U.S. attacks WTO judicial institutions


Marie de Vergès, “Le gendarme OMC au bord de la paralysie,” Le Monde, le 29 septembre, 2018.

Donald Trump’s attack on the rule of law is manifested not only by his and his Republican Party’s attempt to jam through the Senate confirmation of Brett Kavanaugh—opposing FBI investigation of outstanding sexual assault allegations until forced to allow the investigation by Jeff Flake and other Reublicans whose votes are needed for confirmaton—but also by attacking and seeking to destroy the dispute reolution mechanisms and institutions of the World Trade Organization.

The method: Blocking the appointment of new judges to the WTO’s highest judicial panel.

In doing so, Trump is following the authoritarian’s playbook:

1) gain control of the media;

2) gain control of the armed forces;

3)  gain control of or neutralize the legislature (Congress); and

4)  gain control of the courts.

The goal is to eliminate any constraint imposed on the authoritarian’s freedom of achion imposed by public opinion (and Congress), law, or the courts.

Trump seeks control of the U.S. Supreme Court by appointing Republican political operatives
like Kavanaugh to the Court.

He seeks to violate international law with impunity by neutralizing international courts and tribunals
like the International Criminal Court (ICC), or the WTO’s highest tribunal.

Trump’s unilateral imposition of tariffs in violation of the GATT  and WTO agreements is based on the flagrantly spurious ground that it is required by national security.

This is a bad-faith legal argument virtually certain to be struck down by the WTO’s highest judicial body.

Trump’s ploy is to incapacitate or destroy that judicial body.

If Trump’s national security justification is allowed to stand, moreover, it will effectively destroy the WTO, as any state could ignore WTO rules with a similar spurious justification—with no judicial body in place to adjudicate the argument.

Trump wants the U.S. to be able to throw its weight around and impose its will on smaller and weaker states.

Ia a word, he wants to take down the international legal order that imposes constraints on his freedom of action.

Similarly, with judges like Brett Kavanaugh he wants to neutralize the Supreme Court’s anility to impose constraints on his executive power and freedom of action.

The greatest obstacle to Trump, or any other would-be authoritarian, is the rule of law.

Trump seeks to take down the rule of law, both internationally and domestically.

Citizens and foreign nations need to pay close attention to Trump’s agenda, and to react forcefully to defend their values and the vision of the world they wish to secure.

The Trenchant Observer

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.