Is the European Union a State or What Else Distinguishes it From Other International Organizations?

¶ … European Union a state, or what else distinguishes it from other International Organizations

The primary question concerning global organizations as a medium of global governance relates towards the quantity and excellence of this governance within an era where we now have an overdeveloped global economy as well as an under-developed global polity (Ougaard and Higgott, 2002). There's a powerful disconnect amid governance, being an efficient and effective collective solution-seeking process within a given problem-area, and governance being the democratic legitimacy of policy formation. It has made possible the debate regarding 'legitimacy shortfalls' in main global organizations. Furthermore, governance has turned into a hosting analogy determining non-traditional performers (non-condition performers for example NGOs and their local and international associations) that participate as portable agents extending and expanding policy understanding, which is far more advanced and sophisticated than the traditional, elitist, government activities. The interest in global (as well as the regional) governance is complicated and also the role of multilevel governance formations in major policy spheres, increased through the role and processes of both problem-specific and regional focused agencies, is continuing to grow among scholars (Higgott and Erman, 2008).

Nonetheless, in certain key regions of the global cooperative agenda, both in the economical and also the security domain, one seems to be seeing the degeneration of collective governance capacity and potential to deal with its progression even. In certain problem areas, the use of institutions as mediums for discussing information, developing trust and improving compliance are coming as unschooled while international policymaking issues oppose the technocratic handling and put forward key political as well as ethical concerns on the methods of policymaking, choices taken and assets distributed. For a lot of professionals, development in global governance is restricted by presumptions that it must take on the layer of the ethically neutral activity, getting rid of politics or ethics from problem fixing (Higgott and Erman, 2008).

Global economic, legal and political governance has turned out to be plans (across a spectrum from the weaker to the stronger to influence and persuade ) that local state and non-state actors attempt to set up to promote, administer, delay, legalize or alleviate political and economic globalization. For any global policy cooperation, propelled usually by economic philosophy, the delivery of community well-being by means of collective solution-oriented results in global governance is very important. This is where the dominant knowledge of governance in the global level is prominent. Similarly, performers (both governmental and non-governmental alike) aren't ethically neutral; in fact they most often have hidden political agendas. By comparison, intellectual interest, driven by normative (frequently cosmopolitan) philosophy and concentrating on issues of citizen participation, social justice as well as democratic authenticity results in what we should call global governance (Higgott and Erman, 2008).

In this paper we compare and evaluate European Union (EU) and World Trade Organization (WTO) as international administrative actors with a view to their democratic legitimacy. The paper sheds light on global governance as a fiscal theory of governance focusing on the development of efficiency and competence within the delivery of global public well-being via collective solution-oriented methods. Furthermore, the paper also posits global governance as a political theory of governance emphasizing the struggle for public representation and accountability which will promote legitimacy as well as democratization of policy-making in the international context (Higgott and Erman, 2008).

European Union (EU)

A transfer of powers

The European integration in the last fifty years has actually become a political project, whereas, it originally started with the economic perspective regarding coal and steel in the fifties. Treaty of Amsterdam, the Single European Act and the Treaty of Maastricht all came into being because of the modifications of the radical treaty; the parameter of actions has also been extended by them which resulted in the formation of the European Union (EU).

The European institution's regulatory performance enhanced a lot when the internal market's completion became a top priority from the mid eighties onwards. Three hundred proposals were launched by the European Commission for the purpose of the realization of this internal market during the years 1985-1992. This trend has not stopped; at least it is still being followed in the daily EU policy even in the European "feeling of depression" since Maastricht. It can be asserted that the democratic legitimacy is found to some extent in the actions of the EU as, although the European regulation are applicable directly in all the member states and the directives are very particular about the results that they want to be achieved but the national authorities in the member states are given some authority to accentuate the things that they want. (art. 249 EG). New margins have also been set by Europe through new methods like "open co-ordination" and these margins have to be followed by the member states (Aziz, 2006).

