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Published online by Cambridge University Press: 12 October 2020
American trade policy under the Trump administration can be summed up in one expression, “America First,” which the US president himself has repeated many times. Driven by a rejection of multilateralism, the United States has adopted numerous measures designed to maintain or stimulate domestic industry or to tighten economic policies both domestically and towards foreign trading partners. Reflecting isolationist and nationalist economic theories, these measures are the anchor for a return of economic frontiers to the United States. Yet the United States is at the heart of globalization and cannot completely isolate itself without risking an economic meltdown. This is all the more true since it has been the driving force behind the creation of the multilateral trading system since the end of the Second World War. This change of economic vision by one of the world’s greatest powers can only be a turning point in the recent history of international economic relations. As such, one may wonder whether America First and the set of measures adopted in its name also foreshadow a phase of retreat for international trade law or whether, on the contrary, they are an opportunity for reform of an area of the law that has been struggling to evolve for several decades.
La politique commerciale américaine sous l’administration Trump se résume en une expression, “America First,” maintes fois répétée par le Président américain lui-même. Menés par un rejet du multilatéralisme, les États-Unis ont adopté de multiples mesures destinées à maintenir ou à stimuler une branche de production nationale ou encore à un durcissement des politiques économiques tant au niveau national qu’à l’égard des partenaires commerciaux étrangers. Reflets des théories isolationnistes et nationalistes économiques, ces mesures constituent le point d’ancrage d’un retour des frontières économiques aux États-Unis. Les États-Unis sont tout de même au cœur de la mondialisation et ne peuvent s’isoler complètement sans risquer la débandade économique. Cela est d’autant plus vrai qu’ils ont été le moteur de la création du système commercial multilatéral depuis la fin de la Deuxième guerre mondiale. Or, ce changement de vision économique par une des plus grandes puissances mondiales ne peut qu’être un tournant dans l’histoire récente des relations internationales économiques. À ce titre, on peut se demander si America First et l’ensemble des mesures qui sont adoptées en son nom préfigurent elles aussi une phase de recul pour le droit du commerce international ou si, au contraire, elles ne sont pas l’occasion d’ajuster un droit qui peine à évoluer depuis plusieurs décennies.
This article was translated from the French by Talia Markarian, LLM candidate in common law and transnational law (Juris Doctor), Faculty of Law, Université de Sherbrooke, Canada.
1 Stiglitz, Joseph E, Globalization and Its Discontents Revisited (New York: W.W. Norton & Company, 2017)Google Scholar at xxvii.
2 According to Gilles Vandal, this America only exists in Trump’s imagination. Indeed, this America, based on protectionist policies, resembles more the policies that were put in place during the 1920s and early 1930s, which led to the Great Depression. Gilles Vandal, Donald Trump et la déconstruction de l’Amérique (Outremont: Athéna Éditions, 2018) at 27. See also Dominic Rushe, “More Than 1,000 Economists Warn Trump His Trade Views Echo 1930s Errors,” The Guardian (3 May 2018), online: <www.theguardian.com/us-news/2018/may/03/donald-trump-trade-economists-warning-great-depression>: “Over a thousand economists have written to Donald Trump warning his ‘economic protectionism’ and tough rhetoric on trade threatens to repeat the mistakes the US made in the 1930s, mistakes that plunged the world into the Great Depression.” Stiglitz, supra note 1 at xxxvi.
3 Donald J Trump, “Remarks of President Donald J. Trump — as Prepared for Delivery,” Inaugural Address, White House (2017), online: ˂www.whitehouse.gov/inaugural-address˃ [Trump, “Remarks”].
4 “The translation of this doctrine regarding international trade is a source of chaos” [our translation]. Stéphane Paquin, “‘America first’: La doctrine Trump en matière de commerce international” in Mathieu Arès, Éric Boulanger & Éric Motet, eds, La guerre par d’autres moyens: rivalités économiques et négociations commerciales au 21e siècle (Montreal: Presses de l’Université de Montréal, 2020). See also Stormy-Annika Mildner, “‘America First’: U.S. Trade Policy under President Donald Trump,” BDI (2020), online: <https://english.bdi.eu/article/news/america-first-u-s-trade-policy-under-president-donald-trump/>.
5 “CNBC Transcript: Steven Mnuchin and Wilbur Ross Speak with CNBC’s ‘Squawk Box,’” CNBC (2016), online: <www.cnbc.com/2016/11/30/cnbc-transcript-steven-mnuchin-and-wilbur-ross-speak-with-cnbcs-squawk-box-today.html>.
6 The post-war economic vision was based on the theory of comparative advantages, to which the United States historically adhered. Jean-Marc Siroën, “La politique commerciale américaine: une perspective historique” (1988) 3:4 R française d’économie 95. For a critique of this theory, see Ian Fletcher, Free Trade Doesn’t Work, 2nd ed (Sheffield, UK: Coalition for a Prosperous America, 2011), ch 5. See also Greg Myre, “With ‘America First’, Trump Challenges the World Constructed after World War II,” NPR (2018), online: <www.npr.org/2018/06/18/620939136/how-trump-s-america-first-policy-could-interfere-with-the-truman-doctrine>.
