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

If the unambiguous statute is consistent with WTO norms, it is unnecessary to consider WTO consistency. For example, in Turtle Island Restoration Network v. Evans,58 the Federal Circuit held that the statute unambiguously mandated the interpretation adopted by the agency. Therefore, it ruled that "because the meaning of [the statute] is clear, we need not reach the question of... whether the State Department's interpretation would minimize potential conflicts with international trade agreements."59 In one case, however, after the Federal Circuit held that the agency interpretation was contrary to both the statute and the legislative history, it stated that the principle of interpreting statutes to avoid conflicts with international law provided "additional support" for construing the statute in a manner consistent with a WTO Appellate Body determination that the agency's interpretation violated WTO obligations.60

3.2 Integration of WTO Norms into Chevron Step Two

If the U.S. trade statute is ambiguous, step two of Chevron analysis applies and the issue for a reviewing court is whether the agency's interpretation is "permissible." In this situation, the supremacy of statutes over WTO agreements under URAA section 102(a)(l) does not prevent a reviewing court from taking WTO obligations into consideration in deciding whether the agency's interpretation is "permissible."61 As stated in one Court of International Trade decision, one "may not simply disregard [a WTO agreement] by loosely invoking . . . the primacy of domestic law where a conflict with international law exists."62 Therefore, where a statute is ambiguous and Chevron step two governs, the Court of International Trade has stated that "Chevron must be applied in concert with the Charming Betsy doctrine when the latter is implicated."63 As discussed below, however, what "applied in concert with" means in practice is a complex question.64

3.3 WTO Agreements as secondary Legislative History

There is a compelling reason for taking WTO agreements into consideration and for interpreting an ambiguous U.S. trade statute to be consistent with the WTO agreements: it gives effect to the intent of Congress to harmonize U.S. law with the WTO agreements when it approved and implemented the agreements in the URAA. This justification for using WTO and GATT agreements as aids in interpreting trade laws appears to have received insufficient attention, however. One interlocutory Court of International Trade decision stated in dicta quoted later in one Federal Circuit decision that "[a]n interpretation and application of the statute which would conflict with the GATT Codes would clearly violate the intent of Congress."65

Professor John H.Jackson was the first to urge that the WTO/GATT agreements are part of the legislative history or at least secondary legislative history of the URAA, as well as, earlier, the Trade Agreements Act of 1979.66 Others have repeated Professor Jackson's point.67 As noted above, the URAA legislative history and Statement of Administrative Action plainly reflect that Congress intended to implement the WTO agreements and allow the United States to comply fully with its WTO obligations, at least as the United States understood those obligations.68