CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ THE CZECHOSLOVAKIAN CASE OF 1949 IN THE GATT: LUCK IN MISFORTUNE? “the possible solutions to these current problems are not a quick fix that may be implemented without WTO Members engaging in the issues, evaluating the most appropriate remedies and being open to looking for shared improvements.” 83 Thus, the WTO is a Member-driven organization and there is a need for a cooperation among all Members of the WTO. The decision-making in the WTO is made by consensus. As a result, even a single Member can block the decision agreed upon by the overwhelming majority. 84 Moreover, there is a need for leadership qualities to be displayed by the WTO Member States. The US, together with like-minded states, were leading during the GATT negotiations, while now the US is dragging on. 85 J. Bacchus, compared the WTO to the political “bicycle club” theory where the “Washington chapter” of the WTO had the following obstacle: “the challenge facing every … American member of “The Bicycle Club” is the challenge of summoning and sustaining the political will to move the bicycle forward in the face of all the powerful political opposition to freer trade.” 86 The challenges to those who oppose free trade should, therefore, come not only on the international arena, but also at domestic level. It seems that the first signs of opposition started to arise: one example is the case brought by the American Institute for International Steel in cooperation with other partners at the US court of International Trade. In the lawsuit the unconstitutionality of the section 232 of the Trade Expansion Act of 1962 due to an improper delegation of legislative power to the President, in violation of Article I, section 1 of the Constitution and the doctrine of separation of powers and the system of checks and balances under the US Constitution is claimed. 87 This has proved a very important development in this area since the domestic challenges do matter as much as challenges on the international arena. With a hostile attitude to the WTO, the US has also started using the national security argument in a more aggressive way. It seems that the warnings expressed by Czechoslovakia 83 Sacerdoti (n 82). p.160 84 EHLERMANN, Claus-Dieter and EHRING, Lothar. ‘Decision-Making in the World Trade Organization’ (2005) 8 Journal of International Economic Law 51. p.63 More on consensus in GATT/WTO decision-making see Mary E Footer, ‘Role of Concensus in GATT/WTO Decision-Making Symposium: Institutions for International Economic Integration’ (1996) 17 Northwestern Journal of International Law & Business 653. 85 HOEKMAN, Bernard et al. ‘Revitalizing Multilateral Governance at the World Trade Organization’ (2018) Policy Brief based on the Report of the High-Level Board of Experts on the Future of Global Trade Governance . p.7 More on the US backlash from the WTO see SWANSON, Ana. ‘Once the W.T.O.’s Biggest Supporter, U.S. Is Its Biggest Skeptic’ New York Times (10 December 2017) . 86 BACCHUS, James. ‘The Bicycle Club: Affirming the American Interest in the Future of the WTO’ [2003] Journal of World Trade 429. p. 437. 87 MAULDIN, William. ‘Lawsuit Challenges Trump’s Authority to Impose Tariffs’ Wall Street Journal (27 June 2018) . The short analysis of the case is available here AIIS Staff, ‘American Institute for International Steel Files Lawsuit Challenging Constitutionality of Section 232 Tariffs’ . All documents related to the case are available at AIIS Staff, ‘American Institute for International Steel Files Lawsuit Challenging Constitutionality of Section 232 Tariffs’ .

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