But the democratic legitimization is not very common in some of the member states such as De facto and de jure member states have lost the power and control that they had in the policy making in the past. Policies such as trade, industry, environment, and transport along with many other policies have been given to Europe in past decades. Euroland, which consists of twelve member states, no longer has any control over their currency policy; in fact, they have been separated from it once and for all. Although the National Ministers still play a significant role in decision making but since they don't have the veto power anymore they are often faced with decisions that they are totally against but still have to implement. Although it is really difficult to calculate the percentage of the legislation actually gave vote within the member states, but it is estimated that the number of the members of the parliament is around 70% (Miller 2000: 210). What is actually surprising regarding this method is that there is little or no amount of research that is done by the parliament, maybe it is because they fear that their own actions would be exposed if they do the research.

The question of democratic legitimacy

EU is definitely not a nation state; as everyone likes to remind and debate on it. It is "the first truly postmodern political form" (Ruggie 1993: 139-40; also see Aziz, 2006), "less than a federation, more than a regime" (Wallace 1983; also see Aziz, 2006) "sui generis," or an "unidentified political object" (Delors, cited in Schmitter 1996: 1 also see Aziz, 2006). And still whenever the topic of the shortage of democracy comes up, it is found that EU is always compared to the nation-state governments and the significant point to note here is that it is found wanting as well. But the question is that if we do want to avoid this problem than what or whom should we compare it with i.e. If we have to do the comparison in the first place. In my opinion it would be a lot better if we think of it as a "regional state." By "regional state" I mean thinking of it as a "regional union of nation-states" because of which the always continuing national differentiation and the increasing integration between the Union and its member states will be ensured. There are two reasons because of which I have used the term "regional state" here. The first reason is; to expand the concept of a state with the help of an ideational strategy so that it could encompass EU and the second reason is the breaking of the nation-state concept regarding the understanding of the democracy that is found in the EU and its member states by the use of a discursive strategy. Therefore, even if the first notion regarding the expansion of the concept of the state won't win many converts, the second reason will be very useful as it will show the extent to which EU is and probably will remain different form its nearby counterparts which are also economically advanced nations with implemented governance of democracy such as; Switzerland, United States and Japan and also, some of EU's own member states (Schmidt and Monnet, 2004).

All the nation-states mentioned above have has some certain finalized characteristics such as; clear identity, indivisible sovereignty, cohesive democracy, fixed boundaries and established government. Whereas, EU is based on the concept of its development as the first among the regional states and in EU the sovereignty is shared among the member states, external reorganization and internal acceptance, the boundaries are also not fixed geographically as well as with regards to the policies. In the EU the government is very complex because of the multi-form institutions, multi-level and multi-centered approaches and policies (Schmidt and Monnet, 2004).

Also, I don't think that there is a lot democratic legitimization shown by EU and the definition of democracy given by the nation-states do not fit the one given by EU. Nation-states definitions of democracy are; "government for the people" which is done by effective government, "government by the people" that is carried out through political participation, "government of the people" which is also done through the representation of the citizens and finally what I like to call "government with the people" which is done by organized consultations. Whereas, the democracy provided by the EU is mainly "with the people" and "for the people" and is mostly done through this vast process of the intermediation of the interest; this is also known as "Community Model" (Schmidt and Monnet, 2004).

Because of such a fragmented democracy the legitimization of EU has been questioned as, EU is compared to the nation-states, whereas, if EU was considered as a regional state the lack of democracy that is sometimes observed at the EU level won't seem as much troublesome as it is mostly presented. But the national democracy's problem turns out to be really big with regards to the EU; however, the effect of EU on the member state's traditional working is great because of the shortage of national democracy (Schmidt and Monnet, 2004).

Treaty provisions on Democratic Principles

First time ever in the Lisbon Treaty, among the treaties clear provisions, were strategies on the democratic principles included. This was done in accordance with the main idea of the democratic legitimization of the Preamble. In the Treaty on European Union (TEU) the article 10 has significant democratic statements -- whose power has greatly increased because of the new set of provision that support those statements. With the help of these new reforms the role of the National as well as the European Parliament has become stronger and they also provide the citizens with the initiatives for the purpose of growing democratic legitimization of the EU (Mayoral, 2011).

