Anna Saunders's article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” is an important addition to the literature that problematizes the idea of international constitution-making. At the heart of Saunders's critique of international constitution making—defined as the involvement of international institutions in national constitution-making processes—is the point that the parameters of what constitutes “local ownership” of the constitution-making process is detached from debates on rethinking neoliberal economic structures and material interests. As a result, constitutions in post-conflict societies fail to speak to the socio-economic realities of a people and, most importantly, diminish their agency to envision alternatives. Saunders offers a detailed historical account of why such failure, or what she refers to as “selective technicity,” has become standard practice, and then goes further to stress the imperative of reimagining the vocabulary of what constitutes “local ownership” in the context of meaningful societal transformation. In this essay, I extend Saunders's thesis to argue that if the international constitution-making process does not shed its Eurocentric gaze, we will be unable to proffer sustainable suggestions to make the process responsive to the realities of a people.
{"title":"The (Not So Hidden) Elephant in the Room: Confronting International Constitution-Making's Eurocentric Gaze","authors":"Babatunde Fagbayibo","doi":"10.1017/aju.2023.40","DOIUrl":"https://doi.org/10.1017/aju.2023.40","url":null,"abstract":"Anna Saunders's article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” is an important addition to the literature that problematizes the idea of international constitution-making. At the heart of Saunders's critique of international constitution making—defined as the involvement of international institutions in national constitution-making processes—is the point that the parameters of what constitutes “local ownership” of the constitution-making process is detached from debates on rethinking neoliberal economic structures and material interests. As a result, constitutions in post-conflict societies fail to speak to the socio-economic realities of a people and, most importantly, diminish their agency to envision alternatives. Saunders offers a detailed historical account of why such failure, or what she refers to as “selective technicity,” has become standard practice, and then goes further to stress the imperative of reimagining the vocabulary of what constitutes “local ownership” in the context of meaningful societal transformation. In this essay, I extend Saunders's thesis to argue that if the international constitution-making process does not shed its Eurocentric gaze, we will be unable to proffer sustainable suggestions to make the process responsive to the realities of a people.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135104874","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this essay I reflect upon whether and how the recent international recognition of the right to a healthy environment might––or might not––provide greater support for efforts to define and protect the rights of what one could term “law's hidden subjects,” namely future generations and nature. Although there are several examples of rights-based regimes that aim to protect future generations and nature, few would disagree that these hidden subjects require better legal protection, and that thoroughgoing reform of existing human rights law is overdue. I argue that the international recognition of a human right to a healthy environment might contribute less to such reforms than what one would have intuitively expected. One reason for this is because the formulation of the right does not provide anything new in terms of more comprehensive recognition and protection of rights of nature and future generations. Although it is an important symbolic event that signifies broad consensus on the importance of rights-based environmental protection, many domestic and regional legal regimes already protect future generations, while some even offer innovative rights of nature provisions. At best, UN General Assembly Resolution 76/300 merely reinforces the status quo ante.
