human rights, boundaries, immigration, intellectual property, taxation, the environment, and agreements to join international organizations (most but not all). On the other hand, it is advantageous to have the flexibility of utilizing different forms of international agreements as other matters key to this work are within the traditional congressional-executive realm: trade and finance, for example.
Because the U.S. Constitution gives authority in Article I, § 8, to both houses of Congress to conduct foreign commerce (another term for international trade), and to the executive branch in Article II, § 1, “to make treaties,” the responsibility to negotiate trade agreements is shared and is treated specially under U.S. law. Through periodically renewed “fast-track authority” legislation, the Congress sets forth detailed U.S. trade negotiating objectives to be followed by the executive in reaching agreement on, for example, establishment or revision of World Trade Organization (WTO) Agreements or regional agreements such as the NAFTA or the U.S.-Chile Free Trade Agreement (FTA).22
After consulting with congressional trade committees, the executive signs the trade agreement with his counterparts, then the president formally notifies the text of the agreement to both houses of Congress for the drafting of implementing legislation that will exercise whatever discretion is given the signatories by the agreement’s terms. Congress may not make revisions to the agreement at this stage, else the negotiating credibility of the United States would be destroyed. The agreement and legislation must be considered quickly (thus the legislation’s nickname) and, if both houses of Congress agree, the implementing legislation will also “approve” the agreement—the final step in making it binding on the United States as a “treaty” within the meaning of the Vienna Convention, if not within the meaning of the U.S. Constitution.
Several observations regarding custom, treaties, their relationship to each other, their role as U.S. law, and some principles of U.S. law are appropriate. Article VI of the Constitution makes treaties the law of the land. Therefore, an Article II treaty has the status of domestic law in addition to being international law. Courts of the United States must give effect to international law and to international agreements. A non-self-executing agreement, however, will not be given domestic effect absent implementing legislation. An agreement is non-self-executing if by its terms the agreement evinces an intent that it is not to become domestic law absent implementing legislation or if the Senate, in giving its advice and consent, or Congress in a joint resolution, expressly notes that the treaty requires implementing legislation to become effective as domestic law. In addition, there may be instances in which implementing legislation may be constitutionally required. An international agreement cannot take effect as domestic law without implementation by Congress if the agreement would achieve what lies within the exclusive law-making power of Congress under the Constitution. For example, an international agreement creating an international crime could not become part of U.S. criminal law without the appropriate congressional enactment.23
As noted above, both custom and treaties are part of U.S. law as well as of international law. Custom and treaties, both primary sources of international law, are of equal authority in the international realm. Absent the expression of intention to the contrary, the later in time rule applies to resolving conflicts between custom and treaty: a rule established by treaty will displace a prior inconsistent customary norm, except if the prior custom is a peremptory norm from which no agreement can derogate. Conversely, if there is a clear intent, a later customary norm will supersede a prior inconsistent conventional obligation.24
Similarly, there is a later in time rule that applies in instances of inconsistency between a U.S. domestic norm and an international norm—be it customary or conventional. Under the Constitution, treaties and statutes are coequal, much like treaties and custom are coequal. Article VI of the Constitution, the Supremacy Clause, creates this relationship. Specifically, the article provides that “this Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”
Thus, given their coequal status, if congressional intent is clear, a later congressional act supersedes an earlier international norm. In this regard, two observations are appropriate. One, unless there is a clear intent to the contrary, domestic rules will be interpreted as far as possible to be consonant with existing binding international norms. Consequently, the later in time rule will be applied so as not to conflict with international law. Two, even if the clear congressional intent exists to supersede the international norm, while as a matter of domestic law the new domestic norm is binding in U.S. domestic courts, the rule of international law that is superseded domestically is still binding on the state internationally and the state remains internationally obligated to obey the norm.
The later in time rule also operates when a treaty is adopted that has a provision that conflicts with existing domestic law or treaty so that the later in time prevails. In effect, a later treaty—and in the United States this includes all its functional equivalents, such as the sole executive agreement and the executive agreement plus joint resolution—can supersede domestic law so long as the subject matter lies within the constitutional authority of the body or bodies concluding the agreement. If the agreement’s scope lies beyond the powers of the entity concluding the agreement, however, it will not supersede a prior norm made with full authority.25 For example, a sole executive agreement concerning a trade embargo, which is a subject matter that constitutionally lies within the jurisdiction of Congress under the provision governing the regulation of commerce with foreign nations, will not be “later in time” so as to supersede a prior domestic law or a prior treaty.
Finally, a brief note on federalism is appropriate. Because treaties and custom are within the federal government’s jurisdiction, any inconsistent state law or policy, regardless of whether it is earlier or later in time to the federal policy, will fail. Such was the fate of a Massachusetts law seeking to forbid trade with Burma because of that nation’s human rights record.26
With these basic rules of international law and with some foundational interpretive tools for establishing the relationship between international and domestic norms, we now review the general concepts of trade (chapter 2), human rights (chapter 3), and their intersection (chapter 4). Subsequent chapters will study particular human rights in light of this extensive background.
2
Pillars and Escape Hatches
Basic Concepts of International Trade Law in the Americas
2.1 Overview of the GATT and WTO
This chapter discusses the fundamental premises and economic underpinnings of the global trading system that are necessary for the reader to appreciate the varied interactions of trade and human rights law.1
We described the General Introduction how trade law and human rights law developed along parallel tracks after the Second World War. The same horrors of war that inspired the founding of the United Nations and the development of modern human rights law, discussed in chapter 3, also led finance ministers of the world’s leading trading nations to gather in Bretton Woods, New Hampshire, in 1947 to establish global cooperative financial and economic institutions. Such an initiative was not entirely new; states have used rules to regulate trade at least since the Middle Ages in the form of bilateral treaties of navigation and commerce. The first serious attempt to create global economic rules, however, followed formation of the United Nations. The Bretton Woods system that resulted included the International Monetary Fund (IMF) to govern exchange rate policy and the World Bank to function as the central source for reconstruction and development funds. Trade ministers later fashioned the third leg
