Rethinking WTO trade sanctions

American Journal of International Law

Volumn 95, Issue 4, 2001, Pages 792-832

  Charnovitz, Steve ^a  

^a NONE

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[No Author keywords available]

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EID: 0041826763     PISSN: 00029300     EISSN: None     Source Type: Journal    
DOI: 10.2307/2674626     Document Type: Article

References (417)

1. William H. Lash III, The Limited But Important Role of the WTO, 19 CATO J. 371, 375 (2000) (arguing that the U.S. had to impose trade sanctions on the EC to preserve the integrity of the WTO; otherwise WTO critics around the world could rightly say that the GATT was back); Joost Pauwelyn, Enforcement and Countermeasures in the WTO: Rules Are Rules - Toward a More Collective Approach, 94 AJIL 335, 339 (2000) (stating that the WTO's forward-looking enforcement approach can be seen as a major step ahead in international law).
2. William H. Lash III, The Limited But Important Role of the WTO, 19 CATO J. 371, 375 (2000) (arguing that the U.S. had to impose trade sanctions on the EC to preserve the integrity of the WTO; otherwise WTO critics around the world could rightly say that the GATT was back); Joost Pauwelyn, Enforcement and Countermeasures in the WTO: Rules Are Rules - Toward a More Collective Approach, 94 AJIL 335, 339 (2000) (stating that the WTO's forward-looking enforcement approach can be seen as a major step ahead in international law).
3. Edward Alden, Gloom Descends over Former Supporters of the WTO's Procedure for Disputes, FIN. TIMES (London), Dec. 6, 2000, at 8 (discussing unhappiness with WTO trade sanctions); Jagdish Bhagwati, After Seattle: Free Trade and the WTO, 77 INT'L AFF. 15, 28 (2001) (explaining that large-scale retaliation through the WTO "makes ever more people hostile to the WTO, which is seen as authorizing bullying tactics"); Edwini Kessie, Enhancing Security and Predictability for Private Business Operators Under the Dispute Settlement System of the WTO, J. WORLD TRADE, Dec. 2000, at 1, 16 (suggesting that it might be advisable to abolish the remedy of retaliation); Brink Lindsey, Daniel T. Griswold, Mark A. Groombridge, & Aaron Lukas, Seattle and Beyond: A WTO Agenda for the New Millennium, 28, 29-31 (Nov. 4, 1999) (stating that the most serious problem with the WTO procedures is their reliance on trade sanctions as the ultimate remedy), Cato Institute, at 〈http://www.cato.org〉 [hereinafter Lindsey et al.]; Bruce Stokes, Something's Missing Here, NAT'L J., May 19, 2001, at 1514; Transatlantic Business Dialogue, Cincinnati Recommendations 37 (Nov. 16-18, 2000) (urging governments to rethink the present system of WTO sanctions), at 〈http://www.tabd.org〉.
4. Edward Alden, Gloom Descends over Former Supporters of the WTO's Procedure for Disputes, FIN. TIMES (London), Dec. 6, 2000, at 8 (discussing unhappiness with WTO trade sanctions); Jagdish Bhagwati, After Seattle: Free Trade and the WTO, 77 INT'L AFF. 15, 28 (2001) (explaining that large-scale retaliation through the WTO "makes ever more people hostile to the WTO, which is seen as authorizing bullying tactics"); Edwini Kessie, Enhancing Security and Predictability for Private Business Operators Under the Dispute Settlement System of the WTO, J. WORLD TRADE, Dec. 2000, at 1, 16 (suggesting that it might be advisable to abolish the remedy of retaliation); Brink Lindsey, Daniel T. Griswold, Mark A. Groombridge, & Aaron Lukas, Seattle and Beyond: A WTO Agenda for the New Millennium, 28, 29-31 (Nov. 4, 1999) (stating that the most serious problem with the WTO procedures is their reliance on trade sanctions as the ultimate remedy), Cato Institute, at 〈http://www.cato.org〉 [hereinafter Lindsey et al.]; Bruce Stokes, Something's Missing Here, NAT'L J., May 19, 2001, at 1514; Transatlantic Business Dialogue, Cincinnati Recommendations 37 (Nov. 16-18, 2000) (urging governments to rethink the present system of WTO sanctions), at 〈http://www.tabd.org〉.
5. Edward Alden, Gloom Descends over Former Supporters of the WTO's Procedure for Disputes, FIN. TIMES (London), Dec. 6, 2000, at 8 (discussing unhappiness with WTO trade sanctions); Jagdish Bhagwati, After Seattle: Free Trade and the WTO, 77 INT'L AFF. 15, 28 (2001) (explaining that large-scale retaliation through the WTO "makes ever more people hostile to the WTO, which is seen as authorizing bullying tactics"); Edwini Kessie, Enhancing Security and Predictability for Private Business Operators Under the Dispute Settlement System of the WTO, J. WORLD TRADE, Dec. 2000, at 1, 16 (suggesting that it might be advisable to abolish the remedy of retaliation); Brink Lindsey, Daniel T. Griswold, Mark A. Groombridge, & Aaron Lukas, Seattle and Beyond: A WTO Agenda for the New Millennium, 28, 29-31 (Nov. 4, 1999) (stating that the most serious problem with the WTO procedures is their reliance on trade sanctions as the ultimate remedy), Cato Institute, at 〈http://www.cato.org〉 [hereinafter Lindsey et al.]; Bruce Stokes, Something's Missing Here, NAT'L J., May 19, 2001, at 1514; Transatlantic Business Dialogue, Cincinnati Recommendations 37 (Nov. 16-18, 2000) (urging governments to rethink the present system of WTO sanctions), at 〈http://www.tabd.org〉.
6. Edward Alden, Gloom Descends over Former Supporters of the WTO's Procedure for Disputes, FIN. TIMES (London), Dec. 6, 2000, at 8 (discussing unhappiness with WTO trade sanctions); Jagdish Bhagwati, After Seattle: Free Trade and the WTO, 77 INT'L AFF. 15, 28 (2001) (explaining that large-scale retaliation through the WTO "makes ever more people hostile to the WTO, which is seen as authorizing bullying tactics"); Edwini Kessie, Enhancing Security and Predictability for Private Business Operators Under the Dispute Settlement System of the WTO, J. WORLD TRADE, Dec. 2000, at 1, 16 (suggesting that it might be advisable to abolish the remedy of retaliation); Brink Lindsey, Daniel T. Griswold, Mark A. Groombridge, & Aaron Lukas, Seattle and Beyond: A WTO Agenda for the New Millennium, 28, 29-31 (Nov. 4, 1999) (stating that the most serious problem with the WTO procedures is their reliance on trade sanctions as the ultimate remedy), Cato Institute, at 〈http://www.cato.org〉 [hereinafter Lindsey et al.]; Bruce Stokes, Something's Missing Here, NAT'L J., May 19, 2001, at 1514; Transatlantic Business Dialogue, Cincinnati Recommendations 37 (Nov. 16-18, 2000) (urging governments to rethink the present system of WTO sanctions), at 〈http://www.tabd.org〉.
7. Edward Alden, Gloom Descends over Former Supporters of the WTO's Procedure for Disputes, FIN. TIMES (London), Dec. 6, 2000, at 8 (discussing unhappiness with WTO trade sanctions); Jagdish Bhagwati, After Seattle: Free Trade and the WTO, 77 INT'L AFF. 15, 28 (2001) (explaining that large-scale retaliation through the WTO "makes ever more people hostile to the WTO, which is seen as authorizing bullying tactics"); Edwini Kessie, Enhancing Security and Predictability for Private Business Operators Under the Dispute Settlement System of the WTO, J. WORLD TRADE, Dec. 2000, at 1, 16 (suggesting that it might be advisable to abolish the remedy of retaliation); Brink Lindsey, Daniel T. Griswold, Mark A. Groombridge, & Aaron Lukas, Seattle and Beyond: A WTO Agenda for the New Millennium, 28, 29-31 (Nov. 4, 1999) (stating that the most serious problem with the WTO procedures is their reliance on trade sanctions as the ultimate remedy), Cato Institute, at 〈http://www.cato.org〉 [hereinafter Lindsey et al.]; Bruce Stokes, Something's Missing Here, NAT'L J., May 19, 2001, at 1514; Transatlantic Business Dialogue, Cincinnati Recommendations 37 (Nov. 16-18, 2000) (urging governments to rethink the present system of WTO sanctions), at 〈http://www.tabd.org〉.
8. Edward Alden, Gloom Descends over Former Supporters of the WTO's Procedure for Disputes, FIN. TIMES (London), Dec. 6, 2000, at 8 (discussing unhappiness with WTO trade sanctions); Jagdish Bhagwati, After Seattle: Free Trade and the WTO, 77 INT'L AFF. 15, 28 (2001) (explaining that large-scale retaliation through the WTO "makes ever more people hostile to the WTO, which is seen as authorizing bullying tactics"); Edwini Kessie, Enhancing Security and Predictability for Private Business Operators Under the Dispute Settlement System of the WTO, J. WORLD TRADE, Dec. 2000, at 1, 16 (suggesting that it might be advisable to abolish the remedy of retaliation); Brink Lindsey, Daniel T. Griswold, Mark A. Groombridge, & Aaron Lukas, Seattle and Beyond: A WTO Agenda for the New Millennium, 28, 29-31 (Nov. 4, 1999) (stating that the most serious problem with the WTO procedures is their reliance on trade sanctions as the ultimate remedy), Cato Institute, at 〈http://www.cato.org〉 [hereinafter Lindsey et al.]; Bruce Stokes, Something's Missing Here, NAT'L J., May 19, 2001, at 1514; Transatlantic Business Dialogue, Cincinnati Recommendations 37 (Nov. 16-18, 2000) (urging governments to rethink the present system of WTO sanctions), at 〈http://www.tabd.org〉.
9. Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, in WORLD TRADE ORGANIZATION, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS (1999) [hereinafter WTO Agreement]. All other WTO Agreements cited here are reprinted in this WTO volume and are available on the WTO Web site, 〈http://www.wto.org〉.
10. Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 22.2, WTO Agreement, Annex 2 [thereinafter DSU]. The DSB consists of all WTO member governments and supervises the WTO dispute settlement process. The DSB formally adopts dispute panel reports if they are not appealed. If the report is appealed to the WTO Appellate Body, the DSB formally adopts the panel reports as modified by the Appellate Body. The DSB may fail to adopt a panel report by consensus, including the consent of the winning party, see DSU passim, but this has never happened. Under the DSU, if the defending government fails to bring its WTO-inconsistent measure into compliance, the complaining government, after 20 days of negotiations, may request authorization from the DSB to suspend concessions. DSU Art. 22.3. If the defending government objects to the level of suspension proposed, it may seek arbitration. DSU Art. 22.6. The decision of the arbitrator(s) is final. DSU Art 22.7. Note also that the DSU can be used for a complaint against another country that does not allege a violation of WTO rules. DSU Art. 26. This "non-violation" cause of action will not be addressed here.
11. General Agreement on Tariffs and Trade, Oct. 30, 1947, TIAS No, 1700, 55 UNTS 194 [hereinafter GATT]. The current version of the GATT is now in Annex 1A of the WTO Agreement.
12. GATT Art. XXIII:2. A "concession" in the GATT context was typically an agreement to lower a tariff and/or bind it Binding a tariff means agreeing not to raise it.
13. AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW 3 (Peter Malanczuk ed., 7th rev. ed. 1997).
14. ELISABETH ZOLLER, PEACETIME UNILATERAL REMEDIES: AN ANALYSIS OF COUNTERMEASURES (1984).
15. State Responsibility: Draft Articles Provisionally Adopted by the Drafting Committee on Second Reading, UN Doc. A/CN.4/L.600, pt. 2 bis, ch. II (2000) [hereinafter Draft Articles on State Responsibility], at 〈http:// www.un.org/law/ilc/index.htm〉; RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §905 (1987).
16. State Responsibility: Draft Articles Provisionally Adopted by the Drafting Committee on Second Reading, UN Doc. A/CN.4/L.600, pt. 2 bis, ch. II (2000) [hereinafter Draft Articles on State Responsibility], at 〈http:// www.un.org/law/ilc/index.htm〉; RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §905 (1987).
17. United States - Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, WTO Doc. WT/DS2/AB/R, at 17 (Apr. 29, 1996) (Appellate Body reports are designated in WTO document numbers by the initials "AB"); see also Meinhard Hilf, Power, Rules and Principles - Which Orientation for WTO/GATT Law? 4 J. INT'L ECON. L. 111, 121-22 (2001); Gabrielle Marceau, A Call for Coherence in International Law - Praises for the Prohibition Against "Clinical Isolation" in WTO Dispute Settlement, J. WORLD TRADE, Oct. 1999, at 87. Several years ago, Pieter Kuyper hypothesized that the GATT was a self-contained system in aspiration but not in reality. P. J. Kuyper, The Law of GATT as a Special Field of International Law, 1994 NETH. Y.B. INT'L L. 227, 252.
18. United States - Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, WTO Doc. WT/DS2/AB/R, at 17 (Apr. 29, 1996) (Appellate Body reports are designated in WTO document numbers by the initials "AB"); see also Meinhard Hilf, Power, Rules and Principles - Which Orientation for WTO/GATT Law? 4 J. INT'L ECON. L. 111, 121-22 (2001); Gabrielle Marceau, A Call for Coherence in International Law - Praises for the Prohibition Against "Clinical Isolation" in WTO Dispute Settlement, J. WORLD TRADE, Oct. 1999, at 87. Several years ago, Pieter Kuyper hypothesized that the GATT was a self-contained system in aspiration but not in reality. P. J. Kuyper, The Law of GATT as a Special Field of International Law, 1994 NETH. Y.B. INT'L L. 227, 252.
19. United States - Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, WTO Doc. WT/DS2/AB/R, at 17 (Apr. 29, 1996) (Appellate Body reports are designated in WTO document numbers by the initials "AB"); see also Meinhard Hilf, Power, Rules and Principles - Which Orientation for WTO/GATT Law? 4 J. INT'L ECON. L. 111, 121-22 (2001); Gabrielle Marceau, A Call for Coherence in International Law - Praises for the Prohibition Against "Clinical Isolation" in WTO Dispute Settlement, J. WORLD TRADE, Oct. 1999, at 87. Several years ago, Pieter Kuyper hypothesized that the GATT was a self-contained system in aspiration but not in reality. P. J. Kuyper, The Law of GATT as a Special Field of International Law, 1994 NETH. Y.B. INT'L L. 227, 252.
20. United States - Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, WTO Doc. WT/DS2/AB/R, at 17 (Apr. 29, 1996) (Appellate Body reports are designated in WTO document numbers by the initials "AB"); see also Meinhard Hilf, Power, Rules and Principles - Which Orientation for WTO/GATT Law? 4 J. INT'L ECON. L. 111, 121-22 (2001); Gabrielle Marceau, A Call for Coherence in International Law - Praises for the Prohibition Against "Clinical Isolation" in WTO Dispute Settlement, J. WORLD TRADE, Oct. 1999, at 87. Several years ago, Pieter Kuyper hypothesized that the GATT was a self-contained system in aspiration but not in reality. P. J. Kuyper, The Law of GATT as a Special Field of International Law, 1994 NETH. Y.B. INT'L L. 227, 252.
21. See David Palmeter & Petros C. Mavroidis, The WTO Legal System: Sources of Law, 92 AJIL 398 (1998); see also John H. Jackson, Remarks, 94 ASIL PROC. 222 (2000) (stating, "These first five years of the WTO may have been the most interesting five years of international jurisprudence in the history of mankind.").
22. See David Palmeter & Petros C. Mavroidis, The WTO Legal System: Sources of Law, 92 AJIL 398 (1998); see also John H. Jackson, Remarks, 94 ASIL PROC. 222 (2000) (stating, "These first five years of the WTO may have been the most interesting five years of international jurisprudence in the history of mankind.").
23. Agreement on Subsidies and Countervailing Measures [SCM], Art. 4.10, WTO Agreement, Annex 1A. The Tokyo Round Subsidies Code also provided for "countermeasures." Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade, Apr. 12, 1979, Art 18.9, 31 UST 513.
