Direct Effect of International Economic Law in the United States and the European Union
Northwestern Journal of International Law & Business
Direct Effect of International Economic Law in the United States and the European Union
Ronald A. Brand 0
0 This Symposium is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Law & Business by an authorized administrator of Northwestern University School of Law Scholarly Commons
Ronald A. Brand, Direct Effect of International Economic Law in the United States and the European Union, 17 Nw. J. Int'l L. & Bus.
Direct Effect of International Economic
Law in the United States and the
* Professor of Law, University of Pittsburgh. I am grateful to Youri Devuyst and Kurt
Riechenberg and to participants in the Conference on Institutions for International Economic
Integration of the ASIL's International Economic Law Interest Group for helpful comments on
earlier drafts. The development of this article occurred, in part, during work supported by the
Fulbright-Hays Program and the Belgian National Science Fund, for which I express my sincere
One of the most difficult problems in the study of international
law is determining when a rule of law applies to a given situation.
This problem has two dimensions: (
) determining what the rule of
law is and (
) determining when and how it is applied. The first
dimension, though complex, is the subject of Article 38 of the Statute of
the International Court of Justice,' and the starting point for most
discussions of international law.2 Though it may be difficult to establish
the existence of a rule of international law, particularly in the absence
of a treaty, the process of demonstrating customary international law
is one with which international lawyers are familiar.
The application of international law is perhaps the more difficult
issue. Traditional jurisprudential theory is based on political concepts
of sovereignty. 3 The state, as sovereign, both creates and enforces
law. In the international arena, each state is sovereign within its own
territory and equal to all other states in international matters. There
is no supreme executive to administer and enforce international law,
even when states agree on the rule of law. Thus, while the
international community may be able to carry out the legislative function in
the creation of rules of conduct (through either treaty law or the
establishment of customary international law), it has not yet provided an
effective framework for the judicial and executive functions of
application and enforcement.
Despite this problem, the latter half of the twentieth century has
seen unprecedented development of international economic law,
governing the extent to which states may place restrictions on
transactions involving goods, services, capital and persons crossing their
1 Statute of the International Court of Justice, June 26, 1945, art. 38,59 Stat. 1055, T.S. No.
2 See, e.g., RESrATEmENT (TmaRD) OF T=E FOREIGN RELATIONS LAW OF THE UNITED
STATES § 102 (1987) [hereinafter RESTATEMENT].
3 Modern international law is generally considered to trace its roots to the work of Hugo
Grotius, first published in 1625, which focused on relationships between nations. HUGO
GROTIUS, THE RioGHs OF WAR AND PEACE (De Jure Belli ac Pads) (A.C. Campbell trans., 1901).
See also Louis HENKiN, INTERNATIONAL LAW: PoLncs AND VALUES 1 (1995) ("International
law is the law of the international system of nation states."); JAmES BRmRLY, THm LAw OF
NATIONS 1-40 (6th ed. 1963).
borders. The European Community (EC) is the best example of a
source of regional, supranational rules that have the force and effect
of law in each of the Member States.4 Through the concept of "direct
effect," developed in the Treaty of Rome and through the
jurisprudence of the European Court of Justice, European Community
legislation can be asserted in national courts as the source of rights running
to private parties even against their own governments.5 Thus, there is
a method for both the creation and application of European
More problematic is whether rules similar to those in the
European Community, but developed on a global scale, have equivalent
effect in national courts. Most recently, the 1994 agreements signed in
Marrakech substantially expanded, supplemented and strengthened
the rules of the General Agreement on Tariffs and Trade (GATT or
General Agreement) and created the World Trade Organization
(WTO) to administer those rules.6 Despite the inclusion of a
strengthened dispute resolution mechanism,7 the extent to which the rules
contained in the Marrakech agreements can be applied by national
courts especially within the member states of the WTO is not entirely
The rules governing state regulation of international economic
transactions are based largely on the economic theory of comparative
advantage.8 Thus, they assume the benefits of open trade regimes,
whether on a national, regional or global scale. Applying comparative
advantage theory, it is easy to decide that states should not restrict
trade at their borders, whether it be through import or export tariffs,
quotas, or other measures of trade inhibition. European Community
rules prohibiting internal tariffs, quotas or discriminatory taxes, and
limiting state aid to economic enterprises, are supported by this
theory. Commentators generally agree that all Member States have
benefited from the single market which prohibits (or at least limits)
restrictions on the free movement of goods, services, capital and
persons. The European Court of Justice is available to interpret
Community legislation to help insure the availability of these benefits.'
On a global scale, the WTO administers the rules prohibiting
governmental restraints on trade. There is, however, no single court to
apply these rules to every claim of violation or inconsistency. While
the Understanding on Rules and Procedures Governing the
Settlement of Disputes (Dispute Settlement Understanding) is available to
apply the rules in disputes between states, 10 states have not
demonstrated the willingness to give to the WTO the kind of authority
European Member States have relinquished to the European Court of
This creates problems for international lawyers who view the
rules of the multilateral system as law applicable to the Member
States of the WTO. In the United States, the GATT has at times been
reviewed in the courts to determine whether it is "self-executing" (the
U.S. concept equivalent to the EC's "direct effect")." While judicial
decisions provide no clear position on this question, Congress made
clear in the legislation implementing the Marrakech agreements that
those agreements do not provide rules enforceable in U.S. courts by
private parties.'2 Thus, the question is decided by statute in the
United States, with the rules of the GATT having less than full legal
Despite statutory limitations on the application of WTO
agreements in U.S. courts, case law in both the United States and the
European Community recognizes that international agreements may confer
upon individuals rights which can be invoked in the courts. 3 In both
jurisdictions, however, limitations are placed on the derivation of such
rights from international agreements. Whether the question is one of
"direct effect" in the European Community or of "self-execution" in
the United States, the issue is whether a treaty provides legal rules
9 See EC TREATY, supra note 4, art. 177.
10 Dispute Settlement Understanding, supra note 7.
11 See infra notes 36-64 and accompanying text.
12 See infra notes 74-75 and accompanying text.
13 See infra notes 16-29, 80-228 and accompanying text.
capable of enforcement through litigation when private parties
contend their rights have been affected, or simply provides rules
applicable to sovereign relations.
This article reviews the doctrines of self-execution in U.S. law and
direct effect in EC law, as they have been applied to the General
Agreement on Tariffs and Trade. It then addresses whether the
practice in each of the United States and the European Community is
consistent with the development of the more complete framework of
international economic law provided by the Uruguay Round
agreements, and suggests the need for reconsideration of the politically
rational but legally troublesome doctrine of direct effect. 4
THE U.S. DOCTRINE OF SELF-ExEcuTION' 5
In short, we are of the opinion that, so far as a treaty made by the
United States with any foreign nation can become the subject of judicial
ConWhere there is no later act of Congress in conflict with a treaty
provision, this lex posteriorrule is inapplicable, and the treaty itself
provides the source of law. However, the absence of conflicting
legislation does not guarantee that a treaty rule will be determinative
in a dispute in a U.S. court. The application of treaty rules is further
circumscribed by the doctrine of self-execution. This doctrine limits
the role of treaty rules by providing that, in the absence of
implementing legislation, treaty law will be applicable to disputes in U.S. courts
only if the provision addressed is "self-executing."' 19
A treaty is self-executing when it "operates of itself without the
aid of any legislative provision,"2 0 and "whenever its provisions
prescribe a rule by which the rights of the private citizen or subject may
be determined."'" Such treaties may not deal with matters which have
been expressly and exclusively delegated to Congress,2 2 and treaties
calling for the expenditure of funds are non-self-executing inasmuch
as they are ineffective without the implementing legislation providing
the necessary appropriation. 23
To the extent concepts of "dualism" and "monism" may be useful
in explaining the manner in which a legal system takes account of
in19 See RESTATEMENT, supra note 2, § 111.
20 Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829).
21 Head Money Cases, 112 U.S. at 598-99. Commentators have dissected this language in a
manner that leaves some with the conclusion that self-executing status is "distinct from whether
the treaty creates private rights or remedies." RESTATEMENT, supranote 2, § 111 cmt. h. Some
have separated the question of whether a treaty requires implementing legislation from the
question of whether a treaty "aims at the immediate creation of rights and duties of private
individuals which are enforceable," while finding that both questions are part of the "concept of
selfexecuting treaties." Stefan A. Riesenfeld, The Doctrine of Self-Executing Treaties and U.S. v.
Postal: Win At Any Price?,74 AM. J. INT'L L. 892, 896-97 (1980). A treaty may create private
rights and remedies with an accompanying procedural mechanism of its own for application of
those rights and remedies. However, to the extent it does not do so, the question of whether it
provides substantive rules creating rights or remedies is generally considered under the rubric of
self-execution in U.S. courts.
22 See, e.g., Robertson v. General Electric Co., 32 F.2d 495, 500 (4th Cir.), cert. denied,280
U.S. 571 (1929)(finding that the article I, § 8, cl.7 delegation of authority to Congress prevented
a self-executing treaty on patents). It has more recently been determined that some patent
treaties are self-executing. See, e.g., Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 640 (2d Cir.
23 Turner v. American Baptist Missionary Union, 24 F. Cas. 344 (D. Mich. 1852) (No.
14,251). A list of examples of such treaties is found in The Over the Top, Schroeder v. Bissell, 5
F.2d 838, 845 (D. Conn. 1925). The Restatement states that a treaty will be considered
non-selfexecuting if (a) it "manifests an intention that it shall not become effective as domestic law
without the enactment of implementing legislation," (b) the Senate, in consenting to the treaty
(or Congress in a resolution), requires implementing legislation, or (c) implementing legislation
is constitutionally required. RESrATMErNT, supra note 2, § 111(
ternational law,24 the doctrine of self-execution reflects "the United
States' adoption of a partly 'dualist' - rather than a strictly 'monist'
view of international and domestic law."5 A treaty that is not
depends for the enforcement of its provisions on the interest and honor
of the governments which are parties to it. If these fail, its infraction
becomes the subject of international negotiations and reclamations...
[but] with all this the judicial courts have nothing to do and can give no
Just as notions of "dualism" and "monism" cannot fully explain the
doctrine of self-execution in U.S. law; however, a treaty is not likely to
be reviewed by a court to determine if it is self-executing as a whole.
U.S. courts generally confine their analysis to specific provisions of a
treaty in determining self-executing status.2 7 A relevant treaty
provision is analyzed to determine "the intent of the signatory parties as
manifested by the language of the instrument. '28 Courts look to the
language of a provision to determine whether it is "addressed to the
judicial branch of our government," and confers rights upon
individual citizens, or merely "calls upon governments to take certain
The General Agreement on Tariffs and Trade never received the
consent of the Senate referred to in Article II, Section 2, of the U.S.
Constitution.3" The GATT originally was designed to operate only
provisionally until the establishment of more comprehensive
institutional arrangements under the Charter of the International Trade
Organization (ITO).3 1 When the Truman administration dropped its
efforts to seek Senate consent to the Havana Charter establishing the
ITO, the GATT was adopted by agreement to the Protocol for
Provisional Application of October 30, 1947.32 Thus, the GAT was
entered on behalf of the United States through executive agreement.
Like treaties, executive agreements create law applicable in U.S.
courts if they are entered with proper Presidential authority,33 and do
not conflict with subsequent legislation.3 4 Also like treaties, the
language of an executive agreement will be applied to disputes before
U.S. courts only if it is self-executing in nature.
While no case has addressed directly the question of whether a
provision of the GAT is self-executing, a 1960 Opinion of the
California Attorney General concluded that the words of paragraph 1 of
the Protocol of Provisional Application created a self-executing
obligation that combined with the national treatment provisions of GATT
Article I to invalidate portions of the California Buy-America Act.3 6
Case law also has addressed the application of GATT Articles I3,1
111,38 XI,39 XIX, 40 XXVII, 41 and XXVIII, but without clear results on
31 United Nations Conference on Trade and Employment, Havana Charter for an
International Trade Organization and Final Act and Related Documents, Havana, Cuba, November 21,
1947, to March 24, 1948, U.N. Doc. ICITO/1/4/1948. For a discussion of the events leading up to
the Havana Charter, see the following: WrLLjAM A. BROWN, JR., THE UNrrED STATES AND THE
RESTORATION OF WORLD TRADE 15-160 (1950); GERARD CURZON, MULTILATERAL
COMMERCIAL DIPLOMACY: THE GENERAL AGREEMENT ON TARIFFS AND TRADE AND ITS IMPACT ON
NATIONAL COMMERCIAL POLICIES AND TECHNIQUES 15-33 (1965); WILLIAM DIEBOLD, JR., THE
END OF THE ITO (PRINCETON ESSAYS IN INTERNATIONAL FrNANCE No. 16, 1952); RICHARD N.
GARDNER, STERLING-DOLLAR DIPLOMACY IN CURRENT PERSPECTrVE (new, expanded edition
with rev. intro. 1980); JOHN H. JACKSON, WORLD TRADE AND THE LAW OF GATT 35-57 (1969);
CLAIRE WILCOX, A CHARTER FOR WORLD TRADE 3-52 (1949).
32 Protocol of Provisional Application of the General Agreement on Tariffs and Trade,
opened for signature Oct. 30, 1947, 61 stat. A2051, 55 U.N.T.S. 308.
