Do World Trade Organization laws still exist?

It is time to ask: For the U.S., does the international law of the World Trade Organization still exist?  

As part of an escalating tit-for-tat of trade restrictions between the U.S. and China, the Chinese government has banned the export of several critical materials that have both commercial and military applications in high-tech production. This Chinese action may or may not be eligible for a national security exception to the general rule in WTO law that forbids export bans and other export restrictions. 

Yet in responding to this latest trade move by China in the renewed trade conflict between the two countries, the U.S. government did not mention WTO law. Nor, in reporting on the event, did the U.S. media.

For the U.S., it is as if this international law no longer exists.

This omission is increasingly commonplace in the U.S. In imitation of the first Trump administration, the Biden administration has spent the past four years mostly ignoring WTO law. 

Trump’s illegal tariffs on $360 billion in imports of Chinese goods have remained in place, and a 100 percent tariff has been imposed on imported Chinese vehicles. WTO rulings declaring those tariffs to be illegal under international law have been ignored. 

Under President Biden, U.S. trade negotiators rarely mention WTO obligations. And although they still show up at the WTO in Geneva, they have made it all too clear to the rest of the world that, in the view of the U.S., the WTO is no longer central to world trade, and that lowering tariff and other barriers to world trade is no longer a principal aim of U.S. trade policy.   

Now comes again President-elect Donald Trump, threatening even more and higher tariffs when he returns to the White House in January. 

Recently, he announced that he would by executive order impose a 25 percent tariff on all imports from Canada and Mexico, plus an additional 10 percent tariff on imports from China, because of his dissatisfaction with the efforts of those countries to prevent illegal drugs, particularly fentanyl, and undocumented migrants from crossing the American border. It is unclear at this point whether these particular tariff threats are tactical posturing or actual intent.  

This latest salvo is in addition to the president-elect’s campaign pledges to raise tariffs on all imports from China to 60 percent and to all imports from the rest of the world to 20 percent. He has also threatened to levy tariffs of 100 percent on imports from the BRICs countries — Brazil, Russia, India, China, and South Africa, Egypt, Ethiopia, Iran, Saudi Arabia, and the United Arab Emirates — if they try to launch a thus far nonexistent alternative currency to the U.S. dollar. 

All in all, Trump appears to have meant it when he told business leaders in Chicago during his campaign that “tariff” is “the most beautiful word in the dictionary.”

Throughout the course of all these actions and threatened actions by both Biden and Trump, scant mention has been made by the US government or media of the fact that, because they result in trade discrimination, all such measures are likely in violation of the treaty obligations of the U.S. as a member of the WTO. 

Obviously, the U.S. government would rather not draw attention to this inconvenient fact; whether Republican or Democrat, it nowadays deigns to cite international trade law and other international law only when it is perceived to be to the immediate American advantage. 

As for the U.S. media, in the thinking of American journalists, treaty obligation or not, why bother to keep pointing out something in their reporting that seems no longer to be a factor in trade policymaking and decision-making by the government? Why mention the international law on trade when it does not seem to be relevant? 

This silence speaks volumes about the generally ebbing commitment of the U.S. to international law and to the international rule of law. 

Although the U.S. was instrumental in creating the international institutions that provide us with what little we have of international cooperation in the world, we Americans, Republicans and Democrats alike, are gradually abandoning many of these institutions along with the international laws that glue them together. At the same time, American journalism is increasingly abandoning its responsibility to inform the American people that this is happening and to inform them, too, of the potential consequences.  

The American attitude and actions relating to the international law of trade is just one example of this abandonment. The absence of the international rule of law is the international rule of power. Both political parties in the U.S. seem now mostly to prefer the rule of power in international affairs, but both will, in time, come to realize how truly shortsighted such an approach is in a world desperately in need of much more international cooperation. 

In trade and otherwise, we Americans may think we are powerful enough to get the rest of the world to do our bidding, but we are not. Nor, of course, should we try to coerce other countries into doing as we wish, even if we could. Doing so is contrary to all we are supposed to believe in as Americans.  

Our Constitution empowers us to “punish ... offenses against the law of nations.” It does not tell us to ignore them. International law still exists. We in the U.S. might begin by remembering this, in trade and in much else. 

Former Rep. James Bacchus (R-Fla.) is professor of global affairs at the University of Central Florida and an adjunct scholar at the Cato Institute. He is a former chairman of the Appellate Body of the World Trade Organization. His latest book, "Democracy for a Sustainable World," will be published in May by Cambridge University Press.