RIP, World Trade Organization? | The Nation

At 2:30 am Eastern on Wednesday, December 11, the Geneva-based World Trade Organization will open its doors shorn of its most important power. For the last quarter century, the group’s powerful Appellate Body lorded over the global economy. In more than 140 cases brought against countries rich and poor, on matters ranging from dolphin safety to financial secrecy, three individuals randomly selected from the seven-person body rendered authoritative and final rulings, scrutinizing countries’ sovereign policies for their impact (actual or potential) on trade flows.

Absent a last-minute deal, the board will cease to operate. That’s because on December 10, the four-year terms of two of its last three Appellate Body members will expire. Lacking a quorum, the sole remaining judge—Hong Zhao, a lawyer who otherwise works for a Chinese Ministry of Commerce think-tank—will be unable to convene any proceedings. The proximate cause: since 2017, the Trump administration has vetoed six attempts to fill adjudicator vacancies.

While casual observers might fret that this is yet another way that Trump is tearing down the so-called “global liberal order,” the conflict was really a long-time in the making. The famously international-law-skeptical United States only reluctantly agreed to the creation of the Appellate Body in the early 1990s, but was reassured by the Europeans and others that it would rarely be used. Then, things didn’t go quite as the USplanned.

Not 16 months after it began, the Appellate Body issued its first ruling, and it was against the United States’ implementation of the Clean Air Act—precisely what Ralph Nader and his ilk worried about when they lobbied Congress to vote down the Uruguay Round Agreements Act, which greenlit US involvement in the WTO. The United States went on to lose the vast majority of the challenges brought against it, as did other defendant countries.

A long-held bipartisan concern in the United States is the Appellate Body’s willingness to second guess American anti-dumping and countervailing duty law, a means by which domestic producers can get temporary reprieve from “unfairly” priced imports—such as those sold below the cost of production. As Brown University’s Nitsan Chorev documents in her book Remaking U.S. Trade Policy, Congress was cajoled into supporting America’s relatively low tariffs through the assurances that the United States would retain this ability to selectively re-impose trade restrictions in exceptional circumstances following a domestic legal process. But when the WTO’s adjudicators began ruling against US anti-dumping policy, the Bush administration (hardly a bastion of hardcore protectionist sentiment) publicly accused it of “judicial activism.”

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