33 For a discussion concluding that the GATT is a valid executive agreement authorized by
Congress, see Brand, supranote 15. See also Robert Hudec, The Legal Status of GATT in the
Domestic Law of the United States, in THE EUROPEAN CoMMUNrrY AND GATT 187 (Meinhard
Hilf et al. eds., 1986); John H. Jackson, The GeneralAgreement on Tariffs and Trade in United
States Domestic Law, 66 MICH.L. REV. 250 (1967); Note, United States Participationin the
GeneralAgreement on Tariffs and Trade, 61 COLUM. L. REV. 505 (1961). For a discussion of the
concept of direct application generally, see John H. Jackson, Status of Treatiesin Domestic Legal
Systems: A Policy Analysis, 86 Am.J. INT'L L. 310 (1992).
34 See supranote 18 and accompanying text.
35 See, eg., United States v. Pink, 315 U.S. 203,230-31 (1942) and United States v. Belmont,
the question of self-execution. 42
Courts instead have implied author
ity for the GATT without any complete self-execution analysis.
Federal court decisions considering the GAT] provide little
guidance because they consistently have rejected arguments that
questioned legislation or administrative acts violate GATT obligations.43
Although courts have assumed GAY]? authority in making these
determinations (thereby providing implicit authority for the
self-executing status of the GATT provisions addressed), the outcome in each
case has made it unnecessary to provide a rationale for such an
assumption. One group of federal cases determined that the
now-abandoned "wine gallon" method of determining the application of U.S.
excise taxes to distilled spirits did not violate national treatment
obligations under GATT Article III because the tax was applied in a
nonprovisions of Art. I considered effective, but superseded through later-in-time rule by
amendments to § 22 of the Agricultural Adjustment Act delegating authority to President to adjust
quotas in response to surges in sugar imports); U.S. Cane Sugar Refiners' Ass'n v. Block, 683
F.2d 399 (C.C.P.A. 1982) (sugar quotas authorized by language inserted in a U.S. tariff
concession did not violate prohibition of quotas in GATT Art. XI); Michelin Tire Corp. v. United
States, 2 Ct. Int'l Trade 143 (1981) (plaintiff contested countervailing duty determination,
alleging violation of Art. VI in Treasury Decision's failure to make determination of injury.
Argument rejected based on Protocol of Provisional Application grandfather clause for pre-existing
inconsistent legislation); American Express Co. v. United States, 472 F.2d 1050, 1059 n.14
(C.C.P.A. 1973) (rejected allegations of violation of Art. I MFN obligations (and MFN
requirements under FCN treaty with Italy) in subsidies case where importer alleged other nations had
similarly rebated tax and the United States had not imposed similar countervailing duties against
One case, Regiomontana v. United States, 64 F.3d 1579 (Fed. Cir. 1995) struck down the
imposition of countervailing duties accumulating after Mexico became entitled to an injury
analysis under the Tokyo Round GATT Subsidies Code, as in violation of GAIT obligations. Id at
1580. Thus, it arguably exists as authority for the application of GATT rules directly to
invalidate agency action.
discriminatory manner.44 Other cases carefully avoid responding to
allegations of GAIT applicability.45 None of these cases provides
useful analysis of the self-executing status of GATT provisions.
One group of federal cases focuses on the issue of authority for
entering into the GAT, finding that it does not have treaty status,
thereby avoiding the issue of self-execution. 46 Conversely, the case of
United States v. Star Industries47 assumes both binding authority and
self-executing status for the GATT without ever raising either issue
for specific discussion. The plaintiffs in that case asserted that section
252 of the Trade Expansion Act of 1962,48 which authorized the
President to amend tariff schedules in response to unfair trade practices by
other countries, required that such retaliatory amendment be targeted
solely at the offending party. The court never raised the question of
whether (and how) the GAT has legal status in such a dispute.
Rather, it simply assumed such status and found that the
most-fa44 China Liquor Distrib. Co. v. United States, 343 F.2d 1005 (C.C.P.A. 1964), cert. denied,
380 U.S. 962 (1965); Bercut-Vandervoort v. United States, 151 F. Supp. 942 (C.C.P.A. 1957), 46
C.C.P.A. 28 (1958), cert. denied, 359 U.S. 953 (1959). The Bercut-Vandervoortcase included an
interesting dissent by Judge Donlan providing analysis of the GATT as a treaty obligation and
considering the application of the grandfather clause contained in the Protocol of Provisional
Application as well as the later-in-time rule of treaty application. See also Schieffelin & Co. v.
United States, 424 F.2d 1396 (C.C.P.A.), cert. denied, 400 U.S. 869 (1970), in which the court
considered allegations that the distilled spirits excise tax was in violation of the Friendship,
Commerce and Navigation treaty with Ireland.
45 See, e.g., Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 439 n.4 (1979)
(dismissed as "frivolous" an argument that California ad valorem property tax applied to Japanese
shipping companies' cargo containers, which were also taxed in Japan, violated Art. III national
treatment obligations); Algoma Steel Corp., Ltd. v. United States, 865 F.2d 240, 242 (Fed. Cir.
1989), cert. denied, 492 U.S. 919 (1989) ("We have also considered the General Agreement on
Tariffs and Trade (GATT). Congress no doubt meant to conform the statutory language to the
GATI, but we are not persuaded it embodies any clear position contrary to ours. Should there
be a conflict, the United States legislation must prevail."); Calnetics Corp. v. Volkswagen of
America, Inc., 532 F.2d 674 (9th Cir.), cert. denied, 429 U.S. 940 (1976) (instructed district court,
on remand, to consider treaty obligations under GATr in shaping remedy for possible antitrust
violation); Walter Holm & Co. v. Hardin, 449 F.2d 1009, 1015 (D.C. Cir. 1971) (avoided
addressing GATI, but indicated "the need to consider the intention and effect of GATT and the
Government's policy with respect to GATr whether or not GATr is mandatorily prohibitive" in
ordering hearing on remand); Select ire Salvage Co. v. United States, 386 F.2d 1008 (Ct. Cl.
1967) (action to recover excise tax paid on imported tire carcasses decided on grounds of
Congressional intent without need to refer to GATT).
46 United States v. Yoshida Int'l, Inc., 526 F.2d 560 (C.C.P.A. 1975); Sneaker Circus, Inc. v.
Carter, 457 F. Supp. 771 (E.D.N.Y. 1978); These cases were either decided on narrow grounds
making the issue of GATT applicability irrelevant or in a manner that determined that, even if
the GATT were applicable and self-executing, there was no GATI"violation. See Brand, supra
note 15, at 490-91.
47 United States v. Star Indus., 462 F.2d 557 (C.C.P.A. 1972).
48 876 Stat. 872 (1962) (now the more familiar section 301 of the Trade Agreements Act of
1974, as amended, 19 U.S.C. § 2411 (1994).
vored-nation obligations in Article I of the General Agreement
required any retaliation under Article XXVIII to be generalized in
accordance with MFN principles.49 It then found that section 252 did
not require tariff adjustments "inconsistent with our international
obligations."5 The court thus relied on the GATT to defeat the
argument of the plaintiff that targeted retaliation was required. By finding
the questioned legislation consistent with GAIT obligations, the Star
Industries case implies self-execution for Article I of the GAIT.
However, neither it nor any other federal case has actually analyzed
the self-executing status of any GAIT provision in regard to an
alleged violation through federal legislation or administrative
In contrast to the review of challenges to federal law, decisions
dealing with alleged state law violations of GATT have at times found
such violations to exist, thereby clearly implying self-executing status
for the GATT provisions involved. This has been done, however,
without any explicit self-execution analysis. In one of the earliest
state cases directly to address the applicability of the GAIT, the
Supreme Court of Hawaii held that a state statute requiring sellers of
eggs of foreign origin to display a placard bearing the words "WE
SELL FOREIGN EGGS," contravened the national treatment
obligations contained in paragraphs 1 and 4 of Article III of the GATT.5'
This case remains one of the few to address directly the question of
the authority behind the GAIT, specifically noting that the
"constitutionality of the grant of such authority [to enter into trade agreements
under section 350 of the Tariff Act of 1930] has been repeatedly
questioned in and out of Congress."52 The court concluded that the GAIT
is "a treaty within the meaning of [Article VI, clause 2 of the
Constitution], so that it has the same efficacy as a treaty made by the President
by and with the advice and consent of the Senate.15 3 While
specifically addressing the binding authority of the GAIT as U.S. law, the
case did not, however, provide explicit analysis of the issue of
selfexecution. It rather assumed such effect in finding GAIT Article III
to prevail over the state law measure involved.
Three Opinions of the California Attorney General reached a
similar result in considering that state's "buy American" legislation
49 462 F.2d at 563.
50 Id.at 564.
51 Territory of Hawaii v. Hawaii, 41 Haw. 565 (1957).
52 Id. at 567.
53 Id. at 568.
under GAIT Article IIs.4 These opinions also found GATT to have
"supreme law of the land" status under Article VI, clause 2, of the
Constitution.5 5 A contract for the purchase of turbine generator units
by the Los Angeles Department of Water and Power from a Swiss
corporation was determined properly awarded, with the "buy
American" statute found to be inapplicable. 6 Similarly, a contract for the
purchase of pumps and motors for the production of electricity was
found not subject to the statute.5 7 However, when the purchase was
for "governmental purposes," the exception contained in paragraph
8(a) of Article III was found to allow the application of the "buy
American" statute, even though it was an expression of state, rather
than federal, policy.58 A subsequent decision of the California First
District Court of Appeal similarly struck down a provision of a San
Francisco contract proposal (designed to comply with the state buy
American statute) that would have required that equipment furnished
under the proposal be manufactured in the United States.5 9
Other state cases have considered the GATT but have not relied
upon it to invalidate inconsistent legislation or contract provisions.
Two New Jersey cases and a Tennessee Attorney General's Opinion
have implied self-execution in the application of the GATT but found
that the situations involved were within the Article III, paragraph
8(a), "governmental purposes" exception to national treatment
requirements of other provisions of Article 111.60 Cases in New Jersey
and Alabama have determined that state sales taxes applied to the
sale of gold coins were not in contravention of national treatment
obligations, even though original issue of such coins by the U.S. treasury
could not constitutionally be taxed by the states.6 '
The best that can be said from this survey of U.S. law is that
decisions consistently have implied self-executing status for GATT
provisions in considering challenges to conflicting state law measures, and
one state Attorney General's opinion has specifically found GATT
Article III to be self-executing.6' Cases considering challenges to
federal law on the basis of the GATr carefully have avoided the issue by
founding decisions on other grounds. Only the Star Industries case
can be said clearly to have implied self-executing status for a provision
of the GATr in the face of a challenge to federal law.63 Even there, it
is difficult to carry the opinion too far because the court (by
demonstrating consistency between the GATT and the law in question) was
using the GATT to defeat the plaintiff's allegation of invalidity of
federal law, rather than in finding a conflicting law invalid.64 Thus, the
rule applied by the court arose out of a federal statute, supported by
the GATT, and not out of the GATT itself.
In the Trade Agreements Act of 1979, Congress made clear that
the implementation of the Tokyo Round agreements, negotiated
under the GATT framework, would not allow any provision of those
agreements to prevail over a U.S. statute, regardless of when the
statute was enacted. 65 The same Act further provided that the
implementation of the Tokyo Round agreements was not to be "construed as
creating any private right of action or remedy for which provision is
not specifically made in the implementing legislation. 66
The opposition to treaty priority (but not so clearly to direct
effect of international trade agreements) continued in the United
States-Canada Free-Trade Agreement Implementation Act.67 The
Act clearly states that "[n]o provision of the Agreement, nor the
application of any such provisions to any person or circumstance, which
is in conflict with any law of the United States shall have effect."68 As
to the relationship between the Free Trade Agreement and state law,
however, the Act provides for clear preemption: "The provisions of
the Agreement prevail over (A) any conflicting State law; and (B) any
conflicting application of any State law to any person or circumstance;
to the extent of the conflict. '69
No provision of any trade agreement approved by the Congress under section 2503(a),
nor the application of any such provision to any person or circumstance, which is in conflict
with any statute of the United States shall be given effect under the laws of the United
This provision was cited by the Court of International Trade in countering a claim that the
International Trade Commission's practice of cumulation of sales from multiple countries in making
injury determinations violated GATT Article VI and Article I of the Tokyo Round Antidumping
Code. Fundicao Tapy S.A. v. United States, 678 F. Supp. 898, 902 (Ct. Int'l Trade), aff'd, 859
F.2d 915 (Fed. Cir. 1988) ("even if we were to reach the conclusion that the operation of the
cumulation provision violated the GATr Code, we would be bound to give primacy to the law of
the United States in accordance with the direction in 19 U.S.C. § 2504(a)"). See also Footwear
Distributors and Retailers of America v. United States, 852 F. Supp. 1078, 1088 (Ct. Int'l Trade
1994); Mississippi Poultry Ass'n Inc. v. Madigan, 992 F.2d 1359, 1365-66 (5th Cir.), amended, 9
F.3d 1113 (1993), on rehearing,31 F.3d 293 (1994); Suramerica de Aleaciones Laminadas, C.A. v.
United States, 966 F.2d 660, 667 (Fed. Cir. 1992).
