Consensus Yet Not Consented: A Critique of the WTO Decision-Making by Consensus

Abstract

World Trade Organization’s consensus decision-making faces both practical and theoretical challenges. A major practical issue is that consensus involves deference to powers and problems of disenfranchisement; reverse consensus challenges the institutional check-and-balance against Appellate Body’s de facto judicial finality. Single undertaking, as a natural extension of consensus, creates consent fragmentation. A major theoretical issue is that the principle of consensus rests its legitimacy on a contractarian foundation. In the same way that ‘general will’ underlies the social compact, consensus and single undertaking underlie World Trade Organization (WTO) decision-making and build their legitimacy on members’ consent. Unfortunately, through contractarian justification’s reference to a static ‘original compact’ as the first mover, consensus decision-making fails to take into account the evolutionary nature of consent. Because decision-making by consensus fails to secure members’ consent and as a consequence single undertaking leads to a fragmentation of WTO’s ‘general will’, the WTO decision-making process loses its legitimacy. The article thus calls for a reconstruction of a decision-making mechanism that would embrace full membership consent for a true consensus.