Published online by Cambridge University Press: 27 February 2017
The most salient feature of dispute settlement in the World Trade Organization (WTO) is the possibility of authorizing a trade sanction against a scofflaw member government. This feature, however, is a mixed blessing. On the one hand, it fortifies WTO rules and promotes respect for them. On the other hand, it drains away the benefits of free trade and provokes “sanction envy.” Undoubtedly, putting teeth in the WTO was one of the key achievements of the Uruguay Round ending in 1994, and a very significant step in the evolution of international economic law.1 Yet after six years of experience, WTO observers are questioning whether the availability of trade enforcement is sensible.2 This article undertakes an appraisal of trade sanctions as a WTO instrument, and concludes that this practice undermines the trading system. In view of this dysfunction, the article explores alternatives to trade enforcement and points to some softer measures that might have promise.
1 William, H. Lash III, The Limited But Important Role of the WTO, 19 Cato J. 371, 375 (2000)Google Scholar (arguing that the U.S. had to impose trade sanctions on the EC to preserve the integrity of the WTO; otherwise WTO critics around the world could rightly say that the GATT was back); Joost, Pauwelyn, Enforcement and Countermeasures in the WTO: Rules Are Rules—Toward a More Collective Approach, 94 AJIL 335, 339 (2000)Google Scholar- (stating that the WTO’s forward–looking enforcement approach can be seen as a major step ahead in international law).
2 Edward, Alden, Gloom Descends over Former Supporters of the WTO’s Procedure for Disputes, Fin. Times (London), Dec. 6, 2000, at 8 Google Scholar (discussing unhappiness with WTO trade sanctions); Jagdish, Bhagwati, After Seattle: Free Trade and the WTO, 77 Int’l Aff. 15, 28 (2001)Google Scholar (explaining that large-scale retaliation through the WTO “makes ever more people hostile to the WTO, which is seen as authorizing bullying tactics”); Edwini, Kessie, Enhancing Security and Predictability for Private Business Operators Under the Dispute Settlement System of the WTO, J. World Trade, Dec. 2000, at 1, 16 Google Scholar (suggesting that it might be advisable to abolish the remedy of retaliation); Brink, Lindsey, Daniel, T. Griswold, Mark, A. Groombridge, & Aaron, Lukas, Seattle and Beyond: A WTO Agenda for the New Millennium, 28, 29–31 (Nov. 4, 1999)Google Scholar (stating that the most serious problem with the WTO procedures is their reliance on trade sanctions as the ultimate remedy), Cato Institute, at <http://www.cato.org> [hereinafter Lindsey et al.]; Bruce Stokes, Something’s Missing Here, Nat’l J., May 19, 2001, at 1514; Transatlantic Business Dialogue, Cincinnati Recommendations 37 (Nov. 16–18, 2000) (urging governments to rethink the present system of WTO sanctions), at. <http://www.tabd.org>.
3 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (1999) [hereinafter WTO Agreement]. All other WTO Agreements cited here are reprinted in this WTO volume and are available on the WTO Web site, <http://www.wto.org>.
4 Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 22.2, WTO Agreement, Annex 2 [hereinafter DSU]. The DSB consists of all WTO member governments and supervises the WTO dispute settlement process. The DSB formally adopts dispute panel reports if they are not appealed. If the report is appealed to the WTO Appellate Body, the DSB formally adopts the panel reports as modified by the Appellate Body. The DSB may fail to adopt a panel report by consensus, including the consent of the winning party, see DSU passim, but this has never happened. Under the DSU, if the defending government fails to bring its WTO inconsistent measure into compliance, the complaining government, after 20 days of negotiations, may request authorization from the DSB to suspend concessions. DSU Art. 22.3. If the defending government objects to the level of suspension proposed, it may seek arbitration. DSU Art. 22.6. The decision of the arbitrator(s) is final. DSU Art. 22.7. Note also that the DSU can be used for a complaint against another country that does not allege a violation of WTO rules. DSU Art. 26. This “non–violation” cause of action will not be addressed here.
5 General Agreement on Tariffs and Trade, Oct. 30, 1947, TIAS No. 1700, 55 UNTS 194 [hereinafter GATT]. The current version of the GATT is now in Annex 1A of the WTO Agreement.
6 GATT Art. XXIII:2. A “concession” in the GATT context was typically an agreement to lower a tariff and/or bind it. Binding a tariff means agreeing not to raise it.
7 Akehurst’s Modern Introduction to International Law 3 (Peter, Malanczuk ed., 7th rev. ed. 1997)Google Scholar.
8 Elisabeth, Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures (1984)Google Scholar.
9 State Responsibility: Draft Articles Provisionally Adopted by the Drafting Committee on Second Reading, UN Doc. A/CN.4/L.600, pt. 2 bis, ch. II (2000) [hereinafter Draft Articles on State Responsibility], at <http://www.un.org/law/ilc/index.htm>; Restatement (Third) of the Foreign Relations Law of the United States §905 (1987).
10 United States—Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, WTO Doc. WT/DS2/AB/R, at 17(Apr. 29, 1996) (Appellate Body reports are designated in WTO document numbers by the initials “AB”); see also Meinhard, Hilf, Power, Rules and Principles—Which Orientation for WTO/GAIT Law? 4 J. Int’l Econ. L. 111, 121–22 (2001)Google Scholar; Gabrielle, Marceau, A Call for Coherence in International Law—Praises for the Prohibition Against “Clinical Isolation ” in WTO Dispute Settlement, J. World Trade, Oct. 1999, at 87 Google Scholar. Several years ago, Pieter Kuyper hypothesized that the GATT was a self–contained system in aspiration but not in reality. Kuyper, P.J., The Law of GATT as a Special Field of International Law, 1994 Neth. Y.B. Int’l L. 227, 252 CrossRefGoogle Scholar.
11 See David, Palmeter & Petros, C. Mavroidis, The WTO Legal System: Sources of Law, 92 AJIL. 398, (1998)Google Scholar; see also John, H. Jackson, Remarks, 94 ASIL Proc. 222 (2000)Google Scholar (stating, “These first five years of the WTO may have been the most interesting five years of international jurisprudence in the history of mankind.”).
12 Agreement on Subsidies and Countervailing Measures [SCM], Art. 4.10, WTO Agreement, Annex 1A. The Tokyo Round Subsidies Code also provided for “countermeasures.” Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade, Apr. 12, 1979, Art. 18.9, 31 UST 513.
13 Draft Articles on State Responsibility, supra note 9, pt. 2 bis, ch. II (Countermeasures).
14 Zoller, supra note 8, at 75, 106–07.
15 See Barry, E. Carter, International Economic Sanctions 4 (1988)Google Scholar (noting that sanctions seek to force a change in policy); Lisal, Martin, Coercive Cooperation 3 (1992)Google Scholar (stating that governments use economic sanctions to signal resolve and to exert pressure for policy changes); Lori, Fisler Damrosch, Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs, 83 AJIL 1, 28–34, 45–46 (1989)Google Scholar (discussing the role of economic sanctions to prod target states); Richard, W. Parker, The Cost Effectiveness of Economic. Sanctions ? 32 Law & Pol’y Int’l Bus. 21, 25 (2000)Google Scholar (discussing the effectiveness of economic sanctions toward the goal of changing foreign state behavior); Michael Reisman, W., The Enforcement of International Judgments, 63 AJIL 1, 6, 13 n.39 (1969)Google Scholar; Michael Reisman, W. & Douglas, L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 Eur. J. Int’l L. 86, 90 (1998)Google Scholar (explaining that sanctions are an instrument of strategy designed to change the attitudes and behavior of the target).
16 In this article, “WTO sanction” is used to mean a trade sanction authorized by the WTO. The WTO itself does not carry out the trade sanction. That is done by the WTO member government. Cf. Dirk, De Bièvre, Re-Designing the Virtuous Circle: Two Proposals for WTO Reform, in Resolving and Preventing US-EU Trade Disputes: Six Prizewinning Essays from the BP/EUI Transatlantic Essay Contest 15, 19 (2001)Google Scholar (saying that two retaliation torpedoes have been launched from the banks of Lac Leman in Geneva).
17 Author’s tabulation using data on WTO Web site as of April 30, 2001.
18 Notwithstanding the Communities’ poor performance, the centrality of compliance in the WTO was emphasized by European Commissioner for Trade Pascal Lamy in a speech to a U.S. business group in which he offered the “Hymn to Compliance.” The ditty goes: “Consult before you legislate;/ Negotiate before you litigate;/ Compensate before you retaliate;/ And comply—at any rate.” Pascal, Lamy, Has International Capitalism Won the War and Lost the Peace? Address to the U.S. Chamber of Commerce, Washington, D.C. (Mar. 8, 2001)Google Scholar, at <http://europa.eu.int/comm/trade/index_en.htm>.
20 European Communities—Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/AB/R (Sept. 9, 1997). The Appellate Body hears appeals from panel decisions on issues of law.
21 See European Communities—Regime for the Importation, Sale and Distribution of Bananas—Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, Decision by the Arbitrators, WTO Doc. WT/DS27/ARB (Apr. 9, 1999) [hereinafter EC-U.S. Article 22 Decision] (arbitration decisions are designated in WTO document numbers by the initials “ARB”). The role of the arbitrator is to set the level of the suspension of concessions when the defending country objects to the level proposed by the complaining country. DSU Arts. 22.6, 22.7. The reasonable period of time can also be set by arbitration. DSU Art. 21.3.
22 Trade War Escalates as EU Fights US Sanctions Move, Fin. Times, Mar. 5, 1999, at 1. Actually, the U.S. government jumped the gun by acting on March 3, 1999, to impose a contingent liability for duties on imports. Office of the U.S. Trade Representative [USTR], Press Release 99–17, United States Takes Customs Action on European Imports (Mar. 3, 1999). USTR press releases are available online at <http://www.ustr.gov>. The EC complained about this precipitate action at the WTO and the panel and Appellate Body found that the United States had retaliated without authority. United States—Import Measures on Certain Products from the European Communities, WTO Doc. WT/DS165/AB/R (Dec. 11, 2000). When the DSB adopted this Appellate Body report on January 10, 2001, the WTO Web site announced in its News Items, “Dispute body adopts rulings on Korean beef and US sanctions.”
23 European Communities—Regime for the Importation, Sale and Distribution of Bananas—Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, WTO Doc. WT/DS27/ARB/ECU (Mar. 24, 2000) [hereinafter EC-Ecuador Article 22 Decision].
24 USTR, Press Release 01–23, Joint United States–European Union Press Release: U.S. Government and European Commission Reach Agreement to Resolve Long–Standing Banana Dispute (Apr. 11, 2001) (noting that from July 1, the United States “will suspend the sanctions imposed against EU imports since 1999”); USTR, Press Release 01–50, U.S. Trade Representative Announces the Lifting of Sanctions on European Products as EU Opens Market to U.S. Banana Distributors (July 1, 2001); Banana Deal Effectively Locks in U.S. Share of EU Market, Inside U.S. Trade, Apr. 13, 2001, at 1.
25 Joe, Kirwin, Ecuador Rescinds Objection to U.S.–EU Banana Import Settlement After Negotiations, Daily Rep. for Executives (BNA), May 1, 2001, at A6 Google Scholar.
26 David, A. Wirth, Case Report: European Communities—Measures Concerning Meat and Meat Products, in 92 AJIL 755 (1998)Google Scholar.
27 European Communities—Measures Concerning Meat and Meat Products (Hormones), WTO Doc. WT/DS26/ AB/R, WT/DS48/AB/R (Jan. 16, 1998). For the Agreement on the Application of Sanitary and Phytosanitary Measures, see WTO Agreement, Annex 1A.
28 See European Communities—Measures Concerning Meat and Meat Products (Hormones)—Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, WTO Doc. WT/DS26/ARB (July 12, 1999) (U.S. complaint); European Communities—Measures Concerning Meat and Meat Products (Hormones)— Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, WTO Doc. WT/DS48/ARB (July 12, 1999) (Canadian complaint).
29 Paul, Blustein, Europe Hit by Tariffs in Battle over Beef; U.S. Acts After EU Ignores Trade Group, Wash. Post July 20, 1999, at E1 Google Scholar; Canada Excludes UK Food Exports from EU Sanctions, AFX News, July 30, 1999, 1999 WL 21854750. The U.S. and Canadian retaliatory tariffs of 100% are imposed in lieu of whatever tariff was already being imposed.
30 See Brazil—Export Financing Programme for Aircraft, Recourse by Canada to Article 21.5 of the DSU, WTO Doc. WT/DS46/AB/RW, para. 2 (July 21, 2000).
31 Brazil—Export Financing Programme for Aircraft—Recourse to Arbitration by Brazil Under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, WTO Doc. WT/DS46/ARB (Aug. 28, 2000) [hereinafter Brazil– Canada Article 22 Decision] Jennifer, L. Rich, W.T.O. Allows Canada Record Sanctions Against Brazil, N. Y. Times, Aug. 23, 2000, at C4 Google Scholar; Frances, Williams, Canada Is Given Go–Ahead for Brazil Sanctions, Fin. Times, Dec. 13, 2000, at 12 Google Scholar; Canada Department of Foreign Affairs and International Trade, News Release 269, WTO Grants Canada Right to Impose Sanctions Against Brazil over Aircraft Subsidy Dispute (Dec. 12, 2000), at <http://www.dfait.maeci.gc.ca>. Note that the WTO gave Brazil ninety days to comply, while giving the EU fifteen months in two earlier episodes.
32 Brazil—Export Financing Programme for Aircraft—Second Recourse by Canada to Article 21.5 of the DSU, WTO Doc. WT/DS46/26 (Jan. 22, 2001). In making the request, Canada declared that in acting to seek further legal clarity, it retained the right to impose countermeasures against Brazil at any time. The panel set up under Article 21.5 is often called the “compliance panel.” This episode is the only time a follow–up compliance panel has been appointed.
33 United States—Tax Treatment for “Foreign Sales Corporations, ” WTO Doc. WT/DS108/AB/R (Feb. 24, 2000).
34 Delegation of the European Commission to the United States, News Release 73/00, EU Requests WTO Compliance Panel and Authorisation to Impose Sanction Against the US in Foreign Sales Corporation Trade Dispute (Nov. 17, 2000). The EC sought a 100% tariff to be imposed on top of the regular EC tariffs. The issue in the case is whether a provision in U.S. tax law constitutes a prohibited export subsidy. Sean, D. Murphy, U.S. Position on Foreign Sales Corporations, Contemporary Practice of the United States, 94 AJIL. 531, (2000)Google Scholar; Geoff, Winestock, U. S. Asks EU to Drop Threat of Sanctions, Wall St. J., May 18, 2001, at A17 Google Scholar.
35 See Benjamin, L. Brimeyer, Bananas, Beef, and Compliance in the World Trade Organization: The Inability of the WTO Dispute Settlement Process to Achieve Compliance from Superpower Nations, 10 Minn. J. Global Trade 133 (2001)Google Scholar.
36 Trade and Development Act of 2000, Pub. L. No. 106–200, §407, 114 Stat. 251, 293. This provision is informally known as “carousel” because it calls for a periodic rotation of the sanction list. USTR, Press Release 00–41, USTR Announces Procedures for Modifying Measures in EC Beef and Bananas Cases (May 26, 2000) (noting that the intent of §407 is to induce compliance).
37 International Financial Institution Advisory Committee, Report (Mar. 2000), at <http://www.house.gov/jec/imf/meltzer.htm>.
38 See Edward, Alden & Peter, Norman, US Threatens EU with New Sanctions, Fin. Times, Mar. 8. 2001, at 37 Google Scholar; Helene, Cooper, Food Fight with Europe May Worsen, Wall St. J., Sept. 6, 2000, at A2 Google Scholar (reporting plans of Clinton administration to rotate the sanctioned products and to use 200% tariffs rather than 100% tariffs); Gary, G. Yerkey, U.S. Will Use ‘Carousel’ Law as ‘Leverage’ to Open Foreign Markets, USTR Zoellick Says, Daily Rep. for Executives (BNA), May 24, 2001, at A–25 Google Scholar.
39 Australia—Measures Affecting Importation of Salmon—Recourse to Article 21.5 by Canada, WTO Doc. WT/DS18/RW (Feb. 18, 2000). The panel found that Australia was excluding imports of chilled and frozen salmon without basing this action on a risk assessment and without using the least trade restrictive approach. This was a dispute under the SPS Agreement.
40 Communication from Canada, WTO Doc. WT/DS18/12 (July 15, 1999); Canada Drops Proposal to Retaliate in WTO Salmon Dispute with Australia, 17 Int’l Trade Rep. (BNA) 1250 (Aug. 10, 2000).
41 Adam, Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, bk. IV, ch. II, at 295 (Kathryn, Sutherland ed., Oxford Univ. Press 1998) (1776)Google Scholar.
42 15 U.S.C. §75 (1994).
43 19 U.S.C. §1338 (1994).
44 Benjamin, H. Williams, The Coming of Economic Sanctions into American Practice, 37 AJIL 386,. 389, (1943)Google Scholar. A similar provision in the Tariff Act of 1890 led to a treaty with Germany to remove objectionable discrimination. William Smith Culbertson, Commercial Policy in War Time and After 181(1924).
45 The Sugar Convention of 1902 committed parties to impose a duty on imports of sugar from countries using bounties (i.e., subsidies). The Permanent Commission, composed of delegates from the parties, was to decide when such bounties existed and how much advantage they gave the exporting country. International Convention Relative to Bounties on Sugar, Mar. 5, 1902, Arts. 1, 4, 7, 191 Consol. TS 56, 1902 Foreign Relations of the United States 80. The treaty terminated in 1920. Norman, L. Hill, International Administration 242 (1931)Google Scholar.
46 League of Nations Covenant Art. 16, para. 1.
47 Id., para. 3.
48 Treaty of Versailles, June 28, 1919, pt. XIII, 225 Consol. TS 188.
49 Id., Art. 411, paras. 1, 3. The ILO Governing Body was made up of delegates from twelve governments, the worker group of the delegates, and the employer group. Id., Art. 393.
50 Id., Art. 411, para. 4. The feature of the ILO in which states are represented by delegates from government, employers, and workers is called tripartism.
51 Id., Art. 412.
52 Id., Art. 414, para. 1.
53 Id., para. 2. The report was to be made public.
54 Id., Arts. 415–18.
55 Id., Art. 419.
56 Id., Art. 420.
57 Francis, Maupain, The Settlement of Disputes Within the International Labour Office, 2J. Int’l Econ. L. 273, 283–84 (1999)Google Scholar (discussing the pre–1946 procedure and noting its one–time use); Cesare, P. R. Romano, The ILO System of Supervision and Compliance Control: A Review and Lessons for Multilateral Environmental Agreements 12–14 (International Institute for Applied Systems Analysis, May 1996)Google Scholar, at <http://www.iiasa.ac.at/Publications/Catalog/PUB_ONLINE.html>.
58 In Historic Vote, ILO Assembly Tightens Pressure on Myanmar, ILO Focus, Summer/Fall 2000, at 1; see also Business Letter to Albright on Burma, Inside U.S. Trade, Jan. 5, 2001, at 8 (stating that business leaders around the world view the ILO action as a very important step and one to be taken seriously). The amended provision changed the ILO Constitution from pointing to the potential use of “measures of an economic character” to the current provision pointing to action that the ILO Governing Body “may deem wise and expedient to secure compliance.” Compare Treaty of Versailles, supra note 48, Art. 418, with ILO Const. Art. 33, at <http://www.ilo.org>. The ILO Conference retains the competence to recommend measures of an economic character, but it has not done so. See Maupain, supra note 57, at 283–85.
59 International Labour Conference, 88th Sess., Agenda Item 8, Implementation of Recommendations Contained in the Report of the Commission of Inquiry entitled Forced Labour in Myanmar (Burma), Appendix, Prov. Rec. 6–4, at 21 (2000).
60 Nicolas, Valticos, The International Labour Organization, in The Effectiveness of International Decisions 134 (Stephen, M. Schwebel ed., 1971)Google Scholar; Nicolas, Valticos, Once More About the ILO System of Supervision: In What Respect Is It Still a Model? in 1 Towards More Effective Supervision by International Organizations: Essays in Honour of Henry G. Schermers 99 (Niels, Blokker & Sam, Muller eds., 1994)Google Scholar.
62 International Agreement Regarding the Regulation of Production and Marketing of Sugar, May 6, 1937, Art. 44, 4 Treaties, Conventions, International Acts, Protocols, and Agreements Between the United States of America and Other Powers 5599. Such a decision was to be made by a three–quarters vote.
64 See James, McCall Smith, The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts, 54 Int’l Org. 137 (2000)Google Scholar.
63 Id. at 156–57.
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67 Thomas, M. Franck, Fairness in International Law and Institutions 289–90 (1995)Google Scholar; The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights, UN Doc. E/CN.4/Sub.2/2000/33, Annex 1 (reviewing the recent episodes).
68 UN Charter ch. VII & Art. 94; Carl-August, Fleischhauer, Remarks, Compliance and Enforcement in the United Nations System, 85 ASIL Proc. 428, 432–33 (1991)Google Scholar.
69 GATT Art. XXI (c).
70 See Michael, Littlejohns, UN Backs Diamonds ‘Blood Trade’ Measures, Fin. Times July 6, 2000, at 8 Google Scholar.
71 John, H. Jackson, World Trade and the Law of gatt 169 (1969)Google Scholar; see Havana Charter for the International Trade Organization [hereinafter ITO Charter], ch. VIII, reprinted in Raj, Bhala, International Trade Law Handbook 83, 157 (2d ed. 2001)Google Scholar. The ITO was designed to become a specialized organization of the United Nations, but the ITO treaty never entered into force. Instead, the GATT, which was intended to be temporary, served as the mode of international trade governance from 1948 to 1994.
72 ITO Charter, supra note 71, Art. 95.3. Nullification or impairment refers to a situation in one country that undermines the expected benefits of the trade agreement to another country. In the ITO, nullification or impairment could result from a breach of the treaty, but a breach was not essential to engender nullification or impairment. Id. Art. 93.1; Jackson, supra note 71, at 167–78. The GATT follows the same approach. GATT Art. XXIII:1 (b).
73 Suspension of concessions can mean raising tariffs. Note that the GATT approach is consistent with the law of treaties, which provides for suspending a treaty in whole or part as a response to a material breach of the treaty. Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 60, 1155 UNTS 331.
74 Jackson, supra note 71, at 170–71.
75 Id. at 169.
76 Id. at 169–70.
77 Also Present at the Creation: Dana Wilgress and the United Nations Conference on Trade and Employment at Havana 145 (Michael, Hart ed., 1995)Google Scholar.
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79 Id. at 30.
80 Id. at 34–35.
83 The word “retaliation” was used by the ITO negotiators. See text at note 74 supra. In 1952 the chairman of the GATT Intersessional Committee used the term “retaliatory action.” 2 WTO, Guide to Gatt Law and Practice 693 (1995).
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86 Id. at 352.
89 Guide to GATT Law and Practice, supra note 83, at 698–99; see GATT Art. XXIII:2.
90 Guide to GATT Law and Practice, supra note 83, at 682.
91 Gerard Curzon, Multilateral Commercial Diplomacy 43 (1965).
92 Jackson, supra note 71, at 763; see also John, H. Jackson, The World Trading System 110 (MIT Press 1992) (1989)Google Scholar (noting that the GATT operates mostly without sanctions).
93 Eric, Wyndham-White, Negotiations in Prospect, in Toward a New World Trade Policy: The Maidenhead Papers 321, 329 (Fred Bergsten, C. ed., 1975)Google Scholar.
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96 Jackson, supra note 71, at 166 (noting that the term “sanction” is usually avoided).
97 Agreement on Technical Barriers to Trade, Apr. 12, 1979, Art. 14.21, 31 UST 405, 1186 UNTS 276.
98 GATT or GABB? The Future Design of the General Agreement on Tariffs and Trade, in Hudec, Essays, supra note 78, at 77, 101 n.45; Letter to John D. Wickham from J. M. Posta, Dutch Ministry of Economic Affairs (Aug. 3, 1995) (on file with author).
99 See text at note 82 supra.
100 Marrakesh Declaration, in World Trade Organization, supra note 3, at iii, para. 1.
101 See generally Cherise, M. Valles & Brendan, P. McGivern, The Right to Retaliate Under the WTO Agreement, J. World Trade, Apr. 2000, at 63 Google Scholar (discussing the DSU rules).
102 GATT Art. XXIII:2 (emphasis added).
103 DSU Art. 22.6 (emphasis added). The DSB acts unless there is a consensus to reject the request.
104 Id., Art. 22.4. The level is calculated by arbitrators who determine how much trade with the defending country is being impaired because of the breach of WTO law.
105 Pauwelyn, supra note 1, at 339 (suggesting that the WTO Agreements provide for less in this respect than the Statute of the International Court of Justice does).
107 Similar developments occurred in regional organizations at the same time. During the Uruguay Round negotiations, the Southern Common Market approved a Protocol for the Solution of Controversies, which provides for a suspension of concessions and notes that it “should tend to lead to compliance.” Mercosur Protocol of Brasilia for the Solution of Controversies, Decision 1/91, Art. 23 (Dec. 17, 1991), at <http://www.sice.oas.org/trade/mrcsrs/decisions/AN0191e.asp>.
108 DSU Arts. 21.1, 22.1, 22.2.
109 DSU Article 22.1 makes the same point.
110 If the disputing parties cannot agree, then arbitration is used.
111 See GATT Art. XXIII. The ITO Charter did not make this linkage, either. See ITO Charter, supra note 71, Arts. 94.3, 95.3.
112 DSU Arts. 22.6, 22.7
113 EC-U.S. Article 22 Decision, supra note 21, para. 6.3. The arbitrators added that the DSU could not be read to justify countermeasures of a punitive nature. Id.
114 EC-Ecuador Article 22 Decision, supra note 23, paras. 72, 76.
115 See supra note 15. Note that not all trade measures that government A might apply to the imports of country Bare sanctions. If A bans imports of diseased meat, A is not necessarily trying to change the behavior of B. A is just keeping out the meat. Of course, B might respond by enacting tougher meat safety laws, but that would not turn the import ban into a sanction. A typical sanction bans an import unrelated to the underlying dispute. Thus, if A bans the importation of elephant ivory taken in the wild, that should not be considered a sanction because the ivory is related to the goal of elephant conservation.
116 SCM Arts. 4.10, 7.9. Footnote 9 to Article 4.10 states that the term “countermeasure” is not meant to allow countermeasures that are “disproportionate.”
117 See DSU Art. 1.2.
118 Brazil-Canada Article 22 Decision, supra note 31, paras. 3.44–3.45.
119 Id., para. 3.44 (referring to draft Art. 47, supra note 9, now renumbered as draft Art. 50).
120 Id., paras. 3.48, 3.54, 3.57, 3.59.
121 Id., paras. 3.49, 3.51, 3.54, 3.57, 3.58, 3.60. The premise of rebalancing is that if Brazil reduces the value of market access by $x, then Canada responds by reducing market access by the same $x What the Aircraft arbitrators said was that if Brazil promotes its production and sales of aircraft to the entire world through a subsidy of $x, then Canada is entitled to block $x worth of imports from Brazil.
122 Id., para. 3.55.
124 United States—Import Measures on Certain Products from the European Communities, WTO Doc. WT/ DS165/R, paras. 5.13, 6.106 (July 17, 2000).
125 Id., paras. 6.21–6.23 (referring to DSU Art. 23.1). A footnote discusses the definition of “retaliation.” Id., para. 6.23 n.l00.
126 Author’s own tabulations.
127 See DSU Art. 22.2. A simple tariff suspension would raise the tariff back to what it was before the tariff negotiation. The WTO Agreements, however, permit more than such a simple suspension. A retaliating government may raise tariffs as high as it wants. In contrast, some other treaties put a ceiling on the suspension of concessions. For example, the North American Agreement on Environmental Cooperation states that the suspension of a concession cannot introduce a higher tariff than existed at the commencement of the North American Free Trade Agreement. North American Agreement on Environmental Cooperation, Sept. 14, 1993, Can.-Mex.-U.S., Art. 24, Annex 36B, para. 1, 32 ILM 1480 (1993).
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135 Christopher, McCrudden & Anne, Davies, A Perspective on Trade and Labor Rights, 3 J. Int’l Econ. L. 43, 57 (2000)Google Scholar.
136 The Standard Question, Economist, Jan. 15, 2000, at 79, 79.
138 International Institute for Sustainable Development, Statement on Trade and Sustainable Development (Oct. 2000), at <http://www.iisd.org/trade/default.htm>.
139 Daniel, Pruzin, Lamy Says EU Will Pursue Sanctions If the WTO Rules Against U.S. on FSC Dispute, Daily Rep. for Executives (BNA), Nov. 22, 2000, at G–3 Google Scholar.
140 David, M. Driesen, What Is Free Trade?: The Real Issue Lurking Behind the Trade and Environment Debate, 41 Va. J. Int’l L. 279,. 303, (2001)Google Scholar (citations omitted).
141 Martin, Wolf, What the World Needs from the Multilateral Trading System, in The Role of the World Trade Organization in Global Governance 183, 195 (Gary, P. Sampson ed., 2001)Google Scholar.
142 Guy de, Jonquières, How Can Transatlantic Trade Disputes Be Avoided? in Resolving and Preventing US-EU Trade Disputes, supra note 16, at 33, 42 Google Scholar.
143 Settling Disputes: The WTO’s ‘Most Individual Contribution, ’ at <http://www.wto.org/english/thewto_e/whatis_e/tif_e/displ_e.htm> (visited Oct. 17, 2001).
145 WTO & UNEP Secretariats, Compliance and Dispute Settlement Provisions in the WTO and in Multilateral Environmental Agreements, WTO Doc. WT/CTE/W/191 (2001).
146 Id., para. 136.
147 Hans, J. Morgenthau, Positivism, Functionalism, and International Law, 34 AJIL 260,. 261, (1940)Google Scholar.
148 But see text at note 75 supra (Jackson analysis).
149 See text at note 82 supra.
150 Judging compliance is somewhat subjective because few WTO disputes end in an authoritative determination of whether compliance has occurred. In some cases where violations have been found, the dispute has ended when the defendant government takes action to comply, and the plaintiff government drops the matter. The U.S. Gasoline case, supra note 10, is an example. U.S. Meets WTO Deadline on Fuel Regulation; Foreign Refiners Can Get Individual Baselines, 20 Int’l Env’t Rep. (BNA) 838 (Sept. 3, 1997). In other cases, the dispute has ended in settlement with no formal review of how much compliance exists. Canada—Certain Measures Concerning Periodicals, WTO Doc. WT/DS31/R (Mar. 14, 1997), is an example. Rossella Brevetti & Peter, Menyasz, Averting Cultural Trade War, U.S., Canada Settle Long Feud over Split-Run Magazines, Daily Rep. for Executives (BNA), May 27, 1999, at A–32 Google Scholar. In a few cases, the compliance review panel made a determination that the allegation of noncompliance was not proven. The Canada Civilian Aircraft case is an example. Canada—Measures Affecting the Export of Civilian Aircraft— Recourse by Brazil to Article 21.5 of the DSU, WTO Doc. WT/DS70/AB/RW (July 21, 2000).
151 Trade War with Australia Averted, Vancouver Sun, May 17, 2000, at D3. The Australia-Canada Salmon dispute, supra note 39, was about an Australian sanitary regulation that prevented the importation of uncooked salmon allegedly carrying harmful pathogens. Canada sought WTO approval for retaliation in July 1999.
152 U.S. Cong. Rec H7428 (daily ed. Sept. 12, 2000) (warning by the chairman of the Ways and Means Committee that sanctions would ensue if Congress did not change U.S. tax law); U.S. Treasury, Press Release LS–1018, Statement by Treasury Deputy Secretary Stuart E. Eizenstat (Nov. 14, 2000) (stating that the pending “legislation is absolutely essential to avoiding the potential imposition by the European Union of significant sanctions on American industries and to satisfying the United States’ obligations in the WTO”); U.S. Congress Approves Export Tax Bill to Avoid E. U. Sanctions, Deutsche Presse-gentur, Nov. 14, 2000, LEXIS, News Library.
153 DSU Art. 21.1 (noting that prompt compliance with rulings of the DSB is essential in order to ensure resolution of disputes), Art. 22.2 (using the terms “compliance” and “comply”).
154 DSU Art. 3.3 (prompt settlement), Art. 3.4 (satisfactory settlement), Art. 3.6 (mutually agreed solutions), Art. 3.7 (positive solution), Art. 12.7 (reporting on settlement), Art. 22.8 (mutually satisfactory solution). DSU Art. 3.7 suggests that a mutually acceptable solution should be consistent with WTO Agreements.
155 On May 17, 2001, the LEXIS News Library showed 246 entries for “powerful” WTO.
156 Miquel, Montañà i Mora, A GATT with Teeth: Law Wins over Politics in the Resolution of International Trade Disputes, 31 Colum. J. Transnat’l L. 103 (1993)Google Scholar Jonathan, C. Spierer, Dispute Settlement Understanding: Developing a Firm Foundation for Implementation of the World Trade Organization, 22 Suffolk Transnat’l L. Rev. 63,. 103, (1998)Google Scholar (noting that the DSU adds teeth to the GATT and makes the rules enforceable).
157 Here is one anomaly: Under the World Heritage Convention, a site can be removed from the international list if a government violates its commitments to protect the site. Operational Guidelines for the World Heritage Convention, para. 46 (Dec. 1998), at <http://www.unesco.org/ who; Rüdiger, Wolfrum, Means of Ensuring Compliance with and Enforcement of International Environmental Law, 272 Recueil des Cours 25, 57 (1999)Google Scholar. Nevertheless, the World Heritage Committee, does not encourage additional destruction.
158 WTO Agreement pmbl.
159 See Oscar, Schachter, United Nations Law, 88 AJIL 1, 15 (1994)Google Scholar- (suggesting that reprisals cannot include reciprocal acts such as denying human rights because the offending state did so); Bruno, Simma, Self-Contained Regimes, 1985 Neth. Y. B. Int’l L. 111, 131, 134 Google Scholar (noting that countermeasures in the human rights regime must not be reciprocal in the sense that they would affect other human rights obligations).
160 DSU Art. 3.7 states that the suspension of concessions or other obligations is to be discriminatory.
161 EU Unlikely to Lift Beef Hormone Ban; U.S. Set to Retaliate, Inside U.S. Trade, July 23, 1999, at 9–10 (quoting a U.S. trade official as saying that the United States targeted its retaliation against France, Germany, Italy, and Denmark because they have the largest voices in the EC). In the past, the EC has also considered targeted trade sanctions. A former legal adviser to the European Commission has noted that in the GATT Superfund dispute with the United States, the Commission drafted a retaliation list with many products produced in Texas in order to discomfit Sen. Lloyd Bentsen. Kuyper, supra note 10, at 255.
162 Implementation of WTO Recommendations Concerning EC—Measures Concerning Meat and Meat Products (Hormones), 64 Fed. Reg. 40, 638–41 (July 27, 1999). Resort to this same practice occurred in Ecuador’s dispute against the European Communities regarding bananas. Ecuador exempted the Netherlands and Denmark from the request for a suspension of concessions.
163 Marc, Lacey, Bush Declares Freer Trade a Moral Issue; Chides Critics, N.Y. Times, May 8, 2001, at A7 Google Scholar; Robert, W. McGee, Trade Embargoes, Sanctions and Blockades—Some Overlooked Human Rights Issues, J. World Trade, Aug. 1998, at 139, 143 Google Scholar (noting that the correct approach to trade policy is to be found in rights theory, not utilitarian analysis) . Trading is not an absolute right, of course. It may come into conflict with other public goals.
164 In making this point, I am not suggesting that the individual’s right to trade is currently ingrained in the international law of human rights. That fundamental norm is missing from the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. So the WTO’s embrace of trade sanctions does not contradict widely accepted human rights norms. See Zoller, supra note 8, at 102 (noting that the international community would not give credence to a human rights claim by an individual in the state that committed the wrongful act about an economic countermeasure against his state).