24. Draft Articles on State Responsibility, supra note 9, pt. 2 bis, ch. II (Countermeasures).
25. ZOLLER, supra note 8, at 75, 106-07.
26. See BARRY E. CARTER, INTERNATIONAL ECONOMIC SANCTIONS 4 (1988) (noting that sanctions seek to force a change in policy); LISA L. MARTIN, COERCIVE COOPERATION 3 (1992) (stating that governments use economic sanctions to signal resolve and to exert pressure for policy changes); Lori Fisler Damrosch, Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs, 83 AJIL 1, 28-34, 45-46 (1989) (discussing the role of economic sanctions to prod target states); Richard W. Parker, The Cost Effectiveness of Economic Sanctions? 32 LAW & POL'Y INT'L BUS. 21, 25 (2000) (discussing the effectiveness of economic sanctions toward the goal of changing foreign state behavior); W. M[ichael] Reisman, The Enforcement of International Judgments, 63 AJIL 1, 6, 13 n.39 (1969); W. Michael Reisman & Douglas L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 EUR. J. INT'L L. 86, 90 (1998) (explaining that sanctions are an instrument of strategy designed to change the attitudes and behavior of the target).
27. See BARRY E. CARTER, INTERNATIONAL ECONOMIC SANCTIONS 4 (1988) (noting that sanctions seek to force a change in policy); LISA L. MARTIN, COERCIVE COOPERATION 3 (1992) (stating that governments use economic sanctions to signal resolve and to exert pressure for policy changes); Lori Fisler Damrosch, Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs, 83 AJIL 1, 28-34, 45-46 (1989) (discussing the role of economic sanctions to prod target states); Richard W. Parker, The Cost Effectiveness of Economic Sanctions? 32 LAW & POL'Y INT'L BUS. 21, 25 (2000) (discussing the effectiveness of economic sanctions toward the goal of changing foreign state behavior); W. M[ichael] Reisman, The Enforcement of International Judgments, 63 AJIL 1, 6, 13 n.39 (1969); W. Michael Reisman & Douglas L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 EUR. J. INT'L L. 86, 90 (1998) (explaining that sanctions are an instrument of strategy designed to change the attitudes and behavior of the target).
28. See BARRY E. CARTER, INTERNATIONAL ECONOMIC SANCTIONS 4 (1988) (noting that sanctions seek to force a change in policy); LISA L. MARTIN, COERCIVE COOPERATION 3 (1992) (stating that governments use economic sanctions to signal resolve and to exert pressure for policy changes); Lori Fisler Damrosch, Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs, 83 AJIL 1, 28-34, 45-46 (1989) (discussing the role of economic sanctions to prod target states); Richard W. Parker, The Cost Effectiveness of Economic Sanctions? 32 LAW & POL'Y INT'L BUS. 21, 25 (2000) (discussing the effectiveness of economic sanctions toward the goal of changing foreign state behavior); W. M[ichael] Reisman, The Enforcement of International Judgments, 63 AJIL 1, 6, 13 n.39 (1969); W. Michael Reisman & Douglas L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 EUR. J. INT'L L. 86, 90 (1998) (explaining that sanctions are an instrument of strategy designed to change the attitudes and behavior of the target).
29. See BARRY E. CARTER, INTERNATIONAL ECONOMIC SANCTIONS 4 (1988) (noting that sanctions seek to force a change in policy); LISA L. MARTIN, COERCIVE COOPERATION 3 (1992) (stating that governments use economic sanctions to signal resolve and to exert pressure for policy changes); Lori Fisler Damrosch, Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs, 83 AJIL 1, 28-34, 45-46 (1989) (discussing the role of economic sanctions to prod target states); Richard W. Parker, The Cost Effectiveness of Economic Sanctions? 32 LAW & POL'Y INT'L BUS. 21, 25 (2000) (discussing the effectiveness of economic sanctions toward the goal of changing foreign state behavior); W. M[ichael] Reisman, The Enforcement of International Judgments, 63 AJIL 1, 6, 13 n.39 (1969); W. Michael Reisman & Douglas L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 EUR. J. INT'L L. 86, 90 (1998) (explaining that sanctions are an instrument of strategy designed to change the attitudes and behavior of the target).
30. See BARRY E. CARTER, INTERNATIONAL ECONOMIC SANCTIONS 4 (1988) (noting that sanctions seek to force a change in policy); LISA L. MARTIN, COERCIVE COOPERATION 3 (1992) (stating that governments use economic sanctions to signal resolve and to exert pressure for policy changes); Lori Fisler Damrosch, Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs, 83 AJIL 1, 28-34, 45-46 (1989) (discussing the role of economic sanctions to prod target states); Richard W. Parker, The Cost Effectiveness of Economic Sanctions? 32 LAW & POL'Y INT'L BUS. 21, 25 (2000) (discussing the effectiveness of economic sanctions toward the goal of changing foreign state behavior); W. M[ichael] Reisman, The Enforcement of International Judgments, 63 AJIL 1, 6, 13 n.39 (1969); W. Michael Reisman & Douglas L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 EUR. J. INT'L L. 86, 90 (1998) (explaining that sanctions are an instrument of strategy designed to change the attitudes and behavior of the target).
31. See BARRY E. CARTER, INTERNATIONAL ECONOMIC SANCTIONS 4 (1988) (noting that sanctions seek to force a change in policy); LISA L. MARTIN, COERCIVE COOPERATION 3 (1992) (stating that governments use economic sanctions to signal resolve and to exert pressure for policy changes); Lori Fisler Damrosch, Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs, 83 AJIL 1, 28-34, 45-46 (1989) (discussing the role of economic sanctions to prod target states); Richard W. Parker, The Cost Effectiveness of Economic Sanctions? 32 LAW & POL'Y INT'L BUS. 21, 25 (2000) (discussing the effectiveness of economic sanctions toward the goal of changing foreign state behavior); W. M[ichael] Reisman, The Enforcement of International Judgments, 63 AJIL 1, 6, 13 n.39 (1969); W. Michael Reisman & Douglas L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 EUR. J. INT'L L. 86, 90 (1998) (explaining that sanctions are an instrument of strategy designed to change the attitudes and behavior of the target).
32. In this article, "WTO sanction" is used to mean a trade sanction authorized by the WTO. The WTO itself does not carry out the trade sanction. That is done by the WTO member government. Cf. Dirk De Bièvre, Re-Designing the Virtuous Circle: Two Proposals far WTO Reform, in RESOLVING AND PREVENTING US-EU TRADE DISPUTES: SIX PRIZE-WINNING ESSAYS FROM THE BP/EUI TRANSATLANTIC ESSAY CONTEST 15, 19 (2001) (saying that two retaliation torpedoes have been launched from the bank of Lac Leman in Geneva).
33. Author's tabulation using data on WTO Web site as of April 30, 2001.
34. Notwithstanding the Communities' poor performance, the centrality of compliance in the WTO was emphasized by European (Commissioner for Trade Pascal Lamy in a speech to a U.S. business group in which he offered the Mymn to Compliance," The ditty goes: "Consult before you legislate;/ Negotiate before you litigate;/ Compensate before you retaliate;/ And comply - at any rate." Pascal Lamy, Has International Capitalism Won the War and Lost the Peace? Address to the U.S. Chamber of Commerce, Washington, D.C. (Mar. 8, 2001), at 〈http://europa.eu.int/ comm/trade/index_en.htm〉.
35. Raj Bhala, The Bananas War, 31 MCGEORGE L. REV. 839 (2000).
36. European Communities - Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/AB/R (Sept. 9, 1997). The Appellate Body hears appeals from panel decisions on issues of law.
37. See European Communities - Regime for the Importation, Sale and Distribution of Bananas - Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, Decision by the Arbitrators, WTO Doc. WT/DS27/ARB (Apr. 9, 1999) [hereinafter EC-U.S. Article 22 Decision] (arbitration decisions are designated in WTO document numbers by the initials "ARB"). The role of the arbitrator is to set the level of the suspension of concessions when the defending country objects to the level proposed by the complaining country. DSU Arts. 22.6, 22.7. The reasonable period of time can also be set by arbitration. DSU Art. 21.3.
38. Trade War Escalates as EU Fights US Sanctions Move, FIN. TIMES, Mar. 5, 1999, at 1. Actually, the U.S. government jumped the gun by acting on March 3, 1999, to impose a contingent liability for duties on imports. Office of the U.S. Trade Representative [USTR], Press Release 99-17, United States Takes Customs Action on European Imports (Mar. 3, 1999). USTR press releases are available online at 〈http://www.ustr.gov〉. The EC complained about this precipitate action at the WTO and the panel and Appellate Body found that the United States had retaliated without authority. United States - Import Measures on Certain Products from the European Communities, WTO Doc. WT/DS165/AB/R (Dec. 11, 2000). When the DSB adopted this Appellate Body report on January 10, 2001, the WTO Web site announced in its News Items, "Dispute body adopts rulings on Korean beef and US sanctions."
39. Trade War Escalates as EU Fights US Sanctions Move, FIN. TIMES, Mar. 5, 1999, at 1. Actually, the U.S. government jumped the gun by acting on March 3, 1999, to impose a contingent liability for duties on imports. Office of the U.S. Trade Representative [USTR], Press Release 99-17, United States Takes Customs Action on European Imports (Mar. 3, 1999). USTR press releases are available online at 〈http://www.ustr.gov〉. The EC complained about this precipitate action at the WTO and the panel and Appellate Body found that the United States had retaliated without authority. United States - Import Measures on Certain Products from the European Communities, WTO Doc. WT/DS165/AB/R (Dec. 11, 2000). When the DSB adopted this Appellate Body report on January 10, 2001, the WTO Web site announced in its News Items, "Dispute body adopts rulings on Korean beef and US sanctions."
40. Trade War Escalates as EU Fights US Sanctions Move, FIN. TIMES, Mar. 5, 1999, at 1. Actually, the U.S. government jumped the gun by acting on March 3, 1999, to impose a contingent liability for duties on imports. Office of the U.S. Trade Representative [USTR], Press Release 99-17, United States Takes Customs Action on European Imports (Mar. 3, 1999). USTR press releases are available online at 〈http://www.ustr.gov〉. The EC complained about this precipitate action at the WTO and the panel and Appellate Body found that the United States had retaliated without authority. United States - Import Measures on Certain Products from the European Communities, WTO Doc. WT/DS165/AB/R (Dec. 11, 2000). When the DSB adopted this Appellate Body report on January 10, 2001, the WTO Web site announced in its News Items, "Dispute body adopts rulings on Korean beef and US sanctions."
41. European Communities - Regime for the Importation, Sale and Distribution of Bananas - Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, WTO Doc. WT/DS27/ARB/ECU (Mar. 24, 2000) [hereinafter EC-Ecuador Article 22 Decision].
42. USTR, Press Release 01-23, Joint United States - European Union Press Release: U.S. Government and European Commission Reach Agreement to Resolve Long-Standing Banana Dispute (Apr. 11, 2001) (noting that from July 1, the United States "will suspend the sanctions imposed against EU imports since 1999"); USTR, Press Release 01-50, U.S. Trade Representative Announces the Lifting of Sanctions on European Products as EU Opens Market to U.S. Banana Distributors (July 1, 2001); Banana Deal Effectively Locks in U.S. Share of EU Market, INSIDE U.S. TRADE, Apr. 13, 2001, at 1.
43. USTR, Press Release 01-23, Joint United States - European Union Press Release: U.S. Government and European Commission Reach Agreement to Resolve Long-Standing Banana Dispute (Apr. 11, 2001) (noting that from July 1, the United States "will suspend the sanctions imposed against EU imports since 1999"); USTR, Press Release 01-50, U.S. Trade Representative Announces the Lifting of Sanctions on European Products as EU Opens Market to U.S. Banana Distributors (July 1, 2001); Banana Deal Effectively Locks in U.S. Share of EU Market, INSIDE U.S. TRADE, Apr. 13, 2001, at 1.
44. USTR, Press Release 01-23, Joint United States - European Union Press Release: U.S. Government and European Commission Reach Agreement to Resolve Long-Standing Banana Dispute (Apr. 11, 2001) (noting that from July 1, the United States "will suspend the sanctions imposed against EU imports since 1999"); USTR, Press Release 01-50, U.S. Trade Representative Announces the Lifting of Sanctions on European Products as EU Opens Market to U.S. Banana Distributors (July 1, 2001); Banana Deal Effectively Locks in U.S. Share of EU Market, INSIDE U.S. TRADE, Apr. 13, 2001, at 1.
45. Joe Kirwin, Ecuador Rescinds Objection to U.S.-EU Banana Import Settlement After Negotiations, DAILY REP. FOR EXECUTIVES (BNA), May 1, 2001, at A-6.
46. David A. Wirth, Case Report: European Communities - Measures Concerning Meat and Meat Products, in 92 AJIL 755 (1998).
47. European Communities - Measures Concerning Meat and Meat Products (Hormones), WTO Doc. WT/DS26/ AB/R, WT/DS48/AB/R (Jan. 16, 1998). For the Agreement on the Application of Sanitary and Phytosanitary Measures, see WTO Agreement, Annex 1A.
48. See European Communities - Measures Concerning Meat and Meat Products (Hormones) - Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, WTO Doc. WT/DS26/ARB (July 12, 1999) (U.S. complaint); European Communities - Measures Concerning Meat and Meat Products (Hormones) - Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, WTO Doc. WT/DS48/ARB (July 12, 1999) (Canadian complaint).
49. See European Communities - Measures Concerning Meat and Meat Products (Hormones) - Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, WTO Doc. WT/DS26/ARB (July 12, 1999) (U.S. complaint); European Communities - Measures Concerning Meat and Meat Products (Hormones) -Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, WTO Doc. WT/DS48/ARB (July 12, 1999) (Canadian complaint).
50. Paul Blustein, Europe Hit by Tariffs in Battle over Beef; U.S. Acts After EU Ignores Trade Group, WASH. POST, July 20, 1999, at E1; Canada Excludes UK Food Exports from EU Sanctions, AFX News, July 30, 1999, 1999 WL 21854750. The U.S. and Canadian retaliatory tariffs of 100% are imposed in lieu of whatever tariff was already being imposed.
51. Paul Blustein, Europe Hit by Tariffs in Battle over Beef; U.S. Acts After EU Ignores Trade Group, WASH. POST, July 20, 1999, at E1; Canada Excludes UK Food Exports from EU Sanctions, AFX News, July 30, 1999, 1999 WL 21854750. The U.S. and Canadian retaliatory tariffs of 100% are imposed in lieu of whatever tariff was already being imposed.
52. See Brazil - Export Financing Programme for Aircraft, Recourse by Canada to Article 21.5 of the DSU, WTO Doc. WT/DS46/AB/RW, para. 2 (July 21, 2000).
53. Brazil - Export Financing Programme for Aircraft - Recourse to Arbitration by Brazil Under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, WTO Doc. WT/DS46/ARB (Aug. 28, 2000) [hereinafter Brazil -Canada Article 22 Decision]; Jennifer L. Rich, W.T.O. Allows Canada Record Sanctions Against Brazil, N.Y. TIMES, Aug. 23, 2000, at C4; Frances Williams, Canada Is Given Go-Ahead for Brazil Sanctions, FIN. TIMES, Dec. 13, 2000, at 12; Canada Department of Foreign Affairs and International Trade, News Release 269, WTO Grants Canada Right to Impose Sanctions Against Brazil over Aircraft Subsidy Dispute (Dec. 12, 2000), at 〈http://www.dfait.maeci.gc.ca〉. Note that the WTO gave Brazil ninety days to comply, while giving the EU fifteen months in two earlier episodes.
54. Brazil - Export Financing Programme for Aircraft - Recourse to Arbitration by Brazil Under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, WTO Doc. WT/DS46/ARB (Aug. 28, 2000) [hereinafter Brazil - Canada Article 22 Decision]; Jennifer L. Rich, W.T.O. Allows Canada Record Sanctions Against Brazil, N.Y. TIMES, Aug. 23, 2000, at C4; Frances Williams, Canada Is Given Go-Ahead for Brazil Sanctions, FIN. TIMES, Dec. 13, 2000, at 12; Canada Department of Foreign Affairs and International Trade, News Release 269, WTO Grants Canada Right to Impose Sanctions Against Brazil over Aircraft Subsidy Dispute (Dec. 12, 2000), at 〈http://www.dfait.maeci.gc.ca〉. Note that the WTO gave Brazil ninety days to comply, while giving the EU fifteen months in two earlier episodes.
55. Brazil - Export Financing Programme for Aircraft - Recourse to Arbitration by Brazil Under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, WTO Doc. WT/DS46/ARB (Aug. 28, 2000) [hereinafter Brazil - Canada Article 22 Decision]; Jennifer L. Rich, W.T.O. Allows Canada Record Sanctions Against Brazil, N.Y. TIMES, Aug. 23, 2000, at C4; Frances Williams, Canada Is Given Go-Ahead for Brazil Sanctions, FIN. TIMES, Dec. 13, 2000, at 12; Canada Department of Foreign Affairs and International Trade, News Release 269, WTO Grants Canada Right to Impose Sanctions Against Brazil over Aircraft Subsidy Dispute (Dec. 12, 2000), at 〈http://www.dfait.maeci.gc.ca〉. Note that the WTO gave Brazil ninety days to comply, while giving the EU fifteen months in two earlier episodes.
