Direct Effect of International Economic Law in the United States and the European Union

Northwestern Journal of International Law & Business, Dec 1997

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: (1) determining what the rule of law is and (2) determining when and how it is applied. The first di- mension, though complex, is the subject of Article 38 of the Statute of the International Court of Justice,

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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. 556 (1996-1997) Direct Effect of International Economic Law in the United States and the European Union 557 560 560 562 * 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 gratitude. I. INTRODUCrION 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: ( 1 ) determining what the rule of law is and ( 2 ) 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. 993. 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 Community law. 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 clear. 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 Justice. 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 effect. 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 II. 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 gcroegsnsizmanacyepianssthfeorcoitusrtesnofofrtcheimsceonut,ntmryo,diitfiicsastuiobnje,cotrtorespuecahl.a18cts as 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. 1956). 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( 4 ). 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 selfexecuting, 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 redress.26 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 actions. 29 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 those nations). 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 regulation. 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. 50 564. 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 States. 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 ( 1 ) denies effect to any Uruguay Round Agreement provision "that is inconsistent with any law of the United States;" ( 2 ) 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)( 1 ), 107 Stat. 2057 (1992)(codified at 19 U.S.C. § 3312 (Supp. 1996)). 71 Id. § 102(b). 72 Id.§ 102(b)( 2 ). 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 STATE LAW. (a) Relationship of Agreements to United States Law. ( 1 ) 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. (b) .... ( 2 ) 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 application invalid. ie)"Effect of Agreement With Respect to Private Remedies. ( 1 ) 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. ( 2 ) Intent of Congress. - It is the intention of the Congress through paragraph ( 1 ) to 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 States.83 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, [1976] 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, [1986] 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, [1977] 2 C.M.L.R. 183; Case 34/73, 874, [1971] C.M.L.R. 1, 30; Case 9/70, Grad v. Ginanzamt Traunstein, 1970 E.C.R. 825, 838-838, [1971] C.M.L.R. 1, 24-25. 93 See KAPTEYN & VAN Tm~MAAT, supra note 85, at 345: 53( 1 ) of the Greece.-1 8 Agreement between the Community and 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( 1 ) 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 directly connected agreements were not. Thus, the Yaound6 Agree 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 1344. 159 This time the Commission had argued in favor of direct effectiveness of the provision. I. at 1342. 160 Id. at 1350. It accordingly follows from the wording of Article 53( 1 ) ... 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( 1 ) 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 abolished. Accordingly... an importer of spirits from other Member States may rely before a national court on the first subparagraph of Article 53( 1 ) 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 domestic products." 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( 1 ) 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 provisions. 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 21( 1 ) of the free trade agreement between the Community and Portugal. The Court held Article 21( 1 ) 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 Community law. 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 ( 1 ) the prin161 Case 104/81, Hauptzollamt Mainz v. C.A. Kupferberg & Cie. KG, 1982 E.C.R. 3641, [1983] 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; ( 2 ) 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 Portugal. 16 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 156. 166 Kupferberg, 1982 E.C.R. at 3664. 167, Id. 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 170 Community.' 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 Protocol. 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, [1989] 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, [1992] 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 tahne awrghuomleemntayfayveotricnogntaaicnodnitreexcttulyaleaffpepcrtiovaechproevveisniomnso,rseeedmiffsictoultm.a93ke 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. 191 Id 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. 196 Id. Northwestern Journal of International Law & Business 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 obliga 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 reiterated that GATr provisions Community law because the GAT cannot be directly applicable in ( 1 ) is "based on the principle of negotiations undertaken on the basis of 'reciprocal and mutually advantageous arrangements;"' ( 2 ) 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 ( 4 ) 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. 199 Id. 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, [1983] 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 ( 1 ) raises concern about the role of the direct effects doctrine in developing respect for international law; ( 2 ) 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 Fruitposition. 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( 6 ) 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 bananas.21 7 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 (1995). 214 Everling, supra note 208. 215 Case C-3/94 Opinion on requestby the FederalRepublic of Germanyfor an opinionpursuant to Article 228( 6 ) 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 ( 1 ) that the Federal Republic of Germany, as a member of GATT, is bound by the provisions of the GAIT; ( 2 ) 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 ( 4 ) 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 14. 221 Id. at 1. 222 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 Community Law 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 windmill jousting. 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, [1983] 3 C.M.L.R. 11; Hauptzollamt Mainz v. C.A. Kupferberg & Cie. KG.a.A. 1982 E.C.R. 3641, [1983] 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, [1975] 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, [1976] 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, [1982] 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 decisive factor. 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 importance?"). 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: ( 1 ) policy grounds for judicial abstention, and ( 2 ) 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 Community institutions. 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, [1975] 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 208. 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( 94 )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. 1570,1571 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: ( 1 ) 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 domestic legislation. ( 2 ) 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 ( 1 ) 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 ( 2 ) national systems in which the courts and officials are allowed to ameliorate the problems of direct effect. 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 extent, someday. 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 ( 1 ) flexibility for states in their relations with their subjects and with other states, and ( 2 ) 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 resolved. 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. CONCLUSIONS 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. 1685 (1995). 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 (1991). 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 ), 29 Id. 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 , [1963] 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 [1975] 2 C.M.L.R. 1 . See supra notes 100-08 and accompanying text.

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Ronald A. Brand. Direct Effect of International Economic Law in the United States and the European Union, Northwestern Journal of International Law & Business, 1997,