7 For a summary of recent work in the field of international economics, see Chow, Daniel & Sheldon, Ian CK, “Is Strict Reciprocity Required for Fair Trade?” (2019) 52:1 Vand J Transnatl LGoogle Scholar 1 at 11, 19.
8 Chow, Daniel C, Sheldon, Ian M & McGuiret, William, “The Revival of Economic Nationalism and the Global Trading System” (2019) 40:5 Cardozo L RevGoogle Scholar 2133 at 2133.
9 General Agreement on Tariffs and Trade, 30 November 1947, 55 UNTS 194, preamble (entered into force 1 January 1948) [GATT].
10 Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 154, (entered into force 1 January 1995) [WTO Agreement]. This addition did not have the effect of limiting the growing and relentless pursuit of development. On the contrary, the concept of sustainable development also postulates a world in which such growth knows no bounds. On this subject, see Danilov-Danil’yan, Victor I, Losev, KS & Reyf, Igor E, Sustainable Development and the Limitation of Growth (Chichester, UK: Praxis Publishing, 2009)CrossRefGoogle Scholar at 165–66.
11 World Trade Organization (WTO), World Trade Report 2017, Trade, Technology, and Jobs (2017)Google Scholar at 12, online: <www.wto.org/english/res_e/booksp_e/world_trade_report17_e.pdf>.
12 Joseph Stiglitz recalls that if globalization can be a positive-sum game, with workers from developed countries as well as developing ones being considered winners, the corporate and financial interests of developed countries are the real winners. Stiglitz, supra note 1 at xxvii.
13 Anderson, Kym, “Contributions of the GATT/WTO to Global Economic Welfare: Empirical Evidence” (2016) 30:1 J Economic SurveysCrossRefGoogle Scholar 56 at 82.
14 Chow, Sheldon and McGuiret, supra note 8 at 2147.
15 Veronique de Rugy, “How Trump Misunderstands Trade?,” New York Times (10 April 2018), online: <www.nytimes.com/2018/04/10/opinion/trump-china-trade-deficit.html>.
16 Chow, Sheldon & McGuiret, supra note 8 at 2137.
17 Chow & Sheldon, supra note 7 at 41.
18 Trump, “Remarks,” supra note 3.
19 In 2019, the United States was the eighth lowest in unemployment according to the data of the Organisation for Economic Co-operation and Development (OECD). OECD, “Unemployment Rate,” online: <https://data.oecd.org/unemp/unemployment-rate.htm>.
20 OECD, “Gross Domestic Product,” online: <https://data.oecd.org/gdp/gross-domestic-product-gdp.htm>.
21 In comparison, Canada has a Gini coefficient of 0.31, and the country with the most egalitarian income is Slovakia with a coefficient of 0.24. OECD, “Income Inequality,” online: <https://data.oecd.org/inequality/income-inequality.htm>.
22 OECD, “Poverty Rate,” online: <https://data.oecd.org/fr/inequality/taux-de-pauvrete.htm>; OECD, “Health Spending,” online: <https://data.oecd.org/healthres/health-spending.htm>.
23 For example, in a speech given on 28 June 2016 in Pennsylvania, Trump declared: “Almost half of our entire manufacturing trade deficit in goods with the world is the result and it’s the result of trade with China. It was also Hillary Clinton, the secretary of state, who shoved us into a job-killing deal with South Korea, as reported by the Economic Policy Institute in May. This deal doubled our trade deficit with South Korea and destroyed nearly 100,000 American jobs.” Donald J Trump, “Read Donald Trump’s Speech on Trade,” Time (28 June 2016), online: <https://time.com/4386335/donald-trump-trade-speech-transcript/>. His electoral economic plan echoes the same: “The growth in any nation’s gross domestic product (GDP) — and therefore its ability to create jobs and generate additional income and tax revenues — is driven by four factors: consumption growth, the growth in government spending, investment growth, and net exports. When net exports are negative, that is, when a country runs a trade deficit by importing more than it exports, this subtracts from growth.” Peter Navarro & Wilbur Ross, Donald Trump, Scoring the Trump Economic Plan: Trade, Regulatory, and Energy Policy Impacts (2016), online: <https://assets.donaldjtrump.com/Trump_Economic_Plan.pdf>.
24 United States, Office of the Press Secretary, “Presidential Executive Order Regarding the Omnibus Report on Significant Trade Deficits,” Executive Order, White House (2017), online: ˂www.whitehouse.gov/the-press-office/2017/03/31/presidential-executive-order-regarding-omnibusreport-significant-trade˃.
25 Bureau of Economic Analysis, Annual Summary for 2018, online: <www.bea.gov/index.php/news/2019/us-international-trade-goods-and-services-december-2018>.
