Global Constitutional Lawmaking

Abstract

This article identifies a nascent phenomenon of “global constitutional lawmaking” in a recent WTO jurisprudence which struck down a certain calculative methodology (“zeroing”) in the antidumping area. The article interprets the Appellate Body’s uncharacteristic anti-zeroing hermeneutics, which departs from a traditional treaty interpretation under the Vienna Convention on the Law of Treaties and the past pro-zeroing GATT case law, as a “constitutional” turn of the WTO. The article argues that a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound this phenomenon. Critically, this turn originates from bold ideas which envision, and thus “constitute,” new institutional meaning and possibilities within the WTO, which are anchored firmly by a discernible purpose of cabining trade distortive/restrictive consequences from the use of zeroing which have long been left unchecked. The legitimacy (sustainability) of such constitutional lawmaking can be secured not only by exogenous factors such as domestic political support but also by endogenous factors such as normative recognition by the domestic legal system (“internalization).