.E. 227, 230 (N.Y. 1923) ("The common law is
a living organism which grows and moves in response to the larger and fuller
development of the nation."); Adama Dieng, Roles ofJudges and Defending the Rule of Law, 21
The seeming logic of this assumption-participation in the
process through a representative organization will make people
feel better about the World Trade Organization-makes it easy
to accept it as truth. It is not, however, a proven fact; it is an
assumption and it may or may not be true. Indeed, there are
reasons to question the validity of this assumption. Interest
groups are notoriously undemocratic, 51 they represent small
segments of society, and to the extent that they exist outside of the
west, they are often disconnected from the people they are
intended to serve.5 2
If this assumption is false, its acceptance as true potentially
degrades the debate in two ways. First, if the assumption is false,
then the solution that many have posed to the very serious
problem of creating popular legitimacy for the World Trade
Organization will fail. 53 Second, to the extent that the assumption leads
to a simple answer, scholars will not have an expended effort to
look for other avenues through which to legitimize the World
The assumption that extending standing to private parties
will lead to acceptance and legitimization of the World Trade
Organization appears straightforward, but no proof has been
offered that the assumption is valid. Indeed, there are reasons to
question the validity of this assumption, and if it is erroneous, its
use could degrade the debate. A ground rule for discussions of
standing, therefore, should be that connections should not be
FORDHAM INT'L LJ. 550, 552 (1997) ("[T]he rule of law should have the dynamism of
life itself, and it should adapt itself to the constant process of transformation which
characterizes all living organisms.").
51. See Peter J. Spiro, New Global Potentates: Nongovernmental Organizationsand the
"Unregulated"Marketplace, 18 CARDOZA L. Riv. 957 (1996).
52. See David M. Abramson, A CriticalLook at NGOs and Civil Society as Means to an
End in Uzbekistan, 58 HUMAN ORG. 240, 240-50 (1999) (stating that nongovernmental
organizations in developing countries simply create a new group of elite and that
interest groups are in general distant from society); Laura MacDonald, A Mixed Blessing: The
NGOBoom in Latin America, NACLA REPORT ON THE AMERICAS, Mar.-Apr. 1995, at 30,
3035 (reporting that international nongovernmental organizations are paternalistic and
interventionist and impose policies with little consultation with the affected
community); R.L. Stirrat & Heiko Henkel, The Development Gift: The Problem of Reciprocity in the
NGO World, 554 ANNALS AM. ACAD. POL. & Soc. Sci. 66, 66-78 (1997) (discussing the
asymmetrical relationships between southern and northern interest groups and noting
a loss of identity among southern nongovernmental organizations).
53. See Philip M. Nichols, Trade Without Values, 90 Nw. U. L. REv. 658, 707-09
(1996) (discussing the need of the World Trade Organization to be perceived as
drawn between interest group standing and legitimization in the
absence of empirical proof.
The fourth assumption is related to the third; that interest
groups are alike. This assumption is not stated directly but
instead is found in the arguments of those who advocate interest
group participation. While these advocates speak of interest
groups in general, the authorities that they use refer mostly to
environmental groups, with a smattering of labor and human
rights groups. Dan Esty provides an illustration. He makes the
general statement that "[h]istorically NGOs have contributed to
the efficacy and legitimacy of international organizations in a
range of ways which should be instructive for the international
trading system."54 The authorities he uses to support his
statement, however, each discuss environmental interest groups.55
This assumption degrades the debate in two ways. First, it
places primacy on the intersection between environmental and
trade issues. There is no gainsaying the potential importance of
environmental issues; if there is a serious argument, for
example, that the erosion of the ozone layer could fundamentally
alter life on Earth, then that is an issue that must receive attention.
Environmental concern, however, is only one of the myriad
issues connected to trade and thus within the potential ambit of
the World Trade Organization's dispute settlement process.:
To alter the structure of the World Trade Organization out of
concern for the single issue of environmental concerns would be
extraordinary, to do so if the assumed similarity between
environmental and other interest groups was wrong would be even
Second, the assumption could be false. Indeed, there are
reasons to question the validity of this assumption.
