July 5, 2005

Bindingly Unbinding

Posted in Uncategorized at 12:55 pm by thelawthoughts

I recently was referred to a very interesting website (for some, I guess), which is basically a repository of Congress reports on various issues. It doesn’t seem to be an official government site but is a bit like our own Parliamentary Library (which by the way has a new XML feed – wow!).

Now, the reason I bring this up is because a report tootled along this week entitled ‘WTO Decisions and their Effect in US Law’. I was not suprised to find this effect rated somewhere between zero and none at all by the report’s author.

This is a real bugbear of mine, this relationship between international and national law. I didn’t know it existed until today, but when the WTO was established in 1995, the US passed a piece of legislation entitled ‘Uruguay Round Agreements Act’. This Act basically says that no WTO Agreement, nor the application of any such Agreement, has any effect at US law where the Agreement or its application conflicts with existing US law. Further, any WTO law only applies until conflicting US law is passed.

This report comes at a convenient time, given the recent WTO decision to find US cotton subsidies illegal. I had a whole lot of links to this dispute but they seem to have gone missing unfortunately. This doesn’t matter to the crux of the issue – WTO law is completely impotent regardless of the binding nature of the dispute settlement system. This is completely unjustifiable given the treatment smaller countries get when they flout Appellate Body or Panel rulings. For example, even when small countries attempt to use lawful provisions of WTO Agreements (see my discussion here), the US is the first to jump on them for failing to give effect to these provisions.

How then, can any of us be expected to comply with WTO rulings, given there is an explicit acknowledgement on the part of the US that the law will not apply to them? Why should we not pass similar legislation in Australia, saying that we don’t care what the rules say, we will impose whatever tariffs we desire? In my idealistic way, I have always thought and expected the WTO might be different. Yes international law is based on consent, yada yada, but surely there is no point in continuing with a system which is binding, which States must sign up to fully and from which no reservations are allowed and which gives the US a powerful forum for applying political pressure to whomever it is convenient, when the rules do not apply in the same way to the country that most pushed for WTO rules to be binding on all Members.

If this is permitted by other WTO Members, the entire organisation is an utter sham.


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