These Treaties also contain provisions whose basic purpose is to reinforce the democracy in the participatory and representative dimensions. 1) The participatory democracy also known as the direct democracy is done by the establishment of the new participatory mechanisms such as; the new channels of information and communication with the civil society of Europe and the European citizens' initiative (Mayoral, 2011); 2) Representative democracy which is done by giving power to the institution with the highest democracy such as the European Parliament and the National and Regional Chambers control the level of participation regarding the EU acts.

The influence of parliaments on European decision-making

Overall the parliaments only played a marginal role in the European decision-making (Norton 1996: 27; also see Aziz, 2004). From the Western point-of-view the parliaments are considered the focal point of the decision making and therefore, these democratic parliaments form crucial links. Although the existing interpretations might differ from state to state but the basic fact remains the same that the parliamentary democracy laws are made as well as amended by the parliament and it also controls the implementation of the executive power of the government.

The presence of a 'permissive consensus' (Katz 1999: 23; also see Aziz, 2004) was a reason why nobody really worried about the European construction's democratic standards for a very long time. But gradually this point-of-view about democracy did change when it became apparent that however technical the European rules regulations might appear at first, they always do involve the political choices. These political choices are usually about the significance of cultural multiplicity, agriculture and development, about the association between ecology and economy and about the variety of social and liberalization issues etc. Political choices and priorities are reflected in all the regulations and directives especially as they show how a European Society should look. Now-a-days it has been determined by most of the national as well as regional parliaments that the traditional power belonging to them has actually eroded. (Rideau 1996: 161, 169;; also see Aziz, 2004; Kassim 2000b: 257): a significant number of the European directives, with the help of the executive power were converted into the national laws as they were thankful to vote for the application of certain laws. Often we get the impression that the parliament now-a-days only gets itself involved in the matters of least importance and prefers staying in the margins while the actual and important decisions escape control. Also, there is no room for the regional or the national parliament in the European treaties, which proves the point that democratic legitimacy is lacking in the EU.

Wessels (1999b: 213; also see Aziz, 2004) in his research has proven that the parliament is anything but happy with the democratic way the Europeans make decisions. After the loss of the influence that the parliament had on national level nothing was done to compensate that loss on the European level. Although there is a European Parliament which is very powerful and often its power is underestimated by many but the problem with this European Parliament was that it didn't work in the traditional way that the national parliament used to work. The European Parliament with the Council of Ministers forms a co-legislator in the best case scenario but its executive management is very limited as there is no actual European government 'government' (in the traditional sense) (Thomassen, Schmitt 1999: 131; also see Aziz, 2004), also, the right of initiative is not disposed of by them either. Now the question that arises is, if it is useful and realistic to give the European Parliament a role similar to the national parliament on a European level. Useful, because EU is a very special construction but maybe there is still a need for some other methods to improve the democratic legitimacy rather than the typical parliamentary approach that they use. Realistic, because this is going to turn the EU into federal construction and this is not a policy option for a lot of member states currently (as cited in Andersen, Eliassen 1996: 3; also see Aziz, 2004).

Search for a new position in the EU

There seems to be a need to increase the EU legitimacy but this fact is also there that the influence of the regional as well as national parliaments on the European decision making seems to be very restricted right now. The term democratic deficit is the one that was heard a lot in the nineties. Maastricht Treaty's referenda didn't become a huge success and it was shown in the opinion polls that the European project that were carried out weren't very popular among the average Europeans as they didn't feel like it was a part of them. Also, the result went down 50% at the end of the 1999 European elections, the Danes rejected the euro in September 2000, whereas, the Treaty of Nice was rejected by the Irish in June 2001. Very often it is said that the contribution of the parliaments for the legitimization of the Europe project has to be done. In fact, in a Convention that came into being in December 2000 this topic was given huge priority. The participation was done by two representatives of each parliament in this discussion. The matter was mentioned clearly by the Laeken Declaration, who then further formulated a variety of questions as well.