26 Chow & Sheldon, supra note 7 at 22: “The corollary of this is that a US trade policy pushing trade partners, in bilateral negotiations, to reduce their trade surpluses with the United States will reduce the US trade deficit, and, at the same time, increase its GDP growth rate. In order to illustrate why this policy conclusion is a fallacy, and why virtually all economists would disagree with it, it is necessary to outline some basic national income accounting relationships that can be used to show that the US trade deficit is a structural macroeconomic problem that will not be resolved through bilateral trade negotiations.” See also the analysis completed by de Rugy, supra note 15.
27 Between 1999 and 2018, the American trade balance for services remained positive, and the surplus has been steadily increasing since 2003. Congressional Research Service, “US Trade in Services: Trends and Policy Issues” (2020) at 3, online: <https://fas.org/sgp/crs/misc/R43291.pdf>.
28 “Comments by the Government of Canada to the International Trade Administration, U.S. Department of Commerce and the Office of the United States Trade Representative: Public Comments and Hearing Regarding Administration Report on Significant Trade Deficits” (2017) at 3, online: <https://www.thompsonhine.com/uploads/1345/doc/Comments_by_the_Government_of_Canada_on_Significant_Trade_Deficits.pdf>.
29 In 2018, the United States had a deficit of US $419 billion with regard to merchandise, but a surplus of US $40 billion in services. US Trade Representative (USTR), “U.S.-China Trade Facts,” online: <https://ustr.gov/countries-regions/china-mongolia-taiwan/peoples-republic-china> [USTR, “U.S.-China Trade Facts”].
30 For a more in-depth analysis of the lack of discussions on commercial deficit, see Geneviève Dufour & Delphine Ducasse, “La négociation des accords de libre-échange sous l’administration Trump: les principes de réciprocité et de multilatéralisme” (2019) 30:2 Revue québécoise de droit international 51.
31 “Foreign Trade: Opportunity or Threat to the U.S. Economy, Gallup, Trade under Trump,” Gallup (2019), online: <https://news.gallup.com/reports/267386/trade-under-trump-gallup-briefing.aspx>.
32 Chow & Sheldon, supra note 7 at 10.
33 Vandal, supra note 2 at 151.
34 Pethokoukis, James, “How Trump Views Trade” (2017) 36:1 Intl EconomyGoogle Scholar 36 at 37.
35 Reznikova, Nataliia, Panchenko, Volodymyr & Bulatova, Olena, “The Policy of Economic Nationalism: From Origins to New Variations of Economic Patriotism” (2018) 4:4 Baltic J Economic StudiesCrossRefGoogle Scholar 274 at 281.
36 Ibid at 279; Vandal, supra note 2 at 152. The very definition of economic nationalism has been heavily criticized. Indeed, economic nationalism has often been theorized by liberal authors who see the concept as the antithesis of the principles they defend, and, therefore, it is systematically viewed in a negative light. In addition, economic nationalism was used as an ideological catchall to bring together different currents such as French mercantilism under King Louis XIV and the protectionist policies of South American countries in the twentieth century. Boulanger, Éric, “Théories du nationalisme économique” (2006) 31:3 Économie politiqueGoogle Scholar 82.
37 Boulanger, supra note 36; Colantone, Italo & Stanig, Piero, “The Surge of Economic Nationalism in Western Europe” (2019) 33:4 J Economic PerspectivesCrossRefGoogle Scholar 128 at 130.
38 US Office of the Press Secretary, “Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement,” Presidential Memorandum (23 January 2017), online: <www.whitehouse.gov/presidential-actions/presidential-memorandum-regarding-withdrawal-united-states-trans-pacific-partnership-negotiations-agreement/> [US Office of the Press Secretary, “Presidential Memorandum”]. Trans-Pacific Partnership Agreement between the Government of Australia and the Governments of Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States of America and Vietnam, 4 February 2016, [2006] ATNIF 2.
39 It must be said that the failure at Buenos Aires is not exclusively attributable to the United States, but the latter did play a major role in preventing any developments during the 2017 ministerial meeting. See Dufour, Geneviève & Pavot, David, “WTO Negotiations: The Unfinished Doha Development Agenda and the Emergence of New Topics” (2020) 15:5 Global Trade & Customs JGoogle Scholar 244.
40 The fight against protectionism was finally included in the joint declaration of leaders. “G20 Leader’s Declaration: Shaping an Interconnected World” (2017), online: <www.g20.utoronto.ca/2017/2017-G20-leaders-declaration.html>.
41 Michael D Shear & Catherine Porter, “Trump Refuses to Sign G-7 Statement and Calls Trudeau ‘Weak’,” New York Times (9 June 2018), online: <www.nytimes.com/2018/06/09/world/americas/donald-trump-g7-nafta.html>.
42 “We will follow two simple rules: Buy American and Hire American.” Trump, “Remarks,” supra note 3.
43 Vandal, supra note 2 at 152.
44 Ibid.
45 Dufour & Ducasse, supra note 30 at 69.
46 Canada has also filed a complaint with the WTO’s Dispute Settlement Body denouncing the anti-dumping and countervailing duty procedures generally. United States – Certain Systemic Trade Remedies Measures (Canada v United States), WT/DS535 (2018).
