I came across two items related to the treatment of international trade agreements in domestic law. I'm going to combine them in this post even though they are completely unrelated otherwise.
1. From the R-CALF (a group which represents U.S. cattle producers) submission to USTR related to the Canadian/Mexican complaints on the U.S. country of origin labelling law (COOL) dispute (DS384 and DS386):
R-CALF USA believes it is fundamentally contrary to our U.S. Constitution for the United States Trade Representative (“USTR”) to agree that foreign governments – specifically Canada and Mexico – have any standing whatsoever to bring a complaint against our constitutionally passed mandatory country-of-labeling (“COOL”) law.
Our domestic COOL law imposes no duty or restrictions on any foreign government; it does not impose any limits on the volume or type of commodities that a foreign country may export to the United States; foreign countries are not obligated, in any way, to export to the United States any of the commodities that would be subject to our COOL law – hence, a foreign country’s decision to market their products in the U.S. market and under the rules of the U.S. market is purely voluntary; and, COOL jurisdiction is exclusively limited to United States retailers, as defined exclusively by U.S. law, and subjects all covered commodities marketed by U.S. retailers to identical information requirements, regardless of where the commodities originate. Thus, our domestic COOL law does not affect international trade agreements and it is fundamentally inappropriate for the World Trade Organization (“WTO”) to even entertain a foreign country’s complaint against our domestic COOL law. Further, and for the foregoing reasons, the USTR should not consent to WTO jurisdiction over our domestic COOL law.
Assuming, but only hypothetically, that United States officials had inadvertently surrendered the right of its sovereign U.S. citizens to govern themselves – as guaranteed by our U.S. Constitution – to the WTO, the complaints by Canada and Mexico against our domestic COOL law would still be baseless and wholly without legitimacy. ...
I'm not completely sure I follow this, but I think they are saying that because of the nature of the COOL law (for example, that it is not a border measure), it should not be covered by WTO rules. Thus, the WTO has no jurisdiction over it. In addition, they seem to argue that, as a matter of domestic law, allowing the WTO to have jurisdiction over such a measure violates the U.S. Constitution.
Speaking very generally, it seems to me that the R-CALF position is in line with those of other groups who want to narrow the scope of international trade agreements. Such arguments are not likely to have much impact with a WTO panel, but I wonder whether they plan to pursue this argument in a domestic forum. Do they have some type of constitutional challenge in mind? I'm not sure if submitting this kind of argument to USTR is pretty standard and never goes anywhere, or if there is some significance to R-CALF including it here.
2. And from Europe, there was this:
A Bosnian court said on Saturday it had temporarily suspended a recently adopted law on protection of domestic production seen as violating a regional trade pact and the Balkan country's commitments toward the EU.
The Constitutional Court of Bosnia-Herzegovina decided to suspend the law on the request of the chairman of the upper house of the country's parliament Ilija Filipovic, it said in a statement.
The law will be suspended until the court reaches a final decision on Filipovic's motion at one of its coming sessions.
The controversial law imposing higher customs duties on nearly 1,000 items was passed by parliament earlier this month despite strong opposition from the European Union and Bosnia's neighbours.
The EU said the law violated the Central European Free Trade Association accord (CEFTA) reached by the Balkan countries in 2006 with the aim of boosting regional trade and preparing members for the EU single market.
I looked for the decision online, but could not find it. I am curious to hear more about the court's reasoning. Did they have much to say about the role of international law in domestic law? Maybe not in this decision, but perhaps there will be something in the final decision.
