This Article examines recent developments in the relationship between World Trade Organization (WTO) obligations and U.S. international trade law. (1) Even before the United States approved the WTO agreements, the effect of international trade agreements had already emerged as an issue in U.S. trade litigation in the context of pre-WTO General Agreement on Tariffs and Trade (GATT) agreements. At the time of this writing, more than eleven years after Congress approved the WTO agreements, the issue remains highly controversial.
The U.S. implementation of the WTO agreements, as well as the earlier GATT agreements, unquestionably represents a dualist model in which WTO agreements and decisions do not have direct effect in U.S. law. (2) The absence of direct effect begs the question of whether WTO agreements and decisions have an indirect effect, namely, as aids to interpreting the trade statutes. (3) The issue is usually described as the applicability of the Charming Betsy doctrine, which states "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains," (4) or, as set out in the Restatement (Third) of U.S. Foreign Relations Law, "[w]here fairly possible, a United States statute is to be construed so as not to conflict with international law or an international agreement of the United States." (5)
At least superficially, there appear to be two inconsistent lines of case law in U.S. courts. The first line of cases stems from the Federal Circuit's 1992 decision in Suramerica de Aleaciones Laminadas, C.A. v. United States, (6) which stated that "[t] he GATT does not trump domestic legislation; if the statutory provisions ... are inconsistent with the GATT, it is a matter for Congress and not this court to decide and remedy." This case law consistently rejects arguments seeking to have U.S. law interpreted to be consistent with WTO/GATT norms, sometimes implying that it is unnecessary to consider WTO/GATT norms. (7) The second line of cases stems from the Federal Circuit's 1995 decision in Federal Mogul Corp. v. United States, (8) which stated that "absent express Congressional language to the contrary, statutes should not be interpreted to conflict with international obligations." This case law evaluates
pertinent WTO/GATT obligations and ultimately interprets U.S. law to avoid a conflict with those obligations. (9) Furthermore, in 2005, a North American Free Trade Agreement (NAFTA) binational panel applying U.S. law ruled that a contested agency decision was unlawful solely because it conflicted with a WTO dispute settlement decision. (10) Most recently, the Federal Circuit's decision in Cummins Inc. v. United States (11) in July 2006 appears to hold that the status of international decisions is governed by a completely different legal standard from the Charming Betsy canon of interpreting statutes, if possible, to avoid conflicts with international obligations.
Commentary on the relationship of WTO obligations to U.S. law is also divided. One position offers an isolationist perspective and argues that U.S. law precludes considering whether or not a domestic statute or its interpretation is consistent with WTO/GATT norms. (12) The opposite position offers an internationalist perspective and argues that U.S. law requires U.S. statutes to be interpreted so as to be consistent with WTO/GATT norms unless Congress clearly intends otherwise, (13) or at least that the law should require WTO-consistent interpretations. (14) An intermediate position is that WTO/GATT agreements and decisions may be considered, but their significance is limited and WTO decisions by themselves are not sufficient to warrant overturning an agency's statutory interpretation. (15)
This Article argues that case law under the international trade statutes strongly supports the intermediate position. The U.S. courts generally exercise considerable judicial restraint, rarely overturning the responsible administrative agency's view of the extent to which the U.S. statutes should be interpreted to be consistent with WTO/GATT agreements and dispute settlement decisions. The U.S. courts have only adopted to a limited degree the Charming Betsy doctrine that U.S. statutes, if fairly possible, should not be construed to violate international obligations. The doctrine applies principally to the WTO agreements themselves. Under the Federal Circuit's July 2006 decision in Cummins, and implicitly under its prior decisions, the Charming Betsy doctrine does not extend to interpretations of international agreements by international tribunals, which instead only merit "respectful consideration." (16) Therefore, increased consistency between agency interpretations of U.S. trade laws and WTO panel and Appellate Body interpretations is unlikely to be achieved through judicial review. Instead, it would depend on amendments to the statutory framework.
Part 2 of this Article describes the statutory framework of the relationship of WTO agreements and WTO decisions to U.S. law. (17) This dualist model limits the effect of WTO obligations and establishes a political process for implementing those obligations. Part 3 of the Article presents preliminary and conceptual issues affecting consistency between U.S. law and WTO obligations, including whether the Charming Betsy doctrine applies at all in U.S. international trade law and how interpreting statutes to be consistent with international obligations relates to the legal standard for judicial review of agency determinations. Part 3 also examines how results depend on whether the statutory language is ambiguous or not; how congressional intent concerning WTO agreements differs from congressional intent concerning WTO dispute settlement decisions; why the separation of powers doctrine is significant; and whether case law dealing with constitutional issues has any relevance. (18) Part 4 examines how and to what extent U.S. courts have, in practice, used WTO agreements and dispute settlement decisions as aids to interpreting U.S. trade statutes. (19) This Part illustrates that cases should be distinguished based on whether the potential WTO-inconsistency arises from the text of an agreement, whether it is the federal agency's interpretation that WTO norms support, and whether the agency's interpretation is claimed to be inconsistent with a WTO dispute settlement decision. Part 4 concludes with a discussion of the Federal Circuit's new Cummins decision. Part 5 examines cases in which a WTO dispute settlement decision has ruled that the specific agency interpretation before the court violates WTO obligations. (20) As explained there, the considerations relating to enforcement of a WTO decision differ from those applicable where the court is simply urged to harmonize a statutory interpretation with a WTO agreement or decision. Finally, Part 6 of the Article summarizes the Article's conclusions and presents recommendations for statutory amendments that would improve consistency between agency interpretations of statutes and WTO obligations, without significantly changing the existing dualist model of U.S. law. (21)
2. THE STATUTORY FRAMEWORK OF THE RELATIONSHIP OF WTO OBLIGATIONS TO U.S. LAW
The U.S. implementation of the WTO international trade agreements and decisions has been comprehensively analyzed elsewhere, (22) but requires summary here because it is crucial to understanding the case law to be discussed below. David Leebron noted that "[m]any provisions of the implementing legislation are aimed at limiting the status and import of the Uruguay Round Agreements in domestic law, and exercising close supervision over the ... World Trade Organization and its dispute settlement process." (23) In sum, he concluded that "It]he implementation of trade agreements in the United States remains a highly political process." (24) Matsushita and coauthors draw the related conclusion that U.S. implementation represents a strongly dualist approach in which, as a general rule, "the legal issues arising under the WTO agreements [for U.S. domestic purposes] will be decided under U.S. legislation ... regardless of whether it is consistent with international law." (25)
2.1 Status of WTO Agreements
The relationship of WTO agreements to U.S. law is governed by section 102(a) of the Uruguay Round Agreements Act (URAA), enacted in 1994. (26)
Section 102(a) sets out three principles. First, the trade agreements are not self-executing. This means that "the agreements do not take effect without implementing legislation." (27) The legislative history states that the "Uruguay Round agreements ... are not self-executing and thus their legal effect in the United States is governed by implementing legislation." (28) Strictly speaking, moreover, it is the implementing legislation rather than the agreements that is given effect as law in the United States. (29) Second, no provision of the trade agreements that is inconsistent with U.S. law is given effect. (30) This principle establishes the supremacy of U.S. law over the agreements. As stated in the House report on the URAA, "U.S. law shall prevail if inconsistent with any provision of the agreements," and "U.S. laws prevail over any conflicting provisions of the international agreements." (31) Third, the trade agreements do not create any private rights of action. (32) They do not allow a private party to challenge any action or inaction by federal departments or agencies as inconsistent with any trade agreement. (33)
Although the URAA limits the status and effect of the WTO agreements in U.S. law, the legislative history nevertheless states that the URAA "incorporate [d] all amendments to existing Federal statutes or provision of new authorities ... known to be necessary or appropriate
to enable full implementation of, and compliance with, U.S. obligations under the agreements." (34) It was "intended to bring U.S. law fully into compliance with U.S. obligations under those agreements." (35) It "accomplishe[d] that objective with respect to federal legislation by amending existing federal statutes that would otherwise be inconsistent with the agreements and, in certain instances, by creating entirely new provisions of law." (36) For this reason, supremacy of U.S. law over the international agreements "will not prevent implementation of federal statutes consistent with the agreements, where permissible under the terms of such statutes." (37) Moreover, "[t]he prohibition of a private right of action based on the Uruguay Round Agreements ... does not preclude any agency of government from considering, or entertaining argument on, whether its action or proposed action is consistent with the Uruguay Round agreements, although any change in agency action would have to be authorized by domestic law." (38)
In sum, although URAA section 102(a) is captioned "relationship of agreements to United States law," it does not define what the relationship is. (39) Rather, it defines what the relationship is not: WTO agreements are not self-executing, have no direct effect, have no domestic effect at all if they are inconsistent with U.S. law, and do not create any private cause of action. The statute precludes possible alternative relationships in which WTO agreements would have different legal effects, but it does not explain fully what the relationship between the WTO agreements and U.S. law is.
2.2 Effect of WTO Dispute Settlement Decisions
URAA sections 123 and 129 govern the effect of decisions under the WTO Dispute Settlement Understanding that determine that a U.S. law, regulation, or other measure is inconsistent with WTO obligations. Under the URAA, "the results of any WTO dispute settlement proceedings will not be incorporated into United States law without following a specified domestic implementation process." (40) Two fundamental observations apply at the outset. First, "[i] t was never seriously considered that a WTO dispute settlement decision would apply directly in U.S. law." (41) Second, "any dispute settlement findings that a U.S. statute is inconsistent with an agreement ... cannot be implemented except by legislation approved by the Congress..." (42)
In contrast, if a WTO dispute settlement decision rules that an agency's regulation or practice under a federal statute is inconsistent with WTO obligations, Congress does not need to approve new legislation "if [WTO-]consistent implementation is permissible under the terms of the statute." (43) But in this case, "the Congress required that certain procedures be followed in order to implement any such decision, even if ordinarily an administrative agency might have had discretion to change its regulations to comply with the decision." (44) Section 123(g) of the URAA (19 U.S.C. [section] 3533(g)) provides that an agency's WTO-inconsistent regulation or practice may not be modified until after the Administration consults with and reports to relevant congressional committees, considers advice from private sector advisory committees, considers public comments on the proposed change in regulation or practice, and, usually, waits until a 60-day consultation period elapses. (45) In addition to section 123 governing agency relations and practices, URAA section 129 (19 U.S.C. [section] 3538) sets out procedures for implementing adverse WTO dispute settlement decisions relating to specific individual antidumping and countervailing duty cases. (46) Thus, implementation of WTO decisions relating to U.S. antidumping and countervailing duty laws might require both modification of an agency regulation or practice governed by URAA section 123 and implementation of a WTO-consistent determination in an individual case governed by URAA section 129.
3. THRESHOLD AND CONCEPTUAL ISSUES RELATING TO WTO CONSISTENCY
As discussed in the introduction to this Article, the argument that the WTO agreements and decisions should be used as aids to interpreting U.S. trade statutes is generally described as the applicability of the Charming Betsy doctrine that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." (47) A threshold issue is whether the Charming Betsy doctrine can apply at all, particularly in view of the dualist statutory framework discussed above. At the same time, since U.S. international trade litigation consists in judicial review of actions of federal administrative agencies, (48) the issue of consistency with WTO agreements and decisions is intertwined with the standard of judicial review that U.S. courts use to adjudicate whether an agency's interpretation of a statute it administers is in accordance with law.
In antidumping and countervailing duty cases, judicial review of the Commerce Department's and International Trade Commission's statutory interpretations is governed by the two-step methodology established in Chevron U.S.A., Inc. v. Natural Resources Defense Council (49) and commonly known as "Chevron analysis." (50) The Supreme Court ruled in Chevron that a court reviewing an agency's interpretation of a statute it administers "is confronted with two questions." (51) The "[f]irst, always, is whether Congress has spoken to the precise question at issue," and "[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." (52) But, "if the statute is silent or ambiguous with respect to the specific issue," the reviewing court under step two of its analysis will sustain an agency's interpretation if it represents "a permissible construction" or "a reasonable interpretation" of the statute. (53)
These preliminary and conceptual issues relating to the application of the Charming Betsy doctrine in international trade litigation are addressed below. Sections 3.1 and 3.2 explain that a distinction must be made between an unambiguous statute governed by step one of Chevron analysis and an ambiguous statute governed by step two of Chevron analysis. Sections 3.3 through 3.6 review four broad issues: the significance of congressional intent relating to WTO agreements (section 3.3); the different congressional intent relating to WTO decisions (section 3.4); the significance of the separation of powers and the related doctrine of statutory delegation of authority to administrative agencies (section 3.5); and the potential relevance of the Supreme Court's manner of integrating constitutional issues into Chevron analysis (section 3.6).