Environmental interest groups are different from many types of interest
groups. Arguably, environmental interest groups do represent
54. See Esty, supra note 23, at 128. This observation, of course, is not meant to
impugn Esty's well-deserved status as a prominent trade scholar, it is merely an
observation on the state of the debate.
56. See Nichols, supranote 53, at 668-90 (describing the tensions and intersections
between trade and other societal values, including ecology, labor, and cultural identity
and noting that many more exist); see also Philip M. Nichols, Corruption in the World
Trade Organization: Discerning the Limits of the World Trade Organization'sAuthority, 28
N.Y.U.J. INT'L L. & POL. 711, passim (1996) (discussing the breadth of the World Trade
Organization's authority to deal with societal issues).
the best interests of the majority and thus act as a counterweight
to the more concentrated interests of those who would exploit
the global commons.5 7 The vast majority of interest groups, on
the other hand, represent the collective interests of a narrower
band of people. 5 It is fine to make arguments based on the
history of environmental and human rights groups, but it must
be acknowledged that those groups will constitute a fraction of
the interest groups that ask for standing before dispute
settlement panels.5 9
Environmental groups may or may not be analogous to
other interest groups with respect to arguments concerning
standing before dispute panels. Neither side has offered a
credible argument or empirical evidence. A ground rule for the
debate over standing, therefore, should be that advocates must
acknowledge when their arguments are based on the behavior or
history of one type of interest group, and must either
acknowledge the limits of that basis or must explain why their discussion
can be generalized.
The final assumption is final indeed. Some scholars assume
that the debate is over, that it has been mooted by events. This
57. In this way, environmental interest groups may avoid the problem posed by
public choice theory, in that they do not represent a small group of people who work
together because they have a narrow interest. Thus when environmental groups
capture an agency, it is not necessarily to the detriment of others. This can hardly be said
of other interest groups. See MANCUR OLSON, THE RISE AND DECLINE OF NATIONS 41-47
(1982) (describing the inefficiency, misallocation of resources, and slow economic
growth that occur when interest groups are allowed extensive participation in
58. See Lillian R. Bevier, Campaign Finance Reform: Specious Arguments, Intractable
Dilemmas, 94 COLUM. L. REV. 1258, 1273 (1994) (noting that interest groups allow for
collective action by small groups, and also that interest group participation causes
59. It should also be acknowledged that the relationship between environmental
and other groups is particularly prone to disagreement. Riley Dunlap and Kent Van
Liere describe what they call the "New Environmental Paradigm"-a world view that
encompasses nature-oriented values and rejects anthropocentrism. Riley Dunlap &
Kent Van Liere, The "New EnvironmentalParadigm",J. ENvrL. EDUC., Summer, 1978, at
10, 10. This world view is now held by a majority of people, but is most deeply held by
environmentalists. Id. at 13. Those who posses this worldview see and experience the
world differently than those who do not, and it is very difficult for one side to explain its
position to the other side or for one side to understand the other side's position. See
Thomas Dietz et al., Definitions of Conflict and the Legitimation of Resources: The Case of
EnvironmentalRisk, 4 Soc. FORUM 47 (1989); Paul C. Stern et al., Supportfor
Environmental Protection: The Role of Moral Norms, 8 POPULATION & ENV'T 204, 205 (1986). Again,
this suggests caution when evaluating the assumption that environmental groups are
analogous to other interest groups.
assumption holds that interest groups already participate in the
World Trade Organization's activities, including dispute
settlement, and thus as Jeffrey Dunoff articulately suggests, the debate
over whether standing should be given to private actors is
The participation of nongovernmental groups in the
activities of the World Trade Organization is beyond peradventure.
Nonetheless, the assumption that private entities have de facto
standing to appear before dispute settlement panels is
questionable and, if false, is harmful. The facts underlying this
assumption do not necessarily support it. One line of reasoning
suggests that the fact that some governments have used outside
counsel to represent them before dispute panels means that the
process is now open to private parties.6 A lawyer, however, is an
agent and does not represent him or herself.6" The fact that a
lawyer may appear before a dispute panel to represent a country
does not mean that that lawyer could appear before a panel to
represent him or herself. The second line of reasoning is that
disputes such as the Kodak-Fuji dispute are actually disputes
between private parties, and that dispute panels thus are open to
private litigants." Kodak and Fuji were quite active in the
dispute; they were active, however, only at the behest of the
member nations that actually stood before the dispute settlement
panels.6 4 The fact that private companies used the mechanisms
within their countries 65 to get their countries to use the dispute
settlement system of the World Trade Organization does not
necessarily mean that private parties effectively have standing
before those tribunals.