165 Malini, Mehra, Human Rights and the WTO: Time to Take on the Challenge (Heinrich Böll Foundation, July 2000)Google Scholar (noting that the WTO trade sanction model can lead to violations of human rights); Operation Vineyard Storm, Asian Wall St. J., Nov. 10, 1992, at 10 (editorial stating, “There are no smart bombs in a trade war.”).
166 Geoff, Winestock, European Firms Seek EU Damages for Banana War, Wall St. J., Aug. 30, 2000, at A22 Google Scholar. More recently, a U.S. company filed a lawsuit on the principle that the EC owes damages for blocking access to its market. Anthony, DePalma, Chiquita Sues Europeans, Citing Banana–Quota Losses, N.Y. Times, Jan. 26, 2001, at C5 Google Scholar.
167 See Allan, Rosas, Implementation and Enforcement of WTO Dispute Settlement Findings: An EU Perspective, 4 J. Int’l Econ. L. 131, 140 (2001)Google Scholar (explaining why such claims are unlikely to be successful).
168 State trading entities and government procurement are exceptions, but usually there is a private actor on the other side of the transaction.
169 United States—Sections 301–310 of the Trade Act of 1974, WTO Doc. WT/DS152/R, paras. 7.72–7.73 (Dec. 22, 1999) [hereinafter Section 301 Panel Report]. This dispute involved a challenge by the European Commission to provisions in the Trade Act of 1974, as amended, that permit the U.S. Trade Representative to retaliate against foreign countries that violate trade agreements, deny U.S. benefits under those agreements, or unjustifiably burden U.S. commerce. The disputed provision is found in 19 U.S.C. §2411 (Supp. II1996). The panel ultimately concluded that the U.S. law did not violate WTO rules.
170 Section 301 Panel Report, supra note 169, paras. 7.74–7.81.
171 Pierre, Lemieux, Ottawa Wins a Jet Battle, But Canadians Lose , Wall St. J., Dec. 15, 2000, at A17 Google Scholar; see also Frederick, M. Abbott, Trade and Democratic Values, 1 Minn. J. Global Trade 9,. 21, (1992)Google Scholar (explaining that liberal trade promotes democratic values by respecting the individual).
172 See Pieter, Jan Kuyper, International Legal Aspects of Economic Sanctions, in Legal Issues in International Trade 145 (Petar, Šarčević & Hans van, Houtte eds., 1990)Google Scholar (summarizing the law of economic sanctions); Petros, C. Mavroidis, Remedies in the WTO Legal System: Between a Rock and a Hard Place, 11 Eur. J. Int’l L. 763, 766–74 (2000)Google Scholar (discussing the draft articles); Reisman & Stevick, supra note 15. Note that the draft articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or its legal consequences are determined by special rules of international law. Draft Articles on State Responsibility, supra note 9, Art. 56.
173 Draft Articles on State Responsibility, supra note 9, Art. 50 (1).
174 Id., Art. 50(2).
175 Id., Art. 51(1) (c).
176 Id., Art. 52.
177 Brazil-Canada Article 22 Decision, supra note 31, paras. 3.44, 3.55. The Aircraft arbitrators took note that SCM Articles 4.10 n.9 and 4.11 n.10 suggest that “disproportionate” countermeasures are not permitted. Id., para. 3.51.
178 For example, the measure of retaliation in Hormones is the projected ongoing loss of trade on an annual basis. The United States was not permitted to make up for trade lost in previous years.
179 Draft Articles on State Responsibility, supra note 9, Art. 55.
180 DSU Arts. 21.7, 22.8. As noted above, the 1919 Constitution of the ILO contained such a provision. See text at note 56 supra.
181 See Thinking About the New Section 301: Beyond Good and Evil, in Hudec, Essays, supra note 78, at 153, 181 (stating that retaliation is primarily a symbolic act, a way of making clear the seriousness of the government’s objection to whatever it is retaliating about).
182 DSU Arts. 22.1, 22.8. Even after the suspension of concessions, the DSB keeps the matter under surveillance so long as the recommendation to bring the measure into conformity has not been implemented. Id., Art. 22.8.
183 Curtis, Reitz, Enforcement of the General Agreement on Tariffs and Trade, 17 U. Pa. J. Int’l Econ. L. 555, 590–91 (1996)Google Scholar. Compensation in this context means an agreement by the defending government to lower its trade barriers in exchange for willingness by the complaining government to forgo raising its trade barriers.
184 DSU Arts. 23.2(c) (obliging governments to follow DSU Article 22 procedures).
185 Id., Arts. 22.2, 22.6, 22.7.
186 In Bananas, the United States proposed sanctions sized at $520 million and got $191 million, and Ecuador proposed $450 million and got $202 million. See EC-U.S. Article 22 Decision, supra note 21; EC-Ecuador Article 22 Decision, supra note 23. In Hormones, the United States proposed U.S. $202 million and got U.S. $116 million, and Canada proposed Can.$75 million and got Can.$11 million. See the Article 22.6 arbitration reports referenced in note 28 supra. In Aircraft, Canada proposed Can.$700 million and got Can.$344 million. See Brazil-Canada Article 22 Decision, supra note 31.
187 Taming unilateral retaliation was one of the purposes of the dispute settlement system established in the ITO Charter. During the drafting of the charter, Clair Wilcox stated, “We have sought to tame retaliation, to discipline it, to keep it within bounds to convert it from a weapon of economic warfare to an instrument of international order.” Guide to GATT Law and Practice, supra note 83, at 692. Wilcox’s point should serve as a reminder that trade reprisals would exist even without the WTO.
188 European Communities—Measures Concerning Meat and Meat Products (Hormones), WTO Doc. WT/ DS26/R/USA, para. 2.35 (Aug. 18, 1997).
189 Cf. Case Concerning the Air Service Agreement of 27 March 1946 Between the United States of America and France, 18 R.I.A.A. 417, para. 91 (1978) (“Counter-measures therefore should be a wager on the wisdom, not on the weakness of the other Party.”).
190 Judith Goldstein takes this theory one step further by arguing that the possibility of retaliation helps to prevent reneging on WTO commitments because export groups will gain a greater incentive to organize in defense of free trade and against particularistic protectionism within their country. Judith, Goldstein, International Institutions and Domestic Politics: GATT, WTO, and the Liberalization of International Trade, in The WTO as an International Organization 133, 144–45 (Anne, O. Krueger ed., 1998)Google Scholar; see also Judith, Goldstein & Lisa, L. Martin, Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note, 54 Int’l Org. 603, 616–19 (2000)Google Scholar (discussing efforts to mobilize foreign exporters in U.S. unilateral retaliation threats).
191 Robert, E. Hudec, Broadening the Scope of Remedies in WTO Dispute Settlement, in Improving WTO Dispute Settlement Procedures: Issues and Lessons from the Practice of Other International Courts and Tribunals 369, 388 (Friedl, Weiss ed., 2000)Google Scholar.
192 See Geoff, Winestock, Why U.S. Trade Sanctions Don’t Faze Europe, Wall St. J., Sept. 8, 2000, at A16 Google Scholar (discussing the fragmentation of European trade associations).
193 Thomas, O. Bayard & Kimberly Ann, Elliott, Reciprocity and Retaliation in U.S. Trade Policy 82 (1994)Google Scholar (stating that threats identifying potential targets of retaliation may spur previously inactive interest groups to enter the debate, tilting the political balance toward agreement).
194 Implementation of WTO Recommendations Concerning EC—Measures Concerning Meat and Meat Products (Hormones), Request for Comment; Notice of Public Hearing, 64 Fed. Reg. 14, 486–92 (Mar. 25, 1999); William, Chisholm, Cashmere Gloom as US Prepares to Publish Its Hit–List, Scotsman, June 21, 2000, at 5 Google Scholar.
195 Dam, supra note 84, at 357 (noting that although industry may receive greater protection, consumers have to pay more for the item chosen for retaliation).
196 Smith, supra note 41, at 296.
198 Bernard, M. Hoekman & Petros, C. Mavroidis, WTO Dispute Settlement, Transparency and Surveillance, in Developing Countries and the WTO: A Pro-Active Agenda 131 (forthcoming 2001)Google Scholar.
199 EC-Ecuador Article 22 Decision, supra note 23, para. 86.
200 A report by the U.S. General Accounting Office (GAO) concludes that overall the results of the WTO dispute settlement process “have been positive for the United States.” GAO, World Trade Organization: Issues in Dispute Settlement 24 (Doc. GAO/NSIAD–00–210, Aug. 2000). But, this conclusion was reached without doing any analysis of the impact of the U.S. Bananas and Hormones sanctions on the U.S. economy.
201 About Section 301 (May 2000), at <http://www.ita.doc.gov/legal/301.html>. The department maintains a “301 Alert” service to notify potential U.S. victims of U.S. retaliation so that they can “protect their economic interests by participating in the public comment process, ” at <http://www.ita.doc.gov/td/industry/otea.html> (visited Oct. 18, 2001). After the WTO/DSB approves the suspension of concessions, the U.S. government uses §301 (of the Trade Act of 1974) as legal authority to carry out the sanction.
202 Doris, Stevens, Jailed for Freedom 184–85 (1976)Google Scholar. According to Stevens, this tactic may have originated in ancient Ireland where the aggrieved party sometimes inflicted punishment on himself as a way of inducing the perpetrator to make amends for his misdeeds.
203 Pork Industry Pushing for Pork–Only Hormone Retaliation List, Inside U.S. Trade, May 21, 1999, at 14.
204 International Financial Institution Advisory Committee, supra note 37.
205 Dam, supra note 84, at 357.
206 Alan Sykes explains that government officials may pursue a protectionist objective because, having lost the political support of aggrieved exporters, the government hopes to reap new political support from an import-competing industry. Alan, O. Sykes, The Remedy for Breach of Obligations Under the WTO Dispute Settlement Understanding: Damages or Specific Performance? in New Directions in International Economiclaw: Essays in Honour of John H. Jackson 347, 354 (Marco, Bronckers & Reinhard, Quick eds., 2000)Google Scholar.
207 DSU Art. 22.3(a), (f).
208 19 U.S.C.A. §2416(b)(2) (F) (West Supp. 2000). The central provision in the carousel law directs USTR to rotate retaliation targets every six months. Rotation could reduce the dangerous potential for WTO trade sanctions to provide long–term protection to particular companies. At present, the industry enjoying shelter from foreign competition has an incentive to fight against removing sanctions even after the defending government takes steps to comply. See U.S. Beef Industry Unswayed by EU Offer on Compensation Plan, Inside U.S. Trade, Dec. 1, 2000, at 3.
209 See USTR, Press Release 99–60, USTR Announces Final Product List in Beef Hormones Dispute (July 19, 1999); Government of Canada, News Release 174, Canada Retaliates Against the EU (July 29, 1999).
210 S. 2709, 106th Cong. (2000). Of course, with prohibitive tariffs there would be no money to collect or redistribute.
211 Pauwelyn, supra note 1, at 338; Pierre, Pescatore, The GATT Dispute Settlement Mechanism: Its Present Situation and Its Prospects, J. World Trade, Feb. 1993, at 9, 15 Google Scholar; Breaking the Labor-Trade Deadlock 4 (Inter-American Dialogue and Carnegie Endowment for International Peace, Working Paper No. 17, Feb. 2001) (contending that trade sanctions are a huge club in the hands of industrial giants and a splinter in the hands of developing countries). In pointing out how major and smaller economies are not similarly situated when it comes to imposing WTO “sanctions, ” David Palmeter recalls H. L. A. Hart’s point that the inequality between the units of international law is one of the things that has given it a different character from municipal law, and has limited the extent to which it is capable of operating as an organized coercive system. David, Palmeter, The WTO as a Legal System, 24 Fordham Int’l L. J. 444, 472–73 (2000)Google Scholar.
212 Mavroidis, supra note 172, at 807.
215 Clyde, Summers, The Battle in Seattle: Free Trade, Labor Rights, and Societal Values, 22 U. Pa. J. Int’l Econ. L. 61, 89 (2001)Google Scholar.
216 The intention not to do so was clearer in the ITO Charter of 1948, which contained a clause stating that “ [t]he Members also undertake, without prejudice to any other international agreement, that they will not have recourse to unilateral economic measures of any kind contrary to the provisions of this Charter.” ITO Charter, supra note 71, Art. 92.2 (emphasis added).
217 See GATT Art. XX (General Exceptions); General Agreement on Trade in Services, Art. XIV (General Exceptions), WTO Agreement, Annex 1B.
218 See, e.g., High-Level Panel on Financing for Development, Report, UN Doc. A/55/1000, annex (2001) (noting that with its capacity to impose sanctions, the WTO has been an attractive target for pressures); Human Rights Watch, World Report 2001, at xvi, xviii (2001), at <http://www.hrw.org> (discussing the “enforcement gap” between the WTO and the ILO and suggesting the possibility of a link between the two organizations); Daniel, S. Ehrenberg, The Labor Link: Applying the International Trading System to Enforce Violations of Forced and Child Labor, 20 Yale J. Int’l L.. 361, (1995)Google Scholar; David, Robertson, Civil Society and the WTO, 23 World Econ.1119, 1130 (2000)Google Scholar (noting that the WTO dispute process is attractive to nongovernmental organizations because it provides for trade sanctions); Patricia, Stirling, The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World Trade Organization, 11 Am. U.J. Int’l L. & Pol’y 1 (1996)Google Scholar; Elisabeth, Cappuyns, Note, Linking Labor Standards and Trade Sanctions: An Analysis of Their Current Relationship, 36 Colum. J. Transnat’l L. 659 (1998)Google Scholar.
219 Robert, E. Hudec, A WTO Perspective on Private Anti-Competitive Behavior in World Markets, 34 New Eng. L. Rev. 79,. 86, (1999)Google Scholar (noting that TRIPS inspired many observers to consider whether this model could be used for other agreements); Lindsey et al., supra note 2, at 31 (explaining that the drive to use the WTO process to impose new international rules on labor and the environment derives in part from the prospect of using trade sanctions to enforce those rules); see also Frederick, M. Abbott, Distributed Governance at the WTO-WIPO: An Evolving Model for Open-Architecture Integrated Governance, in New Directions in International Economic Law, supra note 206, at 15, 22 Google Scholar (stating that the WTO will continue to be the predominant power in the field of intellectual property so long as it retains the sole power to authorize trade sanctions for a breach of intellectual property rights).
221 Håkan, Nordström & Scott, Vaughan, Trade and Environment 57 (WTO Special Studies No. 4, 1999)Google Scholar.
222 Peter, Sutherland, John, Sewell, & David, Weiner, Challenges Facing the WTO and Policies to Address Global Governance, in The Role of The World Trade Organization in Global Governance, supra note 141, at 81, 105 Google Scholar (noting that” [b]ecause of its ability to levy trade sanctions, the WTO frequently has been the venue of choice.”).
223 GATT Art. XXIII:2. The GATT also provided a general withdrawal option widi a six–month notice. Id., Art. XXXI.
224 Id., Art. XIX:1(a).
225 Id., Art. XIX:3(a).
226 Agreement on Safeguards, Art. 8.3, WTO Agreement, Annex 1A. To qualify for the three-year immunity, a safeguard measure must respond to an absolute increase in imports and conform to the provisions of the Agreement.
227 See David, Kennedy, The International Style in Postwar Law and Policy: John Jackson and the Field of International Economic Law, 10 Am. U. J. Int’l L. & Pol’y 671, 708 (1995)Google Scholar- (calling the interface concept a significant and original contribution).
228 Jackson, supra note 92, at 218 & n.5.
229 Id. at 305.
230 For example, consider a recent arbitration to set the “reasonable period of time” for compliance in a WTO dispute regarding Canadian patent law. The arbitrator explained that the contentiousness of domestic implementation was not a factor to be taken into account, and so Canada could not seek more time because of the “likely divisiveness of the debate in the Canadian Parliament.” Canada—Term of Patent Protection, Arbitration Under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes, WTO Doc. WT/DS170/10, para. 58 (Feb. 28, 2001).
231 See, e.g., William, A. Dymond & Michael, M. Hart, Post-Modern Trade Policy—Reflections on the Challenges to Multilateral Trade Negotiations After Seattle, J. World Trade, June 2000, at 21, 33 Google Scholar (stating that the SPS Agreement requires that food safety standards be based on science rather than on decisions by governments accountable to their electorates).
232 One WTO Agreement does contain explicit deference to a domestic constitution. The General Agreement on Trade in Services, supra note 217, Art. VI:2, requires governments to establish procedures enabling service suppliers to seek review of administrative decisions regarding services. But this article further provides that it shall not be construed to require a government to institute procedures that would be “inconsistent with its constitutional structure or the nature of its legal system.”
233 Dispute Settlement Body, Minutes of Meeting Held on 11 February 2000, WTO Doc. WT/DSB/M/75, at 5, 6 (2000). The Australia-U.S. Leader dispute was about an Australian subsidy to an automobile leather producer that exported a large share of its production. The United States won the case, and gained a settlement before seeking retaliation. Daniel, Pruzin, Compromise Averts U.S.-Australia Dispute over Subsidies to Automotive Leather Maker, Daily Rep. for Executives (BNA). Aug. 1, 2000, at A–19 Google Scholar. The decision of the compliance panel was especially controversial. That panel had directed Australia to force a company to repay a subsidy that violated SCM rules. Australia—Subsidies Provided to Producers and Exporters of Automotive Leather, Recourse to Article 21.5 of the DSU by the United States, WTO Doc. WT/DS126/RW, para. 6.48 (Jan. 21, 2000) [hereinafter Australia—Leather]. Australia’s complaint was that the DSB was asking it to confiscate the company’s assets when the company had done nothing wrong. For criticism of the panel’s decision, see Steve, Charnovitz, The WTO and the Rights of the Individual, 36 Intereconomics 98, 106–07 (2001)Google Scholar.
234 Jagdish, Bhagwati, An Economic Perspective on the Dispute Settlement Mechanism, in The Next Trade Negotiating Round: Examining the Agenda for Seattle 277 (Jagdish, Bhagwati ed., 1999)Google Scholar (suggesting that trade retaliation makes little sense in cases such as Hormones where the EC legislation is consumer driven and cannot simply be dismanded).