56. Brazil - Export Financing Programme for Aircraft - Recourse to Arbitration by Brazil Under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, WTO Doc. WT/DS46/ARB (Aug. 28, 2000) [hereinafter Brazil - Canada Article 22 Decision]; Jennifer L. Rich, W.T.O. Allows Canada Record Sanctions Against Brazil, N.Y. TIMES, Aug. 23, 2000, at C4; Frances Williams, Canada Is Given Go-Ahead for Brazil Sanctions, FIN. TIMES, Dec. 13, 2000, at 12; Canada Department of Foreign Affairs and International Trade, News Release 269, WTO Grants Canada Right to Impose Sanctions Against Brazil over Aircraft Subsidy Dispute (Dec. 12, 2000), at 〈http://www.dfait.maeci.gc.ca〉. Note that the WTO gave Brazil ninety days to comply, while giving the EU fifteen months in two earlier episodes.
57. Brazil - Export Financing Programme for Aircraft - Second Recourse by Canada to Article 21.5 of the DSU, WTO Doc. WT/DS46/26 (Jan. 22, 2001). In making the request, Canada declared that in acting to seek further legal clarity, it retained the right to impose countermeasures against Brazil at any time. The panel set up under Article 21.5 is often called the "compliance panel." This episode is the only time a follow-up compliance panel has been appointed.
58. United States - Tax Treatment for "Foreign Sales Corporations," WTO Doc. WT/DS108/AB/R (Feb. 24, 2000).
59. Delegation of the European Commission to the United States, News Release 73/00, EU Requests WFO Compliance Panel and Authorisation to Impose Sanction Against the US in Foreign Sales Corporation Trade Dispute (Nov. 17, 2000). The EC sought a 100% tariff to be imposed on top of the regular EC tariffs. The issue in the case is whether a provision in U.S. tax law constitutes a prohibited export subsidy. Sean D. Murphy, U.S. Position on Foreign Sales Corporations, Contemporary Practice of the United States, 94 AJIL 531 (2000); Geoff Winestock, U.S. Asks EU to Drop Threat of Sanctions, WALL ST. J., May 18, 2001, at A17.
60. Delegation of the European Commission to the United States, News Release 73/00, EU Requests WFO Compliance Panel and Authorisation to Impose Sanction Against the US in Foreign Sales Corporation Trade Dispute (Nov. 17, 2000). The EC sought a 100% tariff to be imposed on top of the regular EC tariffs. The issue in the case is whether a provision in U.S. tax law constitutes a prohibited export subsidy. Sean D. Murphy, U.S. Position on Foreign Sales Corporations, Contemporary Practice of the United States, 94 AJIL 531 (2000); Geoff Winestock, U.S. Asks EU to Drop Threat of Sanctions, WALL ST. J., May 18, 2001, at A17.
61. Delegation of the European Commission to the United States, News Release 73/00, EU Requests WFO Compliance Panel and Authorisation to Impose Sanction Against the US in Foreign Sales Corporation Trade Dispute (Nov. 17, 2000). The EC sought a 100% tariff to be imposed on top of the regular EC tariffs. The issue in the case is whether a provision in U.S. tax law constitutes a prohibited export subsidy. Sean D. Murphy, U.S. Position on Foreign Sales Corporations, Contemporary Practice of the United States, 94 AJIL 531 (2000); Geoff Winestock, U.S. Asks EU to Drop Threat of Sanctions, WALL ST. J., May 18, 2001, at A17.
62. See Benjamin L. Brimeyer, Bananas, Beef, and Compliance in the World Trade Organization: The Inability of the WTO Dispute Settlement Process to Achieve Compliance from Superpower Nations, 10 MINN. J. GLOBAL TRADE 133 (2001).
63. Trade and Development Act of 2000, Pub. L. No. 106-200, § 407, 114 Stat. 251, 293. This provision is informally known as "carousel" because it calls for a periodic rotation of the sanction list USTR, Press Release 00-41, USTR Announces Procedures for Modifying Measures in EC Beef and Bananas Cases (May 26, 2000) (noting that the intent of §407 is to induce compliance).
64. International Financial Institution Advisory Committee, Report (Mar. 2000), at 〈http://www.house.gov/jec/imf/meltzer.htm〉.
65. See Edward Alden & Peter Norman, US Threatens EU with New Sanctions, FIN. TIMES, Mar. 8, 2001, at 37; Helene Cooper, Food Fight with Europe May Worsen, WALL ST. J., Sept. 6, 2000, at A2 (reporting plans of Clinton administration to rotate the sanctioned products and to use 200% tariffs rather than 100% tariffs); Gary G. Yerkey, U.S. Will Use 'Carousel' Law as 'Leverage " to Open Foreign Markets, USTR Zoellick Says, DAILY REP. FOR EXECUTIVES (BNA), May 24, 2001, at A-25.
66. See Edward Alden & Peter Norman, US Threatens EU with New Sanctions, FIN. TIMES, Mar. 8, 2001, at 37; Helene Cooper, Food Fight with Europe May Worsen, WALL ST. J., Sept. 6, 2000, at A2 (reporting plans of Clinton administration to rotate the sanctioned products and to use 200% tariffs rather than 100% tariffs); Gary G. Yerkey, U.S. Will Use 'Carousel' Law as 'Leverage " to Open Foreign Markets, USTR Zoellick Says, DAILY REP. FOR EXECUTIVES (BNA), May 24, 2001, at A-25.
67. See Edward Alden & Peter Norman, US Threatens EU with New Sanctions, FIN. TIMES, Mar. 8, 2001, at 37; Helene Cooper, Food Fight with Europe May Worsen, WALL ST. J., Sept. 6, 2000, at A2 (reporting plans of Clinton administration to rotate the sanctioned products and to use 200% tariffs rather than 100% tariffs); Gary G. Yerkey, U.S. Will Use 'Carousel' Law as 'Leverage " to Open Foreign Markets, USTR Zoellick Says, DAILY REP. FOR EXECUTIVES (BNA), May 24, 2001, at A-25.
68. Australia - Measures Affecting Importation of Salmon - Recourse to Article 21.5 by Canada, WTO Doc. WT/DS18/RW (Feb. 18, 2000). The panel found that Australia was excluding imports of chilled and frozen salmon without basing this action on a risk assessment and without using the least trade restrictive approach. This was a dispute under the SPS Agreement.
69. Communication from Canada, WTO Doc. WT/DS18/12 (July 15, 1999); Canada Drops Proposal to Retaliate in WTO Salmon Dispute with Australia, 17 Int'l Trade Rep. (BNA) 1250 (Aug. 10, 2000).
70. Communication from Canada, WTO Doc. WT/DS18/12 (July 15, 1999); Canada Drops Proposal to Retaliate in WTO Salmon Dispute with Australia, 17 Int'l Trade Rep. (BNA) 1250 (Aug. 10, 2000).
71. ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS, bk. IV, ch. II, at 295 (Kathryn Sutherland ed., Oxford Univ. Press 1998) (1776).
72. 15 U.S.C. §75 (1994).
73. 19 U.S.C. §1338 (1994).
74. Benjamin H. Williams, The Coming of Economic Sanctions into American Practice, 37 AJIL 386, 389 (1943). Asimilar provision in the Tariff Act of 1890 led to a treaty with Germany to remove objectionable discrimination. WILLIAM SMITH CULBERTSON, COMMERCIAL POLICY IN WAR TIME AND AFTER 181 (1924).
75. Benjamin H. Williams, The Coming of Economic Sanctions into American Practice, 37 AJIL 386, 389 (1943). Asimilar provision in the Tariff Act of 1890 led to a treaty with Germany to remove objectionable discrimination. WILLIAM SMITH CULBERTSON, COMMERCIAL POLICY IN WAR TIME AND AFTER 181 (1924).
76. The Sugar Convention of 1902 committed parties to impose a duty on imports of sugar from countries using bounties (i.e., subsidies). The Permanent Commission, composed of delegates from the parties, was to decide when such bounties existed and how much advantage they gave the exporting country. International Convention Relative to Bounties on Sugar, Mar. 5, 1902, Arts. 1, 4, 7, 191 Consol. TS 56, 1902 FOREIGN RELATIONS OF THE UNITED STATES 80. The treaty terminated in 1920. NORMAN L. HILL, INTERNATIONAL ADMINISTRATION 242 (1931).
77. The Sugar Convention of 1902 committed parties to impose a duty on imports of sugar from countries using bounties (i.e., subsidies). The Permanent Commission, composed of delegates from the parties, was to decide when such bounties existed and how much advantage they gave the exporting country. International Convention Relative to Bounties on Sugar, Mar. 5, 1902, Arts. 1, 4, 7, 191 Consol. TS 56, 1902 FOREIGN RELATIONS OF THE UNITED STATES 80. The treaty terminated in 1920. NORMAN L. HILL, INTERNATIONAL ADMINISTRATION 242 (1931).
78. LEAGUE OF NATIONS COVENANT Art. 16, para. 1.
79. Id., para. 3.
80. Treaty of Versailles, June 28, 1919, pt. XIII, 225 Consol. TS 188.
81. Id., Art. 411, paras, 1, 3. The ILO Governing Body was made up of delegates from twelve governments, the worker group of the delegates, and the employer group. Id., Art. 393.
82. Id., Art. 411, para. 4. The feature of the ILO in which states are represented by delegates from government, employers, and workers is called tripartism.
83. Id., Art. 412.
84. Id., Art. 414, para. 1.
85. Id., para. 2. The report was to be made public.
86. Id., Arts. 415-18.
87. Id., Art. 419.
88. Id., Art. 420.
89. Francis Maupain, The Settlement of Disputes Within the International Labour Office, 2 J. INT'L ECON. L. 273, 283-84 (1999) (discussing the pre-1946 procedure and noting its one-time use); CESARE P. R. ROMANO, THE ILO SYSTEM OF SUPERVISION AND COMPLIANCE CONTROL: A REVIEW AND LESSONS FOR MULTILATERAL ENVIRONMENTAL AGREEMENTS 12-14 (International Institute for Applied Systems Analysis, May 1996), at 〈http://www.iiasa.ac.at/ Publications/Catalog/PUB_ONLINE.html〉.
90. Francis Maupain, The Settlement of Disputes Within the International Labour Office, 2 J. INT'L ECON. L. 273, 283-84 (1999) (discussing the pre-1946 procedure and noting its one-time use); CESARE P. R. ROMANO, THE ILO SYSTEM OF SUPERVISION AND COMPLIANCE CONTROL: A REVIEW AND LESSONS FOR MULTILATERAL ENVIRONMENTAL AGREEMENTS 12-14 (International Institute for Applied Systems Analysis, May 1996), at 〈http://www.iiasa.ac.at/ Publications/Catalog/PUB_ONLINE.html〉.
91. In Historic Vote, ILO Assembly Tightens Pressure on Myanmar, ILO FOCUS, Summer/Fall 2000, at 1; see also Business Letter to Albright on Burma, INSIDE U.S. TRADE, Jan. 5, 2001, at 8 (stating that business leaders around the world view the ILO action as a very important step and one to be taken seriously). The amended provision changed the ILO Constitution from pointing to the potential use of "measures of an economic character" to the current provision pointing to action that the ILO Governing Body "may deem wise and expedient to secure compliance." Compare Treaty of Versailles, supra note 48, Art. 418, with ILO CONST. Art. 33, at 〈http://www.ilo.org〉. The ILO Conference retains the competence to recommend measures of an economic character, but it has not done so. See Maupain, supra note 57, at 283-85.
92. In Historic Vote, ILO Assembly Tightens Pressure on Myanmar, ILO FOCUS, Summer/Fall 2000, at 1; see also Business Letter to Albright on Burma, INSIDE U.S. TRADE, Jan. 5, 2001, at 8 (stating that business leaders around the world view the ILO action as a very important step and one to be taken seriously). The amended provision changed the ILO Constitution from pointing to the potential use of "measures of an economic character" to the current provision pointing to action that the ILO Governing Body "may deem wise and expedient to secure compliance." Compare Treaty of Versailles, supra note 48, Art. 418, with ILO CONST. Art. 33, at 〈http://www.ilo.org〉. The ILO Conference retains the competence to recommend measures of an economic character, but it has not done so. See Maupain, supra note 57, at 283-85.
93. In Historic Vote, ILO Assembly Tightens Pressure on Myanmar, ILO FOCUS, Summer/Fall 2000, at 1; see also Business Letter to Albright on Burma, INSIDE U.S. TRADE, Jan. 5, 2001, at 8 (stating that business leaders around the world view the ILO action as a very important step and one to be taken seriously). The amended provision changed the ILO Constitution from pointing to the potential use of "measures of an economic character" to the current provision pointing to action that the ILO Governing Body "may deem wise and expedient to secure compliance." Compare Treaty of Versailles, supra note 48, Art. 418, with ILO CONST. Art. 33, at 〈http://www.ilo.org〉. The ILO Conference retains the competence to recommend measures of an economic character, but it has not done so. See Maupain, supra note 57, at 283-85.
94. International Labour Conference, 88th Sess., Agenda Item 8, Implementation of Recommendations Contained in the Report of the Commission of Inquiry entitled Forced Labour in Myanmar (Burma), Appendix, Prov. Rec. 6-4, at 21 (2000).
95. Nicolas Valticos, The International Labour Organization, in THE EFFECTIVENESS OF INTERNATIONAL DECISIONS 134 (Stephen M. Schwebel ed., 1971); Nicolas Valticos, Once More About the ILO System of Supervision: In What Respect Is It Still a Model? in 1 TOWARDS MORE EFFECTIVE SUPERVISION BY INTERNATIONAL ORGANIZATIONS: ESSAYS IN HONOUR OF HENRY G. SCHERMERS 99 (Niels Blokker & Sam Muller eds., 1994).
96. Nicolas Valticos, The International Labour Organization, in THE EFFECTIVENESS OF INTERNATIONAL DECISIONS 134 (Stephen M. Schwebel ed., 1971); Nicolas Valticos, Once More About the ILO System of Supervision: In What Respect Is It Still a Model? in 1 TOWARDS MORE EFFECTIVE SUPERVISION BY INTERNATIONAL ORGANIZATIONS: ESSAYS IN HONOUR OF HENRY G. SCHERMERS 99 (Niels Blokker & Sam Muller eds., 1994).
97. See MANLEY O. HUDSON, INTERNATIONAL TRIBUNALS: PAST & FUTURE 215-17 (1944).
98. International Agreement Regarding the Regulation of Production and Marketing of Sugar, May 6, 1937, Art. 44, 4 TREATIES, CONVENTIONS, INTERNATIONAL ACTS, PROTOCOLS, AND AGREEMENTS BETWEEN THE UNITED STATES OF AMERICA AND OTHER POWERS 5599. Such a decision was to be made by a three-quarters vote.
99. Id.
100. See James McCall Smith, The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts, 54 INT'L ORG. 137 (2000).
101. Id. at 156-57.
102. GARY CLYDE HUFBAUER, JEFFREY J. SCHOTT, & KIMBERLY ANN ELLIOTT, ECONOMIC SANCTIONS RECONSIDERED: SUPPLEMENTAL CASE HISTORIES 24-25, 33-34, 285-86 (2d ed. 1990). The three cases were Paraguay/Bolivia and Italy in the 1930s and Rhodesia in the 1960s-1970s.
103. THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 289-90 (1995); The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights, UN Doc. E/CN.4/Sub.2/2000/33, Annex 1 (reviewing the recent episodes).
104. THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 289-90 (1995); The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights, UN Doc. E/CN.4/Sub.2/2000/33, Annex 1 (reviewing the recent episodes).
105. UN CHARTER ch. VII & Art. 94; Carl-August Fleischhauer, Remarks, Compliance and Enforcement in the United Nations System, 85 ASIL PROC. 428, 432-33 (1991).
106. UN CHARTER ch. VII & Art. 94; Carl-August Fleischhauer, Remarks, Compliance and Enforcement in the United Nations System, 85 ASIL PROC. 428, 432-33 (1991).
107. GATT Art. XXI(c).
108. See Michael Littlejohns, UN Backs Diamonds 'Blood Trade' Measures, FIN. TIMES, July 6, 2000, at 8.
109. JOHN H. JACKSON, WORLD TRADE AND THE LAW OF GATT 169 (1969); see Havana Charter for the International Trade Organization [hereinafter ITO Charter], ch. VIII, reprinted in RAJ BHALA, INTERNATIONAL TRADE LAW HANDBOOK 83, 157 (2d ed. 2001). The ITO was designed to become a specialized organization of the United Nations, but the ITO treaty never entered into force. Instead, the GATT, which was intended to be temporary, served as the mode of international trade governance from 1948 to 1994.