Prior to the 1979 Act, Congress had been careful to avoid explicit approval or rejection of
GATr in any clear manner. In each of the 1951, 1953, 1954, 1955 and 1958 acts extending the
authority of the President to negotiate trade agreements, Congress included the language, "the
enactment of this Act shall not be construed to determine or indicate the approval or
disapproval by the Congress of the Executive Agreement known as the General Agreement on Tariffs
and Trade." Trade Agreements Extension Act of 1951, ch. 141, sec. 10, 65 Stat. 72, 75; Trade
Agreements Extension Act of 1953, ch. 348, § 103, 67 Stat. 472; Act of July 1, 1954, ch. 445, § 3,
68 Stat. 360; Trade Agreements Extension Act of 1955, ch. 169, § 3(a), 69 Stat. 162, 163; Trade
Agreements Extension Act of 1958, § 10, 72 Stat. 673, 680. No such disclaimer was included in
the Trade Expansion Act of 1962, Pub. L. No. 87-794,76 Stat. 872. The Trade Act of 1974 stated
that Congress was not implying approval or disapproval "of all articles" of the GATT. Trade
Act of 1974, Pub. L. No. 93-618, § 121(d), 88 Stat. 1978, 1987 (1975). It was in the 1974 Act,
however, that Congress for the first time authorized payment of the U.S. share of GATT
expenses, and directed the President to conform with GATT balance-of-payment restrictions and
consider "the international obligations of the United States" in import relief actions. Id.
§ 122(a) and § 203(k).
66 Trade Agreements Act of 1974, Pub. L. No. 96-39, § 3(0, 93 Stat. 144, 148 (codified at 19
Similar language regarding conflicts with federal law was
included in the North American Free Trade Agreement Implementation
Act in 1993.70 The North American Free Trade Agreement's
(NAFTA) relationship to state law, however, is more complex because
of the establishment of intergovernmental policy advisory committees
on trade. These committees are to discuss and insure conformity of
state laws with treaty commitments. 71 The Implementation Act
further removed any direct effect of the NAFTA in actions brought by
private parties, by providing that state laws could be declared invalid
as inconsistent with the NAFTA only in an action brought by the
United States expressly for that purpose72 and that no person other
than the United States has any cause of action under the NAFTA or
its side agreements on environment and labor, or "may challenge, in
any action brought under any provision of law, any action or inaction
by any department, agency, or other instrumentality of the United
States, any State, or any political subdivision of a State on the ground
that such action or inaction is inconsistent with the Agreement, the
North American Agreement on Environmental Cooperation, or the
North American Agreement on Labor Cooperation. '73
The Uruguay Round Agreements Act of 1994 continued this
progression toward full prohibition of direct effect of international trade
agreements in challenges to either federal or state law.74 Section 102
of the Act (
) denies effect to any Uruguay Round Agreement
provision "that is inconsistent with any law of the United States;" (
provides that only the United States government can bring an action to
challenge the validity of a state law as inconsistent with a Uruguay
Round provision; and (3) provides that no private party may challenge
any law or act of the federal government or any state government as
inconsistent with a provision of any Uruguay Round Agreement.75
70 Pub. L. No. 103-182, § 102(a)(
), 107 Stat. 2057 (1992)(codified at 19 U.S.C. § 3312 (Supp.
71 Id. § 102(b).
72 Id.§ 102(b)(
73 Id. § 102(c).
74 Uruguay Round Agreements Act of 1994, Pub. L. No. 103-465, 108 Stat. 4809.
75 The language of the Act reads as follows:
Sec. 102. RELATIONSHIP OF THE AGREEMENTS TO UNITED STATES LAW AND
(a) Relationship of Agreements to United States Law.
) United States law to prevail in conflict. - No provision of any of the Uruguay
Round Agreements, nor the application of any such provision to any person or
circumstance, that is inconsistent with any law of the United States shall have effect.
) Legal challenge.
The Statement of Administrative Action accompanying the Uruguay
Round Agreements Act reinforces the no-direct-effect statements in
the Act by specifically stating that "[i]f there is a conflict between U.S.
law and any of the Uruguay Round agreements, section 102(a) of the
implementing bill makes clear that U.S. law will take precedence. '76
Thus, in determining the language of the various acts
implementing the most recent trade agreements, Congress and the President
have made clear the intention to bar private parties from any use of
the provisions of those agreements in challenges to federal, state or
local laws. Despite the fact that earlier decisions indicated a basis for
the direct effect of GATT provisions - at least in challenges against
(A) In general. - No State law, or the application of such a State law, may be
declared invalid as to any person or circumstance on the ground that the provision or
application is inconsistent with any of the Uruguay Round Agreements, except in an
action brought by the United States for the purpose of declaring such law or
ie)"Effect of Agreement With Respect to Private Remedies.
) Limitations. - No person other than the United States
(A) shall have any cause of action or defense under any of the Uruguay Round
Agreements or by virtue of congressional approval of such an agreement, or
(B) may challenge, in any action brought under any provision of law, any action or
inaction by any department, agency, or other instrumentality of the United States,
any State, or any political subdivision of a State on the ground that such action or
inaction is inconsistent with such agreement.
) Intent of Congress. - It is the intention of the Congress through paragraph (
occupy the field with respect to any cause of action or defense under or in connection
with any of the Uruguay Round Agreements, including by precluding any person
other than the United States from bringing any action against any State or political
subdivision thereof or raising any defense to the application of State law under or in
connection with any of the Uruguay Round Agreements
(A) on the basis of a judgment obtained by the United States in an action brought
under any such agreement; or
(B) on any other basis.
Id. § 102.
76 The Uruguay Round Agreements Act Statement of Administrative Action, 103d Cong.,
2d Sess., H. Doe. 103-316, vol. I, 659 (1994). It is important to keep in mind that under these
provisions statutes trump treaties only when there is actual conflict between the two. "[Tihe
initial inquiry is whether Congress has directly spoken to the precise point at issue." Footwear
Distributors & Retailers of Am. v. United States, 852 F. Supp. 1078, 1089 (Ct. Int'l Trade 1994).
"If the intent of Congress is clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,842-43 (1984). In determining the
intent of Congress, however, "an act of Congress ought never to be construed to violate the law
of nations if any other possible construction remains, and, consequently, can never be construed
to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of
nations as understood in this country." Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch)
63, 118 (1804). The Supreme Court has taken the position that the Chevron rule of deference to
agency interpretations of congressional intent is secondary to the Charming Betsy doctrine of
avoidance of conflict with international obligations. Edward J. Debartolo Corp. v. Fla. Gulf
Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574-75 (1988). See also Federal Mogul
Corp. v. United States, 63 F.3d 1572,1581 (Fed. Cir. 1995); Footwear Distributors & Retailers of
Am., 852 F. Supp. at 1091.
state laws 77 - even provisions of the 1948 GATT that remain
unchanged by the Uruguay Round Agreements are unlikely to provide a
foundation for a challenge to a statute. The lid on the coffin of direct
effect of these international trade agreements appears securely sealed
in the United States.
III. THE EUROPEAN UNION DOCrRINE OF Dirncr EiFcrs
Direct Effect of the Rome Treaty and Community Legislation
In the European Union, the direct effects doctrine was developed
in cases concerning the application of Community law before national
courts.78 The European Court of Justice has followed a steady course
in finding Community law to be both directly effective in the national
courts of the Member States and to have primacy over national
legislation.79 The more difficult issue is the place of international
agreements other than the European Community treaties in both
Community and Member State law.,
The question of the invocation of Community law before national
courts arose early in the European Court's history with the case of
Van Gend en Loos v. NederlandseAdministratieder Belastingen8.0 A
Dutch importer challenged the transfer of ureaformaldehyde from
one tariff class to another by the Netherlands government on the
grounds that it increased the import duties contrary to Article 12 of
the Treaty Establishing the European Economic Community."' In
determining whether national courts must protect rights emanating from
the Treaty, the Court found it "necessary to consider the spirit, the
general scheme and the wording of those provisions."' In looking at
the entire Treaty, the Court emphasized that the language of the
preamble, the establishment of community institutions endowed with
sovereign rights, and the purpose of securing uniform interpretation of
Community law found in Article 177 all indicated that the Treaty was
intended to create rights for individuals as well as for Member
The Van Gend en Loos decision went on to consider the specific
wording of Article 12, determining that it "must be interpreted as
producing direct effects and creating individual rights which national
courts must protect."' The language of Article 12 was found entitled
to such effect because it was clear and unconditional, required no
implementing legislation by the Member States, and provided no margin
of discretion in its application.8 5 In such circumstances, again
considering the "spirit, the general scheme and the wording of the Treaty,"
the court found the "vigilance of individuals concerned to protect
their rights amounts to an effective supervision in addition to the
supervision entrusted by Articles 169 and 170 to the diligence of the
Commission and of the Member States."8 6 Thus, enforcement of this
provision of the Treaty is not only a function of the institutions of the
Community and the governments of its Member States, but also of the
citizens of the CommunityY
The European Court of Justice subsequently has expanded the
concept of direct effects by finding that additional Articles of the
Rome Treaty are directly effective in challenges of Member State
laws, 88 that certain articles are directly effective in disputes between
private parties ("horizontal" direct effect),89 and that regulations,9"
directives, 91 and decisions 9z promulgated under Article 189 of the
Treaty may all be directly effective.93 In fact, as to Community law, it
has been said that "the direct effect of a Community rule is the
general rule in the Community legal order rather than the exception." 94
Not only is the direct effects concept deeply entrenched in
Community law, but it is strengthened further by the Community concept
of primacy. Community law takes precedence over national law of a
Member State,95 even if the national law measure is adopted after the
effective date of the Community law measure.96 "[E]very national
89 See, e.g., Case 43/75, Defrenne v. Societe Anonyme Beige de Navigation Aerienne
Sabena, 1976 E.C.R. 631,  2 C.M.L.R. 98 (Article 119 provision that "men and women
should receive equal pay for equal work" applies to dispute between air hostess and airline that
paid cabin steward more for same work); but see Case 152/84, Marshall v. Southampton and
South-West Hampshire Area Health Authority (Teaching), 1986 E.C.R. 723, 749,  1
C.M.L.R. 688,711 (denying horizontal direct effect to a directive which otherwise imposed
obligations on Member States. Obligations imposed by a directive exist only on the part of "each
Member State to which it is addressed."). For a discussion of the horizontal direct effect concept
see KAPirYN & vAN THEMAAT, supra note 85, at 346-48.
90 See, e.g., Case 65/75, Ex parte Tasca, 1976 E.C.R. 291,  2 C.M.L.R. 183; Case 34/73,
874,  C.M.L.R. 1, 30; Case 9/70, Grad v. Ginanzamt Traunstein, 1970 E.C.R. 825, 838-838,
 C.M.L.R. 1, 24-25.
93 See KAPTEYN & VAN Tm~MAAT, supra note 85, at 345:
) of the
Agreement between the
Relying in large part on its similarity to the language and
function of EC Treaty Article 95, the Court found Article 53 of the
Association Agreement to be directly effective,15 9 noting that the
wording of Article 53(
) is "similar to that of Article 95 of the [EEC]
Treaty, [and] fulfils ...
the same function as that of Article 95. " 16°
After Pabst & Richarz, an attempt to draw useful conclusions
from the decisions of the European Court of Justice might reasonably
have led to the assumption that agreements directly tied to the EC
Treaty were capable of providing rules of direct effect, while less
Thus, the Yaound6
ment, institutionalizing arrangements favoring former colonies and
related countries and specifically provided for in the EC Treaty, was
the source of directly effective rules in Bresciani. Similarly, an
association agreement preparing a non-member country for membership in
the Community provided a directly effective rule in Pabst & Richarz.
On the other hand, a free trade agreement, as considered in Polydor,
was not capable of providing direct effect because its connection to
the constitutional framework of the EC
Treaty was more tenuous.
Further, an agreement such as the General Agreement on Tariffs and
158 "Neither Contracting Party shall impose, directly or indirectly, on the products of the
other Contracting Party any internal taxation of any kind in excess of that imposed directly or
indirectly on similar domestic products."
The refunds were also challenged on the basis of
Article 95 of the EC Treaty in regard to raw spirit coming from France and Italy. 1982 E.C.R. at
159 This time the Commission had argued in favor of direct effectiveness of the provision. I.
160 Id. at 1350.
It accordingly follows from the wording of Article 53(
) ... and from the objective and
nature of the Association Agreement of which it forms part that that provision precludes a
national system of relief from providing more favourable tax treatment for domestic spirits
than for those imported from Greece. It contains a clear and precise obligation which is not
subject, in its implementation or effects, to the adoption of any subsequent measure. In
those circumstances Article 53(
) must be considered as directly applicable from the
beginning of the third year after the entry into force of the Agreement, on which date all
measures conflicting with that provision was, [sic] by virtue of its third subparagraph, to be
Accordingly... an importer of spirits from other Member States may rely before a national
court on the first subparagraph of Article 53(
) of the Association Agreement with Greece
against the application of national measures of tax relief for spirits,... if such measures
have the effect of according less favourable treatment to such spirits than to similar
Id. at 1350-51.
Advocate General Roz~s would have gone so far as to find that, from prior case law on
Article 95, "the reasons why the Court found that the first paragraph of Article 95 of the Treaty
had direct effect apply mutatismutandis to Article 53(
) of the Agreement signed in Athens with
Greece." Id. at 1359. Thus, a direct connection would have been made between the direct effect
of the EC Treaty itself (the constitutional law of the Community) and the direct effect of
provisions of treaties entered on behalf of the Community.