3.1 Irrelevance of WTO Norms Where a Statute Is Unambiguous
The supremacy of statutes over WTO agreements under URAA section 102(a) (1) and Chevron step one jointly establish that if a court holds that a statute is unambiguous, it is irrelevant whether the statute is consistent or inconsistent with WTO norms. (54) In this situation, the statute has only one correct interpretation, and the unambiguously expressed intent of Congress is given effect.
If the unambiguous statute is inconsistent with WTO norms, the statute prevails for domestic purposes under URAA section 102(a) (1). The only way for the United States to bring itself into conformity with WTO obligations is "by legislation approved by the Congress...." (55) For example, a WTO decision held that a provision of the U.S. antidumping and countervailing duty statute providing for disbursement of the collected duties to the domestic petitioner violated WTO norms in United States--Continued Dumping and Subsidy Offset Act of 2000 (56) (the "Byrd Amendment" case). The Byrd Amendment plainly could not be challenged in U.S. courts on grounds of WTO inconsistency and no party tried to do so. In practice, only one case appears to rule that a statute unambiguously required a result inconsistent with GATT or WTO norms, but the case involves unusual facts in that the statute would have allowed a GATT-consistent result if the importer-plaintiff had not made an error in its customs declaration. (57)
If the unambiguous statute is consistent with WTO norms, it is unnecessary to consider WTO consistency. For example, in Turtle Island Restoration Network v. Evans, (58) the Federal Circuit held that the statute unambiguously mandated the interpretation adopted by the agency. Therefore, it ruled that "because the meaning of [the statute] is clear, we need not reach the question of ... whether the State Department's interpretation would minimize potential conflicts with international trade agreements." (59) In one case, however, after the Federal Circuit held that the agency interpretation was contrary to both the statute and the legislative history, it stated that the principle of interpreting statutes to avoid conflicts with international law provided "additional support" for construing the statute in a manner consistent with a WTO Appellate Body determination that the agency's interpretation violated WTO obligations. (60)
3.2 Integration of WTO Norms into Chevron Step Two
If the U.S. trade statute is ambiguous, step two of Chevron analysis applies and the issue for a reviewing court is whether the agency's interpretation is "permissible." In this situation, the supremacy of statutes over WTO agreements under URAA section 102(a)(1) does not prevent a reviewing court from taking WTO obligations into consideration in deciding whether the agency's interpretation is "permissible." (61) As stated in one Court of International Trade decision, one "may not simply disregard [a WTO agreement] by loosely invoking ... the primacy of domestic law where a conflict with international law exists." (62) Therefore, where a statute is ambiguous and Chevron step two governs, the Court of International Trade has stated that "Chevron must be applied in concert with the Charming Betsy doctrine when the latter is implicated." (63) As discussed below, however, what "applied in concert with" means in practice is a complex question. (64)
3.3 WTO Agreements as Secondary Legislative History
There is a compelling reason for taking WTO agreements into consideration and for interpreting an ambiguous U.S. trade statute to be consistent with the WTO agreements: it gives effect to the intent of Congress to harmonize U.S. law with the WTO agreements when it approved and implemented the agreements in the URAA. This justification for using WTO and GATT agreements as aids in interpreting trade laws appears to have received insufficient attention, however. One interlocutory Court of International Trade decision stated in dicta quoted later in one Federal Circuit decision that "[a] n interpretation and application of the statute which would conflict with the GATT Codes would clearly violate the intent of Congress." (65)
Professor John H.Jackson was the first to urge that the WTO/GATT agreements are part of the legislative history or at least secondary legislative history of the URAA, as well as, earlier, the Trade Agreements Act of 1979. (66) Others have repeated Professor Jackson's point. (67) As noted above, the URAA legislative history and Statement of Administrative Action plainly reflect that Congress intended to implement the WTO agreements and allow the United States to comply fully with its WTO obligations, at least as the United States understood those obligations. (68)
In his comprehensive review of the doctrinal underpinnings of the Charming Betsy canon, Professor Curtis Bradley points out that the traditional conception for construing ambiguous statutes to avoid conflict with international law "is that it facilitates the implementation of congressional intent." (69) In fact, the idea that international agreements can be secondary legislative history of a federal statute appears to go beyond what Bradley was analyzing. He explained that this "'legislative intent conception' rests on the assumption that Congress generally does not wish to violate international law ... "but "does not claim that Congress considered international law in enacting the statute, just that Congress would not have wanted to violate international law if it had considered it." (70) Bradley apparently does not take into consideration the situation in which Congress did consider international law because the purpose of the statute was to implement or execute a treaty or other international agreement. (71)
The Supreme Court, in a long line of decisions, has used international agreements as secondary legislative history to interpret statutes that implement or execute the international agreements. In Chew Heong v. United States, (72) the Court was called on to interpret an 1882 statute that excluded most Chinese workers from entering the United States. Congress had enacted the statute to execute an 1880 treaty between the United States and China permitting the exclusion of these workers, while preserving the rights of other Chinese citizens to enter the country. In interpreting the statute, the Court examined the treaty provisions in detail, explaining that "since the purpose avowed in the act was to faithfully execute the treaty, any interpretation of its provisions would be rejected which imputed to Congress an intention to disregard the plighted faith [i.e., international obligations] of the government, and, consequently, the court ought, if possible, to adopt that construction which recognized and saved rights secured by the treaty." (73) Based on this principle, the Court construed the statute to allow the entry of a Chinese citizen whose right to do so was protected in the treaty. Similarly, in Weinberger v. Rossi, (74) the Court held that, in interpreting a statute barring preferential employment of foreign workers at U.S. overseas military bases except as provided in a "treaty," the statutory term "treaty" must be interpreted to include non-treaty executive agreements creating preferences for foreign workers because Congress intended to make the statute consistent with existing international agreements. And again in Sale v. Haitian Centers Council, Inc, (75) the Court examined the language and drafting history of a treaty in detail to help ascertain congressional intent in the U.S. implementing statute "because the history of the [statute] does disclose a general intent to conform our law to ... the [treaty]." (76) Cases illustrating the use of WTO agreements as secondary legislative history will be discussed below. (77)
3.4 Congressional Intent and WTO Dispute Settlement Decisions In evaluating how international obligations should be integrated into Chevron analysis, this Article suggests that "a distinction should be made between international trade agreements and decisions by international bodies." (78) While WTO agreements are part of the legislative history of the implementing statute, the same cannot be said of WTO panel and Appellate Body decisions for the obvious reason that the decisions are rendered after the legislation was enacted. Nevertheless, the WTO Dispute Settlement Understanding establishes a system of binding dispute resolution that "serves to preserve the rights and obligations of Members under the [WTO] agreements, and to clarify the existing provisions of those agreements...." (79) It is certainly arguable, at a minimum, that since the WTO agreements represent part of the legislative history, a binding clarification of a WTO agreement should also offer guidance in interpreting the U.S. implementing legislation. (80)
The URAA legislative history suggests, however, that Congress looked with apprehension on the possibility that future dispute settlement cases might influence the interpretation of the U.S. trade statutes. The legislative history of the Trade Agreements Act of 1979 that implemented the Tokyo Round GATT Codes states expressly that "It]he committee specifically intends ... to preclude any attempt to introduce into U.S. law new meanings which are inconsistent with this or other relevant U.S. legislation and which were never intended by the Congress." (81)
Much the same approach is reflected in the URAA and its legislative history. The URAA Statement of Administrative Action emphasizes that "[r]eports issued by panels or the Appellate Body under the DSU have no binding effect under the law of the United States and do not represent an expression of U.S. foreign or trade policy." (82) It adds that "neither federal agencies nor state governments are bound by any finding or recommendation included in such reports" and "panel reports do not provide legal authority for federal agencies to change their regulations or procedures or refuse to enforce particular laws or regulations...." (83) Furthermore, the portion of the Statement of Administrative Action dealing with the effect of WTO obligations on state laws includes the statement that "a court in the United States could take judicial notice of [a] [WTO] panel or Appellate Body report and consider the views of the panel if the court considered them to be persuasive, [but] ... panel reports are not to be considered binding or otherwise accorded deference." (84) Although the legislative history does not include a similar statement about how WTO decisions should be treated in interpreting federal statutes, it seems logical to assume that Congress would intend the same approach.
3.5 Separation of Powers and Administrative Agency Expertise
Professor Curtis Bradley's analysis of the Charming Betsy canon reached the conclusion that "the canon is best understood today as based on separation of powers considerations." (85) In this regard, it is the Executive Branch that possesses the constitutional authority to speak for the United States in international relations. (86) That authority includes interpreting the international obligations of the United States, as reflected in international agreements that bind the United States, for purposes of the country's relations with other countries and international organizations. (87)
Thus, as Bradley explains, the principle that courts should interpret an ambiguous statute to avoid conflicts with international law "rests on the belief that, for formal and functional reasons, the political branches should determine when and how the United States violates international law." (88) The canon serves as "a means by which the courts can seek guidance from the political branches...." (89) It also "reduces the number of occasions in which the courts, in their interpretation of federal enactments, place the United States in violation of international law contrary to the wishes of the political branches." (90) And it operates to "requir[e] Congress to decide expressly whether and how to violate international law," thereby "reduc[ing] the number of occasions in which Congress unintentionally interferes with the diplomatic prerogatives of the President." (91) This separation of powers conception reflects that "the Charming Betsy doctrine has been used primarily as a braking mechanism" to avoid conflict between a statute and international law, rather than as a means of applying international law through the statute. (92)
The constitutional separation of powers underlying the Charming Betsy canon tends to reinforce doctrines of federal administrative law governing the allocation of authority between a reviewing court and the administrative agency. (93) As stated in one of the seminal cases on judicial review under the antidumping statute, "[o]ur review of the statute reveals tremendous deference to the expertise of the Secretary of Commerce in administering the antidumping law." (94) The pertinent administrative law doctrines include not only the Chevron step two principle of sustaining a "permissible" or "sufficiently reasonable" interpretation. They also include the Chenery doctrine that since "an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency," the reviewing court may only adjudicate "the validity of the grounds upon which the [agency] itself based its action" and is not permitted to make "a determination of policy or judgment which the agency alone is authorized to make." (95) Under this principle, "[t] he reviewing court ... may not supply a reasoned basis for the agency's action that the agency itself has not given." (96)
In sum, both the separation of powers conception of the Charming Betsy canon and pertinent administrative law doctrines tend to produce decisions in which the court sustains the position of the administrative agency. Several international trade cases reflect this point, as discussed below. (97)
3.6 DeBartolo and the Analogy to Constitutional Issues
A final conceptual issue underlying the integration of the Charming Betsy canon into Chevron step two relates to the 1988 decision of the Supreme Court in DeBartolo Corp. v. Florida Gulf Coast Buildings and Construction Trade Council. (98) DeBartolo did not involve a claim that a statute should be construed to avoid a conflict with international law or an international agreement. Rather, the case dealt with an agency interpretation that was permissible based on the statutory language and legislative history, but raised serious constitutional problems. Specifically, the issue was the validity of an interpretation of the National Labor Relations Act that limited freedom of speech. The Supreme Court ruled in this situation that the rule of interpreting statutes to avoid serious constitutional problems intervenes into Chevron analysis. In substance, the Court held that a constitutionally problematic interpretation must be excluded from the range of "permissible" interpretations under step two of Chevron analysis.
DeBartolo suggests that, by analogy, where a statutory interpretation that would be "permissible" based on the statute and legislative history, the Charming Betsy canon could operate to exclude any interpretation that conflicts with international law from the range of "permissible" interpretations. (99) This analogy is strengthened because, in fact, DeBartolo stated that the principle of construing statutes to avoid serious constitutional problems "has its roots" in the Charming Betsy decision. (100)
Nevertheless, the analogy DeBartolo suggests may not be completely suitable. (101) Where an agency's interpretation of a statute violates the Constitution, it is clear that the interpretation is going to be rejected. The only question is whether the reason for rejecting it is that the interpretation is impermissible or that the statute is unconstitutional. But since a domestic statute prevails over the WTO agreement if they are in conflict, maintaining the validity of the statute does not depend on excluding WTO-inconsistent options from the range of "permissible" interpretations. In fact, if a court determined that all "permissible" interpretations violated WTO norms, the statute would still prevail and the court would be required to sustain one of the permissible but WTO-violative interpretations. Furthermore, Professor Peter Strauss explains that constitutional issues make a difference in the allocation of authority between agency and court. This is because "the constitutionality of a statute or of its application" is "larger than the agency's responsibility" and, therefore, "one would expect [constitutionality] to be decided strictly by courts" without deference to the agency." (102) In contrast, under the separation of powers conception of the Charming Betsy canon, it is a political branch rather than the court that should determine whether the United States violates international law. And, under administrative law principles, the agency's expertise that justifies Chevron step-two deference includes the complex issues of harmonizing the interpretation and application of a statute with the underlying international agreement the statute is intended to implement. For all these reasons, it might well be argued that DeBartolo is distinguishable and that the integration of WTO consistency into step two of Chevron analysis does not necessarily require a WTO-inconsistent decision to be overruled.
