5. ESTUDIO EMPÍRICO
5.3. Resultados
The second pillar of the WTO's power which is the executive power addresses the question of who has the power and responsibility to implement the regulations legislated by the legislative power as well as implements the decisions taken by
236 Faizel Ismail, "An Assessment of the Wto Doha Round, July-December 2008 Collapse," World Trade Review 8, no. 4 (2009). p.583
237 Stiglitz, "Social Justice and Global Trade." p.22
238 Ibid. p.21
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the judicial power and the dispute settlement process. Generally the execution and implementation of the WTO Agreements and dispute settlement decisions are through the national governments of the WTO Members and these member-states are the executive power of the WTO. In fact the WTO Law gives considerable discretion to national governments over the use and implementation of national policy instruments and this approach of the WTO Law to the role and discretion of the WTO Member-states was shaped as a result of the implementation costs in evaluating all instruments and proposals for the execution of the WTO Agreement. Despite the fact that the national states have been considered as the responsible body for the execution of the trade rules and principles and viewed as the executive power of the WTO, the national governments generally impose their national policies in both an implicit and explicit manner even if they are found to be in violation of international trade commitments.239
The high cost of negotiating and finalizing a fully efficient agreement and the nature of the WTO provisions in allowing the discretion of national governments, the existence of the "Escape Mechanism", the imposition of maximum tariff bindings and the rule-approach bindings instead of outcome-approach bindings have resulted in claims that the WTO is an incomplete contract by researchers and academics.240 This incompleteness has induced the researchers to study between two opposite approaches of a No-Agreement option or a nash equilibrium which gives all discretion to the government of member-states and the First Best Agreement which includes all domestic policy instruments and forces the members-states to respect all WTO decisions on the domestic policy instruments.241 This challenge puts forward the importance of the executive power in WTO resulting in the formula of a combination of states discretion and also a set of trade policies and instruments which controls the scope of the states' discretion as the executive power scheme in the WTO Agreement.
239 Hart and Spero, "Globalization and Global Governance in the 21st Century." p.51
240 Henrik Horn, Giovanni Maggi, and Robert W. Staiger, "The Gatt/ Wto as an Incomplete Contract," http://www.cepr.org/meets/wkcn/2/2363/papers/Horn.pdf (May 2006).p.1
241 Ibid. p.2
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These policies monitor certain fundamental principles of WTO regulations to be respected and are mainly the Most-Favored Nation principle and the principle of National Treatment. These principles focus on the necessity of having procedural and substantive equality in the implementation of the WTO Agreement and ensure and guarantee procedural justice in the WTO's executive power. These principles as the general rules of executive power are the proper instruments of justice and equality in the execution and implementation of the WTO's decisions, regulations and provisions, however while these principles can provide procedural justice among WTO Members with equal standing in the world's economy, in order to cover the distributional concerns among unequal members of the WTO, a new set of rules and principles should be developed.
The WTO Members' governments are the responsible bodies and players for the implementation of the WTO decisions which represent the executive power of the WTO. In fact the WTO Members' governments are the only existing bodies which are responsible for executing the WTO's decisions and all the provisions. The decisions made by the WTO's legislative power and the provisions of the WTO Agreements all put certain limitations and restrictions on the behavior of governments in order to control the WTO's executive power. However the justice theory looks for certain restrictions and conditions for addressing the problem of inequality for which the justice principles show certain weaknesses in the executive power of the WTO in relation to the execution of decisions made by the WTO's legislative power.
1.1.2.1. Problem of Sovereignty
Some researchers believe that the restrictions and limitations imposed by the international trade regulations on states' behaviors have restricted the states' autonomy. This conservative approach looks at the traditional concept of national government and rejects putting any restrictions on the national-sovereignty of the nation-states.242 However, the global justice approach and national sovereignty
242 Guzman, "Global Governance and the Wto." p.347
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requires the formation of global governance in which even though the nation-states have a certain level of discretion, they should still act within the established framework and the limitations and restraints of international relations.
