EDITORIAL COMMENT

THE WTO DISPUTE SETTLEMENT UNDERSTANDING: LESS IS MORE

The Agreement Establishing the World Trade Organization (WTO Agreement) dra-
matically expands and improves the trade rules of the predecessor General Agreement
on Tariffs and Trade (GATT), thereby facilitating trade, economic growth and jobs
in the increasingly interdependent global economy. Supporters of trade liberalization
generally welcome these new rules, including in particular the dramatically improved
procedures for settling disputes.1
However, some environmental and labor groups have expressed concerns as to
whether the new dispute settlement rules subordinate or diminish non-trade-policy objec-
tives. These concerns have echoed loudly in sound-bite denunciations of the WTO by
some American politicians advocating economic nationalism. Some claim that faceless,
unelected, unaccountable bureaucrats in Geneva have usurped U.S. sovereignty by writ-
ing rules for Americans that should be determined only by Americans. In his campaign
for the presidency, for example, Patrick Buchanan took up the chorus most recendy
popularized by Ross Perot in his opposition in 1992 to the North American Free Trade
Agreement. Buchanan's success in early primaries provoked numerous polls and exten-
sive commentary analyzing whether support for trade liberalization had diminished.
In fact, such support has diminished among some key constituencies. 2 Many environ-
mental groups, for example, were aghast when GATT panels ruled that access to die
U.S. market could not be used consistendy with GATT obligations as leverage for some
U.S. environmental objectives. Specifically, these panels ruled that U.S. primary boycotts
of tuna imports to punish countries that use porpoise-unfriendly fishing mediods, and
U.S. secondary boycotts to punish third countries that do not likewise employ such
primary boycotts, are inconsistent with the GATT prohibition on embargoes and are
not justified under limited GATT exceptions.
Another powerful constituency that grew concerned about the application of GATT
rules and rulings to their interests were state and local governments. A series of GATT
panels examined several complaints about the tax measures of several contracting parties
affecting imports of alcoholic beverages. Canada filed such a complaint against the
United States focused not on federal, but on state and local government tax measures,
some of which discriminated against imports in contravention of obligations under the
GATT binding on subfederal as well as federal authorities. These rulings had revenue
implications for the states concerned and provoked widespread concern among die
states about the application of the GATT to subfederal governments.
In view of the heat, if not light, being generated by economic nationalists in general,
and the specific concerns resulting from some GATT dispute setdement rulings in
particular, a review of WTO/GATT dispute settlement rules is overdue. Like the GATT
rules that preceded them, the WTO rules are simply not "binding" in the traditional

' See generally Stephen P. Croley & John H. Jackson, WTO Dispute Procedures, Standard of Review, and Deference
to National Governments, 90 AJIL 193 (1996).
s
Until recently, polls showed broad support for trade liberalization. E.g., CHICAGO COUNCIL ON FOREIGN
RELATIONS, AMERICAN PUBLIC OPINION AND U.S. FOREIGN POLICY 1995, at 28-30 (1995). Some recent polls,
however, show a significant decline in such support. E.g., EPIC-MRA/Mitchell poll, reported in J. COM., NOV.
14, 1995, at 1A, 8A; Peter Hart Research poll, reported in DAILY REP. FOR EXECUTIVES (BNA), Mar. 25, 1996,
at A - l l . For a thoughtful analysis of the reasons for this decline, see Marc Levinson, Kantor's Cant, FOREIGN
AFF., Mar.-Apr. 1996, at 2.

416

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 1996] EDITORIAL COMMENT 417