47 Dufour & Ducasse, supra note 30 at 69. It is possible to cite as an example the case of the sale of the Bombardier C series to Airbus in the wake of the interim countervailing measures imposed by the United States. A link between the two events has never been confirmed, but the question remains whether the additional tariffs did not hasten the sale and force the installation of an assembly line in the United States, permitting Airbus to avoid customs surcharges.
48 Li, Anthony HF & Petit, Hugo, “La Chine face à la présidence Trump: Des opportunités pour une volonté de puissance mondiale?” (2017) 2:139 Perspectives chinoisesGoogle Scholar 73 at 74. Trump has accused China of currency manipulation: “[S]uch measures have been used to steal our business and factories, hurt our jobs, depress our workers’ wages and harm our farmers’ prices. Not anymore!” Dona Borak, “Trump Labels China a Currency Manipulator as Trade War Escalates,” CNN (2019), online: <www.cnn.com/2019/08/05/politics/trump-us-china-currency-manipulation-trade-war/index.html>. He also stated that “[t]he concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive.” Edward Wong, “Trump Has Called Climate Change a Chinese Hoax. Beijing Says It Is Anything But,” New York Times (2016), online: < www.nytimes.com/2016/11/19/world/asia/china-trump-climate-change.html >.
49 WTO members self-identify as developing countries. Alex Wayne et al, “Trump Targets China over WTO ‘Developing Nation’ Crackdown,” Bloomberg.Com (2019), online: <www.bloomberg.com/news/articles/2019-07-26/trump-targets-china-in-memo-on-wto-developing-nation-crackdown>.
50 USTR, “United States and China Reach Phase One Trade Agreement,” press release (2019), online: <https://ustr.gov/about-us/policy-offices/press-office/press-releases/2019/december/united-states-and-china-reach>.
51 USTR, Economic and Trade Agreement between the United States of America and the People’s Republic of China (15 January 2020), art 6.2(1), online: <https://ustr.gov/sites/default/files/files/agreements/phase%20one%20agreement/Economic_And_Trade_Agreement_Between_The_United_States_And_China_Text.pdf> [USTR, Economic and Trade Agreement].
52 USTR, “U.S.-China Trade Facts,” supra note 29. In 2018, the United States had a surplus of US $40 billion in the services sector.
53 USTR, Economic and Trade Agreement, supra note 51, chs 1–2, 5.
54 For example, the European Union denounces the lack of transparency in China, non-tariff measures that are discriminatory towards foreign companies, significant intervention by the state in its economy, and feeble protection of intellectual property rights. European Commission, “China,” online: <https://ec.europa.eu/trade/policy/countries-and-regions/countries/china/>. More specifically, in Canada, Prime Minister Justin Trudeau has vehemently criticized Chinese commercial practices in matters of steel, accusing China of having committed acts equivalent to dumping. Raphaël Bouvier-Auclair, “Chine et acier: Justin Trudeau se présente en allié de l’administration Trump,” Radio-Canada (14 March 2018), online: <https://ici.radio-canada.ca/nouvelle/1089082/chine-acier-tarifs-justin-trudeau-allie-administration-donald-trump-president>. See also Amanda Connolly, “Canada Targets Dumped Steel from Countries Like China with New Measures,” Global News (2018), online: <https://globalnews.ca/news/4107759/steel-tariffs-chinese-dumping-justin-trudeau/>.
55 Since his electoral campaign, Trump threatened to impose tariffs on Chinese products. After the failure to negotiate a reduction in the American commercial deficit with China in 2017, Trump requested an investigation into allegations of theft of intellectual property by Chinese companies. In 2018, the surcharges on steel, aluminum, washing machines, and solar panels were enacted. In retaliation, China, in April 2018, imposed surcharges of up to 25 percent on 128 American products. A trade war ensued, with both countries imposing more and more surcharges on products coming from the other country (for example, 25 percent on US $34 billion worth of Chinese imports and 25 percent on US $16 billion in American products). See “Timeline: Key Dates in the U.S.-China Trade War,” Reuters (2019), online: <www.reuters.com/article/us-usa-trade-china-timeline/timeline-key-dates-in-the-us-china-trade-war-idUSKBN1WP23B>.
56 “Remarks by President Trump at Signing of the U.S. — China Phase One Trade Agreement,” White House (2020), online: <www.whitehouse.gov/briefings-statements/remarks-president-trump-signing-u-s-china-phase-one-trade-agreement-2/>.
57 Dufour & Ducasse, supra note 30.
58 The United States agreed to reduce a certain portion of the customs surcharges imposed on Chinese products (a reduction from 15 percent to 7.5 percent on US $100 billion in Chinese exports). However, these tariffs remained on average 7 percent higher than before the trade war. See Chad P Bown, “US-China Trade War Tariffs: An Up-to-Date Chart,” Peterson Institute for International Economics (2020), online: < www.piie.com/research/piie-charts/us-china-trade-war-tariffs-date-chart>. Steven Mnuchin, the American secretary of the treasury, stated that American surcharges would remain in place until a phase 2 agreement was reached with China. See Makini Brice & Andrea Shalal, “U.S. to Maintain Tariffs on Chinese Goods until Phase 2 Deal: Mnuchin,” Reuters (2020), online: <www.reuters.com/article/us-usa-trade-china-tariffs/u-s-to-maintain-tariffs-on-chinese-goods-until-phase-2-deal-mnuchin-idUSKBN1ZD2PK>.
