If someone told you that the U.S. government has outsourced to an international organization the legal authority to decide when American national security is endangered – and inevitably how it can respond – you’d probably think they were pretty out there, or shamelessly lying.
Except that’s exactly what happened in 1947, when globalist U.S. leaders agreed to the body of rules aimed at governing international trade in the post-World War II world, and what remained the case for decades afterward. And although last week, the Biden administration moved decisively to restore sanity to U.S. trade policy in this respect, it didn’t make the complete policy about face that’s still needed.
Since protecting a country’s security is by far the Number One responsibility of any national government, such governments need to be the supreme deciders of how to carry out this mission on an ongoing basis. Further, the legitimacy of this authority logically goes double when democratic national governments like the United States’ are concerned. Why should any other power or organization hold any ability to veto or even influence choices made by the American people’s duly elected representatives to ensure their system’s safety, much less survival? Indeed, on what valid basis could such an ability actually exist? The kindness of strangers? Their superior wisdom?
These maxims are so self-evident (as America’s Declaration of Independence might put it), that even the main body of international law (a system not known for its pragmatism) recognizes them as fundamental attributes of a country’s sovereignty – its bedrock right to take whatever steps it considers needed to keep itself in existence. And how can this security be maintained if its leaders lack the unfettered ability to figure out when threats are present and what they consist of, and if they constantly need to be worrying about is whether the policies they choose pass international muster or not?
But the crucial importance of national sovereignty wasn’t so self-evident to American leaders in World War II’s aftermath. For in the bylaws of the General Agreement on Tariffs and Trade (GATT) – the global trade regime that was turned into the World Trade Organization (WTO) at the beginning of 1995 – they agreed to an article that safeguarded a member state’s right to take “any action [to restrict trade] which it considers necessary for the protection of its essential security interests.” Crucially, however, this same Article XXI then proceeded to set out three criteria that such actions needed to meet in order to pass the legality test – including the specification that trade restrictions take place “in time of war or other emergency in international relations.”
These U.S. leaders might have had some decent excuses. First, this was an age when the United States bestrode the world like a titan. How could it be plausibly threatened by mere words on paper? Further, countries outside the Communist camp (none inside signed onto the new trade pact until the mid-1960s) were hardly likely to want to tie America’s military hands since most relied so heavily on U.S. protection.
Second, the GATT lacked effective procedures for enforcing its rules. And third, Washington has always assumed that the Article XXI’s reference to actions that members “consider necessary” means that the entire measure (including the insistence that trade restrictions are legal only in certain types of international conditions) is “self-judging” – i.e., that members’ have the final say over whether it can both define its security interests and the situations in which they can be invoked to override the GATT/WTO’s ban on trade curbs.
But however understandable the U.S. position might have been in 1947, dramatic changes in national and global circumstances over decades should have alerted Washington long ago that Article XXI was bound to cause trouble. Chiefly, America’s predominant global military and economic role inevitably eroded. Many of its allies became formidable economic competitors. The line between military goods and civilian goods – never completely clear – became thoroughly blurred as products incorporating “dual use” technologies proliferated. And the birth of the WTO gave the world trade system a much more effective enforcement system.
Here it’s important to be really specific. It’s not that the WTO can muster a police force, march into the District of Columbia, and compel U.S. officials to follow its dictates. The effectiveness of this dispute resolution system is based on its authority to permit countries claiming to be harmed by U.S. (or any members’) trade practices to respond with retaliatory tariffs – which can be strategically targeted on the kinds of domestic industries powerful enough to launch lobbying campaigns able to force their governments into compliance.
So it’s easy to see why many WTO members – most of which rely heavily on net exporting to the U.S. market to achieve satisfactory levels of growth and employment) would want to use Article XXI to undercut American sovereignty in order to gain advantages for their own industries – including allies who had learned that the United States would continue protecting them and tolerating their defense free-riding even after serious provocations.
Earlier this month, this gambit paid off in spades, as the WTO declared illegal the U.S. tariffs avowedly imposed on steel and aluminum imports for national security reasons by former President Trump in spring, 2018.
Fortunately, in reality, none of the plaintiff countries can legally counter-tariff these U.S. curbs – because that same former President Trump effectively neutered the WTO dispute-resolution system by leaving seats on its appeals panels empty and preventing that body from convening to handle any next legal steps. And to his credit, President Biden has declined to appoint replacements as well.