110. JOHN H. JACKSON, WORLD TRADE AND THE LAW OF GATT 169 (1969); see Havana Charter for the International Trade Organization [hereinafter ITO Charter], ch. VIII, reprinted in RAJ BHALA, INTERNATIONAL TRADE LAW HANDBOOK 83, 157 (2d ed. 2001). The ITO was designed to become a specialized organization of the United Nations, but the ITO treaty never entered into force. Instead, the GATT, which was intended to be temporary, served as the mode of international trade governance from 1948 to 1994.
111. ITO Charter, supra note 71, Art. 95.3. Nullification or impairment refers to a situation in one country that undermines the expected benefits of the trade agreement to another country. In the ITO, nullification or impairment could result from it breach of the treaty, but a breach was not essential to engender nullification or impairment. Id. Art. 93.1; JACKSON, supra note 71, at 167-78. The GATT follows the same approach. GATT Art. XXIII:1(b).
112. Suspension of concessions can mean raising tariffs. Note that the GATT approach is consistent with the law of treaties, which provides for suspending a treaty in whole or part as a response to a material breach of the treaty. Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 60, 1155 UNTS 331.
113. JACKSON, supra note 71, at 170-71.
114. Id. at 169.
115. Id. at 169-70.
116. ALSO PRESENT AT THE CREATION: DANA WILGRESS AND THE UNITED NATIONS CONFERENCE ON TRADE AND EMPLOYMENT AT HAVANA 145 (Michael Hart ed., 1995).
117. ROBERT E. HUDEC, The GATT Legal System: A Diplomat's Jurisprudence (1970), in ESSAYS ON THE NATURE OF INTERNATIONAL TRADE LAW 17, 28-30 (1999) [hereinafter HUDEC, ESSAYS].
118. ROBERT E. HUDEC, The GATT Legal System: A Diplomat's Jurisprudence (1970), in ESSAYS ON THE NATURE OF INTERNATIONAL TRADE LAW 17, 28-30 (1999) [hereinafter HUDEC, ESSAYS].
119. Id. at 30.
120. Id. at 34-35.
121. CLAIR WILCOX, A CHARTER FOR WORLD TRADE 159 (1949) (emphasis added).
122. Id.
123. The word "retaliation" was used by the ITO negotiators. See text at note 74 supra. In 1952 the chairman of the GATT Intersessional Committee used the term "retaliatory action." 2 WTO, GUIDE TO GATT LAW AND PRACTICE 698 (1995).
124. KENNETH W. DAM, THE GATT: LAW AND INTERNATIONAL ECONOMIC ORGANIZATION 357, 359, 364, 366-67 (1970).
125. Id. at 364.
126. Id. at 352.
127. Id.
128. Id.
129. GUIDE TO GATT LAW AND PRACTICE, supra note 83, at 698-99; see GATT Art. XXIII:2.
130. GUIDE TO GATT LAW AND PRACTICE, supra note 83, at 682.
131. GERARD CURZON, MULTILATERAL COMMERCIAL DIPLOMACY 43 (1965).
132. JACKSON, supra note 71, at 763; see also JOHN H. JACKSON, THE WORLD TRADING SYSTEM 110 (MIT Press 1992) (1989) (noting that the GATT operates mostly without sanctions).
133. Eric Wyndham-White, Negotiations in Prospect, in TOWARD A NEW WORLD TRADE POLICY: THE MAIDENHEAD PAPERS 321, 329 (C. Fred Bergsten ed., 1975).
134. Guy de Lacharrière, The Settlement of Disputes Between Contracting Parties to the General Agreement 7-8 (1984) (unpublished manuscript, on file with author).
135. ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY 30 (1995).
136. JACKSON, supra note 71, at 106 (noting that the term "sanction" is usually avoided).
137. Agreement on Technical Barriers to Trade, Apr. 12, 1979, Art. 14.21, 31 UST 405, 1186 UNTS 276.
138. GATT or GABB? The Future Design of the Central Agreement on Tariffs and Trade, in HUDEC, ESSAYS, supra note 78, at 77, 101 n.45; Letter to John D. Wickham from J. M. Posta, Dutch Ministry of Economic Affairs (Aug. 3, 1995) (on file with author).
139. See text at note 82 supra.
140. Marrakesh Declaration, in WORLD TRADE ORGANIZATION, supra note 3, at iii, para. 1.
141. See generally Cherise M, Valles & Brendan P. McGivern, The Right to Retaliate Under the WTO Agreement, J. WORLD TRADE, Apr. 2000, at 63 (discussing the DSU rules).
142. GATT Art. XXIII:2 (emphasis added).
143. DSU Art. 22.6 (emphasis added). The DSB acts unless there is a consensus to reject the request.
144. Id., Art. 22.4. The level is calculated by arbitrators who determine how much trade with the defending country is being impaired because of the breach of WTO law.
145. Pauwelyn, supra note 1, at 339 (suggesting that the WTO Agreements provide for less in this respect than the Statute of the International Court of Justice does).
146. In the literature on sanctions, the "sender" state imposes the sanction on the "target" state. Daniel W. Drezner, Bargaining, Enforcement, and Multilateral Sanctions: When Is Cooperation Counterproductive? 54 INT'L ORG. 73, 75 (2000).
147. Similar developments occurred in regional organizations at the same time. During the Uruguay Round negotiations, the Southern Common Market approved a Protocol for the Solution of Controversies, which provides for a suspension of concessions and notes that it "should tend to lead to compliance." Mercosur Protocol of Brasilia for the Solution of Controversies, Decision 1/91, Art. 23 (Dec. 17, 1991), at 〈http://www.sice.oas.org/trade/mrcsrs/decisions/AN0191e.asp〉.
148. DSU Arts. 21.1, 22.1, 22.52.
149. DSU Article 22.1 makes the same point.
150. If the disputing parties cannot agree, then arbitration is used.
151. See GATT Art. XXIII. The ITO Charter did not make this linkage, either. See ITO Charter, supra note 71, Arts. 94.3, 95.3.
152. DSU Arts. 22.6, 22.7
153. EC-U.S. Article 22 Decision, supra note 21, para. 6.3. The arbitrators added that the DSU could not be read to justify countermeasures of a punitive nature. Id.
154. EC-Ecuador Article 22 Decision, supra note 23, paras. 72, 76.
155. See supra note 15. Note that not all trade measures that government A might apply to the imports of country Bare sanctions. If A bans imports of diseased meat, A is not necessarily trying to change the behavior of B, A is just keeping out the meat. Of course, B might respond by enacting tougher meat safety laws, but that would not turn the import ban into a sanction. A typical sanction bans an import unrelated to the underlying dispute. Thus, if A bans the importation of elephant ivory taken in the wild, that should not be considered a sanction because the ivory is related to the goal of elephant conservation.
156. SCM Arts. 4.10, 7.9. Footnote 9 to Article 4.10 states that the term "countermeasure" is not meant to allow countermeasures that are "disproportionate."
157. See DSU Art. 1.2.
158. Brazil-Canada Article 22 Decision, supra note 31, paras. 3.44-3.45.
159. Id., para. 3.44 (referring to draft Art. 47, supra note 9, now renumbered as draft Art. 50).
160. Id., paras. 3.48, 3.54, 3.57, 3.59.
161. Id., paras. 3.49, 3.51, 3.54, 3.57, 3.58, 3.60. The premise of rebalancing is that if Brazil reduces the value of market access by $x, then Canada responds by reducing market access by the same $x. What the Aircraft arbitrators said was that if Brazil promotes its production and sales of aircraft to the entire world through a subsidy of $x, then Canada is entitled to block $x worth of imports from Brazil.
162. Id., para. 3.55.
163. Id.
164. United States - Import Measures on Certain Products from the European Communities, WTO Doc. WT/DS165/R, paras. 5.13, 6.106 (July 17, 2000).
165. Id., paras. 6.21-6.23 (referring to DSU Art. 23.1). A footnote discusses the definition of "retaliation." Id., para. 6.23 n. 100.
166. Author's own tabulations.
167. See DSU Art. 22.2. A simple tariff suspension would raise the tariff back to what it was before the tariff negotiation. The WTO Agreements, however, permit more than such a simple suspension. A retaliating government may raise tariffs as high as it wants. In contrast, some other treaties put a ceiling on the suspension of concessions. For example, the North American Agreement on Environmental Cooperation states that the suspension of a concession cannot introduce a higher tariff than existed at the commencement of the North American Free Trade Agreement. North American Agreement on Environmental Cooperation, Sept. 14, 1993, Can.-Mex.-U.S., Art. 24, Annex 36B, para. 1, 32 ILM 1480 (1993).
168. G. Richard Shell, Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, 44 DUKE L.J. 829, 901 (1995).
169. SYLVIA OSTRY, THE POST-COLD WAR TRADING SYSTEM 183 (1997).
170. R. V. Vaidyanatha Ayyar, Interest or Right? The Process and Politics of a Diplomatic Conference on Copyright, 1 J. WORLD INTELL. PROP. 3, 35 (1998).
171. Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, 8 MINN. J. GLOBAL TRADE 1, 3 (1999). Hudec characterizes the retaliatory power under the GATT as a sanction, too. Id. at 6 n.8.
172. Gabrielle Marceau & Peter N. Pedersen, Is the WTO Open and Transparent? J. WORLD TRADE, Feb. 1999, at 5, 44.
173. White House Fact Sheet on Enforcement of the U.S.-China Accession Deal (Mar. 8, 2000).
174. Paul B. Stephan, Sheriff or Prisoner? The United States and the World Trade Organization, 1 CHI. J. INT'L L. 49, 66 (2000).
175. Christopher McCrudden & Anne Davies, A Perspective on Trade and Labor Rights, 3 J. INT'L ECON. L. 43, 57 (2000).
176. The Standard Question, ECONOMIST, Jan. 15, 2000, at 79, 79.
177. William H. Lash III & Daniel T. Griswold, WTO Report Card II: An Exercise or Surrender of U.S. Sovereignty? 4 (May 2000), Cato Institute Briefing Paper, at 〈http://www.cato.org〉.
178. International Institute for Sustainable Development, Statement on Trade and Sustainable Development (Oct. 2000), at 〈http://www.iisd.org/trade/default.htm〉.
179. Daniel Pruzin, Lamy Says EU Will Pursue Sanctions If the WTO Rules Against U.S. on FSC Dispute, DAILY REP. FOR EXECUTIVES (BNA), Nov. 22, 2000, at G-3.
180. David M. Driesen, What is Free Trade?: The Real Issue Lurking Behind the Trade and Environment Debate, 41 VA. J. INT'L L. 279, 303 (2001) (citations omitted).
181. Martin Wolf, What the World Needs from the Multilateral Trading System, in THE ROLE OF THE WORLD TRADE ORGANIZATION IN GLOBAL GOVERNANCE 183, 195 (Gary P. Sampson ed., 2001).
182. Guy de Jonquières, How Can Transatlantic Trade Disputes Be Avoided? in RESOLVING AND PREVENTING US-EU TRADE DISPUTES, supra note 16, at 33, 42.
183. Settling Disputes: The WTO's 'Most Individual Contribution,' 〈http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm〉 (visited Oct. 17, 2001).
184. Mike Moore, The WTO, Looking Ahead, 24 FORDHAM INT'L L.J. 1, 3 (2000).
185. WTO & UNEP Secretariats, Compliance and Dispute Settlement Provisions in the WTO and in Multilateral Environmental Agreements, WTO Doc. WT/CTE/W/191 (2001).
186. Id., para. 136.
187. Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 AJIL 260, 261 (1940).
188. But see text at note 75 supra (Jackson analysis).
189. See text at note 82 supra.
190. Judging compliance is somewhat subjective because few WTO disputes end in an authoritative determination of whether compliance has occurred. In some cases where violations have been found, the dispute has ended when the defendant government takes action to comply, and the plaintiff government drops the matter. The U.S. Gasoline case, supra note 10, is an example. U.S. Meets WTO Deadline on Fuel Regulation; Foreign Refiners Can Get Individual Baselines, 20 Int'l Env't Rep. (BNA) 838 (Sept. 3, 1997). In other cases, the dispute has ended in settlement with no formal review of how much compliance exists. Canada - Certain Measures Concerning Periodicals, WTO Doc. WT/DS31/R (Mar. 14, 1997), is an example. Rossella Brevetti & Peter Menyasz, Averting Cultural Trade War, U.S., Canada Settle Long Feud over Split-Run Magazines, DAILY REP. FOR EXECUTIVES (BNA), May 27, 1999, at A-32. In a few case, the compliance review panel made a determination that the allegation of noncompliance was not proven. The Canada Civilian Aircraft case is an example. Canada - Measures Affecting the Export of Civilian Aircraft - Recourse by Brazil to Article 21.5 of the DSU, WTO Doc. WT/DS70/AB/RW (July 21, 2000).
191. Judging compliance is somewhat subjective because few WTO disputes end in an authoritative determination of whether compliance has occurred. In some cases where violations have been found, the dispute has ended when the defendant government takes action to comply, and the plaintiff government drops the matter. The U.S. Gasoline case, supra note 10, is an example. U.S. Meets WTO Deadline on Fuel Regulation; Foreign Refiners Can Get Individual Baselines, 20 Int'l Env't Rep. (BNA) 838 (Sept. 3, 1997). In other cases, the dispute has ended in settlement with no formal review of how much compliance exists. Canada - Certain Measures Concerning Periodicals, WTO Doc. WT/DS31/R (Mar. 14, 1997), is an example. Rossella Brevetti & Peter Menyasz, Averting Cultural Trade War, U.S., Canada Settle Long Feud over Split-Run Magazines, DAILY REP. FOR EXECUTIVES (BNA), May 27, 1999, at A-32. In a few case, the compliance review panel made a determination that the allegation of noncompliance was not proven. The Canada Civilian Aircraft case is an example. Canada - Measures Affecting the Export of Civilian Aircraft - Recourse by Brazil to Article 21.5 of the DSU, WTO Doc. WT/DS70/AB/RW (July 21, 2000).
192. Judging compliance is somewhat subjective because few WTO disputes end in an authoritative determination of whether compliance has occurred. In some cases where violations have been found, the dispute has ended when the defendant government takes action to comply, and the plaintiff government drops the matter. The U.S. Gasoline case, supra note 10, is an example. U.S. Meets WTO Deadline on Fuel Regulation; Foreign Refiners Can Get Individual Baselines, 20 Int'l Env't Rep. (BNA) 838 (Sept. 3, 1997). In other cases, the dispute has ended in settlement with no formal review of how much compliance exists. Canada - Certain Measures Concerning Periodicals, WTO Doc. WT/DS31/R (Mar. 14, 1997), is an example. Rossella Brevetti & Peter Menyasz, Averting Cultural Trade War, U.S., Canada Settle Long Feud over Split-Run Magazines, DAILY REP. FOR EXECUTIVES (BNA), May 27, 1999, at A-32. In a few case, the compliance review panel made a determination that the allegation of noncompliance was not proven. The Canada Civilian Aircraft case is an example. Canada - Measures Affecting the Export of Civilian Aircraft - Recourse by Brazil to Article 21.5 of the DSU, WTO Doc. WT/DS70/AB/RW (July 21, 2000).
193. Judging compliance is somewhat subjective because few WTO disputes end in an authoritative determination of whether compliance has occurred. In some cases where violations have been found, the dispute has ended when the defendant government takes action to comply, and the plaintiff government drops the matter. The U.S. Gasoline case, supra note 10, is an example. U.S. Meets WTO Deadline on Fuel Regulation; Foreign Refiners Can Get Individual Baselines, 20 Int'l Env't Rep. (BNA) 838 (Sept. 3, 1997). In other cases, the dispute has ended in settlement with no formal review of how much compliance exists. Canada - Certain Measures Concerning Periodicals, WTO Doc. WT/DS31/R (Mar. 14, 1997), is an example. Rossella Brevetti & Peter Menyasz, Averting Cultural Trade War, U.S., Canada Settle Long Feud over Split-Run Magazines, DAILY REP. FOR EXECUTIVES (BNA), May 27, 1999, at A-32. In a few case, the compliance review panel made a determination that the allegation of noncompliance was not proven. The Canada Civilian Aircraft case is an example. Canada - Measures Affecting the Export of Civilian Aircraft -Recourse by Brazil to Article 21.5 of the DSU, WTO Doc. WT/DS70/AB/RW (July 21, 2000).
194. Trade War with Australia Averted, VANCOUVER SUN, May 17, 2000, at D3. The Australia-Canada Salmon dispute, supra note 39, was about an Australian sanitary regulation that prevented the importation of uncooked salmon allegedly carrying harmful pathogens. Canada sought WTO approval for retaliation in July 1999.
