How, if at all, can negotiations be conducted to promote the legitimacy of much criticized international institutions, such as the World Trade Organization (WTO)? Can negotiation procedures be designed so as to strengthen the legitimacy of, say, the WTO as an institution and the agreements it concludes?
Two matters are widely recognized at this stage. First, a major problem facing the WTO is one of legitimacy and a chief reason for this is its decision-making, and especially negotiation, procedures. Those used informally in ad hoc ways are particularly controversial. Secondly, these negotiation procedures, as distinct from disagreements over substantive issues, have contributed significantly to recent setbacks in WTO talks. A number of experts, including current or former WTO associates, point specifically to lack of transparency and insufficient representation of parties in negotiations as key contributors to the erosion of legitimacy, which must be tackled if the organization is to be able to operate effectively. Much quoted is the WTO’s Director-General, Pascal Lamy, for calling the organization “medieval” in its decision-making methods following the failures of the Ministerial Conferences in Seattle and Cancún, and pointing to the need for a stronger rules-based trading system: “The procedures and rules of this organisation have not supported the weight of the task....The decision-making needs to be revamped.”
This paper brings together and reviews a variety of proposals, formal and informal, made for reforming the WTO’s negotiation procedures. It then develops an approach to procedural justice based on four main principles, which can be used to identify (recognize) the legitimacy or justice content in these proposals and to categorize and assess them accordingly. Drawing on the wealth of ideas which emerge from this analysis, it concludes by pointing to particularly promising elements of reform.
In so doing, the paper brings research literatures on justice and negotiation to bear on current debates over the legitimacy deficit in international institutions and global governance, using the WTO as a significant case. On the more practical side, it seeks to help concretizing what more legitimate negotiation procedures may mean and require, and how their “legitimacy content” may be assessed and indeed increased. Procedural justice is here the focus and taken to be very important, but obviously the problems of the WTO – including that of legitimacy – are also about other and, to date, better known and publicized issues.