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Rob Howse
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With Ted Cruz in the lead, a group of Republican Senators has sent a letter to the Biden Administration threatening that the Senate, or Congress, could block a return to the JCPOA. Within the next days or weeks, there may... Continue reading
As negotiators interrupted the 8th round of talks on restoring the JCPOA for the New Year's holiday, the mood in Vienna ranged from confidence that the bargaining would continue until an agreement is reached, to more cautious statements of hopefulness... Continue reading
Tomorrow, negotiators from the parties to the original Iran Deal, the JCPOA, will return to Vienna to continue talks on restoring the accord that was broken by the Trump Administration. In the coming days and weeks, the focus will move... Continue reading
Recently on this blog, Ruti Teitel and I suggested some ideas for persuading Iran's leaders that economic sanctions relief in return for restored nuclear curbs can be of durable economic benefit for the country-even on the nightmare scenario of a... Continue reading
(This post is co-authored with Ruti Teitel, Ernst C. Stiefel Professor of Comparative Law at New York Law School and a Life Member of the Council on Foreign Relations) After a long hiatus that followed a change in Iran’s political... Continue reading
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Fair enough. I think what you call the “traditionalist” topics remain very important, and often my contributions to this blog have focused on them. But as you acknowledge times are changing and I have had a unit on trade and national security for example even to my basic introductory trade law course at NYU. Sent from my iPhone
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If you think that sanctions are not relevant to international economic law and policy today, all I can say is I totally disagree.
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From its earliest days, restoring the Iran nuclear deal has been a priority of the Biden Administration. A signal foreign policy accomplishment of former US President Barack Obama, the deal involved Iran agreeing to concrete verifiable steps to constrain those... Continue reading
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See around paragraph 94 of US-Shrimp, Appellate Body, 21.5 for example.
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there is no requirement of exhaustion of domestic remedies (or finality, for example as would be the case for denial of justice in an ISDS claim) in WTO law. The fact that a matter is still before the US courts or could be the subject of further appeal is not a basis for a WTO panel declining jurisdiction (see the Shrimp/Turtle dispute).
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But here Steve I am addressing potential state measures that would restrict a company from freely making decisions about the exportation of its products, and those kinds of restrictions, de jure and de facto, have been often litigated in WTO dispute settlement.
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Under the general rules of state responsibility in international law, a "state" is responsible for the conduct of subnational governments. This principle is reflected in Article XXIV:12 of the GATT, and the subsequent Understanding on Article XXIV makes it even clearer that subnational measures are justiciable in WTO dispute settlement.
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One week ago, global ice cream maker Ben & Jerry's announced that the firm would no longer allow products to be sold under its brand in the Occupied Palestinian Territories (OTP). Israel's continuing occupation of these territories is almost universally... Continue reading
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Widely leaked in various versions over the last weeks, the formal Commission proposals for carbon border adjustment have today been publically released. Already on social media, a debate has been unleashed (not surprisingly) about the WTO compatability of the proposals,... Continue reading
Dear Rob and Steve (if I may?), Thanks so much for your interest in this piece! Yes Rob, it is certainly the case that on the same day that the UK and US accepted majority voting in the GATT, they each put forward proposals for weighted voting in the ITO, suggesting that they may have been less worried about the former due to its provisional nature. And although majority voting was eventually accepted for the ITO as well, Senate records indicate that this was a source of domestic discontent in the US and may have contributed to the ITO's failure to pass Congress (for a great article on this see, Ayse Kaya, ‘Designing the Multilateral Trading System: Voting Equality at the International Trade Organization’ (2016) 15 World Trade Review 25). In transforming the GATT in 'the' multilateral trade regime, then, it makes sense that the US looked for other ways to render the decision-making structure more 'weighted'. Though we may never know for sure why the GATT turned to consensus in the early 1950s. I agree with you Steve that consensus decision-making can sometimes work well and even be preferable to majority voting (eg in a small organisation with a largely equal membership base). For me, the trouble with consensus decision-making is that it can replicate underlying power relations. As such, in an organisation like the GATT/WTO where there are Members with all different levels of income and geopolitical power, it can have a highly weighted effect. Though one may consider the AB impasse to be an instance of consensus decision-making's 'bad' side and the TRIPS waiver to be an instance of its 'good' side (though I wouldn't personally agree with this characterisation), to me, the issue is that neither of these blockages could have been achieved by most other WTO Members. In this regard, whether consensus is used for mischief or to prevent it, is a matter only for the powerful. Thanks again for your kind interest and engagement. Kind regards, Claerwen Claerwen O'Hara | PhD Candidate, Teaching Fellow and Member of the Institute for International Law and the Humanities (IILAH) Co-Chair, Gender, Sexuality and International Law Interest Group at the Australian and New Zealand Society of International Law (ANZSIL) Melbourne Law School Level 8, 185 Pelham Street, Carlton Victoria 3053 The University of Melbourne, Victoria 3010 Australia claerwen.ohara@unimelb.edu.au Melbourne Law School acknowledges the Wurundjeri Peoples of the Kulin Nations as the traditional owners and custodians of the land on which the law school stands, for which sovereignty was never ceded. We pay our respects to their Elders past, present and to come. From: Robert Howse <howserob@gmail.com> Sent: Wednesday, June 30, 2021 10:44 PM To: reply-3P3N5LADHNZI_72Q33LCPUA2E@typepad.com <reply-3P3N5LADHNZI_72Q33LCPUA2E@typepad.com>; Claerwen O'Hara <claerwen.ohara@unimelb.edu.au>; Steve Charnovitz <scharnovitz@law.gwu.edu> Subject: [EXT] Re: Typepad: [International Economic Law and Policy Blog] @SteveCharnovitz submitted a comment on "Decision & Democracy at the WTO: An Insightful New Study Offers a Genealogy of the Consensus Norm" External email: Please exercise caution Steve, I didn't remember from our past connections you were on the side of the IP interests. But putting the TRIPs Waiver aside, of course voting/majoritarianism was an innovation. To the extent that a new legal obligation could be created that might bind a state w/o its specific consent, this was a form of idealism about global governance specific to the ending-of-WWII institution-creating moment. See on aspects of this Anne Marie Slaughter, "Regulating the World." https://scholar.princeton.edu/sites/default/files/slaughter/files/multilateralism.pdf. Also my colleague Ryan Goodman on treaty reservations. What is interesting is that in the UNSC design the great powers protected their sovereignty through vetoes for the P-5, and in the IMF and World Bank by weighted voting. But they didn't protect themselves in the GATT and as I recall O'Hara suggests that might be connected to the demise of the ITO project and then the salvation of a multilateral trade institution through proceeding with a self standing GATT, which wasn't supposed to be regulatory but a negotiating framework for tariff reductions based on reciprocity? In any case, it just seems right to me O'Hara's insight that consensus emerged as a substitute for the weighted voting or great power vetoes that the other postwar institutions had explicitly built into their charters, reflecting power arrangements & the unwillingness of the powerful to give prior consent to the compromise of sovereignty. Anyhow, I'm copying O'Hara on this response to you. Rob
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Steve, I didn't remember from our past connections you were on the side of the IP interests. But putting the TRIPs Waiver aside, of course voting/majoritarianism was an innovation. To the extent that a new legal obligation could be created that might bind a state w/o its specific consent, this was a form of idealism about global governance specific to the ending-of-WWII institution-creating moment. See on aspects of this Anne Marie Slaughter, "Regulating the World." https://scholar.princeton.edu/sites/default/files/slaughter/files/multilateralism.pdf. Also my colleague Ryan Goodman on treaty reservations. What is interesting is that in the UNSC design the great powers protected their sovereignty through vetoes for the P-5, and in the IMF and World Bank by weighted voting. But they didn't protect themselves in the GATT and as I recall O'Hara suggests that might be connected to the demise of the ITO project and then the salvation of a multilateral trade institution through proceeding with a self standing GATT, which wasn't supposed to be regulatory but a negotiating framework for tariff reductions based on reciprocity? In any case, it just seems right to me O'Hara's insight that consensus emerged as a substitute for the weighted voting or great power vetoes that the other postwar institutions had explicitly built into their charters, reflecting power arrangements & the unwillingness of the powerful to give prior consent to the compromise of sovereignty. Anyhow, I'm copying O'Hara on this response to you. Rob
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After Trump, multilateralism is supposedly back. According to US Secretary of State Antony Blinken, it is "still our best tool for tackling big global challenges." In the case of trade, of course, multilateralism means, primarily the WTO. The Organization's approach... Continue reading
In the last two weeks, United States Trade Representative Katherine Tai spoke with the trade ministers of India and South Africa, the leading co-sponsors of the original TRIPs Waiver proposal, providing encouragement to move forward on a revised text. The... Continue reading
Angela Merkel's Kriegserklärung against America in its effort to to build consensus for a WTO vaccine waiver will come as no shock to those familiar with Germany's punitive moralism and gratuitous cruelty in the Greek debt crisis a few years... Continue reading
"Come, and trip it as ye go, On the light fantastick toe"- John Milton, "Allegro" Yesterday's statement by USTR Ambassador Katherine Tai that the US will support efforts in the WTO for a vaccine waiver is a big deal. "Massive",... Continue reading
Thanks Steve-you actually got me to go looking for Simon's last post on this topic! Yes we are very much on the same wavelength. As someone who isn't a US public lawyer, I found Medellin hard to follow; but I gather it all depends on the tribunal and the US implementing legislation. The latter in the case of the WTO seems to preclude as you say the kind of accountability in question, through US courts, at least with respect to WTO obligations as such rather than statutory provisions implementing them. But again I'm a bit out of my depth.
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Thanks Greg. You have grasped and elaborated exactly the spirit in which I make thiese suggestions. I look forward to further exchanges on this, and to continuing to learn from your own work on these and related themes.
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Yesterday, the journal Global Policy published an essay of mine on the case for rebooting the WTO Appellate Body. In the article, I propose a range of options for deciding what kind of judges the WTO needs going forward, and... Continue reading
There are two answers. The first is that throwing away an opportunity to move the US toward re-engagement with global order is idiotic; we should all be celebrating that there appears to be a dent in Mr. Trump's dogmatic atavistic anti-globalism (and I say this as someone who is critical of many aspects of existing global order). The second is economic interests (access to US markets). One hopes that these prevail over the wounded pride of the spurned suitor, or whatever.
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Thanks for this. As you can see from the instruments that I cited in the blog post, WTO law and practice distinguishes between 2 types of international organizations, intergovernmental organizations and nongovernmental organizations. As the WEF is obviously not an intergovernmental organization, it thus falls into the latter category. Still, I am curious, what consequences under Swiss law flow from the circumstances you report?
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