{"title":"The Right to a Healthy Environment and Law's Hidden Subjects","authors":"Louis J. Kotzé","doi":"10.1017/aju.2023.27","DOIUrl":"https://doi.org/10.1017/aju.2023.27","url":null,"abstract":"In this essay I reflect upon whether and how the recent international recognition of the right to a healthy environment might––or might not––provide greater support for efforts to define and protect the rights of what one could term “law's hidden subjects,” namely future generations and nature. Although there are several examples of rights-based regimes that aim to protect future generations and nature, few would disagree that these hidden subjects require better legal protection, and that thoroughgoing reform of existing human rights law is overdue. I argue that the international recognition of a human right to a healthy environment might contribute less to such reforms than what one would have intuitively expected. One reason for this is because the formulation of the right does not provide anything new in terms of more comprehensive recognition and protection of rights of nature and future generations. Although it is an important symbolic event that signifies broad consensus on the importance of rights-based environmental protection, many domestic and regional legal regimes already protect future generations, while some even offer innovative rights of nature provisions. At best, UN General Assembly Resolution 76/300 merely reinforces the status quo ante.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135783684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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{"title":"Introduction to the Symposium on Anna Saunders, “Constitution-Making as a Technique of International Law: Reconsidering the Post-War Inheritance”","authors":"Gráinne de Búrca","doi":"10.1017/aju.2023.39","DOIUrl":"https://doi.org/10.1017/aju.2023.39","url":null,"abstract":"An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135105071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How do international financial institutions such as the World Bank and the International Monetary Fund influence constitution-making processes? In this essay on Anna Saunders's “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” I argue that the material dimensions of constitution-making are profoundly influenced by the discursive environment that institutions like the World Bank help create for political elites. I show how these institutions operate in opaque ways that are difficult to capture in the results of that constitutional process but serve to facilitate, expand, or contract the options available to constitution-makers to engage with material questions, especially those that involve historic injustice. My argument adds nuance to Saunders's claim that constitution-making traditions display a “relative separation from projects of global economic ordering.” Drawing on an example that Saunders uses, this essay engages with how an international financial institution—the World Bank—acted in a facilitative modality and influenced constitutional history and the current practices of land reform in South Africa since its negotiated transition in 1994. I then show how international financial institutions acted in a more prescriptive modality during the constitution-making processes in Hungary. I choose these countries as examples due to their canonical status for studying the influence of international assistance for constitution-making in the post-1991 moment. What these examples show is that while international financial institutions can guide “post-sovereign” constitution-making states toward better integration into the global economic framework, the sustainability of their constitutional arrangements often depends on broader domestic consensus.
{"title":"Shaping Sovereignties: The Role of International Financial Institutions in Constitution-Making","authors":"Gaurav Mukherjee","doi":"10.1017/aju.2023.42","DOIUrl":"https://doi.org/10.1017/aju.2023.42","url":null,"abstract":"How do international financial institutions such as the World Bank and the International Monetary Fund influence constitution-making processes? In this essay on Anna Saunders's “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” I argue that the material dimensions of constitution-making are profoundly influenced by the discursive environment that institutions like the World Bank help create for political elites. I show how these institutions operate in opaque ways that are difficult to capture in the results of that constitutional process but serve to facilitate, expand, or contract the options available to constitution-makers to engage with material questions, especially those that involve historic injustice. My argument adds nuance to Saunders's claim that constitution-making traditions display a “relative separation from projects of global economic ordering.” Drawing on an example that Saunders uses, this essay engages with how an international financial institution—the World Bank—acted in a facilitative modality and influenced constitutional history and the current practices of land reform in South Africa since its negotiated transition in 1994. I then show how international financial institutions acted in a more prescriptive modality during the constitution-making processes in Hungary. I choose these countries as examples due to their canonical status for studying the influence of international assistance for constitution-making in the post-1991 moment. What these examples show is that while international financial institutions can guide “post-sovereign” constitution-making states toward better integration into the global economic framework, the sustainability of their constitutional arrangements often depends on broader domestic consensus.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135105422","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In her article “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” Anna Saunders focuses on constitution-making as an international practice of the past three decades and suggests that its “epistemic boundaries”—namely, the separation between the formal and material dimensions of constitution-making and the latter's exclusion from contemporary constitution-making assistance—were primarily established by scholarly work on constitution-making in the post-war era. Saunders explicitly acknowledges that her account is not the only possible history of constitution-making assistance. In this essay, I add a different layer to that history, focusing on the UN Transition Assistance Group (UNTAG) in Namibia. UNTAG is often considered the first instance of international constitution-making assistance, a practice that is generally understood to have emerged after the end of the Cold War. However, UNTAG's mandate, including its constitution-making assistance component, was in fact conceived many years before its actual deployment, dating back to the 1960s and 1970s. The essay shows that UN constitution-making assistance pre-dates the end of the Cold War and is linked to UN efforts to forge modern nation-states in the context of decolonization. I argue that this early case of constitution-making practice was an important blueprint for further iterations of international constitution-making assistance, not least because of the continuous involvement of individual international civil servants. Lastly, the case of Namibia is significantly different from the cases that inspired scholarly work in the post-war era, and we might ask to what extent the post-war inheritance affected this early international practice. I end with a brief reflection on Saunders's call to address the material dimension of constitution-making and caution against overemphasizing substantive questions in constitution-making assistance.
