Tuesday, October 25, 2005

The Painfully Slow and Political Process of Complying with International Tribunal Judgments

U.S. Secretary of State Rice is visiting Canada this week in a likely futile attempt to defuse a worsening U.S.-Canada trade dispute over softwood lumber. As I've blogged in the past (here and here), U.S. relations with Canada have been steadily worsening over the past few years over a variety of issues. But the refusal of the U.S. to comply with a final NAFTA tribunal judgment is now a trade "casus belli" in Canada and the top item on the agenda for Secretary Rice's visit.

I think as a policy matter, the U.S. position on softwood lumber and other trade issues is hard to defend (although it is worth remembering that Canada is hardly free from blame for this ongoing dispute). But, as I've argued rather incessantly in the past, compliance with international tribuanal judgments, even trade tribunals like NAFTA and the WTO, remains a policy decision for the U.S. Congress and President. It is not something that would be appropriately delegated to the federal courts, as many international lawyers often suggest. If trade disputes are a diplomatic bargaining process, the U.S. shouldn't be burdened with a system of automatic compliance since this would undercut its bargaining power.

Compliance here will occur if and when the President and Congress decide to do so. Which is why the Canadians are going to have to bargain, rather than simply whine about U.S. non-compliance. The U.S, for instance, is already moving to comply with a separate WTO case involving Canada. Compliance can happen, but it is a long, slow, and political process. Which is as it should be.