Enforcement Mechanism Of WTO Judicial Decisions

This dissertation aims to analyze and review the enforcement of WTO DSB rulings and recommendations,and using the theory of "four forces in international law compliance",put forth some proposals for creating the enforcement mechanism for the WTO judicial decisions.By studying the theory and practice of compliance and non-compliance of international law,including the WTO law,this dissertation finds thc underlying four forces for implementation of the international rules and judicial decisions,namely, the legitimacy as the pulling force,the national interests and domestic interest group interests as the basic force,the enforcement force as the pushing force,and the national reputation and sense of morality as the subordinate force.The above four forces interact with each other and together decide whether the international legal rules and judicial decisions could be implemented.Therefore,to design and apply the enforcement mechanism,one should always jointly consider the harmonious operation of the four forces.However,it must be understood that the current WTO legal system does not yet have an enforcement mechanism—what's there is just some scant enforcement measures.The absence of the key factors of an enforcement mechanism and the bad positioning of the enforcement measures make enforcement just a remote possibility,which in turn hurts people's confidence in the WTO legal system.The current academic research papers and various official proposals,which intend to make a difference,are mostly narrow-minded or short-sighted.The topic of enforcement of judicial decisions has never been something novel. Various international legal scholars,government officials,enterprise practitioners and lawyers have produced a lot of rich and conflicting ideas on improving the enforcement mechanism of WTO.WTO's officials have also made proposals for improving the mechanism of enforcing DSB rulings and recommendations after the launch of Doha Round,but consensus has never been around the corner.One sheer fact is that all of them have overlooked one thing—there is simply no such enforcement mechanism in the WTO while they are talking so much on it—most of them simply talk about enforcement measures for the enforcement mechanism.Even the scant enforcement measures that are currently available to the prevailing party who seeks retaliation authorization are strictly restricted under WTO,thanks to the historical constraints of international and domestic politics, economic development and legal evolution,and thus cannot deliver the intended result.Some scholars go so far as to claim that what are authorized by WTO are not rights but obligations.Practice demonstrates that the deficiency of the enforcement mechanism of WTO judicial decisions has at least in part contributed to the few cases of enforcement application,the low efficacy of enforcement measures,the poor performance for liberalizing international trade,and the failure to deliver justice and equity to the world.What stands out is the power paradox:on one hand,the WTO has evolved from the power-based GATT,but on the other hand,the most forceful measures of WTO for enforcing WTO's judicial decisions fundamentally depend on power of WTO members.WTO has long been hailed as the only international legal system that most effectively solves international disputes,but the WTO in itself does not have a proper enforcement mechanism,or the authorization,power and mechanism to enforce anything.Instead,the WTO just turns the burning potatoes back to the party who has turned eagerly and hopefully to WTO.The several cases for which enforcement measures are authorized,such as the EC-banana regime case, the EC-ban on hormone case,Brazil-aircraft case,US-FSC case,and Canada-aircraft cases,are all sensitive cases involving large values but lasting a long long time yet achieving no or very limited compliance,which may be particularly damaging to the LDCs.The LDCs,say Ecuador in EC-Banana Regime case,are normally powerless even when they aspire to enforce the WTO judicial decisions,and have no way out but to abort any such aspiration.In designing,improving and applying the enforcement mechanism of WTO, one must take into consideration the fact that international law is much different from the municipal law,and therefore the enforcement mechanism under WTO law should also be radically different from that under the municipal law.Normally, measurement of the compliance with international rules and judicial decisions(quasi judicial decisions) shows varied degrees among cases.Such degrees vary and are caused by the legitimacy of international law,the national interest and the domestic interest group interests,the enforcement of international law and national reputation and sense of morality.Over stress on the absolute compliance or noncompliance with the international rules and judicial decisions,or over stress on one of the factors that contribute to a certain degree,may be the cause for different observations.As a result,to improve the compliance wit the international judicial decision,including WTO judicial decisions,should also start from the above.Some WTO members have raised some reform proposals on the enforcement of WTO judicial decisions,mainly focusing on enhancing the enforcement,including the collective retaliation or carousel retaliation.Some scholars,such as Steve Chamovitz,Petros Mavroidis,Robert Lawrence and Joost Pauwelyn,etc,also raised some proposals and suggestions.But both the officials who put forth the official proposals and the scholars are confined to how to directly enhance the enforcement and therefore its efficiency.The WTO DSU has been widely recognized as the teeth of WTO,with the enforcement measure as the last resort for the WTO DSU, therefore it is truly desirable to improve the enforcement measures.But any such reform should also be ground on the fact that the current development status of the international law should be respected,and the reform should aim to maintain and strengthen the WTO multilateral cooperation as well as considering international political status,the nature of international law and the development stage of the international lawThe enforcement issue,which may be difficult to deal with under WTO,may be jointly or cooperatively settled by other international forums through transferring the case from WTO to other international forums.Although international organizations do not have the legislative branch just as a state has,international organizations bind states' behavior through treaty creating;although