Does the U.S. Congress Have to Approve the New WTO Agreement? Apparently Not.

Simon Lester of the IELP Blog raises an interesting and possibly important point about the new WTO Agreement just reached in Bali.  In order for the U.S. to enter into the agreement, will the U.S. Congress have to approve it?

On first glance, the answer would seem to be: “yes” since the U.S. Congress invariably is required to approve all U.S. trade agreements (as opposed to just the Senate, if it were a treaty).  In any event, I would have thought the U.S. Congress would have to approve the new Bali agreement as new legislation.  But then Simon points out this comment by U.S. trade officials from Inside U.S. Trade:

At the press conference, Punke said the Obama administration does not believe the deal requires congressional approval. “Our analysis of the trade facilitation agreement is it can be effectuated through administrative means and would not require legislation to put it into force,” he said. The obligations of the trade facilitation agreement are enforceable under the WTO Dispute Settlement Understanding.

This makes sense if one thinks of congressional approval of executive agreements as simply implementation of international obligations into domestic U.S. law.  But the congressional role in trade agreements has also been understood to fill in for the role of the U.S. Senate in approving treaties even if those treaties have no domestic law impact.  For U.S. law purposes, the President can’t enter into a treaty unless the Senate gives its advice and consent.  In the trade agreement context, I think many scholars have thought that Congress’ approval of those agreements by a majority of both houses serves the same role of giving the input of the legislature on the President’s decisions to enter into international agreements.

Or perhaps not.  Maybe the President really is free to bind the U.S. under international law via executive agreement on trade matters without any approval of Congress as long as no domestic law change is needed. This means that trade agreements really are just sole executive agreements that Congress is not really approving, but just implementing into U.S. domestic law.  And if no implementation is required, no Congress. This makes sense, but I just don’t think this the common understanding of how or why these congressional-executive agreements work.

One way out of this problem is (as Simon also points out) to understand the Bali Agreement as an amendment to the WTO Agreement. That agreement  (in Art. X) specifically outlines a mechanism for amendment which requires “consensus” (e.g. unanimity) or (depending on which provision is being affected) a two-thirds vote of the Ministerial Conference. In this way, Congress may be understood to have already approved future amendments to the WTO Agreement when it “approved” the original WTO Agreement back in 1994.  This “delegation” theory is probably a better explanation of why no congressional approval qua approval is needed for the Bali Agreement. Not totally satisfying, but probably enough here.