59 Reznikova, Nataliia, Panchenko, Volodymyr & Bulatova, Olena, “The Policy of Economic Nationalism: From Origins to New Variations of Economic Patriotism” (2018) 4:4 Baltic J Economic StudiesCrossRefGoogle Scholar 274 at 281.
60 Yusuf Ayotunde Abdulkareem, “Conflict, International Trade and President Trump’s Isolationist Policies” (2017) 17:1 J Intl Trade & Policy 34 at 38.
61 Vandal, supra note 2 at 151.
62 Reznikova, Panchenko & Bulatova, supra note 59 at 280; Colantone, Italo & Stanig, Piero, “The Surge of Economic Nationalism in Western Europe” (2019) 33:4 J Economic PerspectivesCrossRefGoogle Scholar 128 at 130; Colantona, Italo & Stanig, Piero, “The Trade Origins of Economic Nationalism” (2018) 62:4 American J Political ScienceGoogle Scholar 936 at 938.
63 We recall that 164 states or customs territories are members of the WTO. Furthermore, each of these members has concluded at least one free trade agreement. WTO, “Regional Trade Agreements,” online: <www.wto.org/english/tratop_e/region_e/region_e.htm>. In addition, twenty-three states have observer status and are committed to striving towards compliance with the rules of international trade.
64 As Vandal explains, the populist discourse is characterized by a rhetoric that aims to please the traditional middle class and aims to blame foreigners and minorities for the sense of crisis felt in society. Vandal, supra note 2 at 10, 20.
65 Aluminium Association of Canada, Comments Submitted to the Department of Commerce of the United States of America (20 June 2017).
66 US Office of the Press Secretary, “Presidential Memorandum,” supra note 38.
67 North American Free Trade Agreement, 17 December 1992, Can TS 1994 No 2, (1993) 32 ILM 289, 605 (entered into force 1 January 1994).
68 Samantha Putterman, “Trump Comes through on Pledge to Rewrite NAFTA,” Politifact (2020), online: <www.politifact.com/truth-o-meter/promises/trumpometer/promise/1410/renegotiate-nafta/>. See also Yanick Dumont Baron, “L’ALÉNA, l’épouvantail de Trump,” Radio-Canada (16 August 2017), online: <https://ici.radio-canada.ca/nouvelle/1050565/alena-etats-unis-canada-renegociation>.
69 Ibid.
70 Kimberly Amadeo, “Trump’s NAFTA Changes,” The Balance (2020), online: <www.thebalance.com/donald-trump-nafta-4111368>
71 Dene More, “Post NAFTA Post-Mortem: Is Canada Better Off under the New, Less Catchy CUSM,” Globe and Mail (2019), online: <www.theglobeandmail.com/featured-reports/article-post-nafta-post-mortem-is-canada-better-off-under-the-new-less/>. Agreement between Canada, the United States of America, and the United Mexican States, 30 November 2018, online: <https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cusma-aceum/text-texte/toc-tdm.aspx?lang=eng> (entered into force 1 July 2020) [CUSMA].
72 For example, the US administration negotiated bilaterally with Mexico in the summer of 2018 and then informed Canada that the agreement was concluded and was on a take-it-or-leave-it basis. Rodrigue Tremblay, “ALÉNA: Trump a mis Ottawa dans une position précaire,” Le Devoir (29 August 2018), online: <www.ledevoir.com/opinion/idees/535503/trump-a-mis-le-gouvernement-trudeau-dans-une-position-precaire>. See also Naomi Powell, “‘Take It or Leave It’: Trump Signals Hard Line as NAFTA Talks Turn to Canada,” Financial Post (2018), online: <https://business.financialpost.com/news/economy/take-it-or-leave-it-trump-signals-hard-line-as-nafta-talks-turn-to-canada>.
73 Virginie Montet, “Trump suggère des accords séparés avec le Canada et le Mexique,” Le Devoir (2 June 2018), online: <www.ledevoir.com/economie/529334/trump-suggere-des-accords-commerciaux-separes-avec-le-canada-et-le-mexique>. See also Anna Swanson & Emily Cochrane, “Trump Signs Trade Deal with Canada and Mexico,” New York Times (2020), online: <www.nytimes.com/2020/01/29/business/economy/usmca-trump.html>.
74 The agreement was initially concluded on 30 November 2018. Before ratification, amendments were made, and the agreement was signed again on 10 December 2019. Prime Minister of Canada, “Canada Signs Agreement on Amendments to the New NAFTA,” Press Release (2019), online: <https://pm.gc.ca/en/news/news-releases/2019/12/10/canada-signs-agreement-amendments-new-nafta>.