195. U.S. CONG. REC. H7428 (daily ed. Sept. 12, 2000) (warning by the chairman of the Ways and Means Committee that sanctions would ensue if Congress did not change U.S. tax law); U.S. Treasury, Press Release LS-1018, Statement by Treasury Deputy Secretary Stuart E. Eizenstat (Nov. 14, 2000) (stating that the pending "legislation is absolutely essential to avoiding the potential imposition by the European Union of significant sanctions on American industries and to satisfying the United States' obligations in the WTO"); U.S. Congress Approves Export Tax Bill to Avoid E.U. Sanctions, Deutsche Presse-Agentur, Nov. 14, 2000, LEXIS, News Library.
196. U.S. CONG. REC. H7428 (daily ed. Sept. 12, 2000) (warning by the chairman of the Ways and Means Committee that sanctions would ensue if Congress did not change U.S. tax law); U.S. Treasury, Press Release LS-1018, Statement by Treasury Deputy Secretary Stuart E. Eizenstat (Nov. 14, 2000) (stating that the pending "legislation is absolutely essential to avoiding the potential imposition by the European Union of significant sanctions on American industries and to satisfying the United States' obligations in the WTO"); U.S. Congress Approves Export Tax Bill to Avoid E.U. Sanctions, Deutsche Presse-Agentur, Nov. 14, 2000, LEXIS, News Library.
197. DSU Art. 21.1 (noting that prompt compliance with rulings of the DSB is essential in order to ensure resolution of disputes), Art. 22.2 (using the terms "compliance" and "comply").
198. DSU Art. 3.3 (prompt settlement), Art. 3.4 (satisfactory settlement), Art. 3.6 (mutually agreed solutions), Art. 3.7 (positive solution), Art. 12.7 (reporting on settlement), Art. 22.8 (mutually satisfactory solution). DSU Art. 3.7 suggests that a mutually acceptable solution should be consistent with WTO Agreements.
199. On May 17, 2001, the LEXIS News Library showed 246 entries for "powerful" WTO.
200. Miquel Montañà i Mora, A GATT with Teeth: Law Wins over Politics in the Resolution of International Trade Disputes, 31 COLUM. J. TRANSNAT'L L. 103 (1993); Jonathan C. Spierer, Dispute Settlement Understanding: Developing a Firm Foundation for Implementation of the World Trade Organization, 22 SUFFOLK TRANSNAT'L L. REV. 63, 103 (1998) (noting that the DSU adds teeth to the GATT and makes the rules enforceable).
201. Miquel Montañà i Mora, A GATT with Teeth: Law Wins over Politics in the Resolution of International Trade Disputes, 31 COLUM. J. TRANSNAT'L L. 103 (1993); Jonathan C. Spierer, Dispute Settlement Understanding: Developing a Firm Foundation for Implementation of the World Trade Organization, 22 SUFFOLK TRANSNAT'L L. REV. 63, 103 (1998) (noting that the DSU adds teeth to the GATT and makes the rules enforceable).
202. Here is one anomaly: Under the World Heritage Convention, a site can be removed from the international list if a government violates its commitments to protect the site. Operational Guidelines for the World Heritage Convention, para. 46 (Dec. 1998), at 〈http://www.unesco.org/whc〉; Rüdiger Wolfrum, Means of Ensuring Compliance with and Enforcement of International Environmental Law, 272 RECUEIL DES COURS 25, 57 (1999). Nevertheless, the World Heritage Committee does not encourage additional destruction.
203. Here is one anomaly: Under the World Heritage Convention, a site can be removed from the international list if a government violates its commitments to protect the site. Operational Guidelines for the World Heritage Convention, para. 46 (Dec. 1998), at 〈http://www.unesco.org/whc〉; Rüdiger Wolfrum, Means of Ensuring Compliance with and Enforcement of International Environmental Law, 272 RECUEIL DES COURS 25, 57 (1999). Nevertheless, the World Heritage Committee does not encourage additional destruction.
204. WTO Agreement pmbl.
205. See Oscar Schachter, United Nations Law, 88 AJIL 1, 15 (1994) (suggesting that reprisals cannot include reciprocal acts such as denying human rights because the offending state did so); Bruno Simma, Self-Contained Regimes, 1985 NETH. Y.B. INT'L L. 111, 131, 134 (noting that countermeasures in the human rights regime must not be reciprocal in the sense that they would affect other human rights obligations).
206. See Oscar Schachter, United Nations Law, 88 AJIL 1, 15 (1994) (suggesting that reprisals cannot include reciprocal acts such as denying human rights because the offending state did so); Bruno Simma, Self-Contained Regimes, 1985 NETH. Y.B. INT'L L. 111, 131, 134 (noting that countermeasures in the human rights regime must not be reciprocal in the sense that they would affect other human rights obligations).
207. DSU Art. 3.7 states that the suspension of concessions or other obligations is to be discriminatory.
208. EU Unlikely to Lift Beef Hormone Ban; U.S. Set to Retaliate, INSIDE U.S. TRADE, July 23, 1999, at 9-10 (quoting a U.S. trade official as saying that the United States targeted its retaliation against France, Germany, Italy, and Denmark because they have the largest voices in the EC). In the past, the EC has also considered targeted trade sanctions. A former legal adviser to the European Commission has noted that in the GATT Superfund dispute with the United States, the Commission drafted a retaliation list with many products produced in Texas in order to discomfit Sen. Lloyd Bentsen, Kuyper, supra note 10, at 255.
209. Implementation of WTO Recommendations Concerning EC - Measures Concerning Meat and Meat Products (Hormones), 64 Fed. Reg. 40,638-41 (July 27, 1999). Resort to this same practice occurred in Ecuador's dispute against the European Communities regarding bananas. Ecuador exempted the Netherlands and Denmark from the request for a suspension of concessions.
210. Marc Lacey, Bush Declares Freer Trade a Moral Issue; Chides Critics, N.Y. TIMES, May 8, 2001, at A7; Robert W. McGee, Trade Embargoes, Sanctions and Blockades - Some Overlooked Human Rights Issues, J. WORLD TRADE, Aug. 1998, at 139, 143 (noting that the correct approach to trade policy is to be found in rights theory, not utilitarian analysis). Trading is not an absolute right, of course. It may come into conflict with other public goals.
211. Marc Lacey, Bush Declares Freer Trade a Moral Issue; Chides Critics, N.Y. TIMES, May 8, 2001, at A7; Robert W. McGee, Trade Embargoes, Sanctions and Blockades - Some Overlooked Human Rights Issues, J. WORLD TRADE, Aug. 1998, at 139, 143 (noting that the correct approach to trade policy is to be found in rights theory, not utilitarian analysis). Trading is not an absolute right, of course. It may come into conflict with other public goals.
212. In making this point, I am not suggesting that the individual's right to trade is currently ingrained in the international law of human rights. That fundamental norm is missing from the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. So the WTO's embrace of trade sanctions does not contradict widely accepted human rights norms. See ZOLLER, supra note 8, at 102 (noting that the international community would not give credence to a human rights claim by an individual in the state that committed the wrongful act about an economic countermeasure against his state).
213. Malini Mehra, Human Rights and the WTO: Time to Take on the Challenge (Heinrich Böll Foundation, July 2000) (noting that the WTO trade sanction model can lead to violations of human rights); Operation Vineyard Storm, ASIAN WALL ST. J., Nov. 10, 1992, at 10 (editorial stating, "There are no smart bombs in a trade war.").
214. Malini Mehra, Human Rights and the WTO: Time to Take on the Challenge (Heinrich Böll Foundation, July 2000) (noting that the WTO trade sanction model can lead to violations of human rights); Operation Vineyard Storm, ASIAN WALL ST. J., Nov. 10, 1992, at 10 (editorial stating, "There are no smart bombs in a trade war.").
215. GeofF Winestock, European Firms Seek EU Damages for Banana War, WALL ST. J., Aug. 30, 2000, at A22. More recently, a U.S. company filed a lawsuit on the principle that the EC owes damages for blocking access to its market. Anthony DePalma, Chiquita Sues Europeans, Citing Banana-Quota Losses, N.Y. TIMES, Jan. 26, 2001, at C5.
216. GeofF Winestock, European Firms Seek EU Damages for Banana War, WALL ST. J., Aug. 30, 2000, at A22. More recently, a U.S. company filed a lawsuit on the principle that the EC owes damages for blocking access to its market. Anthony DePalma, Chiquita Sues Europeans, Citing Banana-Quota Losses, N.Y. TIMES, Jan. 26, 2001, at C5.
217. See Allan Rosas, Implementation and Enforcement of WTO Dispute Settlement Findings: An EU Perspective, 4 J. INT'L ECON. L. 131, 140 (2001) (explaining why such claims are unlikely to be successful).
218. State trading entities and government procurement are exceptions, but usually there is a private actor on the other side of the transaction.
219. United States - Sections 301-310 of the Trade Act of 1974, WTO Doc. WT/DS152/R, paras. 7.72-7.73 (Dec. 22, 1999) [hereinafter Section 301 Panel Report]. This dispute involved a challenge by the European Commission to provisions in the Trade Act of 1974, as amended, that permit the U.S. Trade Representative to retaliate against foreign countries that violate trade agreements, deny U.S. benefits under those agreements, or unjustifiably burden U.S. commerce. The disputed provision is found in 19 U.S.C. §2411 (Supp. II 1996). The panel ultimately concluded that the U.S. law did not violate WFO rules.
220. Section 301 Panel Report, supra note 169, paras. 7.74-7.81.
221. Pierre Lemieux, Ottawa Wins a Jet Battle, But Canadians Lose, WALL ST. J., Dec. 15, 2000, at A17; see also Frederick M. Abbott, Trade and Democratic Values, 1 MINN. J. GLOBAL TRADE 9, 21 (1992) (explaining that liberal trade promotes democratic values by respecting the individual).
222. Pierre Lemieux, Ottawa Wins a Jet Battle, But Canadians Lose, WALL ST. J., Dec. 15, 2000, at A17; see also Frederick M. Abbott, Trade and Democratic Values, 1 MINN. J. GLOBAL TRADE 9, 21 (1992) (explaining that liberal trade promotes democratic values by respecting the individual).
223. See Pieter Jan Kuyper, International Legal Aspects of Economic Sanctions, in LEGAL ISSUES IN INTERNATIONAL TRADE 145 (Petar Šarčević & Hans van Houtte eds., 1990) (summarizing the law of economic sanctions); Petros C. Mavroidis, Remedies in the WTO Legal System: Between a Rock and a Hard Place, 11 EUR. J. INT'L L. 763, 766-74 (2000) (discussing the draft articles); Reisman & Stevick, supra note 15. Note that the draft articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or its legal consequences are determined by special rules of international law. Draft Articles on State Responsibility, supra note 9, Art. 56.
224. See Pieter Jan Kuyper, International Legal Aspects of Economic Sanctions, in LEGAL ISSUES IN INTERNATIONAL TRADE 145 (Petar Šarčević & Hans van Houtte eds., 1990) (summarizing the law of economic sanctions); Petros C. Mavroidis, Remedies in the WTO Legal System: Between a Rock and a Hard Place, 11 EUR. J. INT'L L. 763, 766-74 (2000) (discussing the draft articles); Reisman & Stevick, supra note 15. Note that the draft articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or its legal consequences are determined by special rules of international law. Draft Articles on State Responsibility, supra note 9, Art. 56.
225. See Pieter Jan Kuyper, International Legal Aspects of Economic Sanctions, in LEGAL ISSUES IN INTERNATIONAL TRADE 145 (Petar Šarčević & Hans van Houtte eds., 1990) (summarizing the law of economic sanctions); Petros C. Mavroidis, Remedies in the WTO Legal System: Between a Rock and a Hard Place, 11 EUR. J. INT'L L. 763, 766-74 (2000) (discussing the draft articles); Reisman & Stevick, supra note 15. Note that the draft articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or its legal consequences are determined by special rules of international law. Draft Articles on State Responsibility, supra note 9, Art. 56.
226. Draft Articles on State Responsibility, supra note 9, Art. 50(1).
227. Id., Art. 50(2).
228. Id., Art. 51 (1)(c).
229. Id., Art. 52.
230. Brazil-Canada Article 22 Decision, supra note 31, paras. 3.44, 3.55. The Aircraft arbitrators took note that SCM Articles 4.10 n.9 and 4.11 n. 10 suggest that ldisproportionatel countermeasures are not permitted. Id., para. 3.51.
231. For example, the measure of retaliation in Hormones is the projected ongoing loss of trade on an annual basis. The United States was not permitted to make up for trade lost in previous years.
232. Draft Articles on State Responsibility, supra note 9, Art. 55.
233. DSU Arts. 21.7, 22.8. As noted above, the 1919 Constitution of the ILO contained such a provision. See text at note 56 supra.
234. See Thinking About the New Section 301: Beyond Good and Evil, in HUDEC, ESSAYS, supra note 78, at 153, 181 (stating that retaliation is primarily a symbolic act, a way of making clear the seriousness of the government's objection to whatever it is retaliating about).
235. DSU Arts. 22.1, 22.8. Even after the suspension of concessions, the USB keeps the matter under surveillance so long as the recommendation to bring the measure into conformity has not been implemented. Id., Art. 22.8.
236. Curtis Reitz, Enforcement of the General Agreement on Tariffs and Trade, 17 U. PA. J. INT'L ECON. L. 555, 590-91 (1996). Compensation in this context means an agreement, by the defending government to lower its trade barriers in exchange for willingness by the complaining government to forgo raising its trade barriers.
237. DSU Arts. 23.2(c) (obliging governments to follow DSU Article 22 procedures).
238. Id., Arts. 22.2, 22.6, 22.7.
239. In Bananas, the United States proposed sanctions sized at $520 million and got $191 million, and Ecuador proposed $450 million and got $202 million. See EC-U.S. Article 22 Decision, supra note 21; EC-Ecuador Article 22 Decision, supra note 23. In Hormones, the United States proposed U.S.$202 million and got U.S.$116 million, and Canada proposed Can.$75 million and got Can.$11 million. See the Article 22.6 arbitration reports referenced in note 28 supra. In Aircraft, Canada proposed Can.$700 million and got Can.$344 million. See Brazil-Canada Article 22 Decision, supra note 31.
240. Taming unilateral retaliation was one of the purposes of the dispute settlement system established in the ITO Charter. During the drafting of the charter, Clair Wilcox stated, "We have sought to tame retaliation, to discipline it, to keep it within bounds . . . . to convert it from a weapon of economic warfare to an instrument of international order." GUIDE TO GATT LAW AND PRACTICE, supra note 83, at 692. Wilcox's point, should serve us a reminder that trade reprisals would exist even without the WTO.
241. European Communities - Measures Concerning Meat and Meat Products (Hormones), WTO Doc. WT/ DS26/R/USA, para. 2.35 (Aug. 18, 1997).
242. Cf. Case Concerning the Air Service Agreement of 27 March 1946 Between the United States of America and France, 18 R.I.A.A. 417, para. 91 (1978) ("Counter-measures therefore should be a wager on the wisdom, not on the weakness of the other Party.").
243. Judith Goldstein takes this theory one step further by arguing that the possibility of retaliation helps to prevent reneging on WTO commitments because export groups will gain a greater incentive to organize in defense of free trade and against particularistic protectionism within their country. Judith Goldstein, International Institutions and Domestic Politics: GATT, WTO, and the Liberalization of International Trade, in THE WTO AS AN INTERNATIONAL ORGANIZATION 133, 144-45 (Anne O. Krueger ed., 1998); see also Judith Goldstein & Lisa L. Martin, Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note, 54 INT'L ORG. 603, 616-19 (2000) (discussing efforts to mobilize foreign exporters in U.S. unilateral retaliation threats).
244. Judith Goldstein takes this theory one step further by arguing that the possibility of retaliation helps to prevent reneging on WTO commitments because export groups will gain a greater incentive to organize in defense of free trade and against particularistic protectionism within their country. Judith Goldstein, International Institutions and Domestic Politics: GATT, WTO, and the Liberalization of International Trade, in THE WTO AS AN INTERNATIONAL ORGANIZATION 133, 144-45 (Anne O. Krueger ed., 1998); see also Judith Goldstein & Lisa L. Martin, Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note, 54 INT'L ORG. 603, 616-19 (2000) (discussing efforts to mobilize foreign exporters in U.S. unilateral retaliation threats).
245. Robert E. Hudec, Broadening the Scope of Remedies in WTO Dispute Settlement, in IMPROVING WTO DISPUTE SETTLEMENT PROCEDURES: ISSUES AND LESSONS FROM THE PRACTICE OF OTHER INTERNATIONAL COURTS AND TRIBUNALS 369, 388 (Friedl Weiss ed., 2000).
