A Green Public Sphere in the WTO?: The Amicus Curiae Interventions in the Transatlantic Biotech Dispute
| Published date | 01 September 2007 |
| Author | Robyn Eckersley |
| Date | 01 September 2007 |
| DOI | 10.1177/1354066107080126 |
| Subject Matter | Articles |
A Green Public Sphere in the WTO?:
The Amicus Curiae Inter ventions in the
Transatlantic Biotech Dispute
ROBYN ECKERSLEY1
University of Melbourne, Australia
The WTO’s decision-making model of executive multilateralism has
been widely criticized for its lack of accountability to civil society.
However, through the mechanism of the amicus curiae brief, non-
government organizations and other civil society actors have found a way
of directly ‘inserting’ the public interest concerns of civil society into the
dispute resolution arm of the WTO, which has proved to be more amen-
able to ‘critical public reason’ than the trade negotiation arm. This arti-
cle critically explores both the text and context of the amicus briefs
submitted in the transatlantic biotech dispute and highlights their role in
generating a green cosmopolitan public sphere that seeks more reflex-
ive modernization and facilitates horizontal forms of regime account-
ability. Cosmopolitan public spheres are conceptualized as specialized,
intermediary structures, with multiple strategic and communicative
functions, that mediate between supra-national governance structures
and regional and domestic civil societies.
KEY WORDS ♦biosafety ♦environmental NGOs ♦global governance ♦
GMOs ♦reflexive modernization ♦transnational civil society
♦transnational public spheres ♦WTO and the democratic deficit
♦WTO dispute resolution process
Introduction
The World Trade Organization (WTO) is regularly invoked as an exemplary
illustration of the democratic deficit in global governance. Trade negotiations
have been traditionally conducted as a tight-knit ‘club’ operating behind
European Journal of International Relations Copyright © 2007
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[DOI: 10.1177/1354066107080126]
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closed doors and exclusively confined to members (Keohane and Nye, 2000).
Yet negotiations under the international trade regime have shifted from sim-
ple tit-for-tat tariff reductions in the post-World War II period to fundamen-
tal rule-making concerning the shape and direction of the international
economic order (Esty, 2002). WTO legal norms are backed up by powerful
sanctions and a sophisticated dispute resolution mechanism that is unequalled
in other international regimes. WTO legal norms now constrain national and
sub-national legislatures and also sometimes undermine the legal norms of
other international regimes, particularly in the environmental field (Eckersley,
2004a). As the global reach of the WTO has grown as more states join the
regime, it has also being stalked by protests by a range of domestic and
transnational civil society actors who have defended non-trade norms.2From
the perspective of these critics of neoliberalism and ‘executive multilateralism’
(Zürn, 2004), the WTO is a functionally determined technocracy ruled by
narrow-minded trade ministers, rather than a legitimate democratic govern-
ance structure that is responsive to the environmental, health and cultural
concerns of domestic and transnational civil society.
The purpose of this article is to explore the role of transnational public
spheres as vehicles for improving the external accountability of the WTO to
civil society and, incidentally, also to other international regimes that are
more reflective of civil society concerns (in this case, the Cartegena Protocol
on Biosafety). Whereas most of the debates on transnational public spheres
and the role of communicative action in international politics have focused
on processes of rule negotiation and implementation, this article focuses on
the processes of rule interpretation and dispute resolution. I also seek to con-
nect the debate about the meaning, potential and limitations of transnational
public spheres with the strategic dilemmas facing civil society actors seeking
to influence the interpretation of international trade law. In so doing, I seek
to rescue and reconstruct Jürgen Habermas’s early formulation of the pub-
lic sphere as not only an arena of unconstrained discourse or deliberation but
also as an arena for empowering the citizenry vis-à-vis both private economic
power and states (including the regimes created by states).
The core problem facing civil society actors and non-government organ-
izations (NGOs) is that the WTO rules do not allow them to participate in,
or even observe, trade negotiations. The only formal opportunities they have
to influence international trade law are indirect, namely, by lobbying their
national government and trade negotiators. This typically makes it very dif-
ficult for broader, transnational public concerns to find a direct political hear-
ing or receptive audience in the WTO in terms that are not refracted through
the lenses of the trade negotiators of nation-states. This is a classic case of
what Robert Keohane has called the ‘external accountability gap’ in global
governance, where parties directly affected by global laws consider that they
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