4. How COURTS INTEGRATE WTO NORMS INTO CHEVRON ANALYSIS IN PRACTICE
This Article now examines the case law illustrating how, in practice, courts carry out the task of applying Chevron "in concert with" the Charming Betsy doctrine. The first factual pattern occurs where an interpretation being advocated is inconsistent with the text of the underlying WTO agreement. This situation is discussed in Part 4.1 below, but in practice there appears to be only one case in which an agency's position was overturned because it was facially inconsistent with the text of a WTO or GATT agreement. The second factual pattern, discussed in Part 4.2, occurs where the agency's own interpretation is consistent with WTO obligations. The third factual pattern occurs where a litigant challenges an agency's interpretation on the ground that it is allegedly inconsistent with a WTO panel or Appellate Body decision that interprets and applies an agreement. This situation is addressed in Parts 4.3 and 4.4.
4.1 Use of WTO Agreements as Secondary Legislative History
In international trade litigation, Federal Mogul Corp. v. United States (103) is the seminal Federal Circuit decision referring to and giving weight to international agreements as legal authority. (104) The issue in Federal Mogul was whether the agency had acted permissibly by interpreting the antidumping statute to achieve a tax-neutral dumping margin (i.e. the dumping margin should not be affected if taxes are assessed on sales in the home market but not on sales for export to the United States). After quoting pertinent provisions of GATT 1947, the 1979 GATT Antidumping Code, and the 1994 WTO Antidumping Agreement, the court concluded that "[t]he GATT ... seems to stand squarely behind the proposition that antidumping duties are not to take account of tax differences." (105) The court therefore sustained the agency's position, citing the Charming Betsy canon and ruling that "absent express Congressional language to the contrary, statutes should not be interpreted to conflict with international obligations." (106)
Caterpillar Co. v. United States (107) also illustrates the use of international agreements as secondary legislative history. There, the court made a detailed analysis of GATT and the 1979 GATT Valuation Code as an aid to determining congressional intent, together with other sources of legislative history and canons of statutory construction, in the 1979 implementing legislation for the Valuation Code. Based on these authorities, the court held that the Customs Service's interpretation was contrary to law. (108) Caterpillar is noteworthy because the court rejected the agency's interpretation of the statute. Indeed, it appears to be the only instance in which a court found that an agency's interpretation was facially inconsistent with the text of a WTO or GATT agreement.
The Court of International Trade has sometimes remanded a case to the responsible agency for further explanation where it appeared that the agency's interpretation might be inconsistent with the text of a pertinent WTO agreement. For example, in Usinor v. United States, (109) the court found that "it is still unclear whether [the statute and the WTO Antidumping Agreement] in fact may be read in harmony." (110) The court remanded the case with instructions to the agency to consider whether its interpretation was consistent with agreement "as part of its overall duty to administer the antidumping laws in accordance with its international obligations," and, if consistent, to "discuss and explain how and why...." (111)
The converse factual pattern--where the reviewing court is not persuaded by a litigant's argument that the agency's interpretation of the statute is contrary to the text of the international agreement--has occurred in several cases. In these cases, the court defers to the agency's interpretation of the statute under step two of Chevron analysis. The Court of International Trade has set a high standard for overruling the agency's interpretation, stating that it will sustain the agency's interpretation "unless the conflict between an international obligation and [the agency's] interpretation of a statute is abundantly clear...." (112) Thus, for example, where the court found that "the Agreement ... does not clearly prohibit" the agency's interpretation, it sustained the agency's decision and ruled that "[w]hen faced with an ambiguous statute and ambiguous international agreement, the Court should defer to [the agency's] interpretation." (113) Cases in which the court does not find a clear conflict between the agency's interpretation and the WTO agreement have also addressed the issue discussed in Part 4.3 below of how the court treats WTO panel or Appellate Body decisions. (114)
4.2 WTO Consistency in Support of an Agency's Interpretation
A number of cases have ruled that where the agency's interpretation is consistent with WTO obligations, WTO consistency supports the conclusion that the agency's interpretation is permissible under step two of Chevron analysis. This was the result, for example, in the Federal Mogul decision discussed in Part 4.1 above. Federal Mogul also illustrates the combined impact of the separation of powers doctrine and agency expertise in supporting the agency's WTO-consistent interpretation. The court stated that "[the agency] is due judicial deference in part because of its established expertise in administration of the Act, and in part because of 'the foreign policy repercussions of a dumping determination,'" and it added that "for [a court] to read a GATT violation into the statute, over [the agency's] objection, may commingle powers best kept separate." (115)
The courts have also ruled that consistency with WTO or GATT norms supports the agency's interpretation where the international norm stems from a decision as opposed to a WTO agreement. This result was reached in several scenarios: where the agency, independently of a WTO Appellate Body decision, interpreted the statute consistently with the Appellate Body's interpretation of the WTO agreement; (116) where the agency had adopted a new interpretation of the statute specifically to implement a decision by the GATT Committee on Customs Valuation under the 1979 GATT Valuation Code; (117) and where the agency had adopted a new interpretation of the Clean Air Act to bring the United States into conformity with WTO obligations after an adverse WTO Appellate Body decision. (118)
4.3 Agency Interpretations That Are Inconsistent With WTO Dispute Decisions
The most controversial factual pattern in the integration of the Charming Betsy canon into step two of Chevron analysis occurs where a litigant argues that the agency's interpretation of the statute is inconsistent with a WTO panel or Appellate Body decision interpreting the corresponding WTO agreement. In this situation, no court has held that an agency interpretation is impermissible solely because it conflicts with a WTO panel or Appellate Body decision. One court decision has stated explicitly, and several court decisions have ruled implicitly, that inconsistency with a WTO decision is not sufficient by itself to require reversing an agency's reasonable interpretation of an ambiguous statute. Thus, the case law reflects that, where WTO panel or Appellate Body decisions are involved, the courts have not applied the analogy to constitutional issues illustrated by DeBartolo and have not removed agency interpretations that conflict with WTO decisions from the range of "permissible" interpretations. (119)
The Court of International Trade, in a series of decisions, has sought to explain the legal standard it uses to treat WTO panel and Appellate Body decisions. It has recognized that WTO dispute settlement reports have no direct effect in domestic law until they have been implemented under URAA section 123 or 129. (120) For this reason, it ruled that WTO dispute settlement reports are "not ... binding precedential authority for the court," but that the "panel's reasoning, if sound, may be used to inform the court's decision." (121) It is the pertinent WTO agreement, as opposed to the panel or Appellate Body report, that "is properly construed as an international obligation of the United States" (122) for purposes of attempting to construe an ambiguous statute to avoid a conflict with international law. The court "does not automatically assume that the WTO Panel and Appellate Body decisions are correct interpretations" (123) of the WTO agreements. It has also felt that the persuasive value of WTO decisions is diminished because the absence of the common law concept of stare decisis in the WTO regime means that "WTO decisions are not binding upon the WTO itself' and "appear to have very limited precedential value ..." (124) even within the WTO.
In sum, the Court of International Trade has ruled that "[t]he relevance of a WTO dispute settlement decision ... lies solely in its persuasive force as a means of properly interpreting a controlling statute." (125) Under this standard, the court has always sustained agency interpretations of the statute that were inconsistent with WTO decisions' interpretations of the corresponding WTO agreement. In some cases, the court said that it was sustaining the agency's interpretation because of judicial precedent holding that the agency's interpretation was reasonable, (126) or because the WTO decision was distinguishable because it involved countries other than the United States, (127) or was limited to the specific facts at issue. (128) In one case, using somewhat obscure language, the court stated that "there is not perfect overlap between" the panel's decision and the agency's interpretation, but the court's own reading of the agreement "erases any clear conflict between the two approaches" and the lack of an "abundantly clear" conflict justified sustaining the agency's decision. (129) Ultimately, in one case, the court set out what appears to be a bright-line rule that the court "cannot rely solely upon a [WTO dispute settlement decision's] non-binding interpretation of an international agreement as grounds to strike a United States agency interpretation of a statute." (130)
In contrast to the decisions of the Court of International Trade, the
Federal Circuit has not clearly articulated a legal standard for the treatment of WTO or other international decisions, at least before its July 2006 decision in Cummins Inc. v. United States discussed below. In the seminal 1992 decision in Suramerica de Aleaciones Laminadas, C.A. v. United States, (131) the Federal Circuit distinguished the GATT panel report on the ground that it was limited to the facts before it. Then it stated that "even if we were convinced that [the agency's] interpretation conflicts with the GATT, which we are not, the GATT is not controlling" because the court was "bound ... by what Congress in fact did" and the domestic statute would prevail over the international agreement in case of conflict. (132) This reasoning, invoking the supremacy of the statute over the agreement, fails to address the real issue of whether it is fairly possible to construe the statute to avoid a conflict with international law.
In its 2004 decision in Timken Co. v. United States, (133) the Federal Circuit again did not explain what weight should be given to the WTO decision, but ruled that "we do not find [the WTO decision] sufficiently persuasive to find [the agency's] practice unreasonable." (134) It also agreed with the lower court's reasons for distinguishing the WTO case in that the WTO case involved the European Union instead of the United States and a different procedural phase of the agency's antidumping proceeding governed by a different provision of the WTO agreement (an investigation in the WTO case versus an administrative review in Timken). Therefore, and "[i]n light of the fact that Commerce's longstanding and consistent interpretation is entitled to considerable weight," (135) the Federal Circuit refused to overturn the agency's interpretation based on the conflict with the WTO decision.
In Corus Staal BV v. U.S. Department of Commerce, (136) which dealt with the same agency interpretation as Timken but in a different procedural phase (the investigation), the Federal Circuit essentially concluded that Timken was a controlling precedent. The same WTO decision on the similar European Union practice that was considered in Timken remained distinguishable because the United States was not a party. The court also rejected a subsequent WTO decision which found that the U.S. practice itself was not consistent with WTO obligations. In doing so, the Federal Circuit relied on the fact that the United States had not yet implemented the WTO decision in domestic law, ruling that "[w] e therefore accord no deference" (137) to the cited WTO decision. Unfortunately the "no deference" statement does not address whether or to what extent the reasoning of the WTO decision had any persuasive value. (138) The court also restated the inapposite principle that the U.S. statute prevails in case of conflict, again apparently failing to appreciate that this principle does not prevent the statute from being construed to avoid a conflict.
The case law involving inconsistencies between agency interpretations of statutes and WTO panel or Appellate body interpretations of the agreements has emphasized the separation of powers considerations discussed above. (139) For example, in Corus Staal the Federal Circuit invoked the separation of powers in rejecting the cited WTO decisions. The court stated that "[t] he conduct of foreign relations is committed by the Constitution to the political departments of the Federal Government ...;" "[w]e give [the agency] substantial deference in its administration of the statute because of the foreign policy implications of a dumping determination;" and "[w]e will not attempt to perform duties that fall within the exclusive province of the political branches." (140)
4.4 The Federal Circuit's Decision in Cummins Inc. v. United States
The Federal Circuit's reasoning in Timken and particularly in Corus Staal leaves considerable uncertainty over the precise legal standard governing treatment of international decisions. The Federal Circuit's July 2006 decision in Cummins Inc. v. United States (141) is noteworthy because the court appears to have tried to synthesize its prior decisions on international decisions into an articulated principle. In doing so, Cummins establishes a legal standard never articulated in prior international trade case law governing the treatment of international tribunals or organizations' interpretations of international agreements.
In Cummins, the court addressed an importer's argument in a customs classification case that the Court of International Trade had erred by considering an opinion on the classification of the merchandise issued by the World Customs Organization (WCO). The Federal Circuit ruled that "such an opinion is not given deference by United States courts," but "can be consulted for its persuasive value." (142) The court referred to the Supreme Court's June 2006 decision in Sanchez-Llamas v. Oregon (143) concerning the treatment to be afforded in U.S. courts to the interpretation of the Vienna Convention on Consular Relations by the International Court of Justice (ICJ). The Federal Circuit also cited its own international trade decisions in Corus Staal and Timken, apparently as illustrations of the same principle. The Federal Circuit stated that "the Supreme Court has rejected any notion of deference or obligation to an international tribunal's decision" and, therefore, "like the ICJ's interpretation of the treaty terms in Sanchez-Llamas, the WCO opinion is not binding and is entitled, at most, to 'respectful consideration."' (144) Applying this standard, the Federal Circuit then ruled that the lower court properly "accorded no deference to ... the WCO opinion" and instead "independently construed" the statute and "consulted the WCO opinion ... only as persuasive authority." (145)
The Cummins decision, in reliance on Sanchez-Llamas, appears to establish a new principle for international trade litigation that "an interpretation of an international agreement by an international court" is "entitled only to ... 'respectful consideration"' (146) The significance of Cummins is that international tribunals' interpretations of international agreements are apparently not governed at all by the Charming Betsy canon that an ambiguous statute should, if fairly possible, be construed to avoid a conflict with international law or an international agreement. Instead, under Cummins, the entirely separate "respectful consideration" standard governs the treatment of international tribunals' interpretations of international agreements.