similarly international organizations do no have the administrative and judicial enforcement branches just as a state has,international organizations have something else that equally binds the international society member into abiding by international law rules,principles and systems.It is a viable option to transfer the WTO enforcement case to other international organization or third party,provided that the WTO has made clear provisions or legal decisions.The enforcement issue,which may be difficult to deal with under the WTO, may be transferred to domestic courts and hence mobilizing the private forces.Such a transfer would require as a precondition the direct effect of the international law rules and the judicial decisions.Given the profound impact of direct effect on the sovereignty of WTO members,it should be understood that such a transfer would deeply affect the domestic constitutional system and hence not every WTO member would accept the doctrine of direct effect.Still,those members sympathetic with the doctrine of direct effect may be encouraged to sign a certain treaty enabling the direct effect of the WTO rules and judicial decisions,just as under the ICSID.Last but not the least,one must take into consideration the inherent legitimacy of international law rules and judicial decisions—only when the international law rules as per as fair,equitable and commanding respect of the WTO members including the prevailed ones can the enforcement mechanism help promote international rule of law,and resolve international dispute and judicial enforcement issue.It is based on the above findings that this dissertation overhauls all existing problems of the current enforcement measures under WTO and the possible improvement on them,and conducts a brand-new and all-around thinking.It is the conclusion of this dissertation that creation and improvement of the enforcement mechanism under WTO must be done hand in hand with reforming the decision-making process of the judicial decisions;by mobilizing and tuning with the domestic interest groups within the prevailed member;and by gaining more institutional support from WTO and other international organizations.Then,the enforcement mechanism may be able to acquire the inherent legitimacy and generate soft power,to put the prevailed member under domestic political and economic pressures and change over the condition where the private interests were isolated from WTO.This dissertation consists of the following five chapters:Chapter 1 provides an overview of the WTO enforcement by analyzing the efficiency,legitimacy and equity issues in light of the relevant cases.Sure, enforcement has been,is now and will still be an issue for all judicial decisions.Chapter 2 deals with the existing proposals for improving the enforcement mechanism of WTO by analyzing and reviewing the various proposals such as collective retaliation,auction of retaliation right,carousel retaliation,security bond, etc.Among them,some have been raised repeatedly although not yet popularly supported,such as the collective retaliation.The deterrence of collective retaliation sounds very powerful,but within the multilateral framework,if it could not garner full support from at least most WTO members,it stands virtually no chance of success.Chapter 3 deals with some principles and processes that must be followed in building the WTO enforcement mechanism.First among them is discretion,that is, do no harm to the WTO.At the same time,one should look forward,that is,push forward the mission of improving WTO dispute settlement process on the basis of rules.Over legalization or over politicization should both be avoided,and the legitimacy and accessibility of WTO enforcement mechanism should be enhanced by making suggestions that are also binding just as the recommendations with a view to prompt settlement of WTO disputes.Transparency in judicial decision should also be enhanced through the convenient communication vehicles so that all stake holders including the WTO member and their domestic interest groups may directly or indirectly get involved into the process.Chapter 4 puts forth new solutions to the enforcement puzzle.This dissertation believes the pre-hearing should be conducted for the measures taken to comply so as to avoid possible default.The extra loss suffered by the prevailing party during the period of default should also be covered.Drawing from the lessons of EC-Banana Regime case,WTO should encourage members to set up a certain multilateral organization in the image of ICSID by producing clear cut provisions and judicial obligations so that domestic forces can be effectively mobilized.Chapter 5 deals with China's viable strategies for compliance and enforcement. Drawing on the analysis of WTO's limitation,this dissertation proposes that when faced with the enforcement issue,China should be realistic and grasp all opportunities to settle the case.Also the domestic forces should all be mobilized into exerting uniform pressure to the counterparts of the prevailed member.When faced with the obligation to comply,it will be a wise strategy to respond proactively and make full use of China's due process rights and substantive rights to produce as much as benefit to the national interests while preserving the principles of WTO. But as a rising and responsible power,China should be more active in getting involved in the building of the WTO rule of law.WTO is a unification of three in one:politics,trade and law where three factors work jointly.In recent years,western scholars tend to apply more and more international relationship theories in studying operations of international legal systems.Similarly international economists and international political scientists intend to forge a new area for studying international issues such as enforcement of international judicial decisions:international political economics,or IPE.In international trade and economic relationship,politics is always the basis for decision making,economics the rationale,and law the framework and vehicle.Thus an interdisciplinary approach would be inevitable for studying enforcement issue under WTO.This dissertation turns widely to international law,international relationship and IPE theories and knowledge and attempts to conduct brand-new and all-around thinking on the enforcement issue under WTO.If the humble analysis and proposed solution might do something good to enhance the security and predictability of WTO and enforce the judicial decisions whilst not undermining the huge rule-based edifice,I will be honored ands satisfied.