{"title":"Beyond Peace and Security: The UN Transition Assistance Group in Namibia and its Importance for Contemporary Constitution-Making","authors":"Hannah Birkenkötter","doi":"10.1017/aju.2023.43","DOIUrl":"https://doi.org/10.1017/aju.2023.43","url":null,"abstract":"In her article “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” Anna Saunders focuses on constitution-making as an international practice of the past three decades and suggests that its “epistemic boundaries”—namely, the separation between the formal and material dimensions of constitution-making and the latter's exclusion from contemporary constitution-making assistance—were primarily established by scholarly work on constitution-making in the post-war era. Saunders explicitly acknowledges that her account is not the only possible history of constitution-making assistance. In this essay, I add a different layer to that history, focusing on the UN Transition Assistance Group (UNTAG) in Namibia. UNTAG is often considered the first instance of international constitution-making assistance, a practice that is generally understood to have emerged after the end of the Cold War. However, UNTAG's mandate, including its constitution-making assistance component, was in fact conceived many years before its actual deployment, dating back to the 1960s and 1970s. The essay shows that UN constitution-making assistance pre-dates the end of the Cold War and is linked to UN efforts to forge modern nation-states in the context of decolonization. I argue that this early case of constitution-making practice was an important blueprint for further iterations of international constitution-making assistance, not least because of the continuous involvement of individual international civil servants. Lastly, the case of Namibia is significantly different from the cases that inspired scholarly work in the post-war era, and we might ask to what extent the post-war inheritance affected this early international practice. I end with a brief reflection on Saunders's call to address the material dimension of constitution-making and caution against overemphasizing substantive questions in constitution-making assistance.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135106270","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Institut de Droit International (IDI) and the International Law Association (ILA) have bequeathed complex and contradictory legacies to the Americas. This essay explores both the resonances and the dissonances that the formation of the IDI, and to a lesser extent, the ILA, had in the institutionalization of the modern discipline of international law in the Americas. On the one hand, the IDI's establishment as an elite Eurocentric organization with a missionary imperial approach to the promotion and reform of international law, generated resonances across the Americas, inspiring the creation of the American Institute of International Law (AIIL). On the other hand, the AIIL emerged as a reaction to the IDI, insofar as the former promoted juridical values based on the idea of American international law and a distinctive sense of U.S. and continental legal exceptionalism. The essay argues that the institutionalization of international law in the Americas was both inspired by the Eurocentric imperial and elitist legal approach promoted by the IDI, and the desire to forge a distinctive Western Hemispheric counterpart: a continental American international law.
{"title":"The IDI, The ILA, and their Impact on the Institutionalization of International Law in the Americas: Resonances and Dissonances","authors":"Juan Pablo Scarfi","doi":"10.1017/aju.2023.37","DOIUrl":"https://doi.org/10.1017/aju.2023.37","url":null,"abstract":"The Institut de Droit International (IDI) and the International Law Association (ILA) have bequeathed complex and contradictory legacies to the Americas. This essay explores both the resonances and the dissonances that the formation of the IDI, and to a lesser extent, the ILA, had in the institutionalization of the modern discipline of international law in the Americas. On the one hand, the IDI's establishment as an elite Eurocentric organization with a missionary imperial approach to the promotion and reform of international law, generated resonances across the Americas, inspiring the creation of the American Institute of International Law (AIIL). On the other hand, the AIIL emerged as a reaction to the IDI, insofar as the former promoted juridical values based on the idea of American international law and a distinctive sense of U.S. and continental legal exceptionalism. The essay argues that the institutionalization of international law in the Americas was both inspired by the Eurocentric imperial and elitist legal approach promoted by the IDI, and the desire to forge a distinctive Western Hemispheric counterpart: a continental American international law.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135357296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In their article “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” Joost Pauwelyn and Krzysztof Pelc recharacterize the World Trade Organization's Dispute Settlement System (DSS) as a sui generis administrative review system wherein the “Guardians of the System,” i.e., the Secretariat, no longer merely “assists” panels and the Appellate Body (AB) in their reports, but also exerts influence and control over adjudicators. For them “‘the guardians of the system’ may have contributed to the system's demise by the expansion of their influence.” This Essay attempts to illustrate that Pauwelyn and Pelc's fatalistic view of the DSS is overstated, by providing some comments into the practical functioning of the DSS. We argue that, first, the “guardians of the system” are also restrained by suitable accountability mechanisms in their functions relating to appointment and financial “oversight” of adjudicators. Second, while acknowledging that the Secretariat retains a much stronger institutional memory than adjudicators, we suggest that this asymmetry between the staff and adjudicators’ familiarity with World Trade Organization (WTO) law and policy is not as stark and irredeemable as painted by the authors. Rather, the Secretariat's contribution to consistency and predictability in institutional decisions is ultimately desirable. For governments who established and make use of the WTO dispute system, the balance between ensuring legal coherence and preventing over-judicialization is at the core of the DSS. The participation of diplomats as panelists and the simultaneous creation of an office of Legal Affairs within the Secretariat was intended to ensure consistency in resolution of the members’ disputes to preserve a rules-based system. Finally, we contend that there is a strong internal legitimacy to Secretariat roles.
