Interpreting International Trade Statutes: Is the Charming Betsy Sinking?
FORDHAMINTERNATIONALLAWJOURNAL
Fordham International Law Journal
Jane A. Restani
Ira Bloomy
Copyright c 2000 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
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2000
Article 2
y
Charming Betsy Sinking?
This essay is about the North American Free Trade Agreement (“NAFTA”), the General
Agreement on Tariffs and Trade (“GATT”), and the World Trade Organization (“WTO”). The
United States has chosen to participate in NAFTA, GATT, and WTO by the President’s signing
international agreements. These agreements, however, have not been presented to the Senate for
ratification as treaties, although, as some commentators have noted, they bear the characteristics
of treaties. Rather, they are implemented by Congress enacting domestic implementing legislation
as statutory law.
INTERPRETING INTERNATIONAL TRADE
STATUTES: IS THE CHARMING
BETSY SINKING?
Jane A. Restani*
Ira Bloom**
INTRODUCTION
The United States has committed to participate in the
globalization of world trade by entering into international
agreements and participating in international organizations. These
commitments raise important issues regarding the interaction of
domestic international trade law, Chevron' deference principles,
the Charming Betsy2 doctrine, and decisions of the World Trade
Organization ("WTO") in the area of unfair trade practices.
The United States has chosen to participate in the North
American Free Trade Agreement ("NAFTA"), 3 the General
Agreement on Tariffs and Trade ("GATT"), and the World
Trade Organization ("WTO") 4 by the President's signing
international agreements. These agreements, however, have not
been presented to the Senate for ratification as treaties,
although, as some commentators have noted, they bear the
characteristics of treaties.5 Rather, they are implemented by
Congress enacting domestic implementing legislation as statutory
* Judge, United States Court of International Trade.
** Professor of Political Science, Lehman College of The City University of New
York.
law.6
FORDHAMINTERNATIONALLAWJOURNTAL
I. INTERNATIONAL TRADE A GREEMENTS IN
US. DOMESTIC LAW
The Constitutional basis for the domestic implementing
legislation is found in the Article I power of Congress to regulate
international commerce. 7 The domestic implementing
legislation delegates to the Secretary of Commerce,8 the head of an
executive branch agency, and the International Trade
Commission ("ITC"), an independent regulatory agency, the
responsibility for administering the unfair trade practices aspect of the
legislation.9 By entering into the agreements, however, the United
States has committed to international dispute resolution
mechanisms that operate entirely outside the United States legal
system.' Resolution of binational or multinational trade disputes
may be sought through the WTO dispute-resolution
mechanisms, as well as through private action before the ITC and
ITA.1 "Unfair trade" decisions of the ITC and ITA may be
appealed to the United States Court of International Trade
("CIT"), an Article III court, subsequently to the United States
Court of Appeals for the Federal Circuit, and ultimately, by writ
of certiorari, to the United States Supreme Court. 1 2 A national
of any party to the NAFTA accord, however, may opt to resolve
the dispute through the binational panel procedure of that
agreement.' Given that the U.S. Government and organs of the
20011 INTERPRETING INTERNATIONAL TRADE STATUTES 1535
international trade organizations may have different views as to
the meaning of applicable laws and the underlying international
agreements, conflicts may arise.1 4 Inherently, international
bodies are not bound by the views of U.S. agencies or courts, and
U.S. statutory provisions do not mandate a U.S. agency or court
to follow international body decisions.1 5
II. U.S. CASE LAW
THE LIMITS OF CHEVRON DEFERENCE
Until recently, it had been settled jurisprudence since the
U.S. Supreme Court's unanimous decision 6 in the Chevron case
that executive agency interpretations of international trade law
are entitled to deference.1 7 Chevron, which involved a challenge
to an Environmental Protection Agency regulation, set forth a
two-step rule for judicial review of a Federal agency's
interpretation of a statute it administers:
First, always, is the question whether Congress has spoken
directly to the precise question at issue .... If a court,
employing traditional rules of statutory construction, ascertains that
Congress had an intention on the precise question at issue,
that intention is the law and must be given effect. [Second, if]
Competitive Trade v. Clinton, 128 F.3d 761 (D.C. Cir. 1997). See Demetrios G.
Metropoulos, ConstitutionalDimensions of the North American Free Trade Agreement, 27 CORNELL
INT'L L.J. 141 (1994). See also Dames & Moore v. Regan, 453 U.S. 654 (1981), which
upheld Executive Orders of the President, unsupported by express (...truncated)