75 USTR, “Summary of Objectives for the NAFTA Renegotiation” (2017) at 15–16, online: <https://ustr.gov/sites/default/files/files/Press/Releases/NAFTAObjectives.pdf>.
76 Government of Canada, “Government Procurement Summary,” online: <www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cusma-aceum/government_procurement-marches_publics.aspx?lang=eng>; Christopher Sands, “The Buy American Blues: New Trade Deals Step Back from Merit Procurement,” Macdonald Laurier (2019), online: <www.macdonaldlaurier.ca/buy-american-blues-new-trade-deals-step-back-merit-procurement-chris-sands-inside-policy/>. Agreement on Government Procurement, 15 April 1994, 1869 UNTS 508 (entered into force 1 January 1996).
77 Kelsey Johnson, “U.S. Auto Content Demand Meant to Scare Canada and Mexico: Auto Industry,” IPolitics (2018), online: <https://ipolitics.ca/2018/01/24/u-s-auto-content-demand-meant-scare-canada-mexico-auto-industry/>.
78 Government of Canada, “Automotive Rules of Origin Summary,” online: <www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cusma-aceum/auto.aspx?lang=eng>.
79 In fact, CUSMA, supra note 71, art 3-A-3(8), imposes a cap on exports of skim milk powder for Canada. Beyond the thresholds, Canada must apply an export surcharge. Furthermore, the United States required Canada to submit to a surveillance mechanism in order to be able to detect imports that exceeded the thresholds set by the United States (art 3-A-3(13)).
80 A minimum wage of US $16 per hour is required to meet the labour-value content requirements with regard to rules of origin for automobiles (CUSMA, supra note 71, Appendix on Specific Rules of Origin Provisions Applicable to Automotive Products, Annex 4B, s 7(3)).
81 Trade Expansion Act of 1962, 19 USC §1862, as amended.
82 European Union (EU), Bureau of Industry and Security and Office of Technology Evaluation, “The Effect of Imports of Aluminum on the National Security,” Department of Commerce (2018), online: <www.bis.doc.gov/index.php/documents/aluminum/2223-the-effect-of-imports-of-aluminum-on-the-national-security-with-redactions-20180117/file>.
83 Nine parties have filed complaints with the WTO’s Dispute Settlement Body following the imposition of customs surcharges on steel and aluminum: Turkey, Switzerland, Russia, Norway, Mexico, Canada, the EU, India, and China. Canada and Mexico, however, sent a notice to the WTO of a mutually agreed solution on 23 and 28 May 2019. WTO, Notification of a Mutually Agreed Solution, Doc WT/DS550/13 (27 May 2019); WTO, Notification of a Mutually Agreed Solution, Doc WT/DS551/13 (3 June 2019).
84 “Presidential Proclamation Adjusting Imports of Steel into the United States,” White House (2018), online: <www.whitehouse.gov/presidential-actions/presidential-proclamation-adjusting-imports-steel-united-states-6/>. The United States has also entered into steel and aluminum export limitation agreements with South Korea, Argentina, and Brazil, in addition to putting pressure on Canada as part of the renegotiation of NAFTA. However, export quotas are prohibited under WTO rules. Dufour & Ducasse, supra note 30 at 71.
85 “Adjusting Imports of Automobiles and Automobile Parts into the United States,” White House (2019), online: < www.whitehouse.gov/presidential-actions/adjusting-imports-automobiles-automobile-parts-united-states/>. It should be noted that, since then, two other investigations have been launched, this time following petitions from American companies. On 18 July 2018, the Commerce Department initiated an investigation into imports of ore and uranium products and on 4 March 2019, an investigation was initiated into imports of titanium sponges. Congressional Research Service, “Section 232 Investigations: Overview and Issues for Congress” (2019) at 3, online: <https://fas.org/sgp/crs/misc/R45249.pdf> [Congressional Research Service, “Section 232 Investigations”].
86 David Lawder, “Trump Can No Longer Impose ‘Section 232’ Auto Tariffs after Missing Deadline: Experts,” Reuters (2019), online: <www.reuters.com/article/us-usa-trade-autos/trump-can-no-longer-impose-section-232-auto-tariffs-after-missing-deadline-experts-idUSKBN1XT0TK>.
87 Congressional Research Service, “Section 232 Investigations,” supra note 85 at 38.
88 Ibid.
89 Ibid.
90 Vandal, supra note 2 at 143.
91 An Act to Provide for Reconciliation Pursuant to Titles II and V of the Concurrent Resolution on the Budget for Fiscal Year 2018, Pub L 115–97 (2018).
