San Diego Law Review

Document Type



Issues of global justice and trade are usually dealt with in terms of what a just system of trade is like and what the distribution of income, opportunities, or welfare ought to be. But the question I address and explore is what a legitimate way of making decisions in the international realm is. This issue has arisen acutely in the case of the formation of the World Trade Organization (WTO) and other international institutions. In particular, many have complained that developed countries engaged in hard bargaining with developing countries in the conferences that led up to the formation of the WTO, thereby engaging in unfair and undemocratic methods for reaching agreements between developing and developed societies. They have complained that these methods have damaged the legitimacy of the WTO. I want to try to understand the nature of this complaint by attempting to elaborate and defend some basic principles of fair negotiation.

In this Article, I will lay out a conception of legitimacy in international institutions. The basic framework from which I proceed is morally cosmopolitan and democratic. Therefore, the conception of legitimacy will include an egalitarian method for making decisions. The main purpose here will be to explore the shape of this egalitarian method and what it would mean for the case of interstate negotiation. This has proven to be a hard nut to crack so the results of this paper will be exploratory and will not issue in a complete account, but rather in a set of observations and partial principles about what a just method of decision might be. The account is somewhat fragmentary and it does not give much in the way of guidance as to how to implement the principles in actual rules for collective decision-making.

First, I lay out a conception of legitimacy for the international system that is broadly cosmopolitan and democratic, though it attempts to start with the idea of state consent. The basic project here is to explore how the process of state consent, which is after all the most important source of legal legitimacy in the international system, must be qualified and modified in order for it to satisfy some basic democratic and cosmopolitan principles. I defend the centrality of state consent and consensualism generally against various majoritarian approaches to international collective decision-making. I then set forth some principles for evaluating the fairness of individual agreement making. From there I attempt to see how far this idea can be extended to interstate negotiation. I point out the insights and limits of this extension. I then discuss the formation of the WTO, highlighting some of the difficulties of legitimacy and then articulate some basic power apportionment principles for international negotiation. This account is still incomplete and does not yet shed light on how to apply the principles so as to construct collective decision-making mechanisms for international treaty making.