In setting out the "respectful consideration" standard, the Supreme Court's decision in Sanchez-Llamas cited only the Court's earlier decision relating to ICJ interpretations of the Consular Relations treaty in Breard v. Greene, (147) which did not cite any precedent on this point. But the "respectful consideration" standard originates in a Supreme Court decision nearly as old as Charming Betsy with nearly as quaint a name: Thirty Hogsheads of Sugar v. Boyle. (148) Thirty Hogsheads dealt specifically with the treatment of decisions of foreign courts on questions of customary international law. It states that "[t] he decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect" and that these decisions "show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this." (149) Under this standard, the Court found in Thirty Hogsheads that a decision of a post-1776 English court was not unreasonable and not contrary to the rule as understood in other countries. Accordingly, the Court adopted the English holding as the rule of international law as understood in the United States.
In sum, the Federal Circuit's reasoning in Cummins strongly suggests that in future cases it will apply the "respectful consideration" standard in international trade cases in evaluating WTO panel and Appellate Body decisions as well as other decisions of international organizations.
5. ENFORCEMENT OF WTO DECISIONS ADVERSE TO THE UNITED STATES
An additional dimension to the relationship of WTO obligations to U.S. law occurs where a decision of a WTO panel or the Appellate Body holds that a U.S. measure is inconsistent with a WTO agreement. This situation differs from the issues described above because, as Professor Roger Alford has emphasized, the Charming Betsy canon of construing an ambiguous statute to avoid a conflict with international law only "arises in those contexts ... in which the parties are not seeking direct recognition and enforcement of the [international] decision." (150) Thus, the "enforcement" of a WTO decision by its implementation in domestic law differs from using the WTO decision as an aid to interpreting a domestic statute. As discussed above, URAA sections 123 and 129 govern the implementation of adverse WTO decisions that find agency regulations or practices to be inconsistent with WTO obligations. It is the executive branch, not the judiciary, that is responsible for implementing WTO decisions. A WTO decision is "enforced" for domestic purposes when an agency regulation or practice has been modified pursuant to URAA section 123 or when a modified antidumping or countervailing duty determination has been implemented pursuant to section 129.
Nevertheless, the distinction between the "enforcement" of a WTO decision and its use as an interpretive guide under the Charming Betsy canon becomes blurred in practice. This is because, as explained below, it is possible that the same WTO decision might be "enforced" under section 123 or 129 but also invoked as an interpretive aid in a case involving import transactions that the implementation does not govern.
5.1 The Issue of Duty Refunds on Past Entries
The significance of the "enforcement" and "interpretive aid" aspects of a WTO decision arises because URAA section 129 provides that implementation of determinations as modified to be WTO-consistent
"have prospective effect only." (151) Specifically, under section 129, the new WTO-consistent determination applies prospectively to import shipments that are entered on or after the implementation date. (152) The Statement of Administrative Action states that the relief under section 129(c) is consistent with "the principle that [WTO and] GATT panel recommendations apply only prospectively." (153) Indeed, the preferred and usual remedy under the WTO Dispute Settlement Understanding is simply to cease the violation: "[T]he first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measures concerned if these are found to be inconsistent with the provisions of any of the [WTO] agreements." (154)
The prospective implementation of WTO-consistent administrative determinations under URAA section 129 (c) does not mesh neatly with the domestic U.S. procedures for judicial review under the customs and international trade laws. Although perhaps it is an obvious point, the remedy that importers usually seek in such litigation is not prospective relief at all, but the refund of overpaid import duties from prior shipments of goods that have already entered the country. It is at best unclear whether "bring[ing] the measure into conformity" prospectively requires a refund of overpaid duties on prior entries that are the subject of pending judicial review when a WTO-inconsistent measure is brought into conformity.
In a WTO proceeding, United States--Section 129(c)(1) of the Uruguay Round Agreements Act, (155) Canada unsuccessfully urged that the prospective relief under URAA section 129(c) violated the WTO remedy to "bring the measure into conformity." Canada argued that "bring[ing] the measure into conformity" required the refund of duties on prior entries that were the subject of pending judicial review. But the United States argued, and the WTO Panel agreed, that section 129(c) itself did not govern the treatment of shipments entered before the date of implementation of an adverse WTO decision. Rather, these entries would be governed by other provisions of U.S. law than section 129(c), and therefore section 129(c) would not prevent the prior entries from being treated in a WTO-consistent manner.
Given that section 129 does not govern the treatment of import shipments that arrived before the modified WTO-consistent determination is implemented, the critical issue for litigants is whether the entries that are the subject of pending judicial review will nevertheless receive treatment consistent with the WTO decision. The Statement of Administrative Action contains the ambiguous statement that "entries made prior to the date of [implementation] would remain subject to potential duty liability." (156) But since Canada's challenge was limited to section 129, the WTO panel did not reach the question of whether the prospective DSU remedy required the refund of duties on prior entries in pending judicial review.
5.2 Case Law Addressing WTO Decisions Adverse to the United States
The Court of International Trade's 1994 decision in Footwear Distributors and Retailers of America v. United Slates (157) represents the first case addressing an international decision that ruled, in a matter arising from the same underlying proceeding as the lawsuit, that the U.S. government's action is inconsistent with an international trade agreement. Footwear Distributors arose before the URAA took effect and involved an adopted GATT panel decision. An interesting preliminary aspect of the case is that the Court of International Trade stayed its proceedings pending the GATT panel's decision. Once the GATT panel decision was adopted, however, the court determined that the constitutional separation of powers, together with the structure of GATT obligations, prevented the court from applying the Charming Betsy canon and harmonizing the interpretation of the domestic statute with the GATT decision. (158) The court explained that it was the responsibility of the executive branch, and not the court, to determine whether the United States would respond to the adverse decision by ending the inconsistency or, instead, choosing to try to negotiate compensation or face retaliation from the victorious GATT party.
Although Footwear Distributors was decided before the URAA was enacted, it remains noteworthy because, in substance, URAA sections 123 and 129 have codified the result by committing the decision precisely how to implement an adverse WTO decision to the executive branch. Thus, when the question of treating a WTO decision adverse to the United States arose in Hyundai Electronics Co. v. United States, (159) the court ruled (as discussed above) that the WTO report "does not constitute binding precedential authority" and instead the "panel's reasoning ... may be used to inform the court's decision." (160) Ultimately, the court sustained the agency's interpretation even though it was inconsistent with the WTO report's interpretation of the relevant agreement.
The Federal Circuit considered an adverse WTO Appellate Body decision involving the United States in Corus Staal BV v. Department of Commerce. (161) The issue in Corus Staalwas whether the agency's interpretation of the statute was impermissible in light of the WTO Appellate Body decision in United States-Final Dumping Determination on Softwood Lumber from Canada. (162) Although it did not relate to the same underlying U.S. administrative proceeding, the WTO Softwood Lumber decision held that the agency's practice contested in Corus Staalwas inconsistent with the WTO Antidumping Agreement. The Federal Circuit focused on the statutory procedure for implementing adverse WTO decisions, ruling that "Congress has enacted [URAA section 129] to deal with the conflict presented here." (163) The court stated that section 129 "authorize[s] the United States Trade Representative, an arm of the Executive branch, in consultation with various congressional and executive bodies and agencies, to determine whether or not to implement WTO reports and determinations and, if so implemented, the extent of implementation." (164) The court then noted that the WTO Softwood Lumber decision "was not adopted as per Congress's statutory scheme." (165) Accordingly, under separation of powers principles, the court held that it would "not attempt to perform duties that fall within the exclusive province of the political branches, and ... therefore refuse[d] to overturn [the agency's] practice based on any ruling by the WTO ... unless and until such ruling has been adopted pursuant to the specified statutory scheme." (166)
Finally, the June 2005 decision of the NAFTA binational panel in Softwood Lumber (167) illustrates a different approach to a WTO decision adverse to the United States, addressing a situation not explicitly presented in Corus Staal. Specifically, when the Softwood Lumber NAFTA panel issued its decision, the U.S. government had already published the section 129 notice implementing the WTO Softwood Lumber decision with respect to entries made on and after the implementation date. The panel acknowledged that, under Corus Staal, URAA section 129 precluded the court from overruling the agency's practice based on the WTO decision "unless and until such ruling has been adopted pursuant to the specified statutory scheme." (168) The Softwood Lumber NAFTA panel reasoned that "[t]he 'unless and until' limitation found in Corus Staal ... suggests that the preclusion created by the URAA may terminate" (169) after publication of the implementation notice. The panel then ruled that "[t]he obligations of the WTO Antidumping Agreement have been clarified in the WTO Softwood Lumber Decision, and that clarification was accepted by the United States in the Final Section 129 Determination." (170) In sum, the NAFTA panel held that, because of the U.S. implementation with respect to future entries, the agency's interpretation of the statute with respect to past entries was no longer consistent with the Antidumping Agreement as clarified.
One may question whether the NAFTA panel's reasoning is consistent with how the Federal Circuit would have ruled. (171) The NAFTA panel de-emphasized the Federal Circuit's statement in Corus Staal quoted above that URAA section 129 not only authorizes the Executive Branch to determine whether or not to implement WTO reports, but also "if so implemented, the extent of implementation." (172) This language suggests that, contrary to the Softwood Lumberpanel's conclusion, the Federal Circuit would have deferred to the Executive Branch's decision whether to give WTO-consistent treatment to the entries made before the implementation date. Furthermore, the Softwood Lumber panel's analysis appears to give considerably more weight to the WTO decision than the "respectful consideration" standard adopted a year later in Cummins.
This Article suggests the following restatement of the treatment of WTO agreements and decisions in domestic U.S. law. First, if the domestic statute is unambiguous, the question of consistency with WTO obligations is irrelevant. Second, where the domestic statute is ambiguous and it is "abundantly clear" that the agency interpretation of the statute is inconsistent with the language of a WTO agreement, the courts can be expected to overrule the agency's interpretation by using the WTO agreement as secondary legislative history. Third, where the domestic statute is ambiguous and the agency's interpretation is supported by a WTO agreement or decision, the WTO consistency supports the conclusion that the agency's interpretation is permissible. Fourth, where the statute is ambiguous and the agency's interpretation is inconsistent with a WTO panel or Appellate Body interpretation of the corresponding WTO agreement, the courts give the WTO decision "respectful consideration" under the Federal Circuit's July 2006 decision in Cummins, but in practice sustain the agency's interpretation. Fifth, where a WTO panel or Appellate Body has ruled that a U.S. regulation or practice is inconsistent with WTO obligations, the courts have left it to the Executive Branch to determine whether or not to implement the adverse decision and, if implemented, the extent of implementation. In sum, the Article suggests that the Charming Betsy doctrine of construing U.S. statutes, to be consistent with international obligations whenever possible has only limited applicability in U.S. international trade litigation. In particular, it does not apply to interpretations of international agreements by international tribunals.