92 See e.g. Xu, Min & David, Jeanne M, “The Impact of the Tax Cuts and Jobs Act of 2017 on the US Government Debt” (2018) 7:4 J Finance and Banking StudiesGoogle Scholar 1; Matthew Frankel, “How the Tax Cuts and Jobs Act Will Impact the Average American,” USA Today (2017), online: <www.usatoday.com/story/money/taxes/2017/12/22/how-the-tax-cuts-and-jobs-act-will-impact-the-average-american/108822332/>; Nick Timiraos, “By Adding to the Debt, Tax Cuts Could Complicate Next Downturn,” Wall Street Journal (22 January 2018), online: <www.wsj.com/articles/by-adding-to-the-debt-tax-cuts-could-complicate-next-downturn-1516549269>.
93 For example, his plan to build a wall along the US-Mexico border and the refusal to grant access to nationals coming from Muslim countries.
94 Patrick van den Bossche et al, “US Trade Policy and Reshoring: The Real Impact of America’s New Trade Policies,” A.T. Kearney (2019), online: <www.kearney.com/documents/20152/3271515/2019+OPT+-+US+Reshoring+Index+-+Final.pdf/bf9e5fcb-5fe6-2cb6-fde2-770445f2a5d7?t=1562699624621>.
95 The panel in this matter has still not been established. WTO, United States – Certain Systemic Trade Remedies Measures, WT/DS535, online: <www.wto.org/english/tratop_e/dispu_e/cases_e/ds535_e.htm>.
96 WTO, “Index of Disputes Issues, Aluminum and Steel Products,” online: <www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm>.
97 For example, restrictions placed on Canada to trade with other countries with respect to certain dairy products. CUSMA, supra note 71, art 3-A-3. Art XXIV:4 of the General Agreement on Tariffs and Trade 1994, 15 April 1994, Annex 1A to the Marrakesh Agreement Establishing the World Trade Organization, 1867 UNTS 187 (entered into force 1 January 1995) [GATT 1994] clarifies that the purpose of the establishment “of a customs union or of a free-trade area should be to facilitate trade between the constituent territories and not to raise barriers to the trade of other contracting parties with such territories.” Art XXIV:4 has been interpreted by the WTO Appellate Body as stating the purpose of a customs union but may be applied to that of a simple free trade area: “A customs union should facilitate trade within the customs union, but it should not do so in a way that raises barriers to trade with third countries.” Turkey – Restrictions on Imports of Textiles and Clothing, WT/DS34/AB/R, Appellate Body (22 October 1999) at para 57.
98 By forcing China to import more than US $200 billion worth of goods over the next two years, the economic agreement with China diverts international trade. In fact, in order to buy more American products, the Chinese will necessarily buy fewer goods from other countries from which they usually purchased such products.
99 The economic agreement with China does not provide for any elimination of customs duties. In addition, trade restrictions are not eliminated as the deal only covers certain sectors of the economy. This obligation is provided for in Article XXIV:8(b) of the GATT 1994, supra note 97, as interpreted in Turkey – Restrictions on Imports of Textiles, supra note 97 at para 48.
100 Crawford, James R, “State” in Rüdiger Wolfrum, ed, Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2011)Google Scholar at para 1.
101 This naturally comes from the fact that one of the constitutive elements of a state is its territory. Convention on the Rights and Duties of States, 26 December 1933, 165 LNTS 19, art 1 (entered into force 26 December 1934).
102 Through a historical study, Emmanuelle Jouanet reminds us that international law was also a providential law — that is to say, an “interventionist law [aimed] at influencing the socio-economic balance of international society in order to help peoples, bring them well-being and prevent them from suffering from poverty, misery and ignorance” (our translation of the original French text). Emmanuelle Jouannet, Le droit international libéral-providence: Une histoire du droit international (Brussels: Université libre de Bruxelles and Bruylant, 2011) at 5.
103 Charter of the United Nations, 26 June 1945, 1 UNTS 15, art 2(4) (entered into force 24 October 1945).
104 On the limits of the principle of sovereign equality in international economic law, see Dominique Carreau & Patrick Julliard, Droit international économique, 6th ed (Paris: Dalloz, 2017) at paras 70–77.
105 Ibid at para 19.
106 As evidenced by the WTO Agreement, supra note 10 at para 2.
107 Carreau & Julliard, supra note 104 at para 19.
108 Havana Charter for an International Trade Organization, 24 March 1948, UN Doc E/CONF.2/78 (not in force).
109 Ibid at para 70.
110 Atlantic Charter (Joint Declaration between the United States and the United Kingdom), 14 August 1941, online: <www.nato.int/cps/en/natohq/official_texts_16912.htm>; Omnibus Trade and Competitiveness Act of 1988, Pub L 100-418, s 1101 (entered into force 23 August 1998) [Omnibus Trade and Competitiveness Act].
111 Lowenfeld, Andreas F, International Economic Law, 2nd ed (Oxford: Oxford University Press, 2008)Google Scholar at 24–25.
112 US Department of State, Press Release, “Proposal for Expansion of World Trade and Employment,” (6 December 1945), referenced in Lowenfeld, supra note 111 at 25, n 8.
