Essays on the Nature of International Trade Law

Article excerpt

Essays on the Nature of International Trade Law

Robert E. Hudec

Cameron May 1999

Well-known international trade law scholar Robert E. Hudec has recently compiled several of his essays from the last thirty years. The resulting book, Essays on the Nature of International Trade Law, provides not only a synthesis of the developments in Hudec's thought but also a contrast to international law scholarship over that period.

Hudec's scholarship, which focuses on the GATT, diverges from that of other academics in the depth of his analysis. For instance, many commentators content themselves with noting violations by the U.S. of international law and shaking their collective finger at U.S. decision-makers. Hudec, however, ignores the dead end of disapprobation. Instead he takes the more interesting path of examining why the United States has chosen such a route; whether U.S. actions can be justified; and why these actions may benefit international trade law in the end.

Consider, for example, how Hudec approaches Super 301, a statute that allows the United States to unilaterally impose trade sanctions on nations which the U.S. feels has violated trade law. Nearly all critics agree that Super 301 violated GATT, and now violates the WTO, in various ways. In "Thinking About the New Section 301: Beyond Good and Evil," Hudec takes this locus of rather unsubtle bashing of the United States and turns it into a revealing look at why disobedience of international rule-making bodies like the GATT and WTO may be justified and, indeed, valuable. His somewhat controversial thesis is that one can view Super 301 as "justified disobedience." By unilaterally imposing trade sanctions, the United States highlights problem areas and often forces international organizations to make necessary reforms to their own rule-making and adjudicatory bodies. Hudec argues that it is possible, and even likely, that needed reforms would not be made without the forcing function of justified disobedience.

Hudec recognizes the dangerous implications of his argument. Presumably it could be used to justify any individual governmental action which violates an international agreement. To counter this criticism, Hudec proposes both structural and substantive guidelines for the use of justified disobedience, but these suggestions are only reassuring to the extent one accepts his initial proposition and believes that a government, already acting outside the bounds of law, will hew to his guidelines. …