From a broader perspective, the U.S. treatment of WTO agreements and dispute settlement decisions can be viewed as a miniature case study of the dichotomy in international relations theory between liberal internationalism and realism. (173) Liberal internationalism posits that states have or should have a "harmony of interests" (174) in such matters as an open integrated international trade regime and compliance with international law. Realism, at least at its threshold, starts with the empirical observation that states often do not have the presumed "harmony of interests." (175)
In the context of this Article, liberal internationalism posits "the strong presumption that there should not be a conflict between U.S. actions and international law or international agreements," (176) but realism "know[s] this presumption is not always maintained." (177) Liberal internationalism urges that a U.S. court "should not say it disagrees with the WTO and upholds an agency practice found to be illegal by the Disputes Panel and the Appellate Body"; it should not "say that it does not care what a panel might have thought"; and that "decisions of the WTO Panels ..., [and the] Appellate Body, should inform decisions of [a U.S.] Court even when.... the United States was not involved as a party." (178) Realism observes the holdings of case law that WTO decisions are afforded no more than "respectful consideration," which in practice means that "the court ... cannot rely solely upon a [WTO decision's] non-binding interpretation of an international agreement to strike a United States agency interpretation of a statute." (179)
Indeed, the courts' attitude of judicial restraint may well be consistent with congressional intent as reflected in David Leebron's analysis of the "highly political process" (180) for implementing WTO agreements and decisions. Leebron described the URAA as "a minimalist approach to implementation" in which the "United States took no legislative action" if existing laws "were not clearly in violation of the WTO agreements as the United States interpreted them." (181) This approach, he wrote, "suggests a willingness to tread close to the limit ... and exploit any opening left by the agreements for protectionist interests." (182) And he concluded that "Congress intentionally made it much more difficult to achieve compliance by inserting procedural hurdles to complying with dispute settlement decisions...." (183)
This Article reaches the conclusion that the U.S. trade judiciary is likely to continue to exercise judicial restraint in addressing the relationship between WTO obligations and U.S. international trade statutes. (184) Therefore, the courts are unlikely under the existing statutory framework to promote significantly greater consistency between agency interpretations of U.S. statutes and WTO panel and Appellate Body interpretations of WTO agreements. (185) As pragmatic steps toward greater consistency, (186) this article recommends four amendments to the statutory framework. The proposed amendments do not, however, change the existing dualist model for implementing WTO agreements and decisions.
First, URAA section 123 should be amended. Currently it allows federal agencies to modify their regulations and practices to make them consistent with WTO dispute reports finding that a U.S. measure is not in conformity with WTO obligations. Section 123 should be amended to allow the agencies, if they consider it appropriate, to modify their regulations and practices to conform to interpretations of the WTO agreements in cases in which the United States was not a party. This amendment reflects that, in the existing "highly political process" for implementing WTO agreements and decisions, it is appropriate for the agencies themselves to apply Charming Betsy and related principles by seeking to assure that the agencies' own interpretations of the statutes they administer are consistent with international obligations (unless Congress clearly intended otherwise). (187)
Second, URAA section 129 should be amended. It currently provides that the implementation of an adverse WTO decision applies to future entries made after the date of implementation, leaving prior entries potentially subject to duty liability. Section 129 should be amended to make the implementation applicable to prior entries that are the subject of pending litigation and as other prior entries on which the duty assessment ("liquidation" (188)) is not final. The amendment would codify the result reached in the 2005 NAFTA Panel decision in Softwood Lumber (189) and would foster the broader policy goal of creating a more stable and predictable legal environment for international business. (190)
Third, perhaps either URAA section 129 or the statutory provision governing remedies in the U.S. Court of International Trade should be amended to provide expressly that litigation may be stayed pending a decision in WTO dispute settlement proceedings. The stay should be granted whenever the WTO case appears likely to determine whether an agency action challenged in the domestic litigation is consistent with WTO obligations. Strictly speaking, such an amendment is unnecessary because the court already has the authority to stay litigation pending an international decision, as it did in Footwear Distributors. (191) But in current law the stay serves no purpose without the proposed amendment to URAA section 129 making implementation of the WTO decision applicable to entries that are the subject of pending litigation. In conjunction with the proposed amendment to section 129, a stay would assure that the entries that are the subject of the lawsuit would ultimately be assessed with duty in a manner consistent with the WTO decision.
Fourth, perhaps the statutory provision governing remedies in the U.S. Court of International Trade should be amended to provide that, where the court determines that the agency's interpretation is inconsistent with an adopted WTO panel or Appellate Body decision, the court may remand the case to the agency for further consideration. As with this Article's third proposal, this amendment may be unnecessary because the Court of International Trade already possesses broad authority to remand cases to the agency, though it has only occasionally used remands to require explanations of potential inconsistency with WTO obligations. (192) On remand, the agency would be required to analyze the potential inconsistency and provide a reasoned explanation of why or why not it should modify its decision or practice (under the section 123 procedure) to be consistent with the WTO agreement as interpreted by the WTO decision. This approach, again, would place on the political institutions the onus of seeking to minimize conflicts between WTO obligations and U.S. international trade laws.
(1.) This Article updates and reassesses the ideas in the author's unpublished 1997 paper, Patrick C. Reed, International Trade Agreements and Decisions as Aids to Statutory Interpretation in U.S. Customs and International Trade Litigation, presented at the Tenth U.S. Court of International Trade Judicial Conference (April 17, 1997) (on file with author). See also Andreas F. Lowenfeld, International Decisions and the Task of the Court of International Trade, in ANDREAS F. LOWENFELD, THE ROLE OF GOVERNMENT IN INTERNATIONAL TRADE: ESSAYS OVER THREE DECADES 321-26 (2000) (commenting on Aids to Statutory Interpretation); Proceedings of the Tenth USCIT Judicial Conference, 185 F.R.D. 395, 471-84 (1997) (panel discussion of the topic among Reed, Rufus Jarman, Andreas Lowenfeld, Berniece Brown, and Debra Steger).
(2.) See infra Part 2.
(3.) Reed, supra note 1, at 26 ("the issue is really whether, or to what extent, courts may and should use international agreements and decisions as aids to interpreting and applying U.S. customs and international trade statutes."); accord, David W. Leebron, Implementation of the Uruguay Round Results in the United States, in IMPLEMENTING THE URUGUAY ROUND 175, 212 (John H. Jackson & Alan O. Sykes, Jr. eds., 1997) ("The agreements, including authoritative interpretations by the WTO or decisions of dispute settlement panels, might still be applied ... by a court to resolve ambiguities in the language of a statute.")
(4.) Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (per Marshall, C.J.).
(5.) RESTATEMENT (THIRD) OF U.S. FOREIGN RELATIONS LAW [section] 114 (1987); cf. Luigi Bormioli Corp. v. United States, 304 F.3d 1362, 1368 (Fed. Cir. 2002) ("the statute must be interpreted to be consistent with GATT obligations, absent contrary indications in the statutory language or its legislative history"). See generally Roger P. Alford, Federal Courts, International Tribunals and the Continuum of Deference, 43 VA. J. INT'L L. 675, 731-745 (2003) (placing the Charming Betsy doctrine within a continuum of seven different models for U.S. courts' treatment of international decisions); Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 GEO. L.J. 479 (1998) (reassessing the conceptions underlying the Charming Betsy doctrine).
(6.) Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660, 668 (Fed. Cir. 1992).
(7.) Suramerica's progeny in the Federal Circuit are Campbell Soup Co. v. United States, 107 F.3d 1556, 1561 (Fed. Cir. 1997) (citing Suramerica, 966 F.2d at 667-58); Timken Co. v. United States, 354 F.3d 1334, 1343-45 (Fed. Cir. 2004); and Corus Staal BV v. Dep't of Commerce, 395 F.3d 1343, 1347-49 (Fed. Cir. 2005) (citing Suramerica, 966 F.2d at 668, and Timken, 354 F.3d at 1344).
(8.) 63 F.3d 1572, 1581 (Fed. Cir. 1995).
(9.) Federal Mogul's progeny in the Federal Circuit are Luigi Bormioli Corp. v. United States, 304 F.3d 1362 (Fed. Cir. 2002) (citing Federal Mogul), and Allegheny Ludlum Corp. v. United States, 367 F.3d 1339 (Fed. Cir. 2004) (citing Federal Mogul and Bormioli).
(10.) Certain Softwood Lumber Products from Canada: Final Affirmative Antidumping Determination, Panel No. USA-CDA-2002-1904-02, 2005 FTAPD LEXIS 5 (NAFTA Binat'l Panel 2005).
(11.) 454 F.3d 1361 (Fed. Cir. 2006).
(12.) Fecilia Davenport, The Uruguay Round Supremacy Clause: Congressional Preclusion of the Charming Betsy Standard with Respect to WTO Agreements, 15 FED. CIR. B.J. 279 (2005); Elizabeth C. Seastrum, Chevron Deference and the Charming Betsy: Is There a Place for the Schooner in the Standard of Review of Commerce Antidumping and Countervailing Duty Determinations, 13 FED. CIR. B.J. 229 (2003/2004) (arguing that seeking to harmonize domestic statutory interpretations with WTO obligations is "questionable").
(13.) Michael F. Williams, Charming Betsy, Chevron, and the World Trade Organization: Thoughts on the Interpretive Effect of International Trade Law, 32 LAW & POL'Y INT'L BUS. 677, 693-97, 703-04 (2001).
(14.) See Richard O. Cunningham, Outline of Remarks on Challenges for the Court of International Trade in the Coming Decades (November 2005) (arguing that courts' failure to harmonize statutory interpretations with WTO decisions makes the United States "the scofflaw of international trade"); Lowenfeld, supra note 1, at 322 ("I think the Court should not say it disagrees with the WTO panel and upholds an agency practice found to be illegal by the Disputes Panel and the Appellate Body. Nor should the court say it does not care what a panel might have thought...."); cf. JOHN H. JACKSON, SOVEREIGNTY, THE WTO, AND CHANGING FUNDAMENTALS OF INTERNATIONAL LAW 194 (2006) [hereinafter SOVEREIGNTY] (criticizing as "particularly troublesome" the position taken in some U.S. agency determinations of delaying changing U.S. practices to make them consistent with WTO dispute settlement reports); JOHN H. JACKSON, THE WORLD TRADING SYSTEM: LAW AND POLICY OF INTERNATIONAL ECONOMIC RELATIONS 96-97 (2d ed. 1997) [hereinafter THE WORLD TRADING SYSTEM] (explaining doctrines supporting WTO-consistent statutory interpretations); Afford, supra note 5, at 742 (stating that the Charming Betsy model arises in the context of WTO decisions and "provides an extremely important mechanism for indirect recognition of international tribunal decisions."); Thomas Cottier & Krista N. Schefer, The Relationship Between World Trade Organization Law, National and Regional Law, 1 J. INT'L ECON. L. 83, 88-91 (1998) (comparing "the doctrine of consistent interpretation" in several national legal systems and "assert[ing] ... that this doctrine of conformity [to WTO norms] in interpretation [of national laws] remains of paramount importance in the context of the WTO."); Leebron, supra note 3, at 212 & nn. 138-39 (explaining doctrines supporting WTO-consistent statutory interpretations).
(15.) Jane A. Restani & Ira Bloom, Interpreting International Trade Statutes: Is the Charming Betsy Sinking?, 24 FORDHAM INT'L L.J. 1533, 1533-47 (2001). For the application of Judge Restani's theory into practice, see infra notes 131, 138 and accompanying text. For a slightly different intermediate position, see Reed, supra note 1, at 26-27 ("courts may and should refer to pertinent international agreements as interpretive aids," whereas "courts should exercise caution in using decisions by international bodies as interpretive aids" but "may refer to international decisions if ... they offer persuasive reasoning....").
(16.) Cummins Inc. v. United States, 454 F.3d 1361, 1366 (Fed. Cir. 2006).
(17.) See infra notes 23-47 and accompanying text.
(18.) See infra notes 48-103 and accompanying text.
(19.) See infra notes 104-151 and accompanying text.
(20.) See infra notes 151-173 and accompanying text.
(21.) See infra notes 174-193 and accompanying text.
(22.) Leebron, supra note 3, passim; see also JACKSON, THE WORLD TRADING SYSTEM, supra note 14, at 95-98; MITSUO MATSUSHITA ET AL., THE WORLD TRADE ORGANIZATION: LAW, PRACTICE, AND POLICY 99-102 (2003); cf. Cottier & Schefer, supra note 14, at 91-119 (discussing whether WTO obligations should have direct effect in the national laws of WTO members).
(23.) Leebron, supra note 3, at 176.
(24.) Id. at 241.
(25.) MATSUSHITA ET AL., supra note 22, at 102. As Matsushita and coauthors explain, dualism is the idea "that international law and domestic law are separate systems of law," and "[e]ach is supreme in its own sphere so that a domestic court would apply domestic law in the case of a conflict between domestic law and international law," even though "obligations under international law cannot be excused because they conflict with domestic law ..." Id. at 98. The alternative theory to dualism is monism, which "holds that both international law and domestic law form parts of the same legal order," so that "international law is (or should be) directly applicable in domestic law and prevails over inconsistent domestic laws." Id. at 97. The dualism-monism distinction is oversimplified, however, since neither approach corresponds fully to state practice. Id. at 98. See also IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 31-34 (5th ed. 1998). Another treatise describes the monism-dualism distinction as "dogmatic." PETER MALANCZUK, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW 64 (7th ed. 1997).
(26.) Uruguay Round Agreements Act [section] 102(a), 19 U.S.C. [section] 3512(a).
(27.) Reed, supra note 1, at 3; accord MATSUSHITA ET AL., supra note 22, at 101, 102 ("the WTO agreements have no direct effect on U.S. law" and their "implementation depends solely on [their] transformation by the U.S. Congress into domestic law.").