246. See Geoff Winestock, Why U.S. Trade Sanctions Don't Faze Europe, WALL ST. J., Sept. 8, 2000, at A15 (discussing the fragmentation of European trade associations).
247. THOMAS O. BAYARD & KIMBERLY ANN ELLIOTT, RECIPROCITY AND RETALIATION IN U.S. TRADE POLICY 82 (1994) (stating that threats identifying potential targets of retaliation may spur previously inactive interest groups to enter the debate, tilting the political balance toward agreement).
248. Implementation of WTO Recommendations Concerning EC - Measures Concerning Meat and Meat Products (Hormones), Request for Comment; Notice of Public Hearing, 64 Fed. Reg. 14,486-92 (Mar. 25, 1999); William Chisholm, Cashmere Gloom as US Prepares to Publish Its Hit-List, SCOTSMAN, June 21, 2000, at 5.
249. Implementation of WTO Recommendations Concerning EC - Measures Concerning Meat and Meat Products (Hormones), Request for Comment; Notice of Public Hearing, 64 Fed. Reg. 14,486-92 (Mar. 25, 1999); William Chisholm, Cashmere Gloom as US Prepares to Publish Its Hit-List, SCOTSMAN, June 21, 2000, at 5.
250. DAM, supra note 84, at 357 (noting that although industry may receive greater protection, consumers have to pay more for the item chosen for retaliation).
251. SMITH, supra note 41, at 296.
252. T. E. G. GREGORY, TARIFFS: A STUDY IN METHOD 248 (1921).
253. Bernard M. Hoekman & Petros C. Mavroidis, WTO Dispute Settlement, Transparency and Surveillance, in DEVELOPING COUNTRIES AND THE WTO: A PRO-ACTIVE AGENDA 131 (forthcoming 2001).
254. EC-Ecuador Article 22 Decision, supra note 23, para. 86.
255. A report by the U.S. General Accounting Office (GAO) concludes that overall the results of the WTO dispute settlement process "have been positive for the United States." GAO, WORLD TRADE ORGANIZATION: ISSUES IN DISPUTE SETTLEMENT 24 (Doc. GAO/NSIAD-00-210, Aug. 2000). But this conclusion was reached without doing any analysis of the impact of the U.S. Bananas and Hormones sanctions on the U.S. economy.
256. About Section 301 (May 2000), at 〈http://www.ita.doc.gov/legal/301.html〉. The department maintains a "301 Alert" service to notify potential U.S. victims of U.S. retaliation so that they can "protect their economic interests by participating in the public comment process," at 〈http://www.ita.doc.gov/td/industry/otea.html〉 (visited Oct. 18, 2001). After the WTO/DSB approves the suspension of concessions, the U.S. government uses §301 (of the Trade Act of 1974) as legal authority to carry out the sanction.
257. DORIS STEVENS, JAILED FOR FREEDOM 184-85 (1976). According to Stevens, this tactic may have originated in ancient Ireland where the aggrieved party sometimes inflicted punishment on himself as away of inducing the perpetrator to make amends for his misdeeds.
258. Pork Industry Pushing for Pork-Only Hormone Retaliation List, INSIDE U.S. TRADE, May 21, 1999, at 14.
259. International Financial Institution Advisory Committee, supra note 37.
260. DAM, supra note 84, at 357.
261. Alan Sykes explains that government officials may pursue a protectionist objective because, having lost the political support of aggrieved exporters, the government hopes to reap new political support from an import-competing industry. Alan O. Sykes, The Remedy for Breach of Obligations Under the WTO Dispute Settlement Understanding: Damages or Specific Performance? in NEW DIRECTIONS IN INTERNATIONAL ECONOMIC LAW: ESSAYS IN HONOUR OF JOHN H. JACKSON 347, 354 (Marco Bronckers & Reinhard Quick eds., 2000).
262. DSU Art. 22.3(a), (f).
263. 19 U.S.C.A. §2416(b) (2) (F) (West Supp. 2000). The central provision in the carousel law directs USTR to rotate retaliation targets every six months. Rotation could reduce the dangerous potential for WTO trade sanctions to provide long-term protection to particular companies. At present, the industry enjoying shelter from foreign competition has an incentive to fight against removing sanctions even after the defending government takes steps to comply. See U.S. Beef Industry Unswayed by EU Offer on Compensation Plan, INSIDE U.S. TRADE, Dec. 1, 2000, at 3.
264. See USTR, Press Release 99-60, USTR Announces Final Product List in Beef Hormones Dispute (July 19, 1999); Government of Canada, News Release 174, Canada Retaliates Against the EU (July 29, 1999).
265. See USTR, Press Release 99-60, USTR Announces Final Product List in Beef Hormones Dispute (July 19, 1999); Government of Canada, News Release 174, Canada Retaliates Against the EU (July 29, 1999).
266. S. 2709, 106th Gong. (2000). Of course, with prohibitive tariffs there would be no money to collect or redistribute.
267. Pauwelyn, supra note 1, at 338; Pierre Pescatore, The GATT Dispute Settlement Mechanism: Its Present Situation and Its Prospects, J. WORLD TRADE, Feb. 1993, at 9, 15; BREAKING THE LABOR-TRADE DEADLOCK 4 (Inter-American Dialogue and Carnegie Endowment for International Peace, Working Paper No. 17, Feb. 2001) (contending that trade sanctions are a huge club in the hands of industrial giants and a splinter in the hands of developing countries). In pointing out how major and smaller economies are not similarly situated when it comes to imposing WTO "sanctions," David Palmeter recalls H. L. A. Hart's point that the inequality between the units of international law is one of the things that has given it a different character from municipal law, and has limited the extent to which it is capable of operating as an organized coercive system. David Palmeter, The WTO as a Legal System, 24 FORDHAM INT'L L.J. 444, 472-73 (2000).
268. Pauwelyn, supra note 1, at 338; Pierre Pescatore, The GATT Dispute Settlement Mechanism: Its Present Situation and Its Prospects, J. WORLD TRADE, Feb. 1993, at 9, 15; BREAKING THE LABOR-TRADE DEADLOCK 4 (Inter-American Dialogue and Carnegie Endowment for International Peace, Working Paper No. 17, Feb. 2001) (contending that trade sanctions are a huge club in the hands of industrial giants and a splinter in the hands of developing countries). In pointing out how major and smaller economies are not similarly situated when it comes to imposing WTO "sanctions," David Palmeter recalls H. L. A. Hart's point that the inequality between the units of international law is one of the things that has given it a different character from municipal law, and has limited the extent to which it is capable of operating as an organized coercive system. David Palmeter, The WTO as a Legal System, 24 FORDHAM INT'L L.J. 444, 472-73 (2000).
269. Pauwelyn, supra note 1, at 338; Pierre Pescatore, The GATT Dispute Settlement Mechanism: Its Present Situation and Its Prospects, J. WORLD TRADE, Feb. 1993, at 9, 15; BREAKING THE LABOR-TRADE DEADLOCK 4 (Inter-American Dialogue and Carnegie Endowment for International Peace, Working Paper No. 17, Feb. 2001) (contending that trade sanctions are a huge club in the hands of industrial giants and a splinter in the hands of developing countries). In pointing out how major and smaller economies are not similarly situated when it comes to imposing WTO "sanctions," David Palmeter recalls H. L. A. Hart's point that the inequality between the units of international law is one of the things that has given it a different character from municipal law, and has limited the extent to which it is capable of operating as an organized coercive system. David Palmeter, The WTO as a Legal System, 24 FORDHAM INT'L L.J. 444, 472-73 (2000).
270. Mavroidis, supra note 172, at 807.
271. Robert Paehlke, Environment, Equity and Globalization: Beyond Resistance, 1 GLOB. ENVTL. POL. 1, 9 (2001); Bruce Ramsey, No Power to Sanction, but ILO Hopes to Be Taken Seriously in Trade Talks, SEATTLE POST-INTELLIGENCER, Nov. 29, 1999, at A6.
272. Robert Paehlke, Environment, Equity and Globalization: Beyond Resistance, 1 GLOB. ENVTL. POL. 1, 9 (2001); Bruce Ramsey, No Power to Sanction, but ILO Hopes to Be Taken Seriously in Trade Talks, SEATTLE POST-INTELLIGENCER, Nov. 29, 1999, at A6.
273. Robert Wright, Clinton's One Big Idea, N.Y. TIMES, Jan. 16, 2001, at 23.
274. Clyde Summers, The Battle in Seattle: Free Trade, Labor Rights, and Societal Values, 22 U. PA. J. INT'L ECON. L. 61, 89 (2001).
275. The intention not to do so was clearer in the ITO Charter of 1948, which contained a clause stating that "[t]he Members also undertake, without prejudice to any other international agreement, that they will not have recourse to unilateral economic measures of any kind contrary to the provisions of this Charter." ITO Charter, supra note 71, Art. 92.2 (emphasis added).
276. See GATT Art. XX (General Exceptions); General Agreement on Trade in Services, Art. XIV (General Exceptions), WTO Agreement, Annex 1B.
277. See, e.g., High-Level Panel on Financing for Development, Report, UN Doc. A/55/1000, annex (2001) (noting that with its capacity to impose sanctions, the WTO has been an attractive target for pressures); HUMAN RIGHTS WATCH, WORLD REPORT 2001, at xvi, xviii (2001), at 〈http://www.hrw.org〉 (discussing the "enforcement gap" between the WTO and the ILO and suggesting the possibility of a link between the two organizations); Daniel S. Ehrenberg, The Labor Link: Applying the International Trading System to Enforce Violations of Forced and Child Labor, 20 YALE J. INT'L L. 361 (1995); David Robertson, Civil Society and the WTO, 23 WORLD ECON. 1119, 1130 (2000) (noting that the WTO dispute process is attractive to nongovernmental organizations because it provides for trade sanctions); Patricia Stirling, The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World Trade Organization, 11 AM. U.J. INT'L L. & POL'Y 1 (1996); Elisabeth Cappuyns, Note, Linking Labor Standards and Trade Sanctions: An Analysis of Their Current Relationship, 36 COLUM. J. TRANSNAT'L L. 659 (1998).
278. See, e.g., High-Level Panel on Financing for Development, Report, UN Doc. A/55/1000, annex (2001) (noting that with its capacity to impose sanctions, the WTO has been an attractive target for pressures); HUMAN RIGHTS WATCH, WORLD REPORT 2001, at xvi, xviii (2001), at 〈http://www.hrw.org〉 (discussing the "enforcement gap" between the WTO and the ILO and suggesting the possibility of a link between the two organizations); Daniel S. Ehrenberg, The Labor Link: Applying the International Trading System to Enforce Violations of Forced and Child Labor, 20 YALE J. INT'L L. 361 (1995); David Robertson, Civil Society and the WTO, 23 WORLD ECON. 1119, 1130 (2000) (noting that the WTO dispute process is attractive to nongovernmental organizations because it provides for trade sanctions); Patricia Stirling, The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World Trade Organization, 11 AM. U.J. INT'L L. & POL'Y 1 (1996); Elisabeth Cappuyns, Note, Linking Labor Standards and Trade Sanctions: An Analysis of Their Current Relationship, 36 COLUM. J. TRANSNAT'L L. 659 (1998).
279. See, e.g., High-Level Panel on Financing for Development, Report, UN Doc. A/55/1000, annex (2001) (noting that with its capacity to impose sanctions, the WTO has been an attractive target for pressures); HUMAN RIGHTS WATCH, WORLD REPORT 2001, at xvi, xviii (2001), at 〈http://www.hrw.org〉 (discussing the "enforcement gap" between the WTO and the ILO and suggesting the possibility of a link between the two organizations); Daniel S. Ehrenberg, The Labor Link: Applying the International Trading System to Enforce Violations of Forced and Child Labor, 20 YALE J. INT'L L. 361 (1995); David Robertson, Civil Society and the WTO, 23 WORLD ECON. 1119, 1130 (2000) (noting that the WTO dispute process is attractive to nongovernmental organizations because it provides for trade sanctions); Patricia Stirling, The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World Trade Organization, 11 AM. U.J. INT'L L. & POL'Y 1 (1996); Elisabeth Cappuyns, Note, Linking Labor Standards and Trade Sanctions: An Analysis of Their Current Relationship, 36 COLUM. J. TRANSNAT'L L. 659 (1998).
280. See, e.g., High-Level Panel on Financing for Development, Report, UN Doc. A/55/1000, annex (2001) (noting that with its capacity to impose sanctions, the WTO has been an attractive target for pressures); HUMAN RIGHTS WATCH, WORLD REPORT 2001, at xvi, xviii (2001), at 〈http://www.hrw.org〉 (discussing the "enforcement gap" between the WTO and the ILO and suggesting the possibility of a link between the two organizations); Daniel S. Ehrenberg, The Labor Link: Applying the International Trading System to Enforce Violations of Forced and Child Labor, 20 YALE J. INT'L L. 361 (1995); David Robertson, Civil Society and the WTO, 23 WORLD ECON. 1119, 1130 (2000) (noting that the WTO dispute process is attractive to nongovernmental organizations because it provides for trade sanctions); Patricia Stirling, The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World Trade Organization, 11 AM. U.J. INT'L L. & POL'Y 1 (1996); Elisabeth Cappuyns, Note, Linking Labor Standards and Trade Sanctions: An Analysis of Their Current Relationship, 36 COLUM. J. TRANSNAT'L L. 659 (1998).
281. See, e.g., High-Level Panel on Financing for Development, Report, UN Doc. A/55/1000, annex (2001) (noting that with its capacity to impose sanctions, the WTO has been an attractive target for pressures); HUMAN RIGHTS WATCH, WORLD REPORT 2001, at xvi, xviii (2001), at 〈http://www.hrw.org〉 (discussing the "enforcement gap" between the WTO and the ILO and suggesting the possibility of a link between the two organizations); Daniel S. Ehrenberg, The Labor Link: Applying the International Trading System to Enforce Violations of Forced and Child Labor, 20 YALE J. INT'L L. 361 (1995); David Robertson, Civil Society and the WTO, 23 WORLD ECON. 1119, 1130 (2000) (noting that the WTO dispute process is attractive to nongovernmental organizations because it provides for trade sanctions); Patricia Stirling, The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World Trade Organization, 11 AM. U.J. INT'L L. & POL'Y 1 (1996); Elisabeth Cappuyns, Note, Linking Labor Standards and Trade Sanctions: An Analysis of Their Current Relationship, 36 COLUM. J. TRANSNAT'L L. 659 (1998).
282. Robert E. Hudec, A WTO Perspective on Private Anti-Competitive Behavior in World Markets, 34 NEW ENG. L. REV. 79, 86 (1999) (noting that TRIPS inspired many observers to consider whether this model could be used for other agreements); Lindsey et al., supra note 2, at 31 (explaining that the drive to use the WTO process to impose new international rules on labor and the environment derives in part from the prospect of using trade sanctions to enforce those rules); see also Frederick M. Abbott, Distributed Governance at the WTO-WIPO: An Evolving Model for Open-Architecture Integrated Governance, in NEW DIRECTIONS IN INTERNATIONAL ECONOMIC LAW, supra note 206, at 15, 22 (stating that the WTO will continue to be the predominant power in the field of intellectual property so long as it retains the sole power to authorize trade sanctions for a breach of intellectual property rights).
283. Robert E. Hudec, A WTO Perspective on Private Anti-Competitive Behavior in World Markets, 34 NEW ENG. L. REV. 79, 86 (1999) (noting that TRIPS inspired many observers to consider whether this model could be used for other agreements); Lindsey et al., supra note 2, at 31 (explaining that the drive to use the WTO process to impose new international rules on labor and the environment derives in part from the prospect of using trade sanctions to enforce those rules); see also Frederick M. Abbott, Distributed Governance at the WTO-WIPO: An Evolving Model for Open-Architecture Integrated Governance, in NEW DIRECTIONS IN INTERNATIONAL ECONOMIC LAW, supra note 206, at 15, 22 (stating that the WTO will continue to be the predominant power in the field of intellectual property so long as it retains the sole power to authorize trade sanctions for a breach of intellectual property rights).
284. See generally SEATTLE, THE WTO, AND THE FUTURE OF THE MULTILATERAL TRADING SYSTEM (Roger B. Porter & Pierre Sauvé eds., 2000); THE WTO AFTER SEATTLE (Jeffrey J. Schott ed., 2000).
285. See generally SEATTLE, THE WTO, AND THE FUTURE OF THE MULTILATERAL TRADING SYSTEM (Roger B. Porter & Pierre Sauvé eds., 2000); THE WTO AFTER SEATTLE (Jeffrey J. Schott ed., 2000).
