By Dr Edoardo Stoppioni, Senior Research Fellow (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law).
This post aims at using the work of Gramsci to analyse the hegemonic structures of the discourse of the WTO judge and to disentangle its relation to the neoliberal structural bias of its normative space. The objective is to transpose to international economic law the critical lenses that neo-Gramscian scholars, like Robert Cox, used in international relations. A neo-Gramscian approach focuses on the « material structure of ideology », in order to show how certain norms and practices emerge in a certain context and what is their emancipatory potential concerning a given legal order. By so doing, Cox enlarged the notion of hegemony to include those institutional practices of internalization of a certain ideology and the way they project it externally.
Critical doctrines on international law’s “fragmentation” have demonstrated that certain jurisdictions are capable of exercising hegemonic power in the international legal sphere and that a link should be established in that regard with the peculiar bias of economic jurisdictions, such as the WTO judge and the investment arbitrator. The WTO judge is a perfect example thereof (“judge” as, en passant, I find the judicial nature of the mechanism largely demonstrated and recently reaffirmed). As I previously theorized using Gramscian concepts, its discourse constantly oscillates between two poles. The first pole is the one of “prestige” or hegemony via expansion: the judge uses a language of dissemination; it exercises pedagogy to make its own idiom (the language of trade values) the dominating form of legal expression. The second pole is the one of “economism”, or of hegemony via isolation. The judge prefers using a discourse of self-containment to make its power uncontested. It refuses to listen to a foreign language not to put into danger its domination over its own normative regime.
This latter form of hegemony comes from what Gramsci theorized as a pattern of those discourses with an economic tropism. In the Notebooks, he had linked this tendency of isolation to the ideology of free-trade: “the theoretical separation of the economic dimension from a social and political ensemble: more specifically, the reduction of this ensemble to its economic causes” (Fogacs, The Gramscian Reader, 2000, 422). Following Gramsci, the free-trade prism can lead to an artificial separation of the economical from the rest of the normative sphere, which can describe the self-contained attitude of the judges.
The neoliberal twist translates in WTO case law in different discursive elements, making the idea of market a pillar of international trade law, silencing any other possible vision. This is visible in the way the Appellate Body progressively structured its case law on the “similarity test”, a fundamental judicial test to verify the existence of trade discrimination, as a market-based test. Robert Hudec had explained that « since GATT is a commercial agreement, it seems reasonable to start with the assumption that ‘likeness’ is (or should be) a commercial concept, meant to describe one or more market phenomena. The central commercial concept that comes to mind is competitiveness ». Only a dissenting opinion in the Asbestos case questioned this approach, generally theorized as ineluctable. This competitiveness reading of the similarity test places the focus on the product as it stands on the market, on the capitalistic product of consumption and not on its production process, that can be flawed with abuses and egregious violations of human rights.
A similar tendency can be observed in the “four corners of the GATT” doctrine, whereby the activity of the judge “would be limited in its activities and findings within the four corners of GATT”. This prism provides a restrictive interpretation of the jurisdictional specialization of the WTO judge to the observation of the impact of WTO Agreements violations exclusively, which explains its restrictive interpretation of the principle of systemic interpretation of Article 31(3)(3) VCLT, as attested in the Biotech or in Large Civil Aircraft cases.
One could challenge the impact of the hegemonic discourse of economism in WTO case law as being a “false contingency”, as « what seems to be given and presupposed is merely what we have temporarily refrained from challenging and remaking ». Interestingly enough, Quinn Slobodian claimed that this unchallenged vision comes from the historical project of those who like Wilhelm Röpke and Michael Heilperin used the WTO to insulate the markets against sovereign social justice policies. This type of hegemonic discourse has therefore strong historical roots on one particular vision of world economic regulation that has been injected in the agreements.
Liberal international law parlance and indeterminacy allow the normalization of such neoliberal bias. Following Chantal Mouffe, the topicality of Gramsci’s work lies in his radical reading of the economistic problematic of ideology. Gramsci showed the “vagueness and imprecision characterizing the mechanism of subordination of politics and ideology to economics”. With this prism of analysis, adopting a neo-Gramscian approach to international trade law should raise awareness over the impact of this neoliberal bias on the WTO judicial discourse and question its hegemonic structures.
If Robert Howse has analyzed the role of the Appellate Body in cutting the link between its jurisprudence and the neoliberal aspirations of the secretariat, discourse analysis has shown that neoliberal elements are still present in the judicial practice. The objective of a Gramscian theory of international trade adjudication is therefore to add to a static discourse analysis a dynamic reading of the impact of neoliberalism on the functioning of WTO dispute settlement.