235 Stefan, Griller, Judicial Enforceability of WTO Law in the European Union: Annotation to Case C–149/96, Portugal v. Council, 3 J. Int’l Econ. L. 441, 455–62 (2000)Google Scholar.
236 Agreement on Agriculture, WTO Agreement, Annex 1A.
237 EC-Ecuador Article 22 Decision, supra note 23, para. 173(d). The TRIPS suspension was permitted to the extent that the GATT and Services Agreement suspensions were insufficient to reach the full level of nullification or impairment. Regarding copyrights, Ecuador was permitted to suspend rights of performers, producers of sound recordings, and broadcast organizations. For the TRIPS Agreement, see WTO Agreement, Annex 1C.
238 Brazil-Canada Article 22 Decision, supra note 31, para. 4.1. Canada sought approval for a 100% surtax on the customs duties for listed products. Communication from Canada, WTO Doc. WT/DS46/16 (May 11, 2000). For the Agreements on Textiles and Clothing and on Import Licensing Procedures, see WTO Agreement, Annex 1 A. With regard to GATT, Canada gained approval to ignore a discipline in GATT Article VI regarding antidumping.
239 DSU Art. 22.7.
240 The criteria for review are in DSU Article 22.3, which provides the definitions of sector and agreement.
241 DSU Art. 22.3(b), (c).
242 DSU Art. 22.7. It is interesting to note that DSU Article 22.5 states that the DSB shall not authorize a suspension if a WTO Agreement prohibits such a suspension. One example is found in the Agreement on Government Procurement, amended Apr. 15, 1994, WTO Agreement, Annex 4. That Agreement (Art. XXII:7) prohibits cross–retaliation between it and other WTO Agreements. In other words, the DSB cannot authorize a suspension of government procurement disciplines because of noncompliance with other WTO Agreements. The Agreement on Government Procurement is a plurilateral agreement that is not an obligation of WTO membership.
243 DSU Article 22.3(g) excludes the DSU in explaining how suspensions are carried out under the various agreements. For the Antidumping Agreement and the Agreement on Implementation of GATT Article VII, see WTO Agreement, Annex 1A.
244 This is the author’s own analysis. WTO arbitrators only sometimes address this criterion. See, e.g., EC-Ecuador Article 22 Decision, supra note 23, para. 150.
246 Pauwelyn, supra note 1, at 341–42.
247 Kuyper, supra note 10, at 253.
248 Pauwelyn, supra note 1, at 344–45.
249 EC-Ecuador Article 22 Decision, supra note 23, para. 157.
250 Id., para. 152.
251 Arvind, Subramanian & Jayashree, Watal, Can TRIPS Serve as an Enforcement Device for Developing Countries in the WTO? 3 J. Int’l Econ. L. 403 (2000)Google Scholar.
252 Id. at 415.
253 Compare Kirgis, who points to three functions of sanctions—compulsion, deterrence, and retribution. Frederic, L. Kirgis Jr., International Organizations in Their Legal Setting 554 (2d ed. 1993)Google Scholar. Compulsion is inducing compliance with a WTO panel report or inducing cessation of the WTO rule violation. Deterrence has only a faint presence in WTO concepts. Retribution is absent from the WTO.
254 When countries A and B agree to lower trade barriers reciprocally, then politicians in A and B can explain the net benefits of the package deal. But when country A raises trade barriers and country B does so in response, no package exists. The two events are independent. The politicians in Swill have to argue either that import protection is a good policy in itself, or that the short–term costs of retaliation will be recovered by getting country A to change its policy in the long run, or by maintaining a credible threat for future clashes with country C.
255 Even the compliance panel in the Australia Leather dispute—which had directed Australia to take back a subsidy from a private actor—denied that this remedy was intended “to provide reparation or compensation in any sense.” Australia—Leather, supra note 233, para. 6.49.
256 Smith, supra note 41, at 296–97.
257 See Sykes, supra note 206, at 351 (stating that the DSU lacks coercive penalties aimed at inducing compliance when equivalent retaliation proves to be inadequate).
258 SCM Arts. 4.10 n.9, 4.11 n.10.
260 Mavroidis, supra note 172, at 801, 807.
261 Kathleen, A. Ambrose, Science and the WTO, 31 Law & Pol’y Int’l Bus. 861, 867–68 (2000)Google Scholar.
262 As noted above, the original ILO Constitution provided for a collective sanction. See text at note 55 supra. Although the ITO Charter was not explicit on that point, the conference report of the Canadian delegation suggested that a flagrant disregard of an important obligation of the charter might nullify or impair the benefits to all members and therefore lead to authorization of a “sanction” by them. Report of the Canadian Delegation to the United Nations Conference on Trade and Employment in Havana (July 13, 1948), reprinted in Also Present at the Creation, supra note 77, at 73, 145.
263 Kenneth, W. Abbott, GATT as a Public Institution: The Uruguay Round and Beyond, 18 Brook. J. Int’l L. 31, 64–65, 78–79 (1992)Google Scholar. The idea of collective retaliation in the GATT goes back to 1965 when developing countries sought this remedy for violations by large countries.
264 Pauwelyn, supra note 1, at 345.
266 Edith, Brown Weiss, Strengthening National Compliance with Trade Law: Insights from Environment, in New Directions in International Economic Law, supra note 206, at 457, 459–60 Google Scholar.
267 Id. at 463.
268 Id. at 471.
269 Id. at 463.
271 For all of the options discussed, the target is the scofflaw government. WTO rules apply to governments, not to private economic actors. In contrast to the GATT, which was fixated on governments, there are several WTO Agreements (e.g., TRIPS) where a private actor might violate the spirit of the agreement. This article does not address how WTO rules might be amended to have greater applicability to private actors.
272 WTO Agreement, Art. XVI:4; Ernst-Ulrich, Petersmann, International Trade Law and the GATT/WTO Dispute Settlement System 1948–1996: An Introduction, in International Trade Law and the GATT/WTO Dispute Settlement System 3, 119–20 (Ernst-Ulrich, Petersmann ed., 1997)Google Scholar.
273 Regina v. Sec’y of State for Env’t, Transp. & Regions, ex parte Omega Air Ltd. (Q.B. Nov. 25, 1999), at Lexis, Enggen Library, Cases File; Geert, A. Zonnekeyn, The Status of WTO Law in the EC Legal Order: The Final Curtain ? J. World Trade June 2000, at 111, 118 Google Scholar (discussing Portugal v. Council); see also Frieder, Roessler, The Constitutional Function of International Economic Law, Aussenwirtschaft, Sept. 1986, at 467 Google Scholar (suggesting that a government having enforcement by individuals would be handicapped in its efforts to defend the national interest vis–à–vis those governments that do not have such enforcement).
274 Thomas, Cottier & Krista, Nadakavukaren Schefer, The Relationship Between World Trade Organization Law, National and Regional Law, 1 J. Int’l Econ. L. 83, 112–13 (1998)Google Scholar.
275 North American Agreement on Environmental Cooperation, supra note 127, Annex 36A, para. 1 (b). The Agreement establishes a commission governed by a council of environmental ministers from Canada, Mexico, and the United States.
276 Agreement on Environmental Cooperation, Feb. 6, 1997, Can.-Chile, Art. 35, 36 ILM 1193 (1997). The Canada-Chile Labor Cooperation Agreement has similar provisions.
277 North American Agreement on Environmental Cooperation, supra note 127, Art. 33. 278 Treaty Establishing the European Community, Art. 171. This provision originated in the Maastricht Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 224) 1. Another example of this technique is the Treaty Establishing the Common Market for Eastern and Southern Africa (COMESA). This Treaty provides that the Authority (composed of the heads of state or government) can, by consensus, decide to impose a financial penalty on a member state. Such a penalty can be imposed following a default of obligations or because of conduct prejudicial to the Common Market. See Treaty Establishing the Common Market for Eastern and Southern Africa, Nov. 5, 1993, Arts. 8, 171, 33 ILM 1067 (1994). According to the COMESA Secretariat, the penalty process has been used, but the episode is confidential.
279 Case 387/97, Commission v. Hellenic Republic (ECJ July 4, 2000), at <http://www.curia.eu.int>. The Commission sought a penalty of 24, 600 euros per day. The Court set the penalty at a level that would give it “coercive force.” Id., para. 92.
280 Greece Hit for Waste Dumping as ECJ Sets First Fine for Law Compliance Failure, 23 Int’l Env’t Rep. (BNA) 558 (July 19, 2000). Greece made its first payment in December 2000.
281 France Scraps Ban on Women in Night Jobs, Chi. Trib., Dec. 13, 2000, at 2.
282 North American Agreement on Environmental Cooperation, supra note 127, Art. 34(4). The Labor Cooperation Agreement contains parallel provisions.
283 Id., Art. 24.
284 Id., Arts. 31–34.
285 Id., Annex 34. Several factors are suggested to determine the size of the monetary assessment. The annex also provides for a cap linked to trade.