Trade, to which the Community was not even officially a contracting
party and which has no direct tie to the constitutional framework of
the EC Treaty, was also incapable of having directly effective
Such a rationale for the direct effects jurisprudence of the
European Court in international agreements was proved useless in the 1983
case of Hauptzollamt Mainz v. Kupferberg.'61 An importer of port
wine from Portugal challenged the German monopoly equalization
duty as being in violation of Article 95 of the EC Treaty and Article
) of the free trade agreement between the Community and
Portugal. The Court held Article 21(
) of the free trade agreement directly
effective. Determining that agreements concluded under Article 228
of the EC Treaty are binding on the institutions of the Community
and on Member States, the Court found it "incumbent upon the
Community institutions, as well as upon the Member States, to ensure
compliance with the obligations arising from such agreements."' 162
The logic of direct effect for the provisions of the free trade agreement
came from intra-Community law. Member State obligations arising
from agreements concluded by the Community institutions create not
only rights running to the non-member countries with whom the
agreement was negotiated but also to the Community itself "which
has assumed responsibility for the due performance of the
agreement." 63 Thus, the free trade agreement with Portugal, through
Article 228 of the EC Treaty, was a directly effective, integral part of
Not only did Kupferberg dispel the notion that the Court's direct
effects jurisprudence was based on the type of agreement involved,
but it also removed several other rationales for determining the direct
effect of provisions of agreements binding on the Community. The
decision hinged in large part on the necessity for uniformity in the
interpretation of Community law.64 In doing so, it specifically
rejected as determinative factors in considering direct effect (
prin161 Case 104/81, Hauptzollamt Mainz v. C.A. Kupferberg & Cie. KG, 1982 E.C.R. 3641,
 1 C.M.L.R. 1.
162 Id. at 3662.
163 Id. at 3662.
164 The court stated:
It follows from the Community nature of such provisions that their effect in the
Community may not be allowed to vary according to whether their application is in practice the
responsibility of the Community institutions or of the Member States..... Therefore it is
for the Court, within the framework of its jurisdiction in interpreting the provisions of
agreements, to ensure their uniform application throughout the Community.
Id. at 3362-63.
cipal of reciprocity; (
) the presence in the agreement of an
institutional framework for dispute settlement; and (3) the presence of
a safeguard clause in the agreement.
The Court rejected a reciprocity test that would find that a
Community agreement may have a direct effect in the legal order of one
contracting party only when the other party recognizes such an effect:
According to the general rules of international law there must be bona
fide performance of every agreement. Although each contracting party
is responsible for executing fully the commitments which it has
undertaken it is nevertheless free to determine the legal means appropriate for
attaining that end in its legal system unless the agreement, interpreted in
the light of its subject-matter and purpose, itself specifies those means.
Subject to that reservation the fact that the courts of one of the parties
consider that certain of the stipulations in the agreement are of direct
application whereas the courts of the other party do not recognize such
direct application is not in itself such as to constitute a lack of reciprocity
in the implementation of the agreement. 165
As to the presence of a separate dispute settlement mechanism in
an agreement, the Court ruled that, "the mere fact that the
contracting parties have established a special institutional framework for
consultations and negotiations inter se in relation to the
implementation of the agreement is not in itself sufficient to exclude all judicial
application of that agreement."1' 66 Further, on the issue of safeguard
clauses, the Court determined that such clauses "apply only in specific
circumstances" and "do not affect the provisions prohibiting tax
discrimination."' 67 Thus, the presence of provisions that had seemed so
important to the Court's finding of no direct effect in GATT cases
such as InternationalFruit,Schlater, and Diirbeckwere no longer
determinative in the Court's analysis of the free trade agreement with
Like the analysis in InternationalFruit,the Kupferberg decision
addressed the entire agreement prior to consideration of the specific
provision claimed to be directly effective. As to the free trade
agreement with Portugal, as a whole, the Court found neither its nature nor
its structure to prevent a trader from reliance on its provisions before
a court within the Community.169 The Court then considered Article
165 Id. at 3663-64. Comparethe position of the Commission in Polydor,supranote 149 and
accompanying text with the position of Advocate General Mrs. Rozds in Bresciani,supranote
166 Kupferberg, 1982 E.C.R. at 3664.
168 Michel Waelbroeck, Effect of GATT Within the Legal Order of the EEC, 8 J. WoRLD
TRADE L 614, 617 (1974).
169 1982 E.C.R. at 3665.
21 specifically, finding that it, "imposes . an unconditional rule
against discrimination in matters of taxation," and as such, "may be
applied by a court and thus produce direct effects throughout the
The 1987 case of Demirel v. Stadt Schwdbisch Gmand171 further
eroded the notion that any differences between association
agreements and free trade agreements were useful in determining direct
effect status of their provisions. The Court found that provisions of
the Association Agreement with Turkey were not directly applicable
in a challenge to national measures. A Turkish national was ordered
expelled by decision of the German City of Schwabisch Gmtind as not
entitled to remain with her Turkish husband. The deportation was
challenged as contrary to prohibitions on restrictions on the free
movement of persons contained in Articles 7 and 12 of Association
Agreement with Turkey, combined with Article 36 of the Additional
The Demirel Court considered the Agreement generally as
setting out "aims" and "guidelines" as opposed to "detailed rules,"
finding that, "[o]nly in respect of certain specific matters are detailed rules
laid down by the protocols annexed to the Agreement, later replaced
by the Additional Protocol."1"7 At the same time, the decision
implied further erosion of the analysis employed in regard to the GATT
in InternationalFruit,by appearing to recognize that even though the
agreement, as such, may lack the characteristics of direct effect, some
"detailed rules" in the protocols may be entitled to direct effect. This
implication is furthered by the Court's more elaborate discussion of
specific provisions. In other words, unlike InternationalFruit,where
the Court stopped after finding that the agreement as such was
incapable of direct effects, here the Court went on to the specific
provisions. The subsequent analysis of specific provisions limits the extent
to which this gloss on InternationalFruitmay be extended, however,
as the provisions considered by the Court were found to be "not
suffi170 Id. It is important to note that, while acknowledging the possibility of finding directly
effective rules in the free trade agreement involved, the Kupferberg decision at the same time
distinguished those rules from similar directly effective rules arising from the EC Treaty. The
Court specifically noted the language differences between Article 21 of the EEC-Portugal Free
Trade Agreement and Article 95 of the EC Treaty, and the different purposes of the two treaties,
noting that "the interpretations given to Article 95 of the Treaty cannot be applied by way of
simple analogy to the Agreement on free trade." Id. at 3666. Further, the Court ultimately
found no discrimination within the prohibitions of Article 21 of the Free Trade Agreement.
Thus, while winning the decision on direct effect, the plaintiff lost the judgment.
171 Case 12186, 1987 E.C.R. 3719,  1 C.M.L.R. 421.
172 Id. at 3752.
ciently precise and unconditional to be capable of governing directly
the movement of workers.' 1 73 However, the Court's extended
inquiry, after first finding the agreement as a whole lacking in indicia of
direct effect, indicated an evolution beyond the more limited
approach of InternationalFruit.
The Court has continued to find directly effective provisions in
bilateral trade agreements after Kupferberg and Demirel. In Sevince
v. Staatssecretarisvan Justitie,74 direct applicability was acknowledged
for a decision of the Council of Association provided by the
Association Agreement with Thrkey. In ONEM v. Bahia Kziber,17 5 the Court
recognized the direct effect of the national treatment provisions of the
Co-operation Agreement between the EC and Morocco.176
The Direct Effects of International Agreement Provisions After
Kupferberg and Demirel
For an outsider, it is difficult to draw from the case law of the
European Court of Justice any clear tests applicable to direct effect
questions that might arise in future cases involving international
agreements of the Community. Pierre Pescatore, a former judge of
the European Court, has suggested that the analysis applied to the
GATT in InternationalFruit and Schlater in comparison to that
applied to the Yaound6 Convention in Brescianiand the EEC/Portugal
Free Trade Agreement in Kupferberg, represent distinctly different
approaches to the same issue. 77 The GAT cases reflect a "context
approach" without analysis of the specific provisions alleged to have
direct effect. Discussion is restricted to "the general characteristics of
GAIT - which in short is described as a forum for commercial
negotiations rather than a set of binding rules."'1 78 The Bresciani and
Kupferberg cases, on the other hand, demonstrate a "textual
approach," with "the question of direct applicability.., discussed on the
basis of individual provisions in given agreements.' 79 Pescatore finds
this analytical distinction problematic:
173 Id. at 3753.
174 Case C-192/89, 1990 E.C.R. 1-3461,  2 C.M.L.R. 57.
175 Case C-18/90, 1991 E.C.R. 1-199.
176 See Fernando Castillo de la Torre, The Status ofGATT in EEC Law: Some New
Developments, 26 J. WoRLD TRADE 35, 35 n.1 (Oct. 1992).
177 Pierre Pescatore, Treaty-makingby the EuropeanCommunities,in THE EFFEcr OF
TREAnnms INDOMESTC LAW, 177, 184-88 (Francis G. Jacobs & Shelley Roberts eds., 1987).
178 Id at 186-87.
179 Id. at 187-88.
A comparison of these two lines of approach shows that they lead to
contradictory results in so far as identical clauses... are said to confer
rights on individuals whenever the clauses are examined on their own
merits, whereas the same clauses may be said to be without effect for
iinnddiivscidriumalisnawtehewnaeyvewr itahnouitntreergnaartdiofnoarl inindsitvriudmuaelntcliasusaepsp.1r8o0ached in an
Noting that Article 31 of the Vienna Convention on the Law of
Treaties 181 "suggests a progression from text to context and not the
reverse,''182 Pescatore finds a need to reconcile these cases through the
consistent application of a textual approach to all international
agreements. 8 3
Despite the concerns raised by Pescatore, the distinction between
a textual and a contextual approach might be supportable if the Court
considers the nature of the agreement being addressed of overriding
importance. However, the Kupferberg analysis, finding directly
effective rules in a free trade agreement, constitutes a rejection of
distinctions based solely on the type of agreement. 184
Other distinctions that might have carried weight after
International Fruit similarly have been weakened or rejected by subsequent
decisions.185 Once a context analysis is discredited, reliance on the
preamble and the general flexibility of the General Agreement 8 6 is
not possible in denying direct effect to a specific provision. Neither is
reliance on vagueness and ambiguity in derogation provisions or
provisions addressing the settlement of disputes sufficient to negate the
specificity of other provisions.'87 The Court ignored the presence of a
dispute settlement provision as justification for denying direct effect in
Bresciani88 and specifically rejected such an argument in
Kupferberg.189 The Kupferberg decision also rejected reliance on the
principle of reciprocity to deny direct effect to a provision of a
Community agreement.190 Thus, the fact that another party to the
agreement might not allow private parties to assert rights derived from the
agreement in its courts should not prevent a finding of direct effect.' 9'
Further, the Kupferberg decision eliminated the argument that
safeguard clauses weaken other provisions of an agreement sufficiently to
deny them direct effect.'" 2 In essence, the Kupferbergjudgment
compels the textual analysis propounded by Pescatore. The Demirel
decision, by implying that an agreement lacking indicia of direct effects on
E. The Banana Cases: The Continuing Challenge
On February 13, 1993, the Council of Ministers, by qualified
majority vote, adopted Regulation No. 404/93, establishing a common
organization of the Community market in bananas.194 Prior to that
regulation, some Member States provided preferential outlets for
bananas from ACP States while others had more liberal import rules,
thus preventing the free movement of bananas within the Community.
Regulation 404/93 was designed to replace this system with a single
market for bananas. 195 Germany, which previously had benefited
from an arrangement allowing it to import an annual quota of bananas
free of customs duty, brought an action against the Council under
Article 173 of the EC Treaty, seeking a declaration that the tariff
quotasestablished by the regulation were void.'96
As part of its argument, Germany alleged that the regulation
infringed the GAT and was therefore unlawful regardless of the direct
187 But see Meinhard Hilf, The Application of GATT Within the Member States of the
European Communit With SpecialReference to the FederalRepublic of Germany,in Ttm EUROPEAN
COMMUNrrY AND GATT 153, 176-77 (Meinhard Hilf et al. eds., 1986).
188 See supra note 144 and accompanying text.
189 See supra note 166 and accompanying text.
190 See supranote 165 and accompanying text.
192 See supra note 167 and accompanying text.
193 See supra notes 171-73 and accompanying text.
194 1993 O.J. (L 47) 1.
195 Case C-280193, Germany v. Council, 1994 E.C.R. 1-4973, 5054-57.
Northwestern Journal of
effect status of the GATT because "compliance with GAT
rules is a
condition of the lawfulness of Community acts."1' 97 Both the Council
and the Commission argued that GAIT provisions cannot be asserted
in a challenge to Community legislation "except in the special case
tions entered into within the framework of GAIT.' 1' 9 8
where the Community provisions were adopted to implement
Repeating the oft-stated position that "the provisions of GAT
have the effect of binding the Community,"1'9 9 the Court refused to
waiver from its InternationalFruitanalysis, even as applied to an
Article 173 challenge by a Member State.2 °° Once again, the Court
Community law because the GAT
) is "based on the principle of
negotiations undertaken on the basis of 'reciprocal and mutually
advantageous arrangements;"' (
) is too flexible in "conferring the
possibility of derogation;" (3) is too flexible in "the measures to be taken
when confronted with exceptional difficulties;" and (
) is too flexible
in its provisions dealing with the settlement of conflicts between the
contracting parties.2 1
By simply parroting InternationalFruit,without any
acknowledgment of subsequent decisions considering international agreements
197 Id. at 1-5071.
201 These factors are from the summary of the Court in the InternationalFruit decision at
para. 21, which is quoted in the Opinion of Advocate General Gulmann at Case C-280/93,
Germany v. Council, 1994 E.C.R. 1-4973, 1-5024, para. 139. The opinion of the Court elaborated on
this language as follows:
It is settled law that GATT, which according to its preamble is based on the principle of
negotiations undertaken on the basis of 'reciprocal and mutually hdvantageous
arrangements', is characterized by the great flexibility of its provisions, in particular those
conferring the possibility of derogation, the measures to be taken when confronted with
exceptional difficulties and the settlement of conflicts between the contracting parties.
