Can Domestic Court Defiance Strengthen International Tribunals?

by Jeffrey Dunoff

Julian’s thoughtful post can be located within a larger literature that states “nationalist” objections to domestic court use of international tribunal decisions. One underexplored question in this literature is whether nationalists should ever support domestic court use of international decisions. Another is whether internationalists (i.e., those typically sympathetic to international norms and bodies) should ever oppose domestic court use of international decisions.

The WTO provides an interesting case study. WTO dispute system is commonly understood as the most fully developed in international law. However, U.S. courts generally do not use WTO panel or Appellate Body (AB) decisions. The implementing legislation denies direct effect to panel/AB reports: “No person . . . may challenge . . . any action or inaction by any [federal or state entity] . . . on the ground that such action or inaction is inconsistent with [the Uruguay Round agreements].” Moreover, U.S. courts generally do not give panel/AB reports indirect effect, either through invocation of Charming Betsy or other interpretative strategies.

Should internationalists support or critique U.S. practice? I think the answer should be informed by examination of at least three different issues: Who should authoritatively interpret WTO law? Would domestic court litigation increase compliance with WTO norms? How would domestic court use of AB reports impact the WTO system?

Domestic court application of panel/AB reports might substitute one form of supremacy for another. On the one hand, judicial use of WTO norms to trump – or even help interpret – domestic law would treat these international norms as “supreme Law of the Land.” Moreover, domestic courts use of panel/AB rulings might be thought to enhance WTO power and prestige in much the same way that national court use of European Court of Justice opinions helped elevate the importance of the ECJ. Hence, domestic cases involving the straightforward application of WTO law – such as when an importer challenged Belgium’s banana import regime as based on EC regulations determined to be GATT-illegal – might enhance WTO compliance.

On the other hand, less straightforward applications of WTO law would inevitably follow. If the AB holds that “zeroing,” a particular methodology for calculating dumping margins, violates WTO norms in a dispute involving the EC, should a US court apply the AB’s rationale to a similar US practice? Or, if the AB holds that US use of zeroing in one context violates WTO norms, should a US court extend that holding in a challenge to the use of zeroing in a different context?

In other words, domestic courts would not mechanically receive and apply WTO norms. Rather, they will become active creators of WTO law. As a result, these courts would actively shape the nature and breadth of WTO norms. Moreover, given the size of the US market, the complexity of US trade statutes, and the creativity of the trade bar, it is likely that US courts would become de facto the lead judicial bodies interpreting WTO law.

This development would challenge the supremacy of WTO law – or at least the supremacy of AB interpretations of WTO law – as domestic courts would displace the AB as the sole authoritative tribunal that interprets and applies WTO law. But little in the theory of comparative institutional competence – or judicial practice – suggests that domestic courts are superior to the AB in interpreting WTO law. Moreover, domestic rulings would also shatter the uniformity of WTO law, as different national courts would produce different readings of WTO law.

Would decentralized interpretation and application of WTO norms by domestic courts generate benefits that would overcome the costs of transferring lead authority for judicial interpretation of WTO norms from Geneva to domestic courts?

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