(28.) S. REP. No. 103-412, at 13 (1994); accord H.R. PEP. No. 103-826, pt. 1, at 25 (1994), as reprinted in 1994 U.S.C.C.A.N. 3773; cf. S. PEP. No. 96-249, at 36 (1979) (the Tokyo Round agreements "are not serf-executing."). Leebron observed that "the language of the statute.., is somewhat oblique" in regard to the non-self-executing nature of the agreements. Leebron, supra note 3, at 212.
(29.) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW [section] 111 cmt. h (1987); accord MATSUSHITA ET AL., supra note 22, at 101, 102.
(30.) Uruguay Round Agreements Act [section] 102(a) (1), 19 U.S.C. [section] 3512(a) (1) ("No provision of any of the Uruguay Round Agreements, nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States shall have effect."). Davenport refers to section 102(a) (1) as the "URAA Supremacy Clause." Davenport, supra note 12, at 281 & n.14. The URAA also provides that nothing in the URAA may be construed "to amend or modify any law of the United States" or "to limit any authority conferred under any law of the United States ... unless specifically provided for in this Act." Uruguay Round Agreements Act [section] 103 (a) (2), 19 U.S.C. [section] 3512(a) (2).
(31.) H.R. PEP. NO. 103-826, pt. 1 (1994), as reprinted in 1994 U.S.C.C.A.N. 3773.
(32.) Uruguay Round Agreements Act [section] 103(c) (1), 19 U.S.C. [section] 3512(c) (1) ("No person other than the United States--(A) shall have any cause of action or defense under any of the Uruguay Round Agreements or by virtue of congressional approval of such an agreement....").
(33.) Id, ("No person of than the United States--... (B) may challenge, in any action brought under any provision of law, any action or inaction by any department, agency, or other instrumentality of the United States, any State, or any political subdivision of a State on the ground that such action or inaction is inconsistent with such agreement.").
(34.) H.R. REP. No. 103-826, pt. 1, at 25 (1994), as reprinted in 1994 U.S.C.C.A.N. 3773.
(35.) Uruguay Round Agreements Act Statement of Administrative Action, in 1 H.R. Doc. 103-316, at 669 (1994) [hereinafter "SAA"]. The SAA was approved by Congress in the URAA, [section] 102(a) (2), 19 U.S.C. [section] 3511 (a) (2), and 'shall be regarded as an authoritative expression by the United States concerning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in which a question arises concerning such interpretation or application." Id. [section] 103(d), 19 U.S.C. [section] 3512(d).
(36.) SAA, supra note 35, at 669.
(37.) Id. at 670.
(38.) Id. at 676. The reference to 'any agency of government' has been interpreted to include courts. See Timken Co. v. United States, 354 F.3d 1334, 1341 (Fed. Cir. 2004) (ruling, in a lawsuit contesting an agency determination as inconsistent with WTO norms, that the lawsuit is allowed because the party "brought this action under U.S. law under the assumption that it would be interpreted to avoid a conflict with international obligations" as opposed to impermissibly bringing an action directly under the international agreement); see also Reed, supra note 1, at 5 n.14 (advocating in 1997 the view adopted in Timken).
(39.) See Reed, supra note 1, at 3.
(40.) Leebron, supranote 3, at 211.
(41.) Id. at 219.
(42.) H.R. REP. No. 103-826, pt. 1, at 25 (1994), as reprinted in 1994 U.S.C.C.A.N. 3773; accord Leebron, supra note 3, at 221 ("if a federal statute is found to violate the United States' obligations, only the Congress can act to change the statute....").
(43.) H.R. REP. No. 103-826, pt. 1, at 25 (1994), as reprinted in 1994 U.S.C.C.A.N. 3773.
(44.) Leebron, supranote 3, at 218-19.
(45.) Uruguay Round Agreements Act [section] 213(g), 19 U.S.C. [section] 3533(g); see SAA, supra note 35, at 1022; Leebron, supra note 3, at 221. The 60-day period does not apply if the President determines that an earlier effective date is in the national interest. Uruguay Round Agreements Act [section] 213(g) (2), 19 U.S.C. [section] 3533(g) (2).
(46.) Uruguay Round Agreements Act [section] 129, 19 U.S.C. [section] 3538; see SAA, supra note 35, at 1022-27; Leebron, supra note 3, at 221-22.
(47.) Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (per Marshall, C.J.).
(48.) See PATRICK C. REED, THE ROLE OF FEDERAL COURTS IN U.S. CUSTOMS & INTERNATIONAL TRADE LAW 14 (1997) ("judicial review of the actions and decisions taken by executive and administrative agencies under the customs and international trade laws"); cf. Edward D. Re, Foreword: The United States Court of International Trade in a World of Transition, 22 L. & POL'Y INT'L BUS. 643, 644 (1991) ("Any examination of the role of the United States Court of International Trade in the overall scheme of United States customs and international trade statutes must begin with an understanding of the nature and purpose of judicial review.").
(49.) 467 U.S. 837 (1984).
(50.) On the standard of review of questions of law in international trade litigation, see generally REED, supra note 48, at 278-311 (1997). Consistent with other publications, this article uses the term "Chevron analysis" to describe the Supreme Court's two-step test used in extensively in federal administrative law to review the lawfulness of agencies' interpretations of the statutes the administer. See, e.g., Claire R. Kelly & Patrick C. Reed, Once More Unto the Breach: Reconciling Chevron Analysis and De Novo Judicial Review after United States v. Haggar Apparel Company, 49 AM. U. L. REV. 1167, 1168 n.2 (2000). On Chevron and Chevron two-step analysis, see generally, e.g., 1 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE 139-191 (4th ed. 2002).
(51.) Chevron, 467 U.S. at 842.
(52.) Id. at 842-43.
(53.) Id. at 843 ("permissible construction") & 844 ("reasonable interpretation"). A further complication is that in its 2001 decision in Mead Corporation v. United States, 533 U.S. 218 (2001), the Supreme Court held that the two-step Chevron analysis does not apply where the agency's interpretation is not the result of the rulemaking procedures governing federal regulations or an adversarial administrative adjudication. Instead, these administrative interpretations are governed by an alternative standard in which the test is not whether the agency's interpretation is permissible, but whether it is persuasive. The Mead standard applies to many administrative decisions under the customs statutes, including at least some interpretations under the WTO Agreement on Customs Valuation. As a result, some issues of consistency of U.S. laws and administrative practice with WTO obligations can arise in the context of judicial review under the Mead standard instead of the Chevron standard. At least so far, the distinction between Chevron and Mead standards has apparently not made a difference in any decided cases. See, e.g., Luigi Bormioli Corp. v. United States, 304 F.3d 1362, 1365-66 (Fed. Cir. 2002) (ruling that the result would be the same under either Chevron or Mead).
(54.) Accord Alford, supra note 5, at 736 ("the Charming Betsy canon has no functional application where Congressional intent is clear and courts are undertaking Chevron step-one analysis.") & 737 ("if the only possible construction is one that is consistent (or inconsistent) with United States' international obligations, Charming Betsy and Chevron both counsel that a court must give effect to the unambiguously-expressed Congressional intent."); Leebron, supra note 3, at 212 ("applications [of WTO agreements or decisions to resolve statutory ambiguities] could not lead to an interpretive result that was contrary to any clearly expressed intent of Congress."); Restani & Bloom, supra note 15, at 1543 ("If the statute is clear, it controls.").
(55.) H.R. REP. No. 103-826, pt. 1, at 25 (1994), as reprinted in 1994 U.S.C.C.A.N. 3773.
(56.) WT/DS217/AB/R, WT/DS234/AB/R (2003), available at http://www.wto.org/english/ tratop_e/dispu_e/217_234_abr_e.pdf.
(57.) Campbell Soup Co. v. United States, 107 F.3d 1556, 1560-61 (Fed. Cir. 1997) (holding that the statute governing "computed value" unambiguously required the amount for profit and general expenses to be based on the producer's profits and expenses, even though in this case the producer's profits and expenses had erroneously included a tax rebate that was supposed to be non-dutiable under the GATT Valuation Code). In Fujitsu General America, Inc. v. United States, 24 Ct. Int'l Trade 733, 756-77 (1999), the court ruled that the statute was unambiguous and stated that "[e]ven assuming the [statute] were somehow inconsistent with the WTO Antidumping Agreement, ... an unambiguous statute will prevail over an ... international agreement," but it does not appear that the statute was actually inconsistent with the WTO agreement.
(58.) Turtle Island Restoration Network v. Evans, 284 F.3d 1282, 1297 (Fed. Cir. 2002), cert. denied, 538 U.S. 960 (2003).
(59.) Id. at 1297.
(60.) Allegheny Ludlum Corp. v. United States, 367 F.3d 1339, 1348 (Fed. Cir. 2004).
(61.) A recent article argues that URAA section 102(1)(a) indeed means that Congress precluded consideration of WTO agreements and decisions in interpreting U.S. trade laws. See Davenport, supra note 12, passim, Davenport's argument erroneously commingles two separate principles: first, the statute prevails over the international norm in case of conflict; second, if possible, the statute should be interpreted to avoid conflict with the international norm. Analogously, in the relationship between statutes and the Constitution, the Marbury rule that "an act of the legislature, repugnant to the constitution, is void" coexists with the rule that "[w]hen the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Compare Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) with Crowell v. Benson, 285 U.S. 22, 62 (1932).
(62.) Usinor v. United States, 26 Ct. Int'l Trade 767, 778 (2002); see also Usinor v. United States, 342 F. Supp. 2d 1267, n.13 (Ct. Int'l Trade 2004) ("WTO Agreements ... and ... decisions ... as well as treatises, law review articles, and commentaries; indeed any unforeclosed source of valuable analysis, are matters a court can examine for persuasive rationale. Nothing in the law forecloses it.").
(63.) Hyundai Electronics Co. v. United States, 23 Ct. Int'l Trade 302, 313 (1999); accord, e.g., Federal Mogul Corp. v. United States, 63 F.3d 1572, 1579-82 (Fed. Cir. 1995) (applying Charming Betsy as part of Chevron step two after concluding that the statutory language is ambiguous).
(64.) See infra notes 78-102 and accompanying text (discussing alternative ways of applying the two canons in concert).
(65.) Fundicao Tupy S.A. v. United States, 11 Ct. Int'l Trade 23, 29 (1987); accord Fed. Mogul Corp., 63 F.3d at 1581 (citing Fundicao Tupy); cf. Hyundai Electronics Co. v. United States, 23 Ct. Int'l Trade 302, 312 (1999) (observing that the URAA's Statement of Administrative Action "provides that the URAA was 'intended to bring U.S. law fully into compliance with U.S. obligations under the [Uruguay Round] agreements.'"). The statement in Fundicao Tupy appeared in CIT Chief Judge Re's preliminary decision assigning a three-judge panel to hear plaintiff's claim that the agency had interpreted the antidumping statute inconsistently with the GATT Antidumping Code. It may not be superfluous to mention that the author of this article was the author of the brief in Fundicao Tupy seeking the three-judge panel on this ground. The decision on the merits held, however, that the agency's interpretation did not violate the GATT agreement and, in any event, reflected unambiguous Congressional intent. Fundicao Tupy S.A. v. United States, 12 Ct. Int'l Trade 6, 678 F. Supp. 898 (1988), aff'd, 859 F.2d 915 (Fed. Cir. 1988).
(66.) JACKSON, THE WORLD TRADING SYSTEM, supra note 14, at 96 ("the agreements ... are most certainly part of the legislative history of the statute ...); John H. Jackson, United States Law and Implementation of the Tokyo Round Negotiation, in JOHN H. JACKSON ET AL., IMPLEMENTING THE TOKYO ROUND: NATIONAL CONSTITUTIONS AND INTERNATIONAL ECONOMIC RULES 139, 167 (1984) ("it seems fair to conclude that the trade agreements ... can be used as at least a secondary source of legislative history of the 1979 act when other sources fail to resolve an issue.").
(67.) Lowenfeld, supra note 1, at 322 ("I think Mr. Reed [in Aids to Statutory Interpretation] is quite right in bringing up Professor Jackson's point that the legislative history of the Uruguay Round Agreements Act is the Uruguay Round itself."); Reed, supra note 1, at 7 & n.22 (citing Professor Jackson's works); Restani & Bloom, supra note 15, at 1543 ("the statute is intended to implement the agreement, and the relevant WTO agreement may be viewed as secondary legislative history."); cf Leebron, supra note 3, at 211 (stating that the statutory language, the WTO agreements, and the statement of administrative action together comprise the "three parts" of "the text of the legislative implementation of the Uruguay Round Agreements").
(68.) See supra notes 34-39 and accompanying text.
(69.) Bradley, supra note 5, at 495.