The Court has recognized that those measures include, for the settlement of conflicts,
depending on the case, written recommendations or proposals which are to be 'given
sympathetic consideration', investigations possibly followed by recommendations, consultations
between or decisions of the contractingparties,including that of authorizing certain
contracting parties to suspend the application to any others of any obligations or concessions
under GATr and, finally, in the event of such suspension, the power of the party concerned
to withdraw from that agreement.
It has noted that where, by reason of an obligation assumed under GATT or of a concession
relating to a preference, some producers suffer or are threatened with serious damage,
Article XIX gives a contracting party power unilaterally to suspend the obligation and to
withdraw or modify the concession, either after consulting the contracting parties jointly and
failing agreement between the contracting parties concerned, or even, if the matter is urgent
and on a temporary basis, without prior consultation.
other than the GATr, the Court clearly took the position that within
the Community, GAIT rules are, at best, "soft" law:
The special features noted above show that the GATT rules are not
unconditional and that an obligation to recognize them as rules of
international law which are directly applicable in the domestic legal systems of
the contracting parties cannot be based on the spirit, general scheme or
terms of GATr.2 °2
Noting the special circumstances of Fediol and Nakaima,203 the
Court, first finding no directly applicable obligation flowing from the
GATT itself, states that "it is only if the Community intended to
implement a particular obligation entered into within the framework of
GATT, or if the Community act expressly refers to specific provisions
of GATIT, that the Court can review the lawfulness of the Community
act in question from the point of view of the GATT rules. ' ' °
Advocate General Gulmann's opinion was consistent with the
Court's decision but went further in noting the political and legal
quandary created by the result.20 5 In particular, he noted that the
Court's position, though "not... in itself an infringement of
international law," failed to "help secure respect for international
obligations."2 6 His opinion raises no obstacle to the Court departing from
its position in InternationalFruit,noting that the effect of the GATT
in the Community legal order is not settled in the GATT itself, and is
thus, "a matter 'for decision by the courts having jurisdiction in the
matter, and in particular by the Court of Justice within the Framework
of its jurisdiction under the [EC] Treaty."' 20 7 The Advocate General's
position is summarized when he states:
It is thus established that the question of the effects of GATT within the
Community legal order is to be determined by the Court. That decision
is essential. It has great importance in principle and in practice. To
accept the German Government's view would strengthen the impact of
GATr in the Community legal order and help to ensure the Community
institutions' respect for the agreement even if, where appropriate, the
202 Id at 1-5073.
203 Supra notes 125-37 and accompanying text.
204 1994 E.C.R. at 1-5073-74.
205 1994 E.C.R. at 1-4980 (Opinion of Advocate General Gulmann).
206 Id. at 1-5021:
[U]nless a contrary intention may be deduced from the agreement in question there is no
requirement for the judicial institutions of the internal legal systems to enforce international
commitments. Such legal enforcement is of course possible and will help to secure respect
for international obligations, but it will not be in itself an infringement of international law
if the contracting parties' legal systems do not contain rules giving the judicial institutions
jurisdiction for such enforcement.
207 Id. at 1-5022 (quoting from Case 104/81, Hauptzollamt Mainz v. C.A. Kupferberg & Cie.
KG, 1982 E.C.R. 3641,  1 C.M.L.R. 1.)
Court were to restrict its review to cover more obvious infringements of
GATr. However, such an acceptance might also mean a perceptible
change in the possibilities for the competent institutions of the
Community to safeguard the Community's interests within the legal framework
laid down in GATT. In my view the Court should not come to a
decisviioenwsonextphreesqseudesbtiyonthaet CisosuunechilearendwtihtheoCutonseurniiosussionc.o2n0s8ideration of the
Thus, the Advocate General (
) raises concern about the role of the
direct effects doctrine in developing respect for international law;
) finds final authority on the question of direct effect to reside with
the Court; and (3) counsels substantial deference to the other
principal institutions of the Community in exercising this authority.
Two aspects of Germany v. Councilrepresent significant
developments in the Court's direct effects jurisprudence and GATT
obligations. First, direct effect was claimed by a Member State bringing the
case under Article 173 of the EC Treaty, rather than by a private party
in an action referred to the Court by a national court through the
Article 177 preliminary ruling process.2 °9 The Court found this
distinction insufficient to require any divergence from the International
Second, by the time the case was decided by the Court, the
preferential Community policy on banana imports already had been the
subject of formal dispute resolution proceedings in the GATT. The
pre-regulation restrictions on banana imports in France, Italy,
Portugal, Spain and the U.K. were found inconsistent with the quantitative
restriction prohibitions of GATT Article XI and in violation of the
most-favored-nation requirements of Article I in a panel report
presented to the GATr Council at its meeting in June 1993.210 At the
same meeting, the Council established a panel to examine complaints
by five Latin American nations against the new Regulation 404/93
banana regime, which went into effect on July 1, 1993.211 The second
report was presented to the Council on March 23, 1994, and found
inconsistencies with the Community's Article II schedules of
concessions and violations of the most-favored-nation requirement of Article
208 1994 E.C.R. at 1-5022. See also U. Everling, Will EuropeSlip on Bananas? The Bananas
Judgment of the Court of Justice and National Courts, 33 COMMON MKT. L. REv. 401, 403
(1996)("The BananasJudgment of the Court ofJustice briefly and categorically rejected all
arguments based on the respect for international obligations and for vested rights of traders.").
209 Belgium and The Netherlands supported Germany's position. 1994 E.C.R. at 1-5051.
210 Russia applies for GATT membership: Panel rules against EC members' restrictions on
bananas,100 GATT Focus, July 1993, at 2.
211 ld. at 4.
I and the national treatment requirement of Article HI.212 Adoption
of both panel reports was blocked by the Community Member States
and the ACP states who are the recipients of the preferential regime.
Six days after the second panel report was presented to the
GATF Council, the parties to the banana dispute entered into a
"Framework Agreement," by which some states waived. further
GATT dispute settlement against the European Community, in
exchange for an enlarged tariff quota and lower tariff for non-traditional
and third country banana imports.2 13 Implementation of the
Framework Agreement has been neither expeditious nor complete.214
Germany instituted proceedings before the European Court challenging
the Agreement, but the Court found no need to respond to the
request for an opinion under EC Treaty Article 228(
) because the
agreement became effective before the Court's decision.215
Proceedings from the Finanzgericht (Finance Court) Hamburg
present another angle on the direct effect challenge and the banana
regime.2 16 A German importer contracted in 1991 and 1993 to receive
weekly shipments of bananas from Ecuador until 1996. When the
quota system was introduced by Council Regulation 404/93, the
licenses available to the importer were no longer sufficient to cover all
the bananas contracted for. Thus, the importer was forced to sell in
third countries at lower prices and was faced with financial collapse.
The importer's financial situation further deteriorated as a result of
Commission Regulation 2478/95 of March 1, 1995, which is based on
Regulation 404/93 and further devalued the licenses for third country
The Finanzgericht Hamburg found both regulations to be
contrary to the GATT and, though valid under Community law per the
European Court's decision in Germany v. Council,218 not to be
ap212 Panelreport on EC bananaimport regimepresented,108 GATT Focus, June 1994, at 5.
Further proceedings were initiated under the WTO Dispute Settlement Understanding in 1996.
See WTO Dispute PanelBegins Hearingon EUBananaRegime Complaintby U.S., 13 Int'l Trade
Rep. (BNA)No. 36, at 1423 (Sept. 11, 1996).
213 Costa Rica - Columbia - Dominican Republic - European Community - Nicaragua -
Venezuela: Framework Agreement on Banana Imports, March 29, 1994, reprinted at 34 I.L.M. 1
214 Everling, supra note 208.
215 Case C-3/94 Opinion on requestby the FederalRepublic of Germanyfor an
opinionpursuant to Article 228(
) ofthe Treaty establishingthe EuropeanCommunity, 1995 E.C.R. 1-4579.
216 Case C-182/95, T. Port GmbH & Co. v. Hauptzollamt Hamburg-Jonas Decision of the
Finanzgericht Hamburg of May 19, 1995, AZ: IV 119/95 H.
217 1995 OJ. (149) 1.
218 Case C-280/93, Germany v. Council, 1994 E.C.R. 1-4973, 5054-57.
plied in Germany on constitutional grounds. The court determined
) that the Federal Republic of Germany, as a member of GATT, is
bound by the provisions of the GAIT; (
) that the Finanzgericht has
jurisdiction to review conflicts between the validity of Community
regulations and the Federal Republic's obligations under the GATT in
such proceedings for interim measures; (3) that Article 234 of the EC
Treaty gives GATF precedence over Community law which conflicts
with the GATT;219 and (
) that the Community provisions in conflict
with the GATT are not to be applied in Germany.2 0 Based on these
determinations, the court issued an interim injunction requiring that a
license be issued to the importer,221 pending the submission to the
Court of Justice of questions including the relationship under Article
234 of Articles I, II and III of the GAIT to the two challenged
regulations. 22 On appeal to the Bundesflnanzhof, the injunction was
suspended.2a On November 26, 1996, the Court of Justice ruled that
national courts may not order interim relief against Community
measures and that such relief is available only before the Court of Justice in
an action initiated by a Member State.224
Other references to the Court of Justice for a preliminary ruling
remain effective, however, as does the appeal of the
Bundesflnanzhof's decision to the Bundesverfassungsgericht (Federal
Constitutional Court). In a second decision on a very similar set of
facts, the Finanzgericht Hamburg again suspended customs duties and
referred the matter for a preliminary ruling.225 Upon appeal to the
Bundesfinanzhof, this time the suspension of duties was not reversed
219 Article 234 1 reads as follows:
The rights and obligations arising from agreements concluded before the entry into force of
this Treaty between one or more Member States on the one hand, and one or more third
countries on the other, shall not be affected by the provisions of this Treaty.
TREATY ESTABLISHING r'TiEUROPEAN CoMMuNrTY, art. 234, supra note 4. The European
Court has held elsewhere that an international agreement entered by a Member State prior to
the creation of the European Community may take precedence over Community legislation, at
least until the Member State exercises its obligation to bring its international obligations into
conformity with its Community obligations under Article 234. Case C-158/91, Ministdre Public
et Direction du travail et de 'emploi v. Levy, 1993 E.C.R. 1-4287.
220 Request for preliminary ruling from the Finanzgericht Hamburg, Case No. C-182195-1 at
221 Id. at 1.
222 Ld.at 2.
223 Preliminary Ruling Request of the Finanzgericht Hamburg on its decision of May 19,
1995, translatedfor the EuropeanCourt of Justice at Case C-182/95-1, June 12, 1995.
224 Case C-68/95, T. Port GmbH & Co. v. Bundesanstalt ftir Landwirtschaft und Ernlihrung,
as reported in FINANCIAL Timms, Dec. 3, 1996, at 16.
225 Preliminary Ruling Request of the Finanzgericht Hamburg on its decision of Aug. 29,
1995, translatedfor the European Court of Justice at Case C-364/95-1, Nov. 28, 1995.
and has been allowed to stand, again subject to appeal to the
Bundesverfassungsgericht on German constitutional issues.2 2 6 Thus,
the question of direct effect and the banana regime is before the Court
of Justice on the initiative of both the German government and a
German importer. Given the Maastricht judgment of the
Bundesverfassungsgericht,22 7 the European Court's role in these cases remains
further complicated by the conclusion of the Finanzgericht Hamburg
that German officials are "prohibited from applying in Germany
Community law which has been adopted ultra vires." 22
F. Legal Rationales For and Against Direct Effect of GATT in
To this observer, the case law of the European Court of Justice
creates confusion and uncertainty. The ambiguity with which the
Court criticized the GAIT in InternationalFruit, combined with the
Court's decisions finding directly effective provisions in other
international agreements of the Community, seem to leave European direct
effects jurisprudence at least as flexible as the GATT system it
considers.229 In the GAIT system, this flexibility is seen as contributing to
the "soft" nature of legal rules, thereby rendering them incapable of
direct effect. The same analysis applied to the European Court's
direct effects jurisprudence concerning international agreements could
easily lead one to the conclusion that EC law on this issue is itself
every bit as "soft" as any part of the GAIT system. This leads further
to an incongruity that may best be resolved by European Court review
of both the position of the GAIT in EC law and the Court's own
discussion of direct effects as applied to international agreements.
The decision in Germany v. Councilindicates, however, that the Court
is unwilling to take on this challenge.
Although it would be presumptuous for an outsider to suggest a
resolution of this incongruity, some observations are appropriate on
226 See Rechtmrufligkeit des "Bananen"-Zollszweifelhaft, Nationale Gerichte, 2/96 EWS at 49.
227 Federal Constitutional Court Decision Concerning the Maastricht Treaty of Oct. 12, 1993,
translatedin 33 I.L.M. 388 (1994).
228 Preliminary Ruling Request of the Finanzgericht Hamburg in Case C-364/95-1, supranote
225, at 3. The European Court of Justice extended its decision in Germany v. Council,when it
ruled that the Banana Regulation (No. 404/93) did not breach "essential procedural
requirements" or the importers' right to property. Case C-466/93 Atlanta Fruchthandelsgesellschaft
mbH v. Bundesamt ftr Ernhrung und Forstwirtschaft, 1995 E.C.R. 1-3781.
229 To one commentator, the issue of flexibility goes not to direct effects, but to the initial
question of whether the agreement is binding at all. H.G. Schermers, Community Law and
InternationalLaw, 12 COMMON Micr. L. REv. 77, 81 (1975). Thus, if the agreement is binding,
flexibility is no longer an argument against its provisions having direct effect.
why it is troublesome. In making such observations, it is not difficult
to determine where to begin. International Fruit is the consensus
choice as the starting point. It is more difficult, however, to know just
where to go from InternationalFruit. This is in part because the
European Court has - consistently without elaboration - bound itself ever
more tightly to the no-direct-effects position of InternationalFruit in
subsequent GATT cases, while at the same time discussing other
international agreements in language that only weakens the rationales
stated or implied in InternationalFruit. In the commentary, this has
resulted in a list of suggested rationales so long and sometimes so
ephemeral that the debate often takes on the quixotic nature of
Certain distinctions fail because they are illogical or
inappropriate in a modem legal system. For example, despite the deference
recommended by Advocate General Gulmann in Germany v. Council,3"0
the position of the Commission before the Court of Justice should not
control the outcome. The Commission negotiates, but does not
conclude, international agreements.23 1 Giving it complete deference in
the interpretation of such agreements would be an inappropriate
delegation of judicial duties to the executive branch.
Neither should the Court's direct effects jurisprudence be
controlled by a distinction based on whether it is a Community or a
Member State measure that is being challenged. The only cases in which a
measure has been found violative of a directly effective international
agreement have been challenges to Member State measures, 23 2 and no
challenge to a Community measure has been successful in
demonstrating direct effect.2 33 However, the consensus position is that
international agreements hold a position in Community law that, while below
that of the EC Treaty itself, is superior to secondary Community
legis230 See 1994 E.C.R. 1-4973, 1-5022.
231 Treaty Establishing the European Community, supranote 4, art. 228.
232 See, ag., Case 87/75, Bresciani v. Amministrazione Italiana delle Finanza, 1976 E.C.R.
129, 2 C.M.L.R. 62; Case 17/81, Pabst & Richarz KG v. Hauptzollamt Oldenburg, 1982 E.C.R.
1331,  3 C.M.L.R. 11; Hauptzollamt Mainz v. C.A. Kupferberg & Cie. KG.a.A. 1982
E.C.R. 3641,  1 C.M.L.R. 1..
233 See, e.g., Joined Cases 21 to 24/72, International Fruit Co. NV v. Produktschap voor
Groenten en Fruit, 1972 E.C.R. 1219,  2 C.M.L.R. 1; Case 9/73, Schltter v. Hauptzollamt
Lorrach, 1973 E.C.R. 1135; Case 38/75, Case 38/75, Douaneagent der Nederlandse Spoorwegen
NV v. Inspecteur der Invoerrechten en Accijnzen, 1975 E.C.R. 1149,  1 C.M.L.R. 167;
Case 112/80, Case 112/80, Firma Anton Dtlrbeck v. Hauptzollamt Frankfurt con
MainFlughafen, 1981 E.C.R. 1095; and Caie 270/80, Polydor Ltd. v. Harlequin Record Shops Ltd.,
1982 E.C.R. 329,  1 C.M.L.R. 677.
lation as well as national law.234 Thus, whether the measure
challenged is that of the Community or a Member State'should not be the
Other distinctions have been shown to be inappropriate in the
above discussion. The type of agreement does not control the direct
effect decision. 3 5 Neither does the concept of reciprocity.
Kupferberg specifically rejected the argument that the position of
other parties to the international agreement should influence its status
in the Community. 3 6 While international law may require reciprocity
in granting direct effect where such is the clear intention of the parties
from the inception of an agreement, it does not require it where such
an intention is not clear, and the fact that one party may not grant
direct effect does not prevent another from doing so.237
234 See, ag., Karl Meesen, The Application of Rules of Public InternationalLaw within
Community Law, 13 COMMON MKT. L. REv. 485,500 (1976). See also Case C-61/94, Commission v.
Germany (Sept. 10, 1996) ("the primacy of international agreements concluded by the
Community over provisions of secondary Community legislation means that such provisions must, so far
as possible, be interpreted in a manner that is consistent with those agreements").
235 See supra notes 160-63 and accompanying text. See also Bebr, supra note 94, at 63
("Kupferberg suggests that neither the legal nature of an agreement nor the intensity of its link
with the Community are relevant for the direct effect of an agreement."); Maresceau, supranote
132, at 124-25 ("It remains difficult without more precise indications of the Court to explain why
direct effect is on principle refused to GATr while in Kupferberg a completely opposite stand
was taken in relation to trade agreements concluded between the Community and third
States."); Pescatore, supranote 177, at 186 ("international treaties and agreements contain in
varying proportions flexible elements and well-defined obligations. It may be true that the latter
are relatively more numerous in free trade agreements than in a system like GATT, but even
here we find a certain number of precise commitments which by their essence and in view of the
purpose of the General Agreement are not negotiable, such as the rule on nondiscriminatory
commercial treatment of imported goods, the prohibition of using internal taxation for
protective purposes, freedom of transit and the effect of consolidated tariff concessions. In other
words, those obligations, being precise and unconditional, fulfil the criteria for direct
applicability which the Court has consistently followed in many other fields."). But see Ulrich Everling,
The Law of ExternalEconomic Relationsof the EuropeanCommunity, in THE EUROPEAN
CONIMUNrrY AND GATT 85 (Meinhard Hilf et al. eds, 1986) ("it should be pointed out that
importance should be attributed to the structure of the agreement. In considering whether an
agreement has direct effect, should account not be taken of its proximity to the Community and
its aims? In the judgment in Polydor v. HarlequinRecord Shops, the difference between the
Community, which has integration as its object, and a free trade area is stressed. Is not also the
further distinction between a free trade area and the world-wide regulation of trade of
236 See supra note 165 and accompanying text. See also Bebr, supra note 94, at 71;
Petersmann, supranote 185, at 429.
237 Edmond L. M. Vd1ker, The DirectEffect of InternationalAgreements in the Community's
Legal Order,1983 LEGAL ISSUES OF EUROPEAN INTEGRATION 131, 137.
The presence or absence of a dispute settlement system in the
agreement does not control the direct effects analysis.238 Similarly,
the presence of a safeguard clause in the agreement will not prevent
direct effect for other of its provisions. 239 Nor is a comparison of
specific language in an international agreement with directly effective
language of the European Community Treaty decisive.24 Finally,
Germany v. Council made clear that neither the EC Treaty Article
under which the action is brought before the Court, nor the fact that
the party bringing the action is a Member State rather than an
individual, would be sufficient distinguishing factors to determine the
If distinguishing legal criteria are to determine the direct effect of
provisions of a given international agreement, only two possible
crite238 See supra notes 188-89 and accompanying text. See also Bebr, supra note 94, at 61; Hilf,
supranote 187, at 179 ("The GATr dispute settlement procedures could support the direct
applicability of GATr law as they are more effectively organized than those found in agreements
that have been declared directly applicable by the Court of Justice of the European
Communities."); Petersmann, supranote 185, at 432 ("GATT's dispute settlement procedures under
Article XXIII have often been recommended as a model and have amply proven their effectiveness
in the approximately 75 complaints which have been lodged by GATT contracting parties under
Article XXIII GATr ... It is therefore surprising that the Court invokes Article XXIII, L., an
effective legal instrument for the maintenance of rule of law in international trade, as a
justification for it own refusal to control observance of GATT obligations by the Community and its
Member States in legal proceedings instituted by private parties."). But see Maresceau, supra
note 132, at 122 ("The putting into motion of the GATT mechanism of dispute settlement seems
indeed more to amplify the tendency towards non-direct effect of GATT. The GATT dispute
settlement procedure as it has further been worked out in the
Understandingregardingnotification, consultation,dispute settlementand surveillance(28 Nov. 1979) and in the
MinisterialDeclaration of 29 Nov. 1982 with its strong emphasis on conciliation and consensus has not enhanced
the arguments in favour of direct effect. One comes, therefore, to the somewhat paradoxical
situation that to a large degree the elaborated dispute settlement procedure of GATT also
constitutes one of the obstacles to its direct effect.").
239 See supranote 191 and accompanying text. See also Waelbroeck, supra note 168, at 617
("No international treaty imposes unconditional obligations. ... Even the EEC Treaty
authorizes, in certain cases, the unilateral adoption by Member States of safeguard measures. ... [As
to the EEC Treaty and GATI,] there is only a difference in degree, and not in substance,
between the two.").
240 See supranote 150 and accompanying text. See also Bebr, supranote 94, at 67-68. But see
Petersmann, supra note 185, at 435 ("If treaties are binding upon the Community under
international law and contain "precise, complete and unconditional" provisions, which are
"self-executing" according to the rules of interpretation of international law and capable of being directly
applied by domestic courts, Community Law requires their direct application by the Court of
Justice which must ensure their uniform application in the entire Community."); Waelbroeck,
supranote 168, at 617 ("According to domestic practice, the direct effects of a provision of an
international treaty presuppose that the obligation imposed upon the State is clear, complete
and unconditional. However, the importance of this condition must not be exaggerated. The
courts do not consider that it is necessary that the provision in question be absolutely incapable
of any derogation.").
241 See supranotes 194-209 and accompanying text.
ria remain from the language of the European Court's decisions:
) policy grounds for judicial abstention, and (
) promotion of
uniform interpretation of Community law. The Court, however, clearly
did not rely on either of these grounds in its most recent decision
(Germany v. Council), but rather, simply followed InternationalFruit
without clear elaboration.
POLICY CONSIDERATIONS IN THE DIRECT EFFECTS DEBATE
Germany v. Council represents a clear policy choice by the
European Court of Justice in the face of what now appear to be difficult
legal arguments. It has been aptly stated that the Court "pushes the
supranational nature of EC law to its limits, since Member States,
which are formally GATT Members but, cannot participate in GATT
dispute settlement proceedings..., cannot invoke GATE provisions
before the Court of Justice either. '24 2 The fact that Member States
(unlike private individuals) are subjects of international rights and
duties, adds a constitutional dimension to the decision.24 3 By holding
that Member States may not assert rights arising out of the
international agreements to which they are parties, the Court further
reinforces the transfer of authority from the Member States to the
The policy choice made by the court is likely to face a further test
when, unlike the banana case,' a case follows a panel decision under
the new dispute settlement rules of the World Trade Organization.
Whereas GATT? Council adoption of the panel reports in the banana
case was blocked by the Community and its Member States, that
possibility no longer exists. Thus, a panel (or Appellate Body) decision
against the Community in a new dispute will result in a decision the
Court cannot as easily dismiss. If GAT law is indeed binding on the
Community and the Member States,245 then a formal, adopted
decision of the Dispute Settlement Body will be difficult to reject "without
undermining the authority of the whole dispute settlement
procedure. ' '246
242 Fernando Castillo de la Torre, The Status of GATT in EC Law, Revisited. The
Consequences of the Judgment on the Banana Import Regime for the Enforcement of the Uruguay
Round Agreements, 29 J. WORLD TRADE, Feb. 1995, at 53, 58 (Feb. 1995).
243 Ld. at 59.
244 See supranotes 194 to 228.
245 Joined Cases 21 to 2472, International Fruit Co. NV v. Produktschap voor Groenten en
Fruit, 1972 E.C.R. 1219, 1226,  2 C.M.L.R. 1.
246 Castillo de la Torre, supra note 242, at 64.
The result of Germany v. Council is, as a matter of policy,
consistent with the traditional European position that the GATT system,
and its rules are matters for the policy-making institutions of the
Community and not for the Court.2 47 European officials and
commentators rather consistently have opted for a negotiation-oriented
approach to the GATT, over the adjudication-oriented approach
often favored by U.S. commentators.248 The Council Directive
implementing the Uruguay Round agreements specifically states that "by its
nature, the Agreement establishing the World Trade Organization,
including the Annexes thereto, is not susceptible to being directly
invoked in Community or Member State courts. '249 This rejection of
direct effect in favor of a negotiation-orientation, however, presents
problems when one attempts to reconcile it with the expanded and
much-hardened rules resulting from the Uruguay Round. The Court's
analysis in InternationalFruitat least implies that "hard law" is to be
given direct effect. One thus has to question whether the International
Fruit result necessarily holds for the agreements resulting from the
Uruguay Round and its substantial evolution of the rules of the
multilateral trading system. The rule-oriented adjudication model
embraced in the Uruguay Round Dispute Settlement Understanding
alone indicates a clear choice over the alternative power-oriented
negotiation model. 5 °
247 But see the opinion of Advocate General Gulmann, stating that the ultimate decision on
direct effect is for the Court, giving weight to the positions of the other institutions. Supra note
248 See, e.g., Ronald A. Brand, Competing Philosophiesof GATT Dispute Resolution in the
Oilseeds Case and the Draft Understandingon Dispute Settlement, 27 J. WoRLD TRADE, Dec.
1993, at 117, 120-22.
249 Council Decision 94/800/EC, 1994 OJ. (L 336) 1, 2. The Commission originally
recommended even more limiting language: "whereas these are intergovernmental agreements and it
is therefore necessary to ensure that they cannot be directly invoked in Member State or
Community courts by private individuals who are national or legal persons." Uruguay Round of
Multilateral Trade Negotiations, COM(
)414, final, quoted in Castillo de la Torre, supra note
242, at 65. A reciprocity argument was presented in favor of such language:
It is already known that the United States and many other of our trading partners will
explicitly rule out any such direct effect. Without an express stipulation of such exclusion in
the Community instrument of adoption, a major imbalance would arise in the actual
management of the obligations of the Community and other countries.
Canada took a similar, but much clearer, position in its implementing legislation: "No
person has any cause of action and no proceedings of any kind shall be taken, without the consent of
the Attorney General of Canada, to enforce or determine any right or obligation that is claimed
or arises solely under or by virtue of the Agreement." World Trade Organization Agreement
Implementation Act of Dec. 15, 1994 ch. 47 § 6, 1994 S.C. 3 (Can.).
250 Professor Jackson has developed the distinction between "power-oriented" and
"rule-oriented" diplomacy. See, eg., John H. Jackson, Perspectiveson the Jurisprudenceof International
Trade: Costs and Benefits of Legal Proceduresin the UnitedStates, 82 Micn. L. REv.
According to Professor Jackson, prudence dictates that political
officials avoid systems in which direct effect is granted to international
rules, particularly in systems where those rules achieve higher status
than municipal legislation.25 1 Thus, in the European Community for
example, where primacy accompanies direct effect,2 52 he finds
significant danger in granting direct effect to treaty rules. The policy
arguments against such direct effect (Jackson refers to it as "Direct
Applicability Higher Status" or DAHS) include:
) the "democratic deficit:" Treaties generally are negotiated by a few
persons in a representative capacity, and do not (particularly in states
like the United States) result from the same democratic process as
) inflexibility: Treaty rules (particularly if negotiated in a multilateral
context in which amendment is difficult) place rigid constraints on the
ability of national legal systems in responding to the needs of their
citizens by requiring that they act and legislate only in a manner consistent
with those treaty rules.
(3) "inhibition on future treaty making:" The fear that treaties will tie
the hands of national legislatures
from entering into treaties as a genwerialll treunled.2t5o3 constrain governments
Jackson does note, however, that some circumstances weigh in favor
of DAHS, including (
) situations in which national officials and
citizens are worried about weak domestic structures and find that DAHS
provides external insurance that human rights and market economic
mechanisms will be respected, and (
) national systems in which the
courts and officials are allowed to ameliorate the problems of direct
The U.S. system, with its well-developed later-in-time rule,25 4
provides some of the amelioration of which Jackson writes. Even so,
U.S. politicians have not left the matter to the courts, but rather, have
enacted statutory prohibitions on the direct effect of GAIT
provisions.25 5 Thus, the landscape remains dictated more by political
concerns than any desire for coherence in international legal structures.
Jackson's reluctance to embrace direct effect draws strength in
that, by removing inhibitions to entering treaties generally, states are
72 (1984); John H. Jackson, The Crumbling Institutions of the Liberal Trade System, 12 .
WORLD TRADE L., Mar.-Apr. 1978, at 93, 98-101.
251 Jackson, Status of Legal Treatiesin DomesticLegal Systems: A Policy Analysis, supranote
33, at 340.
252 Supra note 95 and accompanying text.
253 Jackson, Status ofLegal Treaties in DomesticLegal Systems: A PolicyAnalysis, supranote
33, at 315-16, 326, 330-34, 338.
254 Supra notes 18-19 and accompanying text.
255 Supranotes 74-77 and accompanying text.
encouraged to enter agreements, thus promoting the development of
international norms through the treaty process. At the same time,
however, it risks the creation of treaties having little or no real impact.
Carried to the extreme, the complete absence of direct effect would
result in more treaties with no one having the need or incentive to
abide by any of them.
On the other side, a complete direct effect with primacy system
(DAHS in Jackson's terms) risks the possibility that few, if any, new
rules will be developed through the treaty process or that states will
enter treaties while specifically denying direct effect in their
implementation. States will be unwilling to bind themselves inflexibly to
rules that cannot be adjusted to meet domestic needs in the future.
Ultimately, the need is for balance. Direct effect has its value. It
is through the observance and application of international law that its
effectiveness is enhanced. If what we call international law has no real
effect on people's lives, then its value is substantially diminished. If it
has real effect on people's lives, but those people have no access to its
application, this also diminishes its value.
A June 1995 Internet discussion on the list server of the
International Economic Law Interest Group of the American Society of
International Law provides a glimpse of the views on direct effect, as
well as the seeming bipolar problem its choices present.25 6 Excerpts
from that discussion include the following:
Amy Porges: Viewed statically, direct effect is a nice thing, but viewed
dynamically, if all national systems "constitutionalized" trade via direct
effect the most likely result would be that any further progress
internationally would become suddenly much more difficult, and international
decisionmaking would become much stickier and more politicized.
Joel Trachtman: As Weiler and Porges point out, there is a tradeoff
between direct effect on the one hand, and willingness to legislate on the
other hand. This is a corollary of the principle that hard law is not
necessarily good law. However, while direct effect is not necessarily good, it is
also not necessarily bad. While we may not be ready to constitutionalize
trade law, we might be ready to "legislationalize" it, at least to some
Werner Meng: Is effectiveness in foreign policy always a convincing
argument against private positions? Why can exporters not claim a
freedom by law? Why should states be free to violate international law
without any consequence in national law? Why is the eagerness to retain
the bargaining chip available (opening markets) so important that
individual rights are not effectively granted nor protected on the side of the
exporters. You know about the answer of "Constitutional Economics:"
256 The Internet address of the list server is .
because the lobbies of industries competing with imports are stronger
than that of the exporters and because the body politic wants to be free
to cater to their needs if necessary.
Even if one does not accept that explanation everybody knows that in
the international trade area the individual is not considered as being a
subject but rather 2a5s7 an object of foreign policy. Lawyers should
challenge this attitude.
Direct effect also can enhance multiple party compliance with the
terms of a treaty by generating predictability in its application. 258 If
courts and decision-makers in one state know the courts of another
state are likely to grant direct effect to the terms of a treaty between
the two states, then those courts and decision-makers can be more
comfortable in their own application of the same treaty provisions.
This of course raises the opposing reciprocity argument: a municipal
legal system should not grant direct effect to treaty provisions when it
is possible that treaty partners may not do the same. To do so would
place its own citizens and government at the disadvantage of having
the rules applied against them at home and yet not being available for
application abroad. As noted earlier, the European Court of Justice
has specifically rejected the negative reciprocity argument as being
inappropriate in the modem international legal order.25 9
As Jackson notes, direct effect also tends to protect the rights of
individuals, particularly in human rights and market economy
enhancing treaties. Thus, the growing relationship between individuals and
international law will have limited significance absent some level of
direct effect in domestic legal systems. The initial challenge is to
determine whether the choice is simply between the polar extremes of
direct effect with primacy (Jackson's DAHS) and no direct effect, or
whether some compromise solution is possible. The ongoing debate
indicates the problems (and benefits) of each extreme. The desire to
have both (
) flexibility for states in their relations with their subjects
and with other states, and (
) predictability and effectiveness of
international rules which, once agreed-upon, will be applied to (and on
behalf of) all those whom they affect, creates tensions not easily
257 Internet list server discussion of June 15 and 25, 1995 (Copy on file with the author).
258 In Jackson's words, "disrespect for international law is increased when international
norms are not effective." Jackson, Status ofLegal Treatiesin Domestic Legal Systems: A Policy
Analysis, supra note 33, at 323.
259 Supra notes 164-65 and accompanying text.
One of the most important and challenging issues in international
law is the manner in which we address the relationship between the
individual and the international legal system.2 60 The traditional
framework, in which we set a "sovereign" government between the
individual and the development and application of the rules, is no
longer sufficient in all circumstances.261 The governmental duty to
provide citizen security can no longer be defined solely in reference to
feudal concepts. The economic and technological interdependence of
people requires fresh approaches to the way in which we view the
development of the legal framework, that allows us to live together
globally. The fact that governments feel insecure or threatened by the
application of international legal rules to them is not sufficient reason
to preclude that development. The purpose of government is not to
perpetuate traditional power structures, it is to provide security and
economic development for its citizens. If that security and
development can be provided better through the application of global rules
particularly if doing so can lead to a strengthening of the global legal
framework - then the institutions of government should welcome the
application of those rules.
The concept of direct effect of international economic law carries
great significance in the development of the relationship between the
individual and international law. Governmental institutions cannot
ignore the importance of this concept to the developing global legal
framework. The European Community has provided a laboratory in
which the direct effects doctrine can be studied and debated.262 The
supranational model created for the application of Community law
within its Member States provides much to be emulated in the global
system. While the global system is not yet ready for the wholesale
application of these developments, it is important that we realize the
need to move in a similar direction. Not doing so will, at best, cause
the legal framework to lag behind economic and political
developments and, at worst, lead to a complete failure to deal with changing
relationships "inthe international system.
260 See Ronald A. Brand, Semantic Distinctionsin anAge of Legal Convergence, 17 U. PENN.
J. INT'L ECONoMIc L. 3 (1996).
261 See Ronald A. Brand, ExternalSovereignty and InternationalLaw, 18 FoRnaH INT'L L.J.
262 Professor Weiler lists the doctrine of direct effect and the doctrine of supremacy as the
first of four legal doctrines "that fixed the relationship between Community law and Member
State Law" in Europe. J.H.H. Weiler, The Transformationof Europe,100 YALE L.J. 2403,2413
1. The No Direct Effects Ruling of International Fruit ............................................
2. Interpretation of GAIT Agreements in the Application of Community Legislation .........
F. Legal Rationales For and Against Direct Effect of GATT in Community Law . ......................... IV. Policy Considerations in the Direct Effects Debate ..... V. Conclusions ............................................. 593 599 603 608
4 It is the European Community, not the European Union, which has legal personality and the power to enter into relationships with third countries. Thus, throughout this article, most references will be to the Community, which is one of the three "pillars" of the European Union . See generally TREATY ESTABLISHING THE EUROPEAN COMMUNITY , Feb . 7, 1992 , art. 177, O.J. ( C224 ) 1 ( 1992 ), [ 1992 ] 1 C.M.L.R. 573 ( 1992 ) [hereinafter EC TREATY] .
5 See infra notes 80-99 and accompanying text. The European Economic Community was established by the TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY , Mar . 25 , 1957 ,298 U.N.T.S. 3 , 19 [hereinafter EEC TREATY]. The EEC TREATY was amended by the EC TREATY, supra note 4 .
6 Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations , Apr. 15 , 1994 , LEGAL INSTRUMENTS-RESULTS OF TE URUGUAY ROUND V01 . 1 ( 1994 ), 33 I.L.M. 1125 ( 1994 ) [hereinafter Uruguay Round Final Act] .
7 Understanding on Rules and Procedures Governing the Settlement of Disputes, April 15 , 1994 , WTO Agreement , Annex 2 , LEGAL INSTRUMENTS-RESuLTs OF Tm URUGUAY ROUND , 33 I.L.M. 1226 ( 1994 ) [hereinafter Dispute Settlement Understanding] .
8 For a more detailed discussion of the economic theory underlying international trade law see Ronald A. Brand, Recognition of ForeignJudgments as a Trade Law Issue: The Economics of Private International Law, in THE ECONOMIC ANALYSIS OF INTERNATIONAL LAW (Jagdeep Bhandari & Alan 0 . Sykes eds., forthcoming) (copy on file with author).
14 General Agreement on Tariffs afid Trade, Oct. 30 , 1947 , 61 Stat. A-11, T.I.A.S. No . 1700 , 55 U.N.T.S. 187 , as amended by the Uruguay Round Final Act, supranote 6 [hereinafter GAIT] .
15 Portions of this section are developed from the author's earlier work: Ronald A. Brand, The Status of the GeneralAgreement on Tariffs and Trade in United States Domestic Law, 26 STAN . J. INT'L L . 479 ( 1990 ).
16 U.S. CONST. art. VI, cI . 2.
17 Both treaties and statutes are considered subsidiary to the Constitution itself, and must give way if found to conflict with constitutional principles .
18 Head Money Cases, 112 U.S. 580 , 598 - 99 ( 1884 ). See also Whitney v . Robertson , 124 U.S. 190 ( 1888 ); Diggs v . Shultz , 470 F. 2d 461 (D.C. Cir . 1972 ), cert. denied, 411 U.S. 931 ( 1973 ).
24 "[D] ualists view international law as a discrete legal system [which] ...operates wholly on an inter-nation plane." Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 HARV. L. REV. 853 , 864 ( 1987 ). Conversely, "monists" view international law as an integral part of the legal system, often prevailing over all inconsistent statutes . See, e.g., Louis Henkin , InternationalLaw as Law in the United States , 82 MIcH. L. REv. 1555 , 1564 - 65 n. 34 ( 1984 ).
25 Committee of U.S. Citizens in Nicaragua v. Reagan , 859 F.2d 929 , 937 (D.C. Cir . 1988 ).
26 Head Money Cases, 112 U.S. 580 , 598 ( 1884 ).
27 See, e.g., Committee of U.S. Citizens in Nicaragua v . Reagan , 859 F.2d 929 , 937 (D.C. Cir . 1988 ) (finding Article 94 of the U.N. Charter not to be self-executing). For a discussion of earlier cases applying the doctrine of self-execution to articles of the U.N. Charter see Ronald A. Brand, Security CouncilResolutions: When Do They Give Rise to EnforceableLegal Rights? The United Nations Charter,the Byrd Amendment and a Self-Executing Treaty Analysis, 9 CORNELL INT'L L.J . 298 , 299 - 301 ( 1976 ).
28 Diggs v. Richardson , 555 F.2d 848 , 851 (D.C. Cir . 1976 ),
30 See generally U.S. CONsT. art. II, § 2 , cI. 2 . 301 U.S. 324 , 331 ( 1937 ) (holding self-executing executive agreements superior to state law).
36 36 Op. Att'y Gen. 147 ( Cal . 1960 ).
37 See American Express Co. v. United States , 472 F.2d 1050 , 1059 n.14 ( C.C.P.A . 1973 ); United States v . Star Industries , Inc., 462 F.2d 557 ( 1972 ), cert. denied, 409 U.S. 1076 ( 1972 ).
38 See China Liquor Distrib . Co. v. United States , 343 F. 2d 1005 (C.C.P.A . 1964 ), cert. denied, 380 U.S. 962 ( 1965 ); Bercut-Vandervoort and Co . v. United States , 151 F. Supp . 942 ( C.C.P.A . 1957 ), 46 C.C.P.A. 28 ( 1958 ), cert. denied,359 U.S. 953 ( 1959 ) ; Select Tire Salvage Co . v. United States , 386 F.2d 1008 ( Ct . Cl. 1967 ); Delta Chemical Corp . v. Ocean County Utilities Auth., 554 A.2d 1381 (NJ. Super. Ct. Law Div . 1988 ); Association of Alabama Prof'l Numismatists, Inc . v. Eagerton, 455 So. 2d 867 (Ala . Civ. App. 1984 ); Armstrong v . Taxation Div. Dir., 5 N.J.Tax 117 (N.J. Tax Ct . 1983 ), affd, 6 N.J. Tax 447 (N.J. Super Ct . App. Div . 1984 ) ; K.S.B. Technical Sales Corp. v. North Jersey Dist. Water Supply Comm'n, 381 A.2d 774 (NJ . 1977 ), appeal dismissed,435 U.S. 982 ( 1978 ) ; American Inst. for Imported Steel, Inc . v. County of Erie , 297 N.Y.S. 2d 602 (N.Y. Sup . Ct. 1968 ), aff'd in par4 rev'd in parton other grounds ,302 N.Y.S.2d 61 ( 1969 ); Baldwin-Lima-Hamilton Corp . v. Superior Ct., 25 Cal. Rptr. 798 ( Cal. Dist . Ct. App. 1962 ); Territory of Hawaii v . Hawaii , 41 Haw. 565 ( 1957 ) ; 40 Op . Att'y Gen. 65 ( Cal . 1962 ) ; 36 Op . Att'y Gen. 147 ( Cal . 1960 ) ; 34 Opp . Att'y Gen. 302 ( Cal . 1959 ).
39 See U.S. Cane Sugar Refiners' Ass'n v . Block , 683 F. 2d 399 (C.C.P.A . 1982 ).
40 See Sneaker Circus , Inc. v. Carter, 457 F. Supp . 771 (E.D.N .Y. 1978 ), aff'd without opinion , 614 F.2d 1290 ( 2d Cir . 1979 ).
41 George E. Bardwil & Sons v. United States , 42 C.C.P.A. 118 ( 1955 ).
42 See United States v . Star Indus., Inc., 462 F. 2d 557 (C.C.P.A . 1972 ), cert. denied, 409 U.S. 1076 ( 1972 ).
43 See, e.g., Farr Man & Co . v. United States , 544 F. Supp . 908 ( Ct . Int'l Trade 1982 ) (MFN
54 40 Op. Att'y Gen. 65 ( Cal . 1962 ) ; 36 Op . Att'y Gen. 147 ( Cal . 1960 ) ; 34 Op . Att'y Gen. 302 ( Cal . 1959 ).
55 The 1960 opinion not only implied full treaty status for the GATT in the context of the supremacy clause, but also found that the national treatment obligations of Article III were selfexecuting and required no further legislation . 36 Op. Att'y Gen . 147 , 149 (Cal. 1960 ) : GAFT, as a multilateral trade agreement, has the legal force of a treaty under the supremacy clause of the U.S. Constitution ... and its obligations are treaty obligations ....
Paragraphs 4 and 8(a) of Article III indicate a mandatory duty .... Section 1 of the Protocol of Provisional Application ...does not have the effect of changing the national treatment provisions of Paragraph 4 of Article III of Part II into executory provisions requiring further congressional action to make the provisions operative .
56 Id. 34 Op. Att'y Gen . 302 ( Cal . 1959 ).
57 36 Op. Att'y Gen. 147 ( Cal . 1960 ).
58 40 Op. Att'y Gen. 65 ( Cal . 1962 ). Subparagraph 8(a) of Article III provides: "The provisions of this article shall not apply to laws, regulations or requirements governing the procurement by governmental agencies of products purchased for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods for commercial sale." GATT, supra note 14, art . III.
59 Baldwin-Lima-Hamilton Corp . v. Superior Ct. of the City and County of San Francisco , 25 Cal. Rptr. 798 ( 1st Dist . 1962 ) ("Compacts and similar international agreements, such as GATr, which are negotiated and proclaimed by the President are 'treaties' within the . .. supremacy clause of the Constitution.") . But see American Institute for Imported Steel, Inc . v. County of Erie, 297 N.Y.S.2d 602 ,607 ( N.Y. Sup . Ct. 1968 ), aff'd inpart , rev'din parton othergrounds,302 N.Y.S.2d 61 ( 1969 ) ("buy American" resolution found not to violate GATI where "it is this Court's opinion that the GATF provisions are not here applicable" ).
60 Delta Chemical Corp . v. Ocean County Utilities Authority and Allied Colloids , Inc., 554 A.2d 1381 ( 1988 ), aff'd in part,rev'd in part,594 A .2d 1343 ( 1991 ) ; K.S.B. Technical Sales Corp. v. North Jersey Water Supply Comm'n, 381 A.2d 774 (NJ . 1977 ), appealdismissed,435 U.S. 982 ( 1978 ) ; Tenn . Op. Att'y Gen. No. 78-303A , 1978 WL 27244 ( Tenn . A.G.).
61 Association of Alabama Professional Numismatists v. Eagerton Inc., 455 So. 2d 867 (Ala. Civ. App . 1984 ) (GATr not applicable because sales tax was not related to imports and exports); Armstrong v . Taxation Division Director , 5 NJ. Tax 117 (NJ . Tax Ct. 1983 ), aff'd, 6 N.J. Tax 447 ( Super. Ct . App. Div. 1984 ) (no violation because sales tax was applied uniformly and did not result in discrimination).
62 See supranote 55.
63 See supra notes 47-50 and accompanying text.
64 See supra note 50 and accompanying text.
65 Trade Agreements Act of 1979 , Pub. L. No. 96 - 39 , § 3 ( a ), 93 Stat. 144 , 148 (codified at 19 U.S.C. § 2504 (a)( 1994 )) : (a) United States statutes to prevail in conflict
77 The question of application of trade agreement provisions in challenges to local ordinances may remain open .
78 Infra notes 80-99.
79 See, e.g., Pierre Pescatore , The Doctrineof "DirectEffect". An Infant DiseaseofCommunity Law , 8 EuRo . L. REv. 155 ( 1983 ).
80 Case 26162, N.V. Algemene Transport - en Expeditie Ondememing Van Gend en Loos v. Nederlandse Administratie der Belastingen , 1963 E.C.R. 1 ,  2 C.M.L.R. 105 .
81 Article 12 of the EC Treaty reads as follows: "[m]ember States shall refrain from introducing, between themselves, any new customs duties on importation or exportation or charges with equivalent effect and from increasing such duties or charges as they apply in their commercial relations with each other." Treaty Establishing the European Economic Community , Mar. 25 , 1957 , 298 U.N.T.S. 3 , 19 .
82 1963 E.C. R. at 12.
83 Id. The Court's conclusion is oft-quoted: [T]he Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community .
84 Id. at 13.
85 Id.; see P.J.G. KAPTEYN & P. VERLOREN VAN THEMAAT , INTRODUCrION TO THE LAW OF THE EUROPEAN CONzi . UNTms 334 (Laurence W. Gormley ed., 2d ed. 1989 ) : A consistent line of case-law shows that a provision can have direct effect if the obligation imposed on Member States is (A) clear and precise and (B) unconditional and, if implementing measures are provided for, (C) the Community Institutions or the Member States are not allowed any margin of discretion.
86 Van Gend en Los, 1963 E.C.R. at 13.
87 This language of Van Gend en Loos bears striking similarity to the U.S. rationale for private treble damage actions in antitrust matters; a somewhat ironic similarity in light of consistent European criticism of this aspect of U.S. law .
88 See, e.g., Ltlttcke v . Hauptzollamt Saarlouis , 1966 E.C.R. 205 , [ 1971 ] 10 C.M.L.R. 674 (Article 95 is directly effective); Case 6/64 , Costa v. Enel , 1964 E.C.R. 585 , [ 1964 ] 3 C.M.L.R. 425 (Articles 37 and 53 are directly effective , while Articles 93 and 102 are not) . Variola v. Italian Finance Ministry , 1973 E.C.R. 981 ; Case 39/72 , Commission v. Italian Republic , 1973 E.C.R. 101 , [ 1973 ] 12 C.M.L.R. 439 ; see also Case 87/82 , Rogers v. Darthenay , 1983 E.C.R. 1579 , 1591 , [ 1984 ] 1 C.M.L.R. 135 , 145 ; Case 94/77, Fratelli Zerbone S.n.c. v. Amministrazione delle Finanze dello Stato , 1978 E.C.R. 99 , 115 - 16 ; Case 43/71, Politi S.A.S. v. Ministry of Finance of the Italien Republic , 1971 E.C.R. 1039 , 1048 , [ 1973 ] 12 C.M.L.R. 60 , 70 .
91 See, e.g., Case 71 /85, State of Netherlands v. Federatie Nederlandse Vakbeweging , 1986 E.C.R. 3855 , [ 1987 ] 3 C.M.L.R. 767 ; Case 148/78 , Pubblico Ministero v. Tullio Ratti , 1979 E.C.R. 1629 , [ 1980 ] 1 C.M.L.R. 96 ; Case 41 /74, Van Duyn v. Home Office , 1974 E.C.R. 1337 , [ 1975 ] 1 C.M.L.R. 1 .
92 See, e.g., Case 20 /70, Transports Lesage & Cie v . Hauptzollamt Freiburg , 1970 E.C.R. 861 , A regulation does not need to be and may not be transformed into national law unless it specifically requires or empowers Member States to adopt implementing measures. A directly effective provision of the Treaties needs by very definition no transformation into national law, whilst a directly effective provision of a directive has this effect despite the fact that it needs such transformation by definition. (It is, of course, given direct effect precisely because the transformation which should have taken place has not occurred ). ... All in all there is good reason to prefer, like the Court, to avoid the term "direct effect" in the case of directives and instead to speak of "similar effects." (footnotes omitted).
94 Gerhard Bebr , Agreements Concluded by the Community and their PossibleDirectEffect: From InternationalFruitCompany to Kupferberg, 20 s/1 COMMON MKT . L. REv. 35 , 72 ( 1983 ). For a useful discussion of the direct effects doctrine generally see Pescatore , supra note 79.
95 See, e.g., Case 6 /64, Costa v. Enel , 1964 E.C.R. 585 , 594 , [ 1964 ] 3 C.M.L.R. 425 , 456 (EC Treaty Article 177 allowing referral by national courts for preliminary rulings on the interpretation of Community law, "is to be applied regardless of any domestic law, whenever questions relating to the interpretation of the Treaty arise.").
96 Case 106/77 , Amministrazione delle Finanze dello Stato v. Simmenthal , 1978 E.C.R. 629 ,
180 Id. at 187.
181 Vienna Convention on the Law of Treaties, May 23 , 1969 ,1155 U.N.T.S. 331 ( entered into force Jan . 27 , 1980 ).
182 Pescatore, supranote 177 , at 188.
183 The application of this method shows that international treaties and agreements contain in varying proportions flexible elements and well-defined obligations. It may be true that the latter are relatively more numerous in free trade agreements than in a system like GAIT, but even here we find a certain number of precise commitments which by their essence and in view of the purpose of the General Agreement are not negotiable, such as the rule on non-discriminatory commercial treatment of imported goods, the prohibition of using internal taxation for protective purposes, freedom of transit and the effect of consolidated tariff concessions. In other words, those obligations, being precise and unconditional, fulfil the criteria for direct applicability which the Court has consistently followed in many other fields . Id.
184 See supra notes 161-68 and accompanying text.
185 For an exhaustive rejection of the possible criteria after InternationalFruit see ErnstUlrich Petersmann, Application of GATT by the Courtof Justiceof the EuropeanCommunities, 20 COMMON Mcar . L REv . 397 ( 1983 ).
186 Joined Cases 21 to 24/72, International Fruit Co. NV v. Produktschap voor Groenten en Fruit , 1972 E.C.R. 1219 , 1227  2 C.M.L.R. 1 . See supra notes 100-08 and accompanying text.