286. HÅKAN NORDSTRÖM & SCOTT VAUGHAN, TRADE AND ENVIRONMENT 57 (WTO Special Studies No. 4, 1999).
287. Peter Sutherland, John Sewell, & David Weiner, Challenges Facing the WTO and Policies to Address Global Governance, in THE ROLE OF THE WORLD TRADE ORGANIZATION IN GLOBAL GOVERNANCE, supra note 141, at 81, 105 (noting that "[b]ecause of its ability to levy trade sanctions, the WTO frequently has been the venue of choice.").
288. GATT Art. XXIII:2. The GATT also provided a general withdrawal option with a six-month notice. Id., Art. XXXI.
289. Id., Art. XIX:1 (a).
290. Id., Art. XIX:3(a).
291. Agreement on Safeguards, Art. 8.3, WTO Agreement, Annex 1A. To qualify for the three-year immunity, a safeguard measure must respond to an absolute increase in imports and conform to the provisions of the Agreement.
292. See David Kennedy, The International Style in Postwar Law and Policy: John Jackson and the Field of International Economic Law, 10 AM. U. J. INT'L L. & POL'Y 671, 708 (1995) (calling the interface concept a significant and original contribution).
293. JACKSON, supra note 92, at 218 & n.5.
294. Id. at 305.
295. For example, consider a recent arbitration to set the "reasonable period of time" for compliance in a WTO dispute regarding Canadian patent law. The arbitrator explained that the contentiousness of domestic implementation was not a factor to be taken into account, and so Canada could not seek more time because of the "likely divisiveness of the debate in the Canadian Parliament." Canada - Term of Patent Protection, Arbitration Under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes, WTO Doc. WT/DS170/10, para. 58 (Feb. 28, 2001).
296. See, e.g., William A. Dymond & Michael M. Hart, Post-Modern Trade Policy - Reflections on the Challenges to Multilateral Trade Negotiations After Seattle, J. WORLD TRADE, June 2000, at 21, 33 (stating that the SPS Agreement requires that food safety standards be based on science rather than on decisions by governments accountable to their electorates).
297. One WTO Agreement does contain explicit deference to a domestic constitution. The General Agreement on Trade in Services, supra note 217, Art. VI:2, requires governments to establish procedures enabling service suppliers to seek review of administrative decisions regarding services. But this article further provides that it shall not be construed to require a government to institute procedures that would be "inconsistent with its constitutional structure or the nature of its legal system."
298. Dispute Settlement Body, Minutes of Meeting Held on 11 February 2000, WTO Doc. WT/DSB/M/75, at 5, 6 (2000). The Australia-U.S. leather dispute was about an Australian subsidy to an automobile leather producer that exported a large share of its production. The United States won the case, and gained a settlement before seeking retaliation. Daniel Pruzin, Compromise Averts U.S.-Australia Dispute over Subsidies to Automotive Leather Maker, DAILY REP. FOR EXECUTIVES (BNA), Aug. 1, 2000, at A-19.
299. The decision of the compliance panel was especially controversial. That panel had directed Australia to force a company to repay a subsidy that violated SCM rules. Australia - Subsidies Provided to Producers and Exporters of Automotive Leather, Recourse to Article 21.5 of the DSU by the United States, WTO Doc. WT/DS126/RW, para. 6.48 (Jan. 21, 2000) [hereinafter Australia - Leather]. Australia's complaint was that the DSB was asking it to confiscate the company's assets when the company had done nothing wrong. For criticism of the panel's decision, see Steve Charnovitz, The WTO and the Rights of the Individual, 36 INTERECONOMICS 98, 106-07 (2001).
300. Jagdish Bhagwati, An Economic Perspective on the Dispute Settlement Mechanism, in THE NEXT TRADE NEGOTIATING ROUND: EXAMINING THE AGENDA FOR SEATTLE 277 (Jagdish Bhagwati ed., 1999) (suggesting that trade retaliation makes little sense in cases such as Hormones where the EC legislation is consumer driven and cannot simply be dismantled).
301. Stefan Griller, Judicial Enforceability of WTO Law in the European Union: Annotation to Case C-149/96, Portugal v. Council, 3 J. INT'L ECON. L. 441, 455-62 (2000).
302. Agreement on Agriculture, WTO Agreement, Annex 1A.
303. EC-Ecuador Article 22 Decision, supra note 23, para. 173(d). The TRIPS suspension was permitted to the extent that the GATT and Services Agreement suspensions were insufficient to reach the full level of nullification or impairment. Regarding copyrights, Ecuador was permitted to suspend rights of performers, producers of sound recordings, and broadcast organizations. For the TRIPS Agreement, see WTO Agreement, .Annex 1C.
304. Brazil-Canada Article 22 Decision, supra note 31, para. 4.1. Canada sought approval for a 100% surtax on the customs duties for listed products. Communication from Canada, WTO Doc. WT/DS46/16 (May 11, 2000). For the
305. DSU Art. 22.7.
306. The criteria for review are in DSU Article 22.3, which provides the definitions of sector and agreement.
307. DSU Art. 22.3(b), (c).
308. DSU Art. 22.7. It is interesting to note that DSU Article 22.5 states that the DSB shall not authorize a suspension if a WTO Agreement prohibits such a suspension. One example is found in the Agreement on Government Procurement, amended Apr. 15, 1994, WFO Agreement, Annex 4. That Agreement (Art. XXII:7) prohibits cross-retaliation between it and other WTO Agreements. In other words, the DSB cannot authorize a suspension of government procurement disciplines because of noncompliance with other WTO Agreements. The Agreement on Government Procurement is a plurilateral agreement that is not an obligation of WTO membership.
309. DSU Article 22.3(g) excludes the DSU in explaining how suspensions are carried out under the various agreements. For the Antidumping Agreement and the Agreement on Implementation of GATT Article VII, see WTO Agreement, Annex 1A.
310. This is the author's own analysis. WTO arbitrators only sometimes address this criterion. See, e.g., EC-Ecuador Article 22 Decision, supra note 23, para. 150.
311. See Cristian Espinosa, The WTO Banana Dispute: Do Ecuador's Sanctions Against the European Communities Make Sense? BRIDGES, May 2000, at 3, at 〈http://www.ictsd.org〉 (visited Oct. 18, 2001).
312. Pauwelyn, supra note 1, at 341-42.
313. Kuyper, supra note 10, at 253.
314. Pauwelyn, supra note 1, at 344-45.
315. EC-Ecuador Article 22 Decision, supra note 23, para. 157.
316. Id., para. 152.
317. Arvind Subramanian & Jayashree Watal, Can TRIPS Serve as an Enforcement Device for Developing Countries in the WTO? 3 J. INT'L ECON. L. 403 (2000).
318. Id. at 415.
319. Compare Kirgis, who points to three functions of sanctions - compulsion, deterrence, and retribution. FREDERIC L. KIRGIS, JR., INTERNATIONAL ORGANIZATIONS IN THEIR LEGAL SETTING 554 (2d ed. 1993). Compulsion is inducing compliance with a WTO panel report or inducing cessation of the WTO rule violation. Deterrence has only a faint presence in WTO concepts. Retribution is absent from the WTO.
320. When countries A and B agree to lower trade barriers reciprocally, then politicians in A and B can explain the net benefits of the package deal. But when country A raises trade barriers and country B does so in response, no package exists. The two events are independent. The politicians in B will have to argue either that import protection is a good policy in itself, or that the short-term costs of retaliation will be recovered by getting country A to change its policy in the long run, or by maintaining a credible threat for future clashes with country C.
321. Even the compliance panel in the Australia Leather dispute - which had directed Australia to take back a subsidy from a private actor - denied that this remedy was intended "to provide reparation or compensation in any sense." Australia - Leather, supra note 233, para. 6.49.
322. SMITH, supra note 41, at 296-97.
323. See Sykes, supra note 206, at 351 (stating that the DSU lacks coercive penalties aimed at inducing compliance when equivalent retaliation proves to be inadequate).
324. SCM Arts. 4.10 n.9, 4.11 n.10.
325. See J. TINBERGEN, ON THE THEORY OF ECONOMIC POLICY 39-41 (1963).
326. Mavroidis, supra note 172, at 801, 807.
327. Kathleen A. Ambrose, Science and the WTO, 31 LAW & POL'Y INT'L BUS. 861, 867-68 (2000).
328. As noted above, the original ILO Constitution provided for a collective sanction. See text at note 55 supra. Although the ITO Charter was not explicit on that point, the conference report of the Canadian delegation suggested that a flagrant disregard of an important obligation of the charter might nullify or impair the benefits to all members and therefore lead to authorization of a "sanction" by them. Report of the Canadian Delegation to the United Nations Conference on Trade and Employment in Havana (July 13, 1948), reprinted in ALSO PRESENT AT THE CREATION, supra note 77, at 73, 145.
329. Kenneth W. Abbott, GATT as a Public Institution: The Uruguay Round and Beyond, 18 BROOK. J. INT'L L. 31, 64-65, 78-79 (1992). The idea of collective retaliation in the GATT goes back to 1965 when developing countries sought this remedy for violations by large countries.
330. Pauwelyn, supra note 1, at 345.
331. Pascal Lamy, US-EU: The Biggest Trading Elephants in the Jungle - But Will They Behave? Speech to the Economic Strategy Institute (June 7, 2001), at 〈http://www.europa.eu.int/comm/trade/index_en.htm〉.
332. Edith Brown Weiss, Strengthening National Compliance with Trade Law: Insights from Environment, in NEW DIRECTIONS IN INTERNATIONAL ECONOMIC LAW, supra note 206, at 457, 459-60.
333. Id. at 463.
334. Id. at 471.
335. Id. at 463.
336. Id.
337. For all of the options discussed, the target is the scofflaw government. WTO rules apply to governments, not to private economic actors. In contrast to the GATT, which was Fixated on governments, there are several WTO Agreements (e.g., TRIPS) when a private actor might violate the spirit of the agreement. This article does not address how WTO rules might be amended to have greater applicability to private actors.
338. WTO Agreement, Art. XVI:4; Ernst-Ulrich Petersmann, International Trade Law and the GATT/WTO Dispute Settlement System 1948-1996: An Introduction, in INTERNATIONAL TRADE LAW AND THE GATT/WTO DISPUTE SETTLEMENT SYSTEM 3, 119-20 (Ernst-Ulrich Petersmann ed., 1997).
339. Regina v. Sec'y of State for Env't, Transp. & Regions, ex parte Omega Air Ltd. (Q.B. Nov. 25, 1999), at LEXIS, Enggen Library, Cases File; Geert A. Zonnekeyn, The Status of WTO Law in the EC Legal Order: The Final Curtain? J. WORLD TRADE, June 2000, at 111, 118 (discussing Partugal v. Council); see also Frieder Roessler, The Constitutional Function of International Economic Law, AUSSENWIRTSCHAFT, Sept. 1986, at 467 (suggesting that a government having enforcement by individuals would be handicapped in its efforts to defend the national interest vis-à-vis those governments that do not have such enforcement).
340. Regina v. Sec'y of State for Env't, Transp. & Regions, ex parte Omega Air Ltd. (Q.B. Nov. 25, 1999), at LEXIS, Enggen Library, Cases File; Geert A. Zonnekeyn, The Status of WTO Law in the EC Legal Order: The Final Curtain? J. WORLD TRADE, June 2000, at 111, 118 (discussing Partugal v. Council); see also Frieder Roessler, The Constitutional Function of International Economic Law, AUSSENWIRTSCHAFT, Sept. 1986, at 467 (suggesting that a government having enforcement by individuals would be handicapped in its efforts to defend the national interest vis-à-vis those governments that do not have such enforcement).
341. Thomas Cottier & Krista Nadakavukaren Schefer, The Relationship Between World Trade Organization Law, National and Regional Law, 1 J. INT'L ECON. L. 83, 112-13 (1998).
342. North American Agreement on Environmental Cooperation, supra note 127, Annex 36A, para. 1 (b). The Agreement establishes a commission governed by a council of environmental ministers from Canada, Mexico, and the United States.
343. Agreement on Environmental Cooperation, Feb. 6, 1997, Can.-Chile, Art. 35, 36 ILM 1193 (1997). The Canada-Chile Labor Cooperation Agreement has similar provisions.
344. North American Agreement on Environmental Cooperation, supra note 127, Art. 33.
345. TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Art. 171. This provision originated in the Maastricht Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 224) 1. Another example of this technique is the Treaty Establishing the Common Market for Eastern and Southern Africa (COMESA). This Treaty provides that the Authority (composed of the heads of state or government) can, by consensus, decide to impose a financial penalty on a member state. Such a penalty can be imposed following a default of obligations or because of conduct prejudicial to the Common Market. See Treaty Establishing the Common Market for Eastern and Southern Africa, Nov. 5, 1993, Art. 8, 171, 33 ILM 1067 (1994). According to the COMESA Secretariat, the penalty process has been used, but the episode is confidential.
346. TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Art. 171. This provision originated in the Maastricht Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 224) 1. Another example of this technique is the Treaty Establishing the Common Market for Eastern and Southern Africa (COMESA). This Treaty provides that the Authority (composed of the heads of state or government) can, by consensus, decide to impose a financial penalty on a member state. Such a penalty can be imposed following a default of obligations or because of conduct prejudicial to the Common Market. See Treaty Establishing the Common Market for Eastern and Southern Africa, Nov. 5, 1993, Art. 8, 171, 33 ILM 1067 (1994). According to the COMESA Secretariat, the penalty process has been used, but the episode is confidential.
347. Case 387/97, Commission v. Hellenic Republic (ECJ July 4, 2000), at 〈http://www.curia.eu.int〉. The Commission sought a penalty of 24,600 euros per day. The Court set the penalty at a level that would give it "coercive force." Id., para. 92.
348. Greece Hit for Waste Dumping as ECJ Sets First Fine for Law Compliance Failure, 23 Int'l Env't Rep. (BNA) 558 (July 19, 2000). Greece made its first payment in December 2000.
349. France Scraps Ban on Women in Night Jobs, CHI. TRIB., Dec. 13, 2000, at 2.
350. North American Agreement on Environmental Cooperation, supra note 127, Art. 34(4), The Labor Cooperation Agreement contains parallel provisions.
351. Id., Art. 24.
352. Id., Arts. 31-34.
353. Id., Annex 34. Several factors are suggested to determine the size of the monetary assessment. The annex also provides for a cap linked to trade.
354. Id., Annex 34, para. 3.
355. Id., Annex 36A, para. 1 (a).
356. Id., Art. 36(1). The ensuing higher tariffs are used to collect the assessment.
357. FRANK NOEL KEEN, THE WORLD IN ALLIANCE 58 (1915), quoted in J. A. HOBSON, TOWARDS INTERNATIONAL GOVERNMENT 94-95 (1915).
358. FRANK NOEL KEEN, THE WORLD IN ALLIANCE 58 (1915), quoted in J. A. HOBSON, TOWARDS INTERNATIONAL GOVERNMENT 94-95 (1915).
359. See, e.g., Eloise Henderson Bouzari, The Public Policy Exception to Enforcement of International Arbitral Awards: Implications for Post-NAFTA Jurisprudence, 30 TEX. INT'L L.J. 205 (1995).
360. Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, Jan. 19, 1981, Art. IV, 20 ILM 230 (1981); see Anuj Desai, Case No. A27: The Iran - United States Claims Tribunal's First Award of Damages for a Breach of the Algiers Declaration, 10 AM. REV. INT'L ARB. 229 (1999) (discussing practice under this provision).
361. Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, Jan. 19, 1981, Art. IV, 20 ILM 230 (1981); see Anuj Desai, Case No. A27: The Iran - United States Claims Tribunal's First Award of Damages for a Breach of the Algiers Declaration, 10 AM. REV. INT'L ARB. 229 (1999) (discussing practice under this provision).
362. International Financial Institution Advisory Committee Report, supra note 37 (emphasis omitted).
363. Kimberly Ann Elliott, Fin(d)ing Our Way on Trade and Labor Standards? INT'L ECON. POL'Y BRIEFS, Apr. 2001, at 〈http://www.iie.com〉.
364. Marco C. E. J. Bronckers, More Power to the WTO? 4 J. INT'L ECON. L. 41, 62 (2001).
365. CHAYES & CHAYES, supra note 95, at 32; see also id. at 81.
366. Articles of Agreement of the International Monetary Fund, July 22, 1944, and as amended, Art. XXVI §2, at 〈http://www.inif.org/external/pubs/ft/aa/index.htm〉; J. Gold, The IMF Invents New Penalties, in TOWARDS MORE EFFECTIVE SUPERVISION BY INTERNATIONAL ORGANIZATIONS, supra note 60, at 127, 138-43.