(70.) Id. at 495.
(71.) See id. (acknowledging that his "categories ... may not capture all relevant considerations."). Although Bradley argues that the legislative intent conception is questionable today in light of "problematic empirical evidence suggesting that compliance with international law is often not the political branches' paramount concern," id. at 518, his criticism of the legislative intent conception appears to be inapposite where the international agreement represents secondary legislative history.
(72.) 112 U.S. 536 (1884).
(73.) Id. at 549.
(74.) See Weinberger v. Rossi, 456 U.S. 25, 31-34 (1982).
(75.) Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993).
(76.) Id. at 178. Some authorities suggest that the principle of interpreting domestic implementing statutes to be consistent with the underlying international agreements is a separate doctrine from the Charming Betsy doctrine of construing statutes to avoid a conflict with international obligations. See Restani & Bloom, supra note 15, at 1543 (suggesting that use of international agreements as interpretive aids is "perhaps not based upon the Charming Betsy principles" but the principle that "the relevant WTO agreement may be viewed as secondary legislative history."); Seastrum, supra note 12, at 238 (questioning the use of the Charming Betsy doctrine because "[c]onsidering ambiguous statutory provisions ... in light of broad customary international law principles is a much different exercise [from] reading U.S. law in light of a technical text such as a WTO Agreement."); see also Miss. Poultry Ass'n v. Madigan, 992 F.2d 1359, 1367 n.45 (5th Cir. 1993) (suggesting that the phrase "law of nations" used in Charming Betsy does not include international agreements). In fact, Chew Heong did not cite Charming Betsy and Sale only cited it for a different proposition, while Weinberger did cite it. The Restatement version of the rule clearly covers "international law or ... an international agreement" and cites Chew Heong and Weinberger along with Charming Betsy. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW [section] 114, Reporters' Notes (1987). In sum, it is essentially a semantic question whether or not the Charming Betsy doctrine embraces the use of an underlying international agreement to help interpret the domestic implementing statute.
(77.) See infra Part 4.1.
(78.) Reed, supra note 1, at 26.
(79.) Uruguay Round Agreement: Understanding on Rules and Procedures Governing the Settlement of Disputes art. 3, para. 2, Dec. 15, 1993, 33 I.L.M. 112 [hereinafter Dispute Settlement Understanding].
(80.) Professor Andreas Lowenfeld has argued that the legislative history of the URAA "is broader than ... Mr. Reed suggests," in that it includes not only the substantive WTO Agreements, but also Congress's "specifically agree[ing] to the [WTO] Understanding on Dispute Settlement, ... which removed ... the option of blocking adoption of reports of dispute panels of the Appellate Body." Lowenfeld, supra note 1, at 322-23. Professor Lowenfeld urges that interpreting the U.S. statutes so as to be consistent with WTO dispute settlement decisions fulfills congressional intent because Congress knew that it was approving "a specific code of behavior supported by a binding system of adjudication." Id. at 323; cf. Leebron, supra note 3, at 212 (stating that "[t]he WTO agreements, including authoritative interpretations by the WTO or decisions of dispute settlement panels, might ... be applied ... by a court to resolve ambiguities in the language a statute ...") (emphasis added).
(81.) S. REP. No. 96-249, at 36 (1979).
(82.) SAA, supra note 35, at 103.
(84.) Id. at 675.
(85.) Bradley, supra note 5, at 536.
(86.) E.g., United States v. Pink, 315 U.S. 203, 222-23 (1942) ("The conduct of foreign relations is committed by the Constitution to the political departments of the Federal Government...."); see generally Louis HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 31-62 (2d ed. 1996)
(87.) See RESTATEMENT (THIRD) OF U.S. FOREIGN RELATIONS LAW [section] 326(1) (1987) ("The President has authority to determine the interpretation of an international agreement to be asserted by the United States in its relations with other states.") & [section] 326(2) ("Courts in the United States have final authority to interpret an international agreement for purposes of applying it as law in the United States, but will give great weight to an interpretation made by the Executive Branch."); id. [section] 112, cmt. c ("Courts give particular weight to the position taken by the United States Government on questions of international law because it is deemed desirable that so far as possible the United States speak with one voice on such matters.").
(88.) Bradley, supra note 5, at 526.
(89.) Id. at 525.
(90.) Id. at 525-26.
(91.) Id. at 526.
(92.) Id. at 490.
(93.) See generally PETER L. STRAUSS, ADMINISTRATIVE JUSTICE IN THE UNITED STATES 365-75 (2d ed. 2002).
(94.) Smith-Corona Group v. United States, 713 F.2d 1568, 1282 (Fed. Cir. 1983), cert. denied, 465 U.S. 134 (1984). Regarding Smith-Corona, see generally REED, supra note 48, at 293-99.
(95.) SEC v. Chenery Corp., 318 U.S. 80, 88 (1943).
(96.) Motor Vehicle Mfrs Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
(97.) See infra Part 4.3.
(98.) 485 U.S. 568, 574-75 (1988).
(99.) DeBartolo forms the basis of Williams's argument that U.S. law requires U.S. trade statutes to be interpreted consistently with GATT/WTO obligations unless Congress clearly intended otherwise. See Williams, supra note 13, at 702-03; cf. Alford, supra note 5, at 734-35 (suggesting that DeBartolo should be applied by analogy in the context of seeking to interpreting statutes to be consistent with international agreements).
(100.) DeBartolo, 485 U.S. at 575.
(101.) Despite the Court's statement attributing the "roots" of the principle of avoiding constitutional problematic interpretations to the Charming Betsy decision, the Supreme Court never linked Charming Betsy to the constitutionally-related principle until one decision in 1979. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499 (1979). Before then, the principle of avoiding constitutionally problematic interpretations was entirely separate from the Charming Betsy canon. E.g., Crowell v. Benson, 285 U.S. 22, 62 (1931) (citing numerous cases not including Charming Betsy); accord Williams, supra note 13, at 696 & nn. 132-33.
(102.) STRAUSS, supra note 93, at 370-71.
(103.) 63 F.3d 1572 (Fed. Cir. 1995).
(104.) There is, however, a much earlier line of cases in the Federal Circuit's predecessor, the Court of Customs and Patent Appeals, even predating the GATT, in which not only trade agreements but also their negotiating histories are used as aids in interpreting ambiguous provisions in customs tariff statutes. See United States v. Weigen-Dagen, 39 C.C.P.A. 58, 65 (1951), cert. denied, 342 U.S. 947 (1951); United States v. Good Neighbor Imports, Inc., 33 C.C.P.A. 91 (1945).
(105.) Federal Mogul, 63 F.3d at 1581.
(107.) 20 Ct. Int'l Trade 1169 (1996).
(108.) Because this Article sees Caterpillar as being limited to a trade agreement used as secondary legislative history, it differs from the view that Caterpillar stands for the broader, general proposition that "where the administration ... interpretation is inconsistent with the international obligation, courts have applied Chevron and Charming Betsy and reversed the decision." Alford, supra note 5, at 738.
(109.) 26 Ct. Int'l Trade 767 (2002).
(110.) Id. at 777.
(111.) Id. at 778; cf. Crescent Foundry Co. v. United States, 20 Ct. Int'l Trade 1469 (1996) (recognizing that the List of Illustrative Export Subsidies under the GATT Subsidies Code had been "incorporated ... into United States domestic law" and remanding the agency's determination for further explanation of certain issues where the agency's interpretation of the Illustrative List was inadequately explained).
(112.) Hyundai Electronics Co. v. United States, 23 Ct. Int'l Trade 302, 313-14 (1999).
(113.) Corus Staal BV v. U.S. Department of Commerce, 259 F. Supp. 2d 1253, 1264 (Ct. Int'l Trade 2003), aff'd, 395 F.3d 1343 (Fed. Cir. 2005), cert. denied, 126 S. Ct. 1023 (2006).
(114.) See infra notes 120-21 and accompanying text.
(115.) Fed. Mogul Corp. v. United States, 63 F.3d 1572, 1582 (Fed. Cir. 1995). But see Lowenfeld, supra note 1, at 321-22 (urging that "issues of separation of powers are not really significant in this context" and, instead, "[t]he only national interest in such cases, I submit, is that th[e] Court [of International Trade], and the trade law machinery of the United States in general, are perceived as operating under a rule of law, not of politics.").
(116.) Usinor v. United States, 342 F. Supp. 2d 1267, 1275-1282 (Ct. Int'l Trade 2004). In Usinor I the court remanded the case to the agency for further explanation of whether the agency's interpretation was consistent with the WTO agreement. In the interim, the WTO Appellate Body had issued a decision that was consistent with the agency's position.
(117.) Luigi Bormioli Corp. v. United States, 304 F.3d 1362 (Fed. Cir. 2002).
(118.) George E. Warren Corp. v. U.S. EPA, 159 F.3d 616 (D.C. Cir. 1998). In Warren, one should note that the statute in issue was not one whose legislative history included the WTO agreements. Not only was the Clean Air Act not amended in the URAA, but the URAA specifically provided that "[n]othing in [the URAA] shall be construed ... to amend or modify any law of the United States, including any law relating to ... the protection of the environment ... unless specifically provided for in [the URAA]." Uruguay Round Agreements Act [section] 102(a) (2), 19 U.S.C. [section] 3512(a)(2).
(119.) See infra notes 126-28 and accompanying text.
(120.) Hyundai Electronics Co. v. United States, 23 Ct. Int'l Trade 302, 312 (1999); accord, e.g., Corus Staal BV v. U.S. Department of Commerce, 259 F. Supp. 2d 1253, 1264 (Ct. Int'l Trade 2003), aff'd, 395 F.3d 1343 (Fed. Cir. 2005), cert. denied 126 S. Ct. 1023 (Jan. 9, 2006).
(121.) Hyundai, 23 Ct. Int'l Trade at 312; accord PAM, SpA v. U.S. Dep't of Commerce, 265 F. Supp. 2d 1362 (Ct. Int'l Trade 2003); SNR Roulements v. United States, 341 F. Supp. 2d 1334 (Ct. Int'l Trade 2004) (citing Hyundai), app. dismissed, 185 F. App'x. 944 (Fed. Cir. 2006); Corus Staal, 259 F. Supp. 2d at 1264 (citing Hyundai); Timken Co. v. United States, 26 Ct. Int'l Trade 1072, 1082 (2002) (citing Hyundai), aff'd, 354 F.3d 1334 (Fed. Cir. 2004), cert. denied, 543 U.S. 976 (2004).
(122.) Hyundai, 23 Ct. Int'l Trade at 312; accord, e.g., Corus Staal, 259 F. Supp. 2d at 1263 (finding that the WTO agreement itself does not clearly prohibit the agency's practice before considering the WTO dispute settlement report).
(123.) Timken, 26 Ct. Int'l Trade at 1082.
(124.) Corus Staal, 259 F. Supp. 2d at 1264.
(125.) SNR Roulements, 341 F. Supp. 2d 1343.
(126.) E.g., SNR Roulements, 259 F. Supp. 2d at 1344 (affirming the agency's interpretation "in light of prior [court] decisions that have found the [agency's] test to be reasonable"); Timken, 26 Ct. Int'l Trade at 1085 (affirming the agency's determination where "the Department's ... practice has previously been affirmed by this Court, which found it to be a reasonable interpretation of [the statute].").
(127.) E.g., Timken, 26 Ct. Int'l Trade at 1086 ("Although the EC's ... practice appears to be similar to the United States' practice, this Court cannot determine from the Appellate Body report whether they are the same."). On appeal, the Federal Circuit specifically affirmed the lower court on this point. Timken, 354 F.3 at 1344 ("We ... find the absence of the United States as a party to be an important distinction."). But see Lowenfeld, supra note 1, at 323 (urging that WTO decisions "should inform decisions of [a U.S.] Court even when--perhaps even especially when--the United States was not involved as a party.").
(128.) E.g., Timken, 26 Ct. Int'l Trade at 1084-85 (finding that an agency interpretation that a WTO decision held inconsistent with WTO obligations "could, in another case, ... be inconsistent with international obligations," but "[i]n this case, however, we do not find ... that the application of the ... test" was prejudicial); id. at 1243 (finding that another WTO decision was distinguishable because it involved a different procedural phase of antidumping cases from the administrative determination before the court). On appeal, the first point was not raised and the Federal Circuit affirmed the lower court on the second point. Timken, 354 F.3 1334.
(129.) Hyundai, 23 Ct. Int'l Trade at 313.
(130.) Corus Staal, 259 F. Supp. 2d at 1264 (per Restani, J.). Judge Restani had previously suggested this rule in Restani & Bloom, supra note 15, at 1545 ("If ... the agency has already considered the WTO decision and full Chevron deference is owed ..., then, perhaps, the schooner should sink.") & 1547 ("The Charming Betsy does not suffice to support [require?] an interpretation in accordance with a WTO determination.").
