(De)Legitimation at the WTO Dispute Settlement Mechanism
Legal scholars have long recognized that the legitimacy of judicial institutions proves central to courts’ exercise of authority and compliance with their judgments. While numerous studies examine the legitimacy of domestic courts, to date little empirical research looks at the legitimacy of international judicial bodies. This article was motivated partly by our conviction that such research is just as—if not more—important than studies on their domestic counterparts, particularly given that international courts don’t enjoy the same “presumption of legitimacy” typically enjoyed by national institutions. In fact, international courts in some ways must—and in practice often do—cultivate their legitimacy amongst relevant stakeholders in order to enjoy continued support and operate effectively.
Our Article—(De-)Legitimation at the WTO Dispute Settlement Mechanism—provides the first systematic mapping of the support enjoyed by one such international judicial body: the World Trade Organization’s (WTO) Dispute Settlement Mechanism (DSM). The article draws from a dataset we compiled of all statements made by WTO member countries within meetings of the Organization’s Dispute Settlement Body from 1995–2013. In order to better understand the context, practices, and motivations of these statements, we also conducted a series of interviews in Geneva with Member government representatives and WTO Secretariat officials.
We use this data to examine Members’ views on how the DSM is exercising its adjudicative authority. The article applies a mixed methods approach, combining sentiment classification of individual statements with in-depth analysis of statements of interest. The former permits us to provide the reader with an overview of how governments’ views on the DSM’s legitimacy have changed over time and how they vary across countries. Qualitative textual analysis is then used to identify judicial practices that have elicited significant (dis)satisfaction among Members over the years. This permits us to shed light on the sources—in terms of specific judicial practices—of the DSM’s legitimacy.
We identify a number of practices—some obvious to WTO scholars, others less apparent—that contribute to strengthening or weakening the DSM’s legitimacy in the eyes of WTO members. For example, governments routinely view the DSM practice of engaging in expansive interpretation of WTO rules as detrimental to its legitimacy. However, interpretations (even expansive ones) that reflect a high degree of pre-existing consensus among the membership positively influence aggregate measures of DSM legitimacy.
This article is the first to our knowledge that identifies the sources of an international court’s legitimacy empirically and that provides evidence that these sources may differ across actors. This is an important insight for scholars and practitioners to keep in mind when proposing future reforms. Tailoring these reforms to judicial practices that contribute to the DSM’s legitimacy in practice should facilitate proposal implementation and enhance support for the DSM’s exercise of authority among the broader membership.