If this assumption is wrong, it degrades the discussion by
terminating it. Scholars are handed an ipso facto solution rather
than given room to explore possibilities. If this assumption
becomes assimilated into the debate, scholars could move away
from the "solved" issue of standing and work on other issues.
It is not at all clear, however, that the assumption that
parties have standing in reality is valid. It is certainly not clear that
the debate should be terminated. A ground rule for the debate,
therefore, might be that descriptions of private party access to
the dispute settlement process not be framed in terminal
language, so that resolution of the issue may be left open.
The debate over standing before the disputes settlement
panels of the World Trade Organization is an important debate,
but it is also a debate that is rife with assumptions. Individually,
each of these assumptions potentially harm the international
trading regime, and scholars should be careful either to avoid or
to carefully explain each of them. The existence of assumptions
in such a critical debate also highlights the need for an empirical
examination of this issue.
In the aggregate, these assumptions also represent an
abdication to the World Trade Organization. The assumption
underlying all of these assumptions, indeed underlying the entire
debate, is that the World Trade Organization is where the
conflicts between trade and other societal issues must be resolved.
Given the nature of the World Trade Organization and the
experiences of other trading bodies, this is a revolutionary
assumption. The World Trade Organization is a small, very specialized
body with limited resources and deep, but narrow, expertise. To
borrow from Peter Eigen, the Chair of Transparency
International, during a discussion of the creation of ethical standards by
large corporations, "Do we really want these guys to resolve
soWorld Trade Organization. See Frankj. Schweitzer, Flashof the Titans: A Pictureof Section
301 in the DisputeBetween Kodak and Fuji and a View Toward DismantlingAnticompetitive
Practicesin theJapaneseDistributionSystem, 11 AM U.J. INT'L L. & POL'Y 847, 847-46 (1996)
(describing the use of section 301).
cial issues?"66 It is quite possible that no matter how many
interest groups appear before the World Trade Organization, no
matter how much information is provided to them, no matter how
many of the above described assumptions actually are true, that
the trade experts at the World Trade Organization will choose
trade-related values above other types of societal values. 67
Rather than simply accepting the World Trade
Organization as the final arbiter of societal conflict, scholars should ask
odd questions and explore unusual possibilities. Should
decisions of the World Trade Organization be appealable to a body
that balances all societal interests? Should the teeth of the
World Trade Organization be pulled, or should bodies that
promote other interests be given teeth? Does the World Trade
Organization represent an unworkable throwback to a time when
nations were the most important actors in international
relations, or is it unworkably ahead of its time in representing trends
toward economic and social integration? These and more
questions, rather than reliance on unproven assumptions, will move
forward the understanding and development of the World
12. SeeJACKSON, supra note 8, at 94 ( "The key to invoking the GATT dispute-settlement mechanism is almost always 'nullification or impairment,' an unfortunately ambiguous term.").
13. John Rogosta takes issue with the common characterization of the dispute settlement process as quasi-judicial; he states the term quasi-judicial has as much meaning as the term quasi-pregnant. John A. Rogosta, Unmasking the WTO-Access to the DSB System: Can the WTO DSB Live Up to the Moniker " World Trade Court" , 31 L . & POL'Y INT'L Bus . 739 , 747 ( 2000 ).
14. See Kenneth W. Abbot , "Economic"Issues and PoliticalParticipation: The Evolving Boundariesof InternationalFederalism,18 CARDOZA L . REV. 971 , 1005 ( 1996 ) (stating that the World Trade Organization is among the most conservative international organizations with respect to private participation).