Contributions are also made by the national parliament in the matter of the legitimization of the Europe project. The role of national parliament is also very important in the future of the Union and its attachment to the Treaty of the Nice. There is another question regarding the national parliament and the role it plays in the democratic legitimacy. Should they be focused on the division of the capability among Union and the member states? Should they be given a part in the European Union political activity in which the European Parliament has little to no capabilities or does not fit properly? Or do they need to be represented in new institution besides the European Parliament and the Council? (Bicchi, 2006)

It has been considered a lot as to what positions the parliament should be given in EU in the future. A debate can be done on the questions that are asked by the Laeken Declaration as well as many others. But it is still agreed upon that the parliament still has a very significant role (Vos, Baillieul 2002: 24-25). It is in this regard that the Convention Working Group IV was set up about the role played by the national parliament (Final Report: CONV 353/02).

The EU is facing a serious crisis which resulted when the approval for the Constitutional Treaty was denied and the situation further worsened because of the European Council meeting in June 2005. What happened in this meeting was that the heads of different states could not agree upon the budget for EU for the next 7 years and without the proper financing the ability of EU to make the decision is in serious danger and without any constitution there isn't any chance that this situation will improve (Bicchi, 2006).

Even with all this the idea of the integration of Europe is not dead. In fact when Europe's Constitutional Treaty was rejected by France and Netherlands in the referendum the only reason that they gave was the legitimization of the EU. But neither was Europe rejected by them and neither did they create this crisis. In fact it was observed from the polls in France that only a quarter of the voters who voted NO were concerned about maintaining the French Identity (see for example Ipsos, 2005). Considering the reality that the vote for 'No' only got 54% majority, the 'sovereigns' share reflects around the electoral weight of J.M. LePen, who was the extreme right wing candidate in the presidential elections held in 2002. Therefore, it was noted that the three quarter of the voters who voted NO didn't do so because they didn't like or want Europe but because they wanted a Europe different than the one that they saw at the time.

But now the question is that what kind of a Europe do these people want? The basic problem is that so many different kinds of public goods have been made by Europe which are now being controlled and supervised by the respective governments that the people have started feeling that may be the political control has escape them and because of this they want more democracy. It is very important to handle this issue of democracy first, because until and unless this issue isn't treated, the survival of the EU is in danger and its consequences can breach a lot of geographical boundaries. Firstly, I will outline the main challenges that are faced by the European integration model and then I will discuss the possible responses.

Democracy in the European Union

Many times it is considered that democracy is 'governance by the people'. Formalistic democracy and the result oriented aspects both are discussed and talked about in the scientific literature: a democratic strategy is an effective one (Gustavsson 1996: 104, 111; Andersen, Eliassen 1996: 9; also see Bicchi, 2006). Authors talk about the input and the output democracy in this regard, the output democracy means that the policy should be "beneficial" for as many people as possible, whereas, the input democracy means the as much voice as possible regarding the realization of policy should be heard (Peterson, Shackleton 2002: 356). The two most popular researches on this topic are:

The effectiveness of the popular representation and participation and policy achievements is what the democratic legitimization rest upon. Democracy combines the two criteria that often seem to be at tension i.e. representation and governance. The input and the output legitimacy have inevitable trade-off between a government that is for the people and a government that is by the people (Wessels, Katz 1999: 5; also see Bicchi, 2006). In the content given below we have first talked about the importance of EU in the chase of the output democracy (or substantial democracy) and then we have talked about European population's involvement in the Union policy (or formal democracy). Later on, we summarize and round up all the views.

