Selective Subsidiarity and Dialectic Deference in the World Trade Organization

This article, part of a special issue of Law and Contemporary Problems on subsidiarity in international law and governance (edited by Markus Jachtenfuchs and Nico Krisch), examines from positive and descriptive perspectives the actual extent of subsidiarity-like provisions and processes in the WTO; and in so doing explores the nature and distribution of their operation. In a nutshell, the critical argument is that the (surprisingly abundant) expressions of subsidiarity (or deference) in the WTO are selective and strategic, not systemic; and that they more often than not serve to counteract the anxieties of the multilateral decision-making machinery, providing it with sources of enhanced legitimacy in its give-and-take with other actors, the Membership (writ large) in particular, over influence and governance. Simultaneously, this selective subsidiarity does not clearly work to either empower, or disempower, national (or regional) systems, and it is in this respect that the deference becomes dialectical. This is how subsidiarity in action, in the WTO, should be understood – not as a technical authority allocation rule, but as range of instruments and vocabularies through which the apportionment of authority is negotiated and adjusted