{"title":"Unmasking the Phantom of the Opera: Is there a Hidden Secretariat in the WTO Dispute Settlement System?","authors":"G. Marceau, Akshaya Venkataraman","doi":"10.1017/aju.2022.68","DOIUrl":"https://doi.org/10.1017/aju.2022.68","url":null,"abstract":"In their article “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” Joost Pauwelyn and Krzysztof Pelc recharacterize the World Trade Organization's Dispute Settlement System (DSS) as a sui generis administrative review system wherein the “Guardians of the System,” i.e., the Secretariat, no longer merely “assists” panels and the Appellate Body (AB) in their reports, but also exerts influence and control over adjudicators. For them “‘the guardians of the system’ may have contributed to the system's demise by the expansion of their influence.” This Essay attempts to illustrate that Pauwelyn and Pelc's fatalistic view of the DSS is overstated, by providing some comments into the practical functioning of the DSS. We argue that, first, the “guardians of the system” are also restrained by suitable accountability mechanisms in their functions relating to appointment and financial “oversight” of adjudicators. Second, while acknowledging that the Secretariat retains a much stronger institutional memory than adjudicators, we suggest that this asymmetry between the staff and adjudicators’ familiarity with World Trade Organization (WTO) law and policy is not as stark and irredeemable as painted by the authors. Rather, the Secretariat's contribution to consistency and predictability in institutional decisions is ultimately desirable. For governments who established and make use of the WTO dispute system, the balance between ensuring legal coherence and preventing over-judicialization is at the core of the DSS. The participation of diplomats as panelists and the simultaneous creation of an office of Legal Affairs within the Secretariat was intended to ensure consistency in resolution of the members’ disputes to preserve a rules-based system. Finally, we contend that there is a strong internal legitimacy to Secretariat roles.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45393183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” Joost Pauwelyn and Krzysztof Pelc describe, in rich detail, the pervasive involvement of the World Trade Organization (WTO) Secretariat in the resolution of trade disputes.1 The authors conclude, rather emphatically, that the Secretariat “exerts more influence over dispute settlement proceedings than the staff of any comparable . . . tribunal.”2 In my view, this conclusion is somewhat misleading, as it portrays the WTO as “exceptional” or “sui generis”3 among international courts. In fact, the invisible army of legal bureaucrats (clerks, registry and secretariat lawyers, arbitral assistants, etc.) plays a “critically important”4 part across the whole field of international adjudication. What is missing is a comparative analysis of the power those bureaucrats wield in different judicial regimes. In this Essay, I outline a basic framework for the comparison, focusing on two main factors: first, the organizational and contractual arrangements that govern the relationship of international judges and bureaucrats; second, the relative distribution of expertise and capital between the two.