European unification as democratic project

We have mentioned above that one of the important aspects of the democratic governance is an effective policy and for that matter the present day problems have to be considered first. If we look at the present problems we can clearly see that most of them have an international dimension such as; the issue of global warming is effecting the whole world rather than only those who are causing it similarly, the hole in the ozone layer is not only damaging the health of those who are using the CFCs rather a major part of the whole world and the environmental pollution such as; air and water pollution is not restricted to one or two states. Therefore, because of the international dimension of all these problems an international approach has to be taken in order to solve these problems (Bicchi, 2006).

Also, most of these problems have a connection to what we call "globalization": deterioration of the technological, economic and cultural processes. National government can't do much to deal with these problems as they are linked with the free market economy and this leads to the lack of democracy. Nevertheless, the free market economy is being protected by a lot of states although it leads to some loss of the power. In a conference in Lisbon (1999; also see Bicchi, 2006) the chairmen of EU's national parliament discussed possible solutions regarding the globalization challenge; end of the primate of politics was talked about by one of the representatives as well. In actual the decisions such as about the income, health, employment and environment of thousands of people are made in the head offices of transnational enterprises and these decisions effect the lives of many but if the people about whom the decisions are made want to be the part of the decision making process then a huge problem arises there. Governments are being forced to create and provide a friendly climate for the investments as the free market economy provides since, their only goal is to increase their profits. Sometimes it is very hard for a single state to follow the isolated policy and enforce unilateral rules regarding the tax law, social justice or the protection of the nature (Sterud 1996: 179; also see Bicchi, 2006). Now-a-days the government has a lesser control on the economy, which doesn't really make it powerless but very seriously limit its freedom of action.

The only democratic answer for the economic globalization and the issue of the present-day problems having the international dimensions is political globalization: understanding the rules of the game not on the traditional but on the higher level. The democratic deficits that are often observed on the scale of the states can be tackled by the creation of the powerful international and supranational institutions that can help in the international processes in which the states can't help (Wessels, Kielhorn 1999: 176; also see Castiglione, 2005). An ideal scenario can be the formation of the global governance, for example the United Nations, but the problem with this idea is that a lot of states won't be ready to give the higher levels the right to make decisions regarding them. EU seems to be an exciting "laboratory" for the global governance and solutions for a lot of problems can be found by the regional European approach. Also, EU has the power to speak with more authority, it has economic strength and it can affect the member states separately. The EU facilitated the globalization trend when the EU policy anticipated it. In this regard Europe has proved to be very effective in the past few decades. Along with that, rules are being forced at the same time as well, although mostly in a very hesitating fashion along with the social field, competition and environment. This is in accordance with some of the values that the European public considers as important. The situation has been summarized by Peterson and Shackleton as follows:

The basic problem with governing global economy in a political world in which many governments trusts the open commerce is the requirement of the global rules and the presence of the conflicting interests. In this regard the EU might appear to be a significant driving force in the freedom of the international trade. Along with that EU remains a very strong defender of values that have the tendency to be easily effected by the free trade like; core labor standards or environmental protection (Peterson, Shackleton 2002: 365).

It seems very desirable from a democratic point-of-view to have a strong political Europe that divides the norms on the basis of environmental, social and fiscal fields and that speaks with one voice only because the individual states are not strong enough to follow an effective policy. But there are some things that the EU lacks as well, although it does work in a very energetic manner in the free market, but it doesn't succeed in ensuring ecological and social protection, dealing with the unfair fiscal competition and the creation of the employments. Few of the member states are totally against the legislation of Europe when it comes to their domains. However, with the democratic perspective it is very advantageous if Europe acts efficiently here: not with half compromises, not with years of delay, not with tremendously chaotic and multifaceted legislation and not without responsibilities. In order to act energetically and make decisions quickly one need to have supranational decision-making and compelling rules (Sterud 1996: 179; Smith 1996: 11; also see Castiglione, 2005). What this means is that the member states need to transfer their powers to the European institutions like the European Parliament and the Commission (as a representative of the 'European interest'), also, these decisions are taken with the help of the majority of the votes rather than unanimously. Therefore, we have learned that the decisions that are made this way, rather than when all the member states have their veto power and the role of Commission are restricted, are much more successful.