286 Id., Annex 34, para. 3.
287 Id., Annex 36A, para. 1 (a).
288 Id., Art. 36(1). The ensuing higher tariffs are used to collect the assessment.
290 See, e.g., Eloise, Henderson Bouzari, The Public Policy Exception to Enforcement of International Arbitral Awards: Implications for Post-NAFTA Jurisprudence, 30 Tex. Int’l L J. 205 (1995)Google Scholar.
291 Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, Jan. 19, 1981, Art. TV, 20 ILM 230 (1981); see Anuj Desai, Case No. A27: The Iran–United States Claims Tribunal’s First Award of Damages for a Breach of the Algiers Declaration, 10 Am. Rev. Int’l Arb. 229 (1999) (discussing practice under this provision).
292 International Financial Institution Advisory Committee Report, supra note 37 (emphasis omitted).
294 Marco, C. E. J. Bronckers, More Power to the WTO? 4 J. Int’l Econ. L. 41, 62 (2001)Google Scholar.
295 Chayes & Chayes, supra note 95, at 32; see also id. at 81.
296 Articles of Agreement of the International Monetary Fund, July 22, 1944, and as amended, Art. XXVI §2, at <http://www.imf.org/external/pubs/ft/aa/index.htm>; Gold, J., The IMF Invents New Penalties, Towards More Effective Supervision by International Organizations, supra note 60, at 127, 138–43 Google Scholar.
297 Convention on International Civil Aviation, Dec. 7, 1944, Arts. 84, 88, TIAS No. 1591, 15 UNTS 295.
298 Correspondence with John V. Augustin, Senior Legal Officer, ICAO (Jan. 15, 2001).
299 Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, as adjusted and/or amended, Arts. 8, 10, 1522 UNTS 293; Decisions of the Meeting of the Parties Regarding the Non-Compliance Procedure and Decisions of the Implementation Committee, in UNEP, Handbook for the International Treaties for the Protection of the Ozone Layer 153–75 (2000) [hereinafter UNEP, Handbook], at <http://www.unep.ch/ozone/Handbook2000.shtml>; Karl, Zemanek, New Trends in the Enforcement of erga omnes Obligations, 2000 Max Planck Y.B. UN L. 1, 16, 48 Google Scholar.
300 UNEP, Handbook, supra note 299, at 153–75, 255–59; David, G. Victor, Enforcing International Law: Implications for an Effective Global Warming Regime, 10 Duke Envtl. L. & Pol’y F. 147, 166–70 (1999)Google Scholar.
301 International Labour Conference, 87th Sess., Resolution on the Widespread Use of Forced Labour in Myanmar (June 1999), at <http://www.ilo.org>; Frances, Williams, ILO Bars Burma over Forced Labour, Fin. Times, June 18, 1999, at 4 Google Scholar. Technical assistance would be permitted to help Myanmar come into compliance with the Convention.
302 Draft USTR Paper on Monetary Fines, Inside U.S. Trade, Apr. 27, 2001, at 19–21.
304 International Labour Conference, supra note 59.
305 Frances, Williams & Edward, Alden, Forced Labour in Burma Tests ILO’s Will to Uphold Global Standards, Fin. Times, Mar. 27, 2001, at 10 Google Scholar.
306 Chayes & Chayes, supra note 95, at 67.
307 Id. at 28, 109, 230 (managerial process), 112 (norm dialectic), 135 (transparency), 154 (reporting), 174 (monitoring), 229 (review procedures).
308 Id., ch. 11.
309 See, e.g., Institutions for the Earth: Sources of Effective International Environmental Protection (Peter, M. Haas, Robert, O. Keohane, & Marc, A. Levy eds., 1993)Google Scholar; The Power of Human Rights: International Norms and Domestic Change (Thomas, Risse, Stephen, C. Ropp, & Kathryn, Sikkink eds., 1999)Google Scholar; Harold, Hongju Koh, Why Do Nations Obey International Law ? 106 Yale L J. 2599 (1997)Google Scholar; see also Richard, Blackhurst & Arvind, Subramanian, Promoting Multilateral Cooperation on the Environment, in The Greening of World Trade Issues 247, 262 (Kym, Anderson & Richard, Blackhurst eds., 1992)Google Scholar (noting that no multilateral environmental agreements contain trade sanctions and explaining that sanctions affect unrelated products); Robin, R. Churchill & Geir, Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little–Noticed Phenomenon in International Law, 94 AJIL 623, 643–47 (2000)Google Scholar (discussing the advantages of the noncompliance mechanism over dispute settlement); Robert, E. Hudec, GA TT Legal Restraints on the Use of Trade Measures Against Foreign Environmental Practices, in 2 Fair Trade and Harmonization 95, 114 (Jagdish, Bhagwati & Robert, E. Hudec eds., 1996)Google Scholar (stating that, “ [u]timately, GATT law works because governments want it to work, not because they are bullied into compliance by trade sanctions.”) (footnote omitted).
310 Richard, N. Cooper, Trade and the Environment, 5 Env’t & Dev. Econ. 501,. 501, (2000)Google Scholar.
311 The Implementation and Effectiveness of International Environmental Commitments 47 (David, G. Victor, Kal, Raustiala, & Eugene, B. Skolnikoff eds., 1998)Google Scholar.
312 Id. at 683.
313 Id. at 694.
314 See text at note 270 supra.
315 Weiss, supra note 266, at 459–60.
316 Id. at 460.
317 See Rambod, Behboodi, Legal Reasoning and the International Law of Trade—The First Steps of the Appellate Body of the WTO, J. World Trade, Aug. 1998, at 55, 65 Google Scholar (noting that the binding force of international law must reside in something other than the threat of force or economic sanction).
318 DSU Art. 21.3.
319 See Overview of the State-of-Play of WTO Disputes (May 2, 2001), at <http://www.wto.org>; see also Chayes & Chayes, supra note 95, at 112 (“The essence of the international legal process is a dialectic that, by emphasizing assent at every stage, operates to generate pressure for compliance.”).
320 DSU Arts. 21.6, 22.8. One scholar and practitioner calls this “continuous finger-pointing against recalcitrant WTO members.” Mavroidis, supra note 172, at 793. The language of DSU Article 21.6 was drawn from the 1989 improvements to the GATT dispute settlement system. Improvements to the GATT Dispute Settlement Rules and Procedures, Apr. 12, 1989, GATT B.I.S.D. (36th Supp.) at 61, 67.
321 DSU Art. 21.5.
322 Response of President Taft, 5 ASIL Proc. 340, 341 (1911).
323 See Daniel, C. Esty, Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, 1 J. Int’l Econ. L.. 123, (1998)Google Scholar; Thomas, Risse, “Let’s Argue!”: Communicative Action in World Politics, 54 Int’l Org. 1, 22 (2000)Google Scholar (noting the civilizing effect of public discourse).
324 Rosalyn, Higgins, Remarks, in The Effectiveness of International Decisions, supra note 60, at 447 Google Scholar.
325 See Gary, H. Perlow, The Multilateral Supervision of International Trade: Has the Textiles Experiment Worked? 75 AJIL 93, 124 (1981)Google Scholar (positing that too much publicity can have an effect contrary to that intended).
326 19 U.S.C. §620c(g) (1994).
327 19 U.S.C. §3538 (1994). For a discussion of some of these provisions, see David, Palmeter, United States Implementation of the Uruguay Round Antidumping Code, J. World Trade, June 1995, at 39, 74–76 Google Scholar.
328 19 U.S.C. §2504(c)(1), (4) (1994).
329 DSU Arts. 3.8, 22.1, 22.2.
330 Compensation is not defined in DSU Art. 22.1. Monetary compensation has never been employed, although the idea was debated in the GATT in the early 1960s. Brazil and Uruguay proposed that panels be given authority to propose an “indemnity of a financial character” in complaints by developing countries against developed countries. DAM, supra note 84, at 368 (quoting Report of the Ad Hoc Group on Legal Amendments to the General Agreement, reprinted in GATT, Expansion of Trade of the Developing Countries 112, 119 (Dec. 1966)). Many objections were raised to this proposal, including that “it was inconceivable that national legislatures would be willing to vote budgetary provisions for this purpose.” Id. at 369 (quoting Report of the Ad Hoc Group, supra, at 115). Recently, Jagdish Bhagwati has proposed that the defending country provide cash compensation to the complaining country, which could then be donated to the exporting industry. Bhagwati, supra note 2, at 28.
331 Andreas, F. Lowenfeld, Remedies Along with Rights: Institutional Reform in the New GATT, 88 AJIL, 477, 486 n.14 (1994)Google Scholar.
332 Pauwelyn, supra note 1, at 345–46.
333 Gary, N. Horlick, Problems with the Compliance Structure of the WTO Dispute Resolution Process, Paper Prepared for Conference at the University of Minnesota Law School (Sept. 15–16, 2000)Google Scholar.
334 Rosas, supra note 167, at 144.
335 Michael Reisman, W., Sanctions and Enforcement Google Scholar, in Myres, S. McDougal & Michael Reisman, W., International Law Essays: A Supplement to International Law in Contemporary Perspective 381, 399, 419 (1981)Google Scholar (explaining that the activation of world public opinion can be a sanctioning technique and noting that private groups can be influential as part of an international enforcement program).