367. Articles of Agreement of the International Monetary Fund, July 22, 1944, and as amended, Art. XXVI §2, at 〈http://www.inif.org/external/pubs/ft/aa/index.htm〉; J. Gold, The IMF Invents New Penalties, in TOWARDS MORE EFFECTIVE SUPERVISION BY INTERNATIONAL ORGANIZATIONS, supra note 60, at 127, 138-43.
368. Convention on International Civil Aviation, Dec. 7, 1944, Arts. 84, 88, TIAS No. 1591, 15 UNTS 295.
369. Correspondence with John V. Augustin, Senior Legal Officer, ICAO (Jan. 15, 2001).
370. Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, as adjusted and/or amended, Arts. 8, 10, 1522 UNTS 293; Decisions of the Meeting of the Parties Regarding the Non-Compliance Procedure and Decisions of the Implementation Committee, in UNEP, HANDBOOK FOR THE INTERNATIONAL TREATIES FOR THE PROTECTION OF THE OZONE LAYER 153-75 (2000) [hereinafter UNEP, HANDBOOK], at 〈http://www.unep.ch/ ozone/Handbook2000.shtml〉; Karl Zemanek, New Trends in the Enforcement of erga omnes Obligations, 2000 MAX PLANCK Y.B. UN L. 1, 16, 48.
371. Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, as adjusted and/or amended, Arts. 8, 10, 1522 UNTS 293; Decisions of the Meeting of the Parties Regarding the Non-Compliance Procedure and Decisions of the Implementation Committee, in UNEP, HANDBOOK FOR THE INTERNATIONAL TREATIES FOR THE PROTECTION OF THE OZONE LAYER 153-75 (2000) [hereinafter UNEP, HANDBOOK], at 〈http://www.unep.ch/ ozone/Handbook2000.shtml〉; Karl Zemanek, New Trends in the Enforcement of erga omnes Obligations, 2000 MAX PLANCK Y.B. UN L. 1, 16, 48.
372. Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, as adjusted and/or amended, Arts. 8, 10, 1522 UNTS 293; Decisions of the Meeting of the Parties Regarding the Non-Compliance Procedure and Decisions of the Implementation Committee, in UNEP, HANDBOOK FOR THE INTERNATIONAL TREATIES FOR THE PROTECTION OF THE OZONE LAYER 153-75 (2000) [hereinafter UNEP, HANDBOOK], at 〈http://www.unep.ch/ ozone/Handbook2000.shtml〉; Karl Zemanek, New Trends in the Enforcement of erga omnes Obligations, 2000 MAX PLANCK Y.B. UN L. 1, 16, 48.
373. UNEP, HANDBOOK, supra note 299, at 153-75, 255-59; David G. Victor, Enforcing International Law: Implications for an Effective Global Warming Regime, 10 DUKE ENVTL. L. & POL'Y F. 147, 166-70 (1999).
374. UNEP, HANDBOOK, supra note 299, at 153-75, 255-59; David G. Victor, Enforcing International Law: Implications for an Effective Global Warming Regime, 10 DUKE ENVTL. L. & POL'Y F. 147, 166-70 (1999).
375. International Labour Conference, 87th Sess., Resolution on the Widespread Use of Forced Labour in Myanmar (June 1999), at 〈http://www.ilo.org;〉; Frances Williams, ILO Bars Burma over Forced Labour, FIN. TIMES, June 18, 1999, at 4. Technical assistance would be permitted to help Myanmar come into compliance with the Convention.
376. International Labour Conference, 87th Sess., Resolution on the Widespread Use of Forced Labour in Myanmar (June 1999), at 〈http://www.ilo.org;〉; Frances Williams, ILO Bars Burma over Forced Labour, FIN. TIMES, June 18, 1999, at 4. Technical assistance would be permitted to help Myanmar come into compliance with the Convention.
377. Draft USTR Paper on Monetary Fines, INSIDE U.S. TRADE, Apr. 27, 2001, at 19-21.
378. See Aaron Bernstein, Labor Standards with Teeth? BUS. WEEK, June 19, 2000, at 14; Yasushi Fujii, ILO Takes First Step in Implementing Myanmar Sanctions, Japan Econ. Newswire, Dec. 8, 2000, at LEXIS, News Library, Curnws File; text at note 59 supra.
379. See Aaron Bernstein, Labor Standards with Teeth? BUS. WEEK, June 19, 2000, at 14; Yasushi Fujii, ILO Takes First Step in Implementing Myanmar Sanctions, Japan Econ. Newswire, Dec. 8, 2000, at LEXIS, News Library, Curnws File; text at note 59 supra.
380. International Labour Conference, supra note 59.
381. Frances Williams & Edward Alden, Forced Labour in Burma Tests ILO's Will to Uphold Global Standards, FIN. TIMES, Mar. 27, 2001, at 10.
382. CHAYES & CHAYES, supra note 95, at 67.
383. Id. at 28, 109, 230 (managerial process), 112 (norm dialectic), 135 (transparency), 154 (reporting), 174 (monitoring), 229 (review procedures).
384. Id., ch. 11.
385. See, e.g., INSTITUTIONS FOR THE EARTH: SOURCES OF EFFECTIVE INTERNATIONAL ENVIRONMENTAL PROTECTION (Peter M. Haas, Robert O. Keohane, & Marc A. Levy eds., 1993); THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE (Thomas Risse, Stephen C. Ropp, & Kathryn Sikkink eds., 1999); Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599 (1997); see also Richard Blackhurst & Arvind Subramanian, Promoting Multilateral Cooperation on the Environment, in THE GREENING OF WORLD TRADE ISSUES 247, 262 (Kym Anderson & Richard Blackhurst eds., 1992) (noting that no multilateral environmental agreements contain trade sanctions and explaining that sanctions affect unrelated products) ; Robin R. Churchill & Geir Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 AJIL 623, 645-47 (2000) (discussing the advantages of the noncompliance mechanism over dispute settlement) ; Robert E. Hudec, GATT Legal Restraints on the Use of Trade Measures Against Foreign Environmental Practices, in 2 FAIR TRADE AND HARMONIZATION 96, 114 (Jagdish Bhagwati & Robert E. Hudec eds., 1996) (stating that, "[u]ltimately, GATT law works because governments want it to work, not because they are bullied into compliance by trade sanctions.") (footnote omitted).
386. See, e.g., INSTITUTIONS FOR THE EARTH: SOURCES OF EFFECTIVE INTERNATIONAL ENVIRONMENTAL PROTECTION (Peter M. Haas, Robert O. Keohane, & Marc A. Levy eds., 1993); THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE (Thomas Risse, Stephen C. Ropp, & Kathryn Sikkink eds., 1999); Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599 (1997); see also Richard Blackhurst & Arvind Subramanian, Promoting Multilateral Cooperation on the Environment, in THE GREENING OF WORLD TRADE ISSUES 247, 262 (Kym Anderson & Richard Blackhurst eds., 1992) (noting that no multilateral environmental agreements contain trade sanctions and explaining that sanctions affect unrelated products) ; Robin R. Churchill & Geir Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 AJIL 623, 645-47 (2000) (discussing the advantages of the noncompliance mechanism over dispute settlement) ; Robert E. Hudec, GATT Legal Restraints on the Use of Trade Measures Against Foreign Environmental Practices, in 2 FAIR TRADE AND HARMONIZATION 96, 114 (Jagdish Bhagwati & Robert E. Hudec eds., 1996) (stating that, "[u]ltimately, GATT law works because governments want it to work, not because they are bullied into compliance by trade sanctions.") (footnote omitted).
387. See, e.g., INSTITUTIONS FOR THE EARTH: SOURCES OF EFFECTIVE INTERNATIONAL ENVIRONMENTAL PROTECTION (Peter M. Haas, Robert O. Keohane, & Marc A. Levy eds., 1993); THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE (Thomas Risse, Stephen C. Ropp, & Kathryn Sikkink eds., 1999); Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599 (1997); see also Richard Blackhurst & Arvind Subramanian, Promoting Multilateral Cooperation on the Environment, in THE GREENING OF WORLD TRADE ISSUES 247, 262 (Kym Anderson & Richard Blackhurst eds., 1992) (noting that no multilateral environmental agreements contain trade sanctions and explaining that sanctions affect unrelated products) ; Robin R. Churchill & Geir Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 AJIL 623, 645-47 (2000) (discussing the advantages of the noncompliance mechanism over dispute settlement) ; Robert E. Hudec, GATT Legal Restraints on the Use of Trade Measures Against Foreign Environmental Practices, in 2 FAIR TRADE AND HARMONIZATION 96, 114 (Jagdish Bhagwati & Robert E. Hudec eds., 1996) (stating that, "[u]ltimately, GATT law works because governments want it to work, not because they are bullied into compliance by trade sanctions.") (footnote omitted).
388. See, e.g., INSTITUTIONS FOR THE EARTH: SOURCES OF EFFECTIVE INTERNATIONAL ENVIRONMENTAL PROTECTION (Peter M. Haas, Robert O. Keohane, & Marc A. Levy eds., 1993); THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE (Thomas Risse, Stephen C. Ropp, & Kathryn Sikkink eds., 1999); Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599 (1997); see also Richard Blackhurst & Arvind Subramanian, Promoting Multilateral Cooperation on the Environment, in THE GREENING OF WORLD TRADE ISSUES 247, 262 (Kym Anderson & Richard Blackhurst eds., 1992) (noting that no multilateral environmental agreements contain trade sanctions and explaining that sanctions affect unrelated products) ; Robin R. Churchill & Geir Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 AJIL 623, 645-47 (2000) (discussing the advantages of the noncompliance mechanism over dispute settlement) ; Robert E. Hudec, GATT Legal Restraints on the Use of Trade Measures Against Foreign Environmental Practices, in 2 FAIR TRADE AND HARMONIZATION 96, 114 (Jagdish Bhagwati & Robert E. Hudec eds., 1996) (stating that, "[u]ltimately, GATT law works because governments want it to work, not because they are bullied into compliance by trade sanctions.") (footnote omitted).
389. See, e.g., INSTITUTIONS FOR THE EARTH: SOURCES OF EFFECTIVE INTERNATIONAL ENVIRONMENTAL PROTECTION (Peter M. Haas, Robert O. Keohane, & Marc A. Levy eds., 1993); THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE (Thomas Risse, Stephen C. Ropp, & Kathryn Sikkink eds., 1999); Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599 (1997); see also Richard Blackhurst & Arvind Subramanian, Promoting Multilateral Cooperation on the Environment, in THE GREENING OF WORLD TRADE ISSUES 247, 262 (Kym Anderson & Richard Blackhurst eds., 1992) (noting that no multilateral environmental agreements contain trade sanctions and explaining that sanctions affect unrelated products) ; Robin R. Churchill & Geir Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 AJIL 623, 645-47 (2000) (discussing the advantages of the noncompliance mechanism over dispute settlement) ; Robert E. Hudec, GATT Legal Restraints on the Use of Trade Measures Against Foreign Environmental Practices, in 2 FAIR TRADE AND HARMONIZATION 96, 114 (Jagdish Bhagwati & Robert E. Hudec eds., 1996) (stating that, "[u]ltimately, GATT law works because governments want it to work, not because they are bullied into compliance by trade sanctions.") (footnote omitted).
390. See, e.g., INSTITUTIONS FOR THE EARTH: SOURCES OF EFFECTIVE INTERNATIONAL ENVIRONMENTAL PROTECTION (Peter M. Haas, Robert O. Keohane, & Marc A. Levy eds., 1993); THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE (Thomas Risse, Stephen C. Ropp, & Kathryn Sikkink eds., 1999); Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599 (1997); see also Richard Blackhurst & Arvind Subramanian, Promoting Multilateral Cooperation on the Environment, in THE GREENING OF WORLD TRADE ISSUES 247, 262 (Kym Anderson & Richard Blackhurst eds., 1992) (noting that no multilateral environmental agreements contain trade sanctions and explaining that sanctions affect unrelated products) ; Robin R. Churchill & Geir Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 AJIL 623, 645-47 (2000) (discussing the advantages of the noncompliance mechanism over dispute settlement) ; Robert E. Hudec, GATT Legal Restraints on the Use of Trade Measures Against Foreign Environmental Practices, in 2 FAIR TRADE AND HARMONIZATION 96, 114 (Jagdish Bhagwati & Robert E. Hudec eds., 1996) (stating that, "[u]ltimately, GATT law works because governments want it to work, not because they are bullied into compliance by trade sanctions.") (footnote omitted).
391. Richard N. Cooper, Trade and the Environment, 5 ENV'T & DEV. ECON. 501, 501 (2000).
392. THE IMPLEMENTATION AND EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL COMMITMENTS 47 (David G. Victor, Kal Raustiala, & Eugene B. Skolnikoff eds., 1998).
393. Id. at 683.
394. Id. at 694.
395. See text at note 270 supra.
396. Weiss, supra note 266, at 459-60.
397. Id. at 460.
398. See Rambod Behboodi, Legal Reasoning and the International Law of Trade - The First Steps of the Appellate Body of the WTO, J. WORLD TRADE, Aug. 1998, at 55, 65 (noting that the binding force of international law must reside in something other than the threat efforce or economic sanction).
399. DSU Art. 21.3.
400. See Overview of the State-of-Play of WTO Disputes (May 2, 2001), at 〈http://www.wto.org〉; see also CHAYES & CHAYES, supra note 95, at 112 ("The essence of the international legal process is a dialectic that, by emphasizing assent at every stage, operates to generate pressure for compliance.").
401. DSU Arts. 21.6, 22.8. One scholar and practitioner calls this "continuous finger-pointing against recalcitrant WTO members." Mavroidis, supra note 172, at 793. The language of DSU Article 21.6 was drawn from the 1989 improvements to the GATT dispute settlement system. Improvements to the GATT Dispute Settlement Rules and Procedures, Apr. 12, 1989, GATT B.I.S.D. (36th Supp.) at 61, 67.
402. DSU Art. 21.5.
403. Response of President Taft, 5 ASIL PROC. 340, 341 (1911).
404. See Daniel C. Esty, Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, 1 J. INT'L ECON. L. 123 (1998) ; Thomas Risse, "Let's Argue!": Communicative Action in World Politics, 54 INT'L ORG. 1, 22 (2000) (noting the civilizing effect of public discourse).
405. See Daniel C. Esty, Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, 1 J. INT'L ECON. L. 123 (1998) ; Thomas Risse, "Let's Argue!": Communicative Action in World Politics, 54 INT'L ORG. 1, 22 (2000) (noting the civilizing effect of public discourse).
406. Rosalyn Higgins, Remarks, in THE EFFECTIVENESS OF INTERNATIONAL DECISIONS, supra note 60, at 447.
407. See Gary H. Perlow, The Multilateral Supervision of International Trade: Has the Textiles Experiment Worked? 75 AJIL 93, 124 (1981) (positing that too much publicity can have an effect contrary to that intended).
408. 19 U.S.C. §620c(g) (1994).
409. 19 U.S.C. §3538 (1994). For a discussion of some of these provisions, see David Palmeter, United States Implementation of the Urugauay Round Antidumping Code, J. WORLD TRADE, June 1995, at 39, 74-76.
410. 19 U.S.C. §2504(c) (1), (4) (1994).
411. DSU Arts. 3.8, 22.1, 22.2.
412. Compensation is not defined in USU Art. 22.1. Monetary compensation has never been employed, although the idea was debated in the GATT in the early 1960s. Brazil and Uruguay proposed that panels be given authority to propose an "indemnity of a financial character" in complaints by developing countries against developed countries. DAM, supra note 84, at 368 (quoting Report of the Ad Hoc Group on Legal Amendments to the General Agreement, reprinted in GATT, Expansion of Trade of the Developing Countries 112, 119 (Dec. 1966)). Many objections were raised to this proposal, including that "it was inconceivable that national legislatures would be willing to vote budgetary provisions for this purpose." Id. at 369 (quoting Report of the Ad Hoc Group, supra, at 115). Recently, Jagdish Bhagwati has proposed that the defending country provide cash compensation to the complaining country, which could then be donated to the exporting industry. Bhagwati, supra note 2, at 28.
413. Andreas F. Lowenfeld, Remedies Along with Rights: Institutional Reform in the New GATT, 88 AJIL 477, 486 n.14 (1994).
414. Pauwelyn, supra note 1, at 345-46.
415. Gary N. Horlick, Problems with the Compliance Structure of the WTO Dispute Resolution Process, Paper Prepared for Conference at the University of Minnesota Law School (Sept. 15-16, 2000).
416. Rosas, supra note 167, at 144.
417. W. Michael Reisman, Sanctions and Enforcement, in MYRES S. MCDOUGAL & W. MICHAEL REISMAN, INTERNATIONAL LAW ESSAYS: A SUPPLEMENT TO INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE 381, 399, 419 (1981) (explaining that the activation of world public opinion can be a sanctioning technique and noting that private groups can be influential as part of an international enforcement program).