(131.) Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660, 667 (Fed. Cir. 1992). Suramerica is strongly criticized by Williams, supra note 13, passim, and Lowenfeld, supra note 1, at 322 ("I think Suramerica is unpersuasive on several grounds.").
(132.) Suramerica, 966 F.2d at 667-68.
(133.) 354 F.3d 1334 (Fed. Cir. 2004), cert. denied sub nom. Koyo Seiko Co. v. United States, 543 U.S. 976 (2004).
(134.) 354 F.3d at 1344.
(136.) 395 F.3d 1343 (Fed. Cir. 2005), cert. denied, 126 S. Ct. 1023 (Jan. 9, 2006).
(137.) 395 F.3d at 1349 (also according no deference to the two other WTO cases cited, one because it did not involve the United States and the other because it simply assumed without finding that the challenged U.S. interpretation had been applied.).
(138.) The Federal Circuit's reasoning in Corus Staal was also flawed by its statement, citing its earlier decision in Timken, that "WTO decisions are not 'binding on the United States, much less this court.'" 395 F.3d at 1348. In Timken, it was true that the WTO decision in question was not binding on the United States, since the United States was not a party. But in Corus Staal, the United States was a party to the WTO decision. Therefore the WTO decision did represent a binding international obligation on the United States, although the United States had not yet implemented it for domestic purposes.
(139.) See supra notes 88-92 and accompanying text.
(140.) Corus Staal, 395 F.3d at 1349; see also SNR Roulements v. United States, 341 F. Supp. 2d 1334, 1342 (Ct. Int'l Trade 2004) ("Agencies are accountable to the elected executive, and thus, policy decisions are best left to them rather than to non-elected judges [citing Chevron]. Moreover, the judiciary generally grants the Executive branch an even greater level of deference in the area of foreign affairs.") & 1343-44 ("Th[e] persuasive force [of WTO decision] ... must be carefully balanced with the reasoned rulemaking process underlying Chevron step-two deference. The Court is wary of overstepping the bounds of its judicial authority under the guise of the Charming Betsy doctrine. [citation omitted] The Court is also mindful of the prerogative of the Executive Branch ... in dealing with the WTO in its diplomatic and policymaking roles."). But see Lowenfeld, supra note 1, at 321-322 (urging that "issues of separation of powers are not really significant in this context" and, instead, "[t]he only national interest in such cases, I submit, is that th[e] Court [of International Trade, and the trade law machinery of the United States in general, are perceived as operating under a rule of law, not of politics.").
(141.) 454 F.3d 1361 (Fed. Cir. 2006).
(142.) Id. at 1366.
(143.) 126 S. Ct. 2669 (2006).
(144.) Cummins, 454 F.3d at 1366. One perhaps odd point about Cummins is that WCO classification opinions are not issued by an international court or tribunal at all, but by the WCO secretariat. In contrast to ICJ decisions and WTO dispute decisions that at least are legally binding on the parties to the case, WCO classification opinions and other WCO publications are not legally binding on WCO contracting parties in any sense. See H.R. CONF. REP. NO. 100-576, at 549 (1988) (stating that publications of the WCO [then named the Customs Cooperation Council] "are not legally binding on the contracting parties to the Convention [creating the Harmonized System of internationally uniform tariff nomenclature] ."); see also Lynteq, Inc. v. United States, 976 F.2d 693, 699 (Fed. Cir. 1992) (ruling that the WCO's Explanatory Notes to the Harmonized System may be consulted for non-dispositive guidance.).
(145.) Cummins, 454 F.3d at 1366.
(146.) Sanchez-Llamas, 126 S. Ct. at 2685 (citing Breard v. Greene, 523 U.S. 371,375 (1998)).
(147.) 523 U.S. 371,375 (1998) ("we should give respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret such ...").
(148.) 13 U.S. (9 Cranch) 191 (1815).
(149.) Id. at 198.
(150.) Alford, supra note 5, at 742.
(151.) SAA, supra note 35, at 1026.
(152.) Uruguay Round Agreements Act [section] 129(c), 19 U.S.C. [section] 3538(c).
(153.) SAA, supra note 35, at 1026.
(154.) Dispute Settlement Understanding, supra note 79, at art. 3(7); see id., at art. 19(1) ("Where a panel or the Appellate Body concludes that a measure is inconsistent with a [WTO] agreement, it shall recommend that the Member concerned bring the measure into conformity with the agreement."); see also JACKSON, SOVEREIGNTY, supra note 14, at 194 ("Since the WTO DS system is designed only to change future practice, it has no provision to redress past harm with monetary or other compensation."); PETER VAN DEN BOSSCHE, THE LAW AND POLICY OF THE WORLD TRADE ORGANIZATION 224 (2005) (stating that "[t]he DSU does not explicitly provide for the compensation of damage suffered" as a result of a violation, and that "[w]hile controversial, ... repayment of sums illegally received may ... constitute a remedy for breach of WTO law," but only "in very specific circumstances.").
(155.) WT/DS221/R (15 July 2002), available at http://www.wto.org/english/tratop_e/ dispu_e/221r_e.pdf.
(156.) SAA, supra note 35, at 1026.
(157.) 852 F. Supp. 1078 (Ct. Int'l Trade 1994).
(158.) Id. at 1096 (ruling that the GAIT panel report "cannot and therefore does not lead to the precise domestic, judicial relief for which the plaintiff prays.").
(159.) 23 Ct. Int'l Trade 302, 53 F. Supp. 2d 1334 (1999).
(160.) 23 Ct. Int'l Trade at 312, 53 F. Supp. 2d at 1343.
(161.) 395 F.3d 1343 (Fed. Cir. 2005), cert. denied, 126 S.Ct. 1023 (Jan. 9, 2006).
(162.) WT/DS264/AB/R (Aug. 11, 2004), available at http://www.wto.org/english/tratop_e/ dispu_e/264abr_e.pdf.
(163.) Corus Staal, 395 F.3d at 1349.
(167.) Certain Softwood Lumber from Canada: Final Affirmative Antidumping Determination, File No. USA-CDA-2002-1904-02 (NAFTA Binational Panel June 9, 2005).
(168.) Id., Panel Decision at 33 (quoting Corus Staal, 395 F.3d at 1349).
(170.) Id. at 42-43.
(171.) Although this Article questions whether the NAFTA Panel's result accurately reflects the current law, it represents what the law should be. See infra Part 6.
(172.) Corus Staal, 395 F.3d at 1349.
(173.) See generally JAMES E. DOUGHERTY & ROBERT L. PFALTZGRAFF, JR., CONTENDING THEORIES OF INTERNATIONAL RELATIONS: A COMPREHENSIVE SURVEY 63-98 (5th ed. 2001); ROBERT JACKSON & GEORG SORENSEN, INTRODUCTION TO INTERNATIONAL RELATIONS: THEORIES AND APPROACHES 35-45, 48-52, 67-137 (rev. ed. 2003). "Liberal internationalism" is often referred to simply as "liberalism." E.g., id. at 105-137. Wesley Caine suggested to the author that another analogy might be the debate between the Federalist and Jeffersonian visions in early U.S. constitutional history.
(174.) The term "harmony of interests" comes from EDWARD H. CARR, THE TWENTY YEARS' CRISIS, 1919-1939 41-62 (1946).
(175.) See id.; see also infra notes 184-85.
(176.) Lowenfeld, supra note 1, at 321.
(178.) Id. at 322.
(179.) Corus Staal BV v. U.S. Department of Commerce, 259 F. Supp. 2d 1253, (Ct. Int'l Trade 2003), aff'd, 395 F.3d 1343 (Fed. Cir. 2005), cert. denied, 126 S. Ct. 1023 (2006).
(180.) Leebron, supra note 3, at 241. In a similar vein, Professor Bradley's analysis of the Charming Betsy canon strongly disagreed with "what could be called an 'internationalist conception' of the canon" that "views the canon as a means of supplementing U.S. law and conforming it to the contours of international law," including "us[ing] the canon not primarily to implement legislative intent, but rather to make it harder for Congress to violate international law, and to facilitate U.S. implementation of international law." Bradley, supra note 5, at 498.
(181.) Leebron, supra note 3, at 234.
(182.) Id. at 241-42.
(183.) Id. at 242. Leebron also notes that "the implementation of the Uruguay Round results ... moved the United States away from the idealist goal of direct application in domestic law." Id. Compare BERNARD M. HOEKMAN & MICHEL KOSTECKI, THE POLITICAL ECONOMY or THE WORLD TRADING SYSTEM: THE WTO AND BEYOND 96 (2d ed. 2001) (advocating the creation of private rights of action "allowing private parties to contest perceived WTO-inconsistent policies by the government before domestic courts" as "the most straightforward way to facilitate enforcement of multilateral obligations") with CARR, supra note 174, at 55 ("we find ... an extraordinary divergence between the theories of economic experts and the practice of those responsible for the economic policies of their respective countries.").
(184.) Cf. REED, supra note 48, at 2 (positing that the U.S. trade judiciary "remains constrained by the legal doctrines governing the availability and scope of judicial review") & 341-49 (summarizing constraints on the courts' role in customs and international trade law).
(185.) The author's assessment in this regard is similar to the position of international relations scholar Professor Robert Gilpin, who on one hand accepts realism "as an analytical perspective" while on the other hand expresses his "normative commitment ... to economic liberalism," stating that "[i]t is possible ... to analyze international economic affairs from a realist perspective and at the same time to have a normative commitment to certain ideals [e.g., liberal internationalism]." ROBERT GILPIN, GLOBAL POLITICAL ECONOMY: UNDERSTANDING THE INTERNATIONAL ECONOMIC ORDER 14 & 16 (2001).
(186.) Cf. John H. Jackson, Global Economics and International Economic Law, 1 J. INT'L ECON. L. 1 (1998) ("The phrase 'normative realist' has ... been used, suggesting that scholars should feel some responsibility for moving the subject forward despite the difficulty and limitation of resources, and despite the sometimes pessimistic viewpoint that mere 'realism' can engender.").
(187.) See Usinor v. United States, 26 Ct. Int'l Trade 767, 778 (2002) (positing that the agency's application of the Charming Betsy and related principles is "part of [the agency's] overall duty to administer the antidumping laws in accordance with its international obligations."); Leebron, supra note 3 ("The [WTO] agreements, including authoritative interpretations by the WTO or decisions of dispute settlement panels, might ... be applied either by a court ... or by administrative agencies in promulgating rules and regulations.") (emphasis added).
(188.) "Liquidation" is a term of art meaning "the final computation or ascertainment of the duties ... accruing on an entry." 19 C.F.R. [section] 159.1.
(189.) See supra notes 10, 162, 167 and accompanying text.
(190.) Promoting a stable and predictable legal environment for international business through a rule-oriented framework is a recurrent theme in Professor John H. Jackson's writings. See, e.g., JACKSON, SOVEREIGNTY, supra note 14, at 38 ("with a legal structure limiting in some ways ... the whims of import prevention, the risks of the [business] investment are lowered"), 87 ("... the 'rule of law' (ambiguous as that concept is) or a rule-based or rule-oriented system of human institutions is essential to a beneficial operation of markets ..."), 195 (urging that, in the treatment of WTO dispute settlement reports in national law, a "way is needed that will better achieve 'security and predictability,' especially for entrepreneurs dependent on the rules.").
(191.) See supra notes 158-59 and accompanying text.
(192.) See supra notes 110-12, 117 and accompanying text (discussing the Usinor I and Crescent Foundry cases in which the court ordered remands). But cf. Lowenfeld, supra note 1, at 322 ("If the issue [i.e., an agency's determination that is inconsistent with a WTO decision] comes before the Court, it ought to apply the law, and that law includes the international agreement and a holding thereunder. Whether the Court of International Trade should enter judgement, or remand ... to the [agency] with instructions, is a detail.").
PATRICK C. REED, B.A., Indiana University; J.D., Columbia University School of Law; M.A.L.D. & Ph.D., The Fletcher School of Law and Diplomacy, Tufts University. [c] 2007, Patrick C. Reed. Mr. Reed is of counsel to Simons & Wiskin, New York City, and currently serves as Vice President of the Customs and International Trade Bar Association. He is an adjunct faculty member in the department of business law at Baruch College and in the Center for Global Affairs at New York University. The author wishes to express his appreciation to Professor Claire Kelly for her comments on an earlier draft, and to the editors and staff of the Georgetown Journal of International Law for their comments and editorial assistance. The development of the Article also benefited from conversations and correspondence with Richard Cunningham, John McInerny, Professor Roger Alford, Wesley Caine, and Ellen Ryan.…