Also to its credit, though, his administration “strongly rejected” these WTO rulings, and declared that “The United States has held the clear and unequivocal position, for over 70 years, that issues of national security cannot be reviewed in WTO dispute settlement and the WTO has no authority to second-guess the ability of a WTO Member to respond to a wide-range of threats to its security….The United States will not cede decision-making over its essential security to WTO panels.”
Unfortunately, the Biden administration didn’t take this position when it should have – once these foreign suits were filed to begin with. In fact, the administration not only (weirdly) agreed that the WTO does have jurisdiction when national security concerns come into play, but only in the sense that it was required to approve of members’ freedom to invoke these considerations to justify trade barriers. It also went to ridiculous lengths to defend the U.S. position as if WTO members were not able to self-judge their national security claims – to the point of trying to show grammatically that the plaintiffs were misreading Article XXI grammatically.
Think I’m kidding? Here’s how the one of the WTO reports presenting the anti-U.S. ruling described the U.S. effort, including direct quotes from the American brief:
“A premise of the United States’ characterization of Article XXI (b) as ‘self-judging’ is that, based on ‘the text and grammatical structure’ of the provision, ‘the phrase ‘which it considers’ qualifies all of the terms in the single relative clause that follows the word ‘action’. According to the United States, this ‘single relative clause’ in Article XXI(b) ‘begins with ‘which it considers necessary’ and ends at the end of each subparagraph’ and ‘describes the situation which the Member ‘considers’ to be present when it takes such ‘action’. The United States argues from this premise that, ‘[b]ecause the relative clause describing the action begins with ‘which it considers’, the other elements of this clause are committed to the judgment of the Member taking the action.’ The United States thus posits an ‘overall grammatical structure’ of Article XXI(b) according to which a panel may not ‘determine, for itself, whether a security interest is ‘essential’ to the Member in question, or whether the circumstances described in one of the subparagraphs exists'”.
For their part, the plaintiff countries, along with the WTO tribunals, dredged up copies of The Shorter Oxford English Dictionary, Strunk and White’s classic The Elements of Style, and Merriam-Webster’s Guide to Punctuation and Style, among other such sources, to undercut such claims.
But even though the plaintiffs’ complaints are stuck in international legal limbo, the U.S. decision to legitimize and play this game has resulted in an international organization still proclaiming, without challenge, its absolute right to tell American leaders when they are or are not in a war (dictionary definitions are used as the ultimate standard), and even when they or any part of their national economy do and do not face an “international emergency” (a decision the panel specifically arrogates to WTO judges).
Dispositive substantive arguments can be raised against all the WTO tribunals’ conclusions. For example, as stated above, ensuring a nation’s security adequately is a challenge that doesn’t only arise during especially fraught times in international politics. It typically requires steps taken during more tranquil periods to ensure that military capabilities are adequate the moment trouble starts. WTO rules that prevent these measures from being taken until crises break out could simply ensure that they’re not in effect in time for the United States to prevail.
Yet making these points amounts to falling into the same trap into which the Biden administration’s trade litigators ensnared themselves and the country. Instead, Washington should both make emphatically clear that once U.S. authorities justify a trade-restricting measure, the WTO is irrelevant (as the Biden administration eventually declared) and then boycott whatever proceedings are convened.
Plaintiff countries would still be free to try to address these problems either through standard bilateral diplomacy, or counter-measures of their own, or some combination of the two, and let the party with the most leverage come out on top. Trade purists dismiss these practices as descending into a dangerous economic “law of the jungle,” but the United States and the European Union resorted to just this approach to resolve a long dispute about aircraft production subsidies outside WTO auspices. And freed of the cumbersome and inflexible adversarial framework imposed by the trade body’s legalistic procedures, they reached an agreement that satisfied all major stakeholders – including U.S. unions.
Handling these disputes bilaterally will strongly tend to produce lasting results and work in the U.S.’ favor because (a) agreements will reflect real world power balances – not the rulings of a system whose only raison d’etre is to define power out of existence in favor of an abstract equitism that’s completely divorced from global circumstances on the ground – and (b) because the United States enjoys an abundance of such power.
That the globalist Biden administration is acting as willing as the America First-y Trump administration to recognize that, at least when it comes to national security, tinternational trade law is “an idiot” (to quote Dickens) signals an encouragingly fundamental turn in America’s approach to the global economy. Even better would be for the President to make the break as clean and unmistakable as possible.