sense. When a panel established under the WTO Dispute Settlement Understanding
issues a ruling adverse to a member, there is no prospect of incarceration, injunctive
relief, damages for harm inflicted or police enforcement. The WTO has no jailhouse,
no bail bondsmen, no blue helmets, no truncheons or tear gas.
Rather, the WTO—essentially a confederation of sovereign national governments—
relies upon voluntary compliance. The genius of the GATT/WTO system is the flexibility
with which it accommodates the national exercise of sovereignty, yet promotes compli-
ance with its trade rules through incentives.
This flexibility was built into the cornerstones of the GATT. Article II of the GATT
prohibits member governments from imposing tariffs beyond rates agreed in trade nego-
tiations. The first six rounds of GATT trade negotiations between 1947 and 1975 were
devoted exclusively to reducing tariffs. Yet, despite the central import of tariff levels to
the GATT's success before 1980, Article XXVIII authorized trading partners to renegoti-
ate tariff levels when local politics or a change in the domestic economy required it.
The only sacred, inviolable aspect of the GATT was the overall balance of rights and
obligations, of benefits and burdens, achieved among members through negotiations.
To put it simply, a government could renege on its negotiated commitment not to
exceed a specified tariff on an item, provided it restored the overall balance of GATT
concessions through compensatory reductions in tariffs on other items. That is, a govern-
ment could change its mind about and raise a particular tariff, provided it offset such
"nullification or impairment" of the delicate GATT balance through compensatory
tariff reductions.
The WTO substantially improved the GATT rules for settling disputes but did not
alter the fundamental nature of the negotiated bargain among sovereign member states.
Compliance with the WTO, as interpreted through dispute settlement panels, remains
elective. If its law or measure is successfully challenged, a member enjoys three choices.
First, it may (and preferably would) come into compliance with the ruling by withdrawing
the offending measure or rectifying the relevant omission. Second, it may maintain the
offending measure or determine not to rectify the relevant omission but, instead, provide
compensatory benefits to restore the balance of negotiated concessions disturbed by the
noncomplying law or measure. Third, it may choose to make no change in its law or
measures and decline to provide compensation, and, instead, suffer likely retaliation
against its exports authorized by the WTO for the purpose of restoring the balance of
negotiated concessions. The only sacred WTO imperative is to maintain that balance so
as to maintain political support for the WTO Agreement by members.
Sovereign nations choose to cooperate across borders because, without such coopera-
tion, in the interdependent global economy they are helpless to promote economic
growth and prosperity most effectively. Yet sovereign nations do not relinquish their
sovereignty by virtue of their membership in the WTO, including its dispute settlement
proceedings. If the local politics du jour or changing economics require or merit it, any
WTO member may exercise its sovereignty and take action inconsistent with the WTO
Agreement, provided only that it compensates adversely affected trading partners or
suffers offsetting retaliation.
On the other hand, a member may restrain its exercise of sovereignty and choose to
comply with the WTO rules and dispute settlement rulings because it (1) benefits when
other members do likewise; (2) loses international credibility and clout through scofflaw
conduct; (3) self-inflicts or invites inflicted damage to its economic interests through
compensation or retaliation; and/or (4) jeopardizes international cooperation on other
issues (e.g., illicit drug trafficking, illegal immigration, arms control, environmental
protection, promotion of human rights, population control, rights of women and minor-
ity groups, the welfare of children) by failing to meet its responsibilities in the WTO.

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 418 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 90:416

Thus, the fundamental nature of WTO dispute settlement is either misunderstood or

mischaracterized by its detractors. From the viewpoint of economic nationalists, the good
news is that the United States is not required to comply with a WTO dispute settlement
ruling adverse to the United States. (The correspondingly bad news is that neither is
any other member.) Instead, die United States (and any odier member) may choose to
comply, to compensate, or to stonewall and suffer retaliation against its exports.
Why, then, do some complain so loudly against this system, which flexibly accommo-
dates the political needs and ever-changing economies of sovereign members? Because
they oppose die light it sheds on the costs of economic protectionism and of subordinat-
ing trade objectives and obligations to nontrade objectives. Yes, for example, the United
States may impose primary and even secondary embargoes of imports for environmental
or other nontrade purposes—but not necessarily for free. If a member's measure is
inconsistent with the WTO, a specific, identifiable price will be paid, either direcdy
through compensation (which reduces U.S. revenues and diereby adversely affects the
budget) or indirectly dirough retaliation against U.S. exports. Some special interest
groups would prefer to keep such costs hidden, since their publication is likely to reduce
political support for using trade tactics for nontrade objectives.
To take another example, the United States may raise tariffs to protect a particular
industry against import competition, even if such action is not permitted under Article fl
of the GATT (prohibiting tariff increases beyond agreed rates). However, the protected
industry is unlikely to favor widespread knowledge about the costs of protectionism
because it would facilitate a rational cost-benefit analysis of its protection. Generally, die
total costs of protectionism well exceed its total benefits. When diis is understood,
political support for protectionism beyond the protected industry usually evaporates.
In conclusion, complaints about die WTO's usurpation of U.S. sovereignty misappre-
hend die WTO dispute setdement system and the flexibility with which it accommodates
national sovereignty. The only truly binding WTO obligation is to maintain the balance
of concessions negotiated among members. This duty is accorded the highest priority
by die WTO to preserve die maximum incentive for all members to remain members,
to cooperate, and to voluntarily comply widi die rules at least most of the time. While
the WTO establishes many, many other rules and compliance by all members is prefera-
ble, die fundamental structure allows for departures from diose rules and dius notably
fails to diminish any member's sovereignty.
The less binding die individual rules of die WTO Agreement, die more the WTO
accommodates die demands of national sovereignty. The less die WTO requires any
real transfer of power from national governments to die Geneva secretariat, the more
effectively it encourages international economic cooperation while preserving demo-
cratic accountability. Widi respect to WTO dispute settlement, less is generally more.
JUDITH HIPPLER BEIXO

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