Europe not only does not act that powerful but it also is shown as the bad guy by the media because of which it is often considered as being non-democratic. The regional or the national politicians would hardly ever accept their own mistakes rather they have this huge tendency to blame everything that turns out to be ineffective or a mistake on the EU.

In order for Europe institutions to have increased legitimacy what it needs to do is make the policies that the people of Europe want and agree with. Therefore, now we have reached the second half of the concept of democracy: what the majority of the population want is what the policy should be in accordance with.

Legality and Legitimacy

The tensions that are often found between the legitimization and legality of some rule are often solved by overruling the rights, the protection of good faith and the concept of equity but by staying within the limits of the laws. In actual a law is only considered valid while it is in line with the moral values of a society and most of the times these moral values are formed by the fundamental rights and the basic principles. The legality has to be brought in line with the legitimacy in order to prevent the formal application of a law beyond its purpose and scope and also if the law is being abused as this is the final resort (Castiglione, 2006).

Mostly the only thing that the lawyers are concerned with is the legitimacy of the rules within the limits of the constitutional system that is provided. The legality of a rule is usually thought of as case of legal rights against overruling the constitutional and the legal principles. Hence for this reason the legality and legitimacy mostly match each other, whereas, at the same time the illegitimate rule are constitutionally unlawful. Questions regarding the legitimacy do come beyond the field of constitutional law when during the times of revolution the legal orders break down, when it comes to tyranny in the legal philosophy, and also when the fundamental rights and formal values differ at that time they are used in the rights to resistance (Castiglione, 2006).

EU and WTO

The relationship of legality and law becomes a lot more complicated when it comes to the fragmented, contractual and non-hierarchical field of international law. The basic problem with the legitimacy of the rules in the international law and the WTO in particular is that the basic constitutional framework is absent and for that reason not any of the natural law's basic categories offer a suitable framework. Vice versa, very little protection is offered by the laws for the governments that take actions based on morals (Castiglione, 2006).

Free assent and compliance (pacta sunt servanda), a required community and social contract makeup the framework of the four paradigms on which the legitimacy in international law was discussed by Thomas Frank. The legitimization of a rule is basically understood in the form of a given quality which is actually judged in terms of the adherence and coherence, as well as symbolic validity (i.e. The two-way communication of authority), value for basic system and policies (such as the Vienna Convention on the Law of Treaties), determinacy and principles which include jus cogens, both in terms of procedures and substance (Frank 1998: 25-46; 1988; also see Castiglione, 2005). By doing this it seems that Frank has reverted to the categories that are built in the nature of the law and are derived from the experience that one has in the domestic law with regards to constitutional context. Robert Howse has put great emphasis on the fact that in an international law the legitimacy transgresses an enquiry into the underlying values is required as well as the formal principle of consent (Howse 2001: 600-604), which was termed by Joseph Weiler as the social legitimacy of the rules as a "broad, empirically determined, societal acceptance of the system" (Weiler 1999: 80-81; also see Castiglione, 2005). The lawyer who is trained in a positivist approach with regards to the international law therefore, needs to turn to the domestic principles of law. What makes undertaking the task of legitimacy even more difficult is the fact that it very quickly reaches the limit of some particular discipline.

When it comes to the international relations theory the underlying theories on which the legitimacy of organizations like EU and WTO hugely depends upon are strongly influenced by the political philosophies of different traits as they are adapted and applied to the international relations (Elsig 2007). The distinction between the output and the input legitimacy has been established by the political scientists (Scharpf 1999, also see Verney, 2006; Keohane and Nye 2001: 282287).

The ways through which the rules and the decisions of organizations like EU and WTO are made is judged by the input legitimacy, in my point-of-view this is the point where the issues of the democratic legitimacy are at their largest, although at the same time they can't strictly be separated from the output legitimacy. The debate done on the input legitimacy in Europe, for both EU and WTO, forms the basis of the decision making in the EU/WTO as well as the need and hope for the betterment of democracy. The slow increase in the function as well as the role of the European Parliament is because it has been one of the intellectual foundations that made that happen. The international organizations such as the WTO's legitimacy are also judged by it (Verney, 2006).

