Insulating Domestic Policy Through International Legal Minimalism: A Re-Characterization of the Foreign Affairs Trade Doctrine

105 Pages Posted: 20 Jun 2004

See all articles by James Thuo Gathii

James Thuo Gathii

Loyola University Chicago School of Law

Abstract

In this paper, I contribute to the emerging inquiry on the legalization of international relations. I do so through a study of the fit between the international law of the World Trade Organization, (WTO), on the one hand, and the U.S. foreign trade doctrine, on the other. The underlying question that the paper grapples with is whether the enhancement of the sanctioning authority of the WTO's dispute settlement body, (DSB), over the legal framework and factual determinations of national authorities' in trade matters can mandate changes inconsistently with the U.S. constitution and legal framework.

The literature in this area is currently tangled in a paralyzing antithesis: One school of thought has it that the DSB's adverse decisions towards the U.S. violate both the U.S. Constitution and State rights which in turn make such decisions undemocratic. The countervailing school of thought argues that there are democratic, Constitutional as well as international legal norms and principles that neatly reconcile the U.S. foreign trade doctrine with WTO law, particularly because the DSB merely recommends but does not compel changes in U.S. laws found inconsistent with WTO law. This paper transcends this antithesis by examining how the U.S. incorporates and implements WTO law so as to expand its foreign trade doctrine consistently with its interests. My detailed examination of how the U.S. and the WTO craft, apply, implement and adjudicate their respective antidumping regimes constitutes what I refer to as international legal minimalism. By that, I mean that the U.S.'s foreign trade doctrine imposes requirements that almost invariably ensure that WTO decisions adverse to the U.S. are not automatically implemented or rejected by the U.S. This flexibility in implementation is also reflected in the open-textured, (as opposed to formalistic), manner in which both the U.S.'s and WTO's antidumping regimes are crafted, applied, implemented and adjudicated. This flexibility of these two interpenetrating regimes facilitates the U.S.'s ability to balance between its domestic social priorities, on the one hand, and its international legal obligations at the WTO, on the other.

Thus U.S. implementing legislation of GATT/WTO treaties has resulted in a foreign affairs trade doctrine that places domestic priorities at par, if not above, this GATT/WTO commitment. By contrast, at the WTO domestic policy commitments such as labor and the environment are regarded as 'foreign' and often inimical to free trade. The U.S.'s foreign trade doctrine eschews this conception of the goals of free trade. Instead, the U.S. adopts, thanks largely to international legal minimalism, a balancing approach that on the one hand espouses the goals of free trade and is cast in the language of deference to the negotiated rules and bargains of the GATT/WTO treaty regime, but also calls for judicial restraint at the WTO in deferring to domestic policy priorities such as labor and the environment, on the other. At the domestic level, the Constitution and U.S. trade legislation reign-in GATT/WTO treaty law to ensure that it does not override domestic social values.

Consequently, it is arguable that the U.S. views the GATT/WTO treaty regime as a decentralized scheme of interstate bargaining rather than a strict regime of rules of international governance that compel compliance. This bargaining element in the rules, in the view of the U.S. permits it to balance domestic social values like labor as against the U.S.'s commitments to free trade under the GATT/WTO treaty regime. In effect, this paper discredits the view that the WTO's dispute settlement system undermines U.S. sovereignty. Instead, I show how the U.S. uses the complex legal framework of the WTO to consolidate its sovereignty at the expense of other WTO members.

To do so, the U.S. uses the GATT/WTO regime to enable it to take policy objectives into account alongside its treaty commitments so as to yield beneficial meanings of its treaty commitments. To achieve this, the US approach to treaty interpretation may be said to constitute extensive reliance on detailed facts to make nuanced arguments while taking into account a broad range of sources of international law - so that the relationship between law and policy is dealt with in a manner that permits results justifiable within the WTO legal system but also favorable to the U.S. This approach favored by the U.S. contrasts with a formal rules-based approach to interpreting international law that would involve identifying the rule and applying it abstractly without reference to context or a broad range of sources of law.

In a sense therefore, the policing of the domestic policy arena against the direct effect of international rules within the US, leaves the open-ended domain of GATT/WTO dispute settlement to reign-in inconsistencies with GATT/WTO law. This means that the WTO's antidumping rules, treaty interpretation principles as well as domestic Constitutional and legal constraints impose requirements that almost invariably ensure that decisions adverse to the United States are not automatically implemented or rejected. While this is a delicate balance, I argue that should the United States consistently tilt the balance too much in the direction of maximizing its interests without counterbalancing them with maintaining integrity in effectiveness of the WTO's dispute settlement process, (by reigning in divergences from its antidumping rules), the utility and credibility of the WTO as a framework built on the rule of law will erode substantially.

Suggested Citation

Gathii, James Thuo, Insulating Domestic Policy Through International Legal Minimalism: A Re-Characterization of the Foreign Affairs Trade Doctrine. University of Pennsylvania Journal of International Economic Law, Vol. 25, No. 1, Available at SSRN: https://ssrn.com/abstract=556805

James Thuo Gathii (Contact Author)

Loyola University Chicago School of Law ( email )

25 East Pearson
Chicago, IL 60611
United States

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