Smith, F; (2013) Locating Power in the WTO. Boston College Law Review , LIV (1) ? - ?. (In press).
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In a globalized world, power inevitably devolves to structures existing beyond the nation state. Sophisticated, highly complex international organizations, like the World Trade Organization (WTO), are often thought to be a logical new locus for some of this devolved power. The state may still retain some power in such a structure, but that power is inevitably diluted amongst the plethora of other states (and states within regional trading groupings) that are members of the organization. Likewise, new entities within the international organization also gain power, like the institutional structures, for example in the WTO’s case, the Secretariat, the committees and the dispute settlement bodies (the panels and the Appellate Body). But in all these cases, the focus in the literature remains on charting the activities of entities like organisations, states, bodies that actually act as a way of identifying where the power is and how it is exercised. For it is assumed that power must be located in something that is dependent on human actors at one level or another for its destiny. If the extent of the human activity within the entity is understood, then it can be changed and ultimately controlled. But what if that is not the case? What if power is located in a much more nebulous place that controls the human activity in a more tangible way than it at first appears? In my paper I challenge the traditional positivist conception of power, which is given particularly erudite expression in Koskienniemi’s account of the political nature of public international law in From Apology to Utopia. I argue that the law, specifically the language of the rules in the Treaty Establishing the WTO, is an important global actor in its own right. I show how that language shapes the debate in subtle, and yet profound ways, that is often outside the control of the trade negotiators, and other institutional actors.
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