15. See Carol J. Miller & Jennifer L. Croston , WJ'O Scrutiny v . Environmental Objectives: Assessment of the InternationalDolphin ConservationProgramAct , 37 Am.Bus. L.J. 73 , 75 - 78 ( 1999 ) (describing the dispute settlement process); Curtis Reitz, Enforcement of the CeneralAgreementon Tariffs and Trade,17 U. PA.J. INT'L ECON . L. 555 ( 1996 ) (describing the dispute settlement process).
16. Understanding on Rules and Procedures Governing the Settlement of Dis-
30. See Eric L. Richards & Martin A. McCrory, The Sea Turtle Dispute: Implicationsfor Sovereignty, The Environment , and InternationalTrade Law, 71 U. CoLo. L. REv . 295 , 334 ( 2000 ) (discussing participation in all activities without distinguishing among them).
31. See Esty, supranote 23 , at 144 (noting the importance of distinguishing among the various activities of the World Trade Organization, which include legislation, adjudication , and trade negotiation).
32. In the United States, the legislatures and the judiciaries have very different functions. In some countries, however, the roles of the legislatures and the judiciaries blend together .
33. See generally William A. Fletcher, The Structure of Standing , 98 YALE L.J. 221 ( 1988 ).
34. See John H. Jackson , Foreword , 30 L. & POL'Y INT'L Bus . 189 , 189 - 90 ( 1999 ) (emphasizing the opportunity and need for detailed scrutiny of the World Trade Organization) .
35. Illustratively, perceptive studies of the World Trade Organization tend to focus on one process within the Organization-often the dispute settlement process . See, e.g., Andrew W. Shoyer, The First Three Years of WTO DisputeSettlement: Observationsand Suggestions , 1 J. INT'L ECON . L. 277 ( 1998 ).
36. See Steven P. Croley , The MajoritarianDifficulty: ElectiveJudiciariesand the Rule of Law , 62 U. CHi. L. REv . 689 , 750 ( 1995 ) (explaining the position that "judicial review of legislative outcomes is inherently and irreconcilably undemocratic"); John Ferejohn, Limitation of Statutes: Strategic Statutory Interpretation, 80 GEO . LJ. 565 , 572 ( 1992 ) ("[C]ourts are inherently undemocratic and perhaps even antidemocratic institutions.").
37. See Steve Charnovitz, Participationof Nongovernment Organizations in the World Trade Organization,17 U. PA.J.INT'L ECON . L. 332 , 334 - 35 ( 1996 ); Esty, supranote 23 , at 128.
60. Dunoff , supra note 24, at 433.
61. See Ted Sano, HistoricalConsequences of the Trade RelationshipBetween Japan and the United States, 16 ARiz . J. INT'L & COMP . L. 29 , 34 ( 1999 ) (noting that the use of private lawyers raises the question of participation). A student note nicely outlines the arguments on both sides of the debate over the use of private lawyers representing members and representing private interests . Jessica C. Pearlman, Note, Participationby Private Counsel in World Trade OrganizationDispute Settlement Proceedings,30 L. & PoL'Y IN INT'L Bus . 399 , 405 - 14 ( 1999 ).
62. See EuropeanCommunities-Regimefor the Importation, Sale and Distributionof Bananas , WTO Appellate Body Report , WT/DS27/AB/R (Sept. 9, 1997 ) (finding nothing in the trade agreements, the Understanding "of the Working Procedures, nor in customary international law or the prevailing practice in international tribunals, which prevents a WTO Member from determining the composition of its delegation in Appellate Body proceedings"); Indonesia-CertainMeasures Affecting the Automobile Industry , WTO Panel Report, WT/DS54/R (July 2 , 1998 ) (same).
63. Dunoff , supra note 24, at 434.
64. Sano , supra note 61, at 34-35.
65. In the United States, for example, section 301 of the trade laws allows private parties to request the United States Trade Representative to press a claim before the
66. Comments of Peter Eigen, Wharton Impact Conference on the Law and Ethics in Emerging Economies, March , 1997 , Philadelphia, Pennsylvania.
67. Thus, the author of this Essay has suggested elsewhere that persons from outside the trade regime should be placed on dispute settlement panels . Philip M. Nichols, Extension ofStanding in World Trade OrganizationDisputes to Nongovernment Parties, 17 U. PA. J. INT'L ECON . L. 295 , 328 ( 1996 ).