Balancing as a Trustee and Agent: A Case of the WTO DSM

An ongoing debate about international organizations concerns the extent to which international institutions are independent organs, insulated from the control of states. On the one hand, some scholarship suggests that international organizations are insulated from the control of states and pursue their own objectives and interests. On the hand, other research suggests that international organizations are best understood as agents working under the will and control of states. This debate has been quite prominent in research on international courts specifically. Some scholars point to courts as trustees of states that exercise authority under little restraint by states, while others argue that international courts behave as agents, acting under the constraint of states and seeking to fulfill their interest. This paper aims to look at how international courts behave both as trustee and as agents, balancing their interests in relation to both legal and political constraints. The paper examines how international courts balance their interests as both trustees and agents by combining formal and informal practices. Empirically, the paper focuses on the behavior of the WTO Dispute Settlement Mechanism (DSM) and how it has managed amicus curiae submissions. The WTO DSM’s response to amicus curiae submissions has been highly controversial, being viewed as an exercise of judicial activism where the DSM went beyond its mandate to the anger of many states. A study of the WTO’s dispute settlement process handling of amicus provides insight into the agent-trustee debate, and presents a case of how an international court behaves in the face of both legal and political constraints. The paper argues that international court behavior is best understood as a balancing of state and legal interests.