{"title":"The Myth of the Lone Judge: Comparing International Judicial Bureaucracies","authors":"T. Soave","doi":"10.1017/aju.2022.63","DOIUrl":"https://doi.org/10.1017/aju.2022.63","url":null,"abstract":"In “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” Joost Pauwelyn and Krzysztof Pelc describe, in rich detail, the pervasive involvement of the World Trade Organization (WTO) Secretariat in the resolution of trade disputes.1 The authors conclude, rather emphatically, that the Secretariat “exerts more influence over dispute settlement proceedings than the staff of any comparable . . . tribunal.”2 In my view, this conclusion is somewhat misleading, as it portrays the WTO as “exceptional” or “sui generis”3 among international courts. In fact, the invisible army of legal bureaucrats (clerks, registry and secretariat lawyers, arbitral assistants, etc.) plays a “critically important”4 part across the whole field of international adjudication. What is missing is a comparative analysis of the power those bureaucrats wield in different judicial regimes. In this Essay, I outline a basic framework for the comparison, focusing on two main factors: first, the organizational and contractual arrangements that govern the relationship of international judges and bureaucrats; second, the relative distribution of expertise and capital between the two.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47392894","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,”1 Joost Pauwelyn and Krzysztof Pelc argue that the Secretariat of the World Trade Organization (WTO Secretariat) has more influence over dispute resolution than the staff of any comparable tribunal. This influence is the result of the institutional design of the WTO, but also of unexpected factors that extended the mandate of the WTO Secretariat beyond what was originally conceived. The authors claim that this influence has brought benefits but has also raised questions of legitimacy and accountability. It has also had unintended––and not necessarily positive––legal effects. In this Essay, I offer a comparative view of the Secretariat of the Inter-American Court of Human Rights (the IACtHR Secretariat). I first wish to complement Pauwelyn and Pelc's analysis and provide another point of reference to understand the degree of influence that the WTO Secretariat has over dispute resolution. Second, I wish to provide some comparative insights as to the benefits and challenges that come with the existence of a permanent Secretariat playing a pivotal role within international judicial or quasi-judicial systems.
{"title":"The Role of the Secretariat in the Inter-American Court of Human Rights: A Comparative Analysis","authors":"Pablo González Domínguez","doi":"10.1017/aju.2022.67","DOIUrl":"https://doi.org/10.1017/aju.2022.67","url":null,"abstract":"In “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,”1 Joost Pauwelyn and Krzysztof Pelc argue that the Secretariat of the World Trade Organization (WTO Secretariat) has more influence over dispute resolution than the staff of any comparable tribunal. This influence is the result of the institutional design of the WTO, but also of unexpected factors that extended the mandate of the WTO Secretariat beyond what was originally conceived. The authors claim that this influence has brought benefits but has also raised questions of legitimacy and accountability. It has also had unintended––and not necessarily positive––legal effects. In this Essay, I offer a comparative view of the Secretariat of the Inter-American Court of Human Rights (the IACtHR Secretariat). I first wish to complement Pauwelyn and Pelc's analysis and provide another point of reference to understand the degree of influence that the WTO Secretariat has over dispute resolution. Second, I wish to provide some comparative insights as to the benefits and challenges that come with the existence of a permanent Secretariat playing a pivotal role within international judicial or quasi-judicial systems.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43709928","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What are secretariats for in international dispute settlement bodies? The question is implicit in much of what Joost Pauwelyn and Krzysztof Pelc have written in their important article, “Who Guards the ‘Guardians of the System?’ The Role of the Secretariat in WTO Dispute Settlement,” but is one that they do not ask outright.1 Pauwelyn and Pelc thoughtfully describe what the World Trade Organization (WTO) dispute settlement secretariat (WTO Secretariat) does as part of their call to determine what the WTO Secretariat is for. Asking what secretariats ought to be for advances the valuable work that has been done on these institutions with an eye to new secretariats that states are now constructing. This Essay makes two points. First, it argues that the work of the WTO Secretariat is typical of many international adjudicatory secretariats, especially those assisting with disputes over matters of international economic law. Seeing those similarities helps us understand how dispute settlement constituencies view the purpose of such secretariats: to carry out the activities highlighted by Pauwelyn and Pelc. Second, the essay picks up where Pauwelyn and Pelc left off and maintains that our collective attention ought to turn to newly envisioned and recently constructed trade dispute secretariats, and their substitutes. The authors provide a platform for examining what experimental designs of secretariats in upcoming trade agreements might look like, and, more important, what we think those secretariats are for.
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