Considering the individuals as the main pillar of justice framework with the current limitations in international relations, a move from the traditional notion of national sovereignty and the erosion of nation-states' discretions toward a supra-national body responsible for global governance seems necessary. Hence, from a global justice perspective the supra-national institution responsible for global governance would gradually take on the roles and responsibilities of the nation-states and the traditional concept of national sovereignty which was the basis for the primary establishment of international law. Therefore the application of justice principles by the executive power of the WTO not only justifies the restrictions on the state's autonomy and national-sovereignty of nation-states but also views that as part of broader move towards a justice-based structure in international relations.
1.1.2.2. Hypocrisy in Approaching Free Trade
Another important obstacle in the execution of the WTO rules and implementation of WTO Agreements is the hypocrisy of certain WTO Members in applying the principle of free trade and the comparative advantage approach.
While the primary concept of the WTO establishment was the major shift from the theory of nationalism and mercantilism to the free trade and efficiency approach based on comparative advantage theory, certain WTO Members are still adopting a half-mercantilism, half-free trade approach towards international trade.
The equal treatment arising from the first principle of justice requires all WTO Members to approach the same issue on an equal basis and be treated equally in the distribution of burdens and benefits.
A well-known example of this double-standard approach refers to the trade regime of agricultural goods in the WTO in which the high level of agricultural goods' tariffs and also the issue of agricultural subsidies in certain developed countries represents an example of hypocrisy when considering free trade. In
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addition the history of incorporation of intellectual property rights and access to medicine in the WTO regime represents a clear example of a position of double-standard taken by countries such as US. This hypocrisy is reflected in the fact that while the US government was working on the process of improving access to low cost medicines for US citizens, it was also working with the pharmaceutical companies in international trade negotiations in order to introduce stricter and higher standards of intellectual property, thereby making it more difficult to access medicine internationally especially for the least-developed and developing countries.243
1.1.2.3. Asymmetry of Economic Opportunity
Another important problem in the performance of the executive power is the asymmetry of economic opportunities in WTO framework in favor of high-income and the developed countries which is a legacy from the GATT period.244 Many believe that the GATT performance during the past decades has led to the marginalization of the low-income and the developing countries. The GATT rules were shaped in a manner which preserved the economic interest of developed countries while helping and supporting them in keeping a protectionist approach in their own domestic markets.245 Consequently, the trend of international trade was directed and shifted towards a situation which resulted in an asymmetry of economic opportunities favoring developed countries and disadvantaging developing and least-developed countries.246
The implementation of international justice principles requires that all individuals enjoy more or less the same level of opportunities in international trade and advocates the removal of any asymmetry of economic opportunities. By the
243 Stiglitz, "Social Justice and Global Trade." p.20
244 Ismail, "An Assessment of the Wto Doha Round, July-December 2008 Collapse." p.581
245 R. Wilkinson, The Wto: Crisis and Governance of Global Trade (Routledge, 2006). Also M.
Finger, "Implementation and the Imbalance: Dealing with Hangover from the Uruguay Round,"
Oxford Review of Economic Policy 23(3)(2007).
246 R. Wilkinson, "The Wto in Hong Kong: What It Really Means for the Doha Development Agenda," New Political Economy 11(2)(June 2006).
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establishment of the WTO and the entry in to force of the rules and regulations agreed in the Uruguay Round, the GATT image of being a club only for the developed countries disappeared and new players and actors emerged as a result of low-tariffs and the removal of the barriers to trade together with enhanced access to the markets of developed countries. The asymmetry in benefiting from international trade opportunities was improved and the developing countries started to gain better standing in the international market. The launch of the Development Round (Doha Round) and the intention to improve the Special and Differential Treatment all show positive signs of reducing the asymmetry in the WTO Members' participation and enjoyment of opportunities. Therefore, in order for the WTO to be viewed as a just organization it is necessary for the WTO Members to enjoy the same level of opportunities in international trade.