Skip to main content Accesibility Help
×
×
Home

Forgotten Statutes: Trade Law's Domestic (Re)turn

  • Kathleen Claussen (a1)
Extract

Since the first half of the twentieth century, the U.S. Congress has increasingly delegated its authority over tariffs to the U.S. president. Some of these statutes permit private actors to petition for tariff relief. Some also permit the president to initiate an investigation and subsequently to take trade-related or other action when certain criteria are met. Since the 1990s, however, a robust multilateral trading system has required the United States and others to resolve disputes over trade measures in Geneva, rather than through unilateral policy steps under these tariff authorities. In a stark departure from this movement away from unilateral action, the Trump Administration has returned to relying heavily on domestic statutes to impose tariffs on goods imported from U.S. trading partners and on those from one country in particular: China.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Forgotten Statutes: Trade Law's Domestic (Re)turn
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      Forgotten Statutes: Trade Law's Domestic (Re)turn
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      Forgotten Statutes: Trade Law's Domestic (Re)turn
      Available formats
      ×
Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
Hide All

2 Trade Act of 1974, Pub. L. No. 93-618, § 301, 88 Stat. 1978, 2041–43 (codified as amended at 19 U.S.C. § 2411).

3 Id.

4 See K. Blake Thatcher, Section 301 of the Trade Act of 1974: Its Utility Against Alleged Unfair Trade Practices by the Japanese Government, 81 Nw. U. L. Rev. 492 (1987) (outlining the history of like delegations).

6 Jared R. Silverman, Multilateral Resolution over Unilateral Retaliation: Adjudicating the Use of Section 301 Before the WTO, 17 U. Pa. J. Int'l Econ. L. 233 (1996) (detailing the amendments from 1974 to 1996).

8 Any interested individual may file a petition under Section 301. 19 U.S.C. § 2412(a).

9 See A. Lynne Puckett & William L. Reynolds, Rules, Sanctions and Enforcement Under Section 301: At Odds with the WTO?, 90 AJIL 675, 675 (1996); Judith H. Bello & Alan F. Holmer, Significant Recent Developments in Section 301 Unfair Trade Cases, 21 Int'l Law. 211, 216–18 (1987).

12 For one view, see Thomas J. Trendl, Self-Help in International Trade Disputes, 84 Am. Soc'y Int'l L. Proc. 32, 33-34 (1990) (citing Robert Hudec as arguing that actions under Section 301 while illegal, nevertheless may be justified).

13 Judith H. Bello & Alan F. Holmer, The Post-Uruguay Round Future of Section 301, 25 Law & Pol'y Int'l Bus. 1297, 1301 (1994).

14 Sykes, supra note 7, at 274.

15 Id. at 264.

16 See An Chen, The Three Big Rounds of U.S. Unilateralism Versus WTO Multilateralism During the Last Decade, 17 Temp. Int'l & Comp. L.J. 409 (2003) (summarizing arguments made in the case).

18 Isabelle Hoagland, Sources: USTR Mulling Section 301 Investigation into Chinese Labor Practices, Inside U.S. Trade (Nov. 9, 2018).

19 See Kathleen Claussen, The Other Trade War, 103 Minn. L. Rev. Headnotes 1 (2018); James Bacchus, How to Take on China Without Starting a Trade War, Wall St. J.: Opinion (Aug. 16, 2017).

20 The European Union has a similar mechanism against unfair foreign trade practices or obstacles to trade. Council Regulation 3286/94, 1994 O.J. (L 349) 71 (EC).

21 Uruguay Round Trade Agreement Statement of Administrative Action, H.R. Doc. No. 103-316, at 1034-35 (2d Sess. 1994). See also Pub. L. No. 103-465, § 101(a)(2) & § 102(d), 108 Stat. 4809, 4814 & 4819 (1994) (describing this statement of administrative action as “an authoritative expression” of interpretation).

22 U.S. Tools to Address Chinese Market Distortions: Hearing Before the U.S.-China Economic and Review Security Commission, 115th Cong. (2018) (testimony of Jennifer Hillman). See also Kathleen Claussen, Beyond Norms: Using International Economic Law Tools to Deter Malicious State-Sponsored Cyber Activities, 32 Temp. Int'l & Comp. L.J. 113 (2018).

23 See similiarily, Thomas O. Bayard, Comment on Alan Sykes’ “Mandatory Retaliation for Breach of Trade Agreements: Some Thoughts on the Strategic Design of Section 301”, 8 B.U. Int'l L.J. 325 (1990).

24 See Kathleen Claussen & Mark Wu, The Evidence Challenges Confronting International Trade Law (manuscript on file with the author).

25 See Claussen, supra note 21.

26 Kathleen Claussen, Trade War Battles: Congress Reconsiders Its Role, Lawfare (Aug. 5, 2018).

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed