The Great Vanishing: International Trade Agreements in U.S. Courts
13 Pages Posted: 19 Oct 2016 Last revised: 14 Jun 2017
Date Written: October 17, 2016
Slowly but surely, international trade agreements have disappeared from U.S. courts. This Essay provides a concise historical account of this disappearance--which it calls the ‘‘Great Vanishing’’--and explains how and why it came to pass. It first describes how the Trade Preferences Act of 1979 banned private lawsuits to enforce international trade agreements. It then shows how the Uruguay Round Agreements Act of 1994 further restricted the ability of private parties to enforce these agreements indirectly. Finally, it shows how U.S. courts today refuse to look to international trade agreements--and to decisions rendered by international tribunals construing those agreements--to interpret domestic statutes that implement them. The Great Vanishing is noteworthy, this Essay contends, for two reasons. First, it represents by far the most comprehensive and successful attempt by Congress to banish a particular type of international law from the courts of the United States. Second, the Great Vanishing coincides with an era of greater skepticism when it comes to the private enforcement of public law. Indeed, in many respects it represents the apotheosis of that trend.
Keywords: international law in domestic courts; U.S. foreign relations law; international trade; free trade agreement; treaty of friendship, commerce, and navigation; Uruguay Round; URAA; Corus Staal; Charming Betsy
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