The effects that the rules have on the society at large are judged by the output legitimacy (Scharpf 1999; Schimmelpfennig 1996; also see Verney, 2006). Yardsticks applied consist of the respect for human rights, justice and fairness. The impact of the law and the relations in term of the power relation is greatly ignored by the realist schools. They are very strongly dependent on the actual economic and the political philosophies. The issue of legitimacy is vastly regarded as irrelevant by those who believe in the realist school of thought. The purpose behind the creation of the institutions is to help in the controlling of the international relations and to represent the power of some certain sponsors. The framework of inspirational and established values of global and regional governance is what the idealistic schools operate on. Therefore, justice, fairness and legitimacy are of great importance to them (e.g. Pogge 2005; Caney 2005). The redistribution of wealth and of the cosmopolitan values is what the cosmopolitan and the social democratic schools emphasize on as a very important part of globalization (e.g. Pogge 2005; Beitz 1979; Barry 1973, 128-133). The effects on the distribution of a certain society are significantly shared with the moral philosophy (Caney 2005: 102-141). The effect of the distribution of justice is an important factor which informs the legitimacy of the international relations. One can judge the legitimacy of the multilateral trading system and international economic law by the way that the poorest member is treated in a system (Pogge 2005: 717; Longman, 2006).

Often separate strands of the political theories are combined with the help of the policies (Moravcsik 2004). Therefore, it is reasonable enough to say that all the factors that have been discussed above play a very important role in the formation of the international relations of organizations like EU and WTO. The factors are: input methods of inclusion, the impact of power, deliberate and accountable decision making, the dependency of international rule on the willingness of nations to agree without coercion, the results complimenting the liberal and social-democratic rules and morals. All of them frame the often very competitive yardsticks adjacent to which the WTO system's legitimacy will be judged (Longman, 2006).

Because of this panoply we have got a number of underlying problems that exist within the WTO. Legitimacy can be related to a system as a whole or to a specific rule. When the WTO law legitimacy is discussed should we observe the individual rules in order to judge to what extent they have the qualities that actually comply with those of a good law? Or is it better if we rather look at the system as a whole? In the assessment of the legacy of WTO, the theory of the free trade as well as the basic welfare economics along with undertaking the detailed examination of Appellate Body which is ruling according to the criteria of consistency and coherence (Howse 2001). Legitimate examinations of the WTO laws should mainly focus on the complete system. Individual beholder should not solely depend upon the legitimacy of the individual because there are unavoidably winners and failures. The assessment of the legitimacy has to be done by keeping a long-term point-of-view in mind and must consider the implications of the WTO as a complete system or its major parts like the protection of the property rights as the long-term implications. It should be left to the constitutional theory and law to examine the individual rules legitimacy as in the long run the international laws will most probably not be excluded from the multi-layered governance. Therefore, applications and interpretations of the certain rules that are found in the WTO, the relation it has with the basic legitimacy and the over-all system will remain in the boundaries of the law. Mostly a tension is found between the two notions; (input-oriented) popular representation and the (output-oriented) effectiveness and they are also very different from one another in different frameworks of different governments. According to the out-put oriented approach the process of policy making has to be protected from the majority population as it is the only way in which the system could work efficiently, whereas, according to the input-oriented approach always support and seek the support of what the majority wants as according to this approach the best decisions are made when the wants and needs of the people are taken into consideration as well. But a lot of scholars have said that the legitimate democracy is the one that satisfies at least the minority on both the sides (see e.g. Katz and Wessels, 1999: 5f; also see Longman, 2006). This is the point where it is not possible to make Pareto-superior decision as losers and winners are produced here due to the presence of the unavoidable externalities. The input as well as the out-put orientation can only be made use of or they can only play a part if politically salient constituency interests are violated by a policy (Scharpf, 2006: 3).