RELATIONSHIP OF WTO OBLIGATIONS TO U.S. INTERNATIONAL TRADE LAW: INTERNATIONALIST VISION MEETS DOMESTIC REALITY

Georgetown Journal of International Law, Fall 2006 by Reed, Patrick C

2. THE STATUTORY FRAMEWORK OF THE RELATIONSHIP OF WTO OBLIGATIONS TO U.S. LAW

The U.S. implementation of the WTO international trade agreements and decisions has been comprehensively analyzed elsewhere,22 but requires summary here because it is crucial to understanding the case law to be discussed below. David Leebron noted that "[m]any provisions of the implementing legislation are aimed at limiting the status and import of the Uruguay Round Agreements in domestic law, and exercising close supervision over the ... World Trade Organization and its dispute settlement process."23 In sum, he concluded that "[t]he implementation of trade agreements in the United States remains a highly political process."24 Matsushita and coauthors draw the related conclusion that U.S. implementation represents a strongly dualist approach in which, as a general rule, "the legal issues arising under the WTO agreements [for U.S. domestic purposes] will be decided under U.S. legislation ... regardless of whether it is consistent with international law."25

2.1 Status of WTO Agreements

The relationship of WTO agreements to U.S. law is governed by section 102(a) of the Uruguay Round Agreements Act (URAA), enacted in 1994.26

Section 102 (a) sets out three principles. First, the trade agreements are not self-executing. This means that "the agreements do not take effect without implementing legislation."27 The legislative history states that the "Uruguay Round agreements . . . are not self-executing and thus their legal effect in the United States is governed by implementing legislation."28 Strictly speaking, moreover, it is the implementing legislation rather than the agreements that is given effect as law in the United States.29 second, no provision of the trade agreements that is inconsistent with U.S. law is given effect.30 This principle establishes the supremacy of U.S. law over the agreements. As stated in the House report on the URAA, "U.S. law shall prevail if inconsistent with any provision of the agreements," and "U.S. laws prevail over any conflicting provisions of the international agreements."31 Third, the trade agreements do not create any private rights of action.32 They do not allow a private party to challenge any action or inaction by federal departments or agencies as inconsistent with any trade agreement.33

Although the URAA limits the status and effect of the WTO agreements in U.S. law, the legislative history nevertheless states that the URAA "incorporate [d] all amendments to existing Federal statutes or provision of new authorities . . . known to be necessary or appropriate to enable full implementation of, and compliance with, U.S. obligations under the agreements."34 It was "intended to bring U.S. law fully into compliance with U.S. obligations under those agreements."35 It "accomplishe[d] that objective with respect to federal legislation by amending existing federal statutes that would otherwise be inconsistent with the agreements and, in certain instances, by creating entirely new provisions of law."36 For this reason, supremacy of U.S. law over the international agreements "will not prevent implementation of federal statutes consistent with the agreements, where permissible under the terms of such statutes."37 Moreover, "[t]he prohibition of a private right of action based on the Uruguay Round Agreements . . . does not preclude any agency of government from considering, or entertaining argument on, whether its action or proposed action is consistent with the Uruguay Round agreements, although any change in agency action would have to be authorized by domestic law."38