113 US Department of State, Press Release (13 December 1945), referenced in Lowenfeld, supra note 111 at 26, n 9.
114 Lowenfeld, supra note 111 at 64–65.
115 Among other things, they have influenced the inclusion of services in the multilateral trading system. Drake, William J, “Ideas, Interests and Institutionalization: Trade in Services and the Uruguay Round” (1992) 46:1 Intl OrganizationsCrossRefGoogle Scholar 37.
116 Omnibus Trade and Competitiveness Act, supra note 110.
117 WTO, online: <www.wto.org/english/thewto_e/thewto_e.htm>.
118 John Gerard Ruggie, “International Regimes, Transactions, and Change: Embedded Liberalism in the Post-War Economic Order” (1982) 36:2 Intl Organizations 379 at 393–94. Cordell Hull, former US Secretary of State, was one of the founders of the GATT system and, therefore, of the WTO. Kenneth W Dam, Working Paper, “Cordell Hull, the Reciprocal Trade Agreements Act, and the WTO” (2004) at 228.
119 According to many, it has also kept many developing countries in poverty. Ravinder Rena, “Impact of WTO Policies on Developing Countries: Issues and Perspectives” (2012) 4:3 Transnational Corporations Rev 77; Mehdi Abbas, Les rapports Nord-Sud à l’OMC. Entre différenciation et espace politique pour le développement, Research Booklet no 36 (2007); Surya P Subedi, “The Notion of Free Trade and the First Ten Years of the World Trade Organization: How Level Is the ‘Level Playing Field?’” (2006) 53:2 Nethl Intl L Rev 273; Charles-Emmanuel Côté, “De Genève à Doha: Genèse et évolution du traitement spécial et différencié des pays en développement dans le droit de l’OMC” (2010) 56:1 RD McGill 115 at 150.
120 USTR, “Economy and Trade,” online: <https://ustr.gov/issue-areas/economy-trade>.
121 Ibid.
122 “This liberal compromise served the interests of the United States well, as this system based on open trade allowed American companies and holders of capital to deploy around the world. Since then, the international system has changed a lot, but the post-war institutions — and their mode of financing — much less. The United States continues to bear a disproportionate share of the costs of operating the international system despite the rise in power of Germany, Japan, and then China” [our translation of the original French]. Paquin, supra note 4.
123 Kolb, Robert, Réflexions de philosophie du droit international: problèmes fondamentaux du droit international public: théorie et philosophie du droit international (Brussels: Bruylant, 2003)Google Scholar at 34.
124 Several complaints have been made to the WTO’s Dispute Settlement Body against the United States. In fact, out of the seventy-four complaints filed between January 2017 and January 2020, twenty-six complaints were filed against the United States. For a chronological list of dispute cases, see online: <www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm>.
125 For example, the trade war with China and product surcharges would cost US $2,200 per American family of three, given rising prices for consumers. Mayra Rodriguez Valladares, “Trump’s Weaponizing of Tariffs Is a Rude Wake-Up Call to Global Financial Markets,” Forbes (1 June 2019), online: <www.forbes.com/sites/mayrarodriguezvalladares/2019/06/01/trumps-weaponizing-of-tariffs-is-a-rude-wake-up-call-to-global-financial-markets/#20998bfd1de7>. See also Max Corden & Ross Garnaut, “The Economic Consequences of Mr Trump” (2018) 51:3 Australian Economic Rev 411.
126 We can think of the tense relations that Trump has developed with Emmanuel Macron, Justin Trudeau, and Angela Merkel or even relations with Iran, which have greatly deteriorated with the withdrawal of the United States from the Iran Nuclear Agreement (United Nations Security Council, Joint Comprehensive Plan of Action, 14 July 2015, Annex A to UN Security Council Resolution 2231, UN Doc S/RES/2231 (2015)) and the death of Qassem Soleimani.
127 For example, see Rex J Zedalis, “A Commentary on US ‘National Security’ Import Restraints: The Situation with Crude Oil” (2019) 53:1 J World Trade 83; T-F Chen, “To Judge the ‘Self-Judging’ Security Exception under the GATT 1994: A Systematic Approach” (2017) 12:2 Asian J WTO & Intl Health L & Policy 311; Anthony Nardi, “Armored Plating and Aluminum Foil Are Not Like Products: Consequences of the United States’ Overbroad Interpretation of Article XXI of the GATT” (2019) 69:2 Am UL Rev 629. Jurists have also questioned the US president’s authority to withdraw from a free trade agreement. Indeed, they do not agree on whether it is an act relating to foreign affairs or international trade, a crucial question in determining the powers of the president. Congressional Research Service, “The President’s Authority to Withdraw the United States from the North American Free Trade Agreement (NAFTA) without Further Congressional Action” (2019), online: <https://fas.org/sgp/crs/row/R45557.pdf>.
128 White House, Memorandum on Reforming Developing-Country Status in the World Trade Organization (2019), online: <www.whitehouse.gov/presidential-actions/memorandum-reforming-developing-country-status-world-trade-organization/>.
130 Geneviève Dufour, “La compétence de l’OMC en matière de change: le cas des dévaluations monétaires compétitives au regard de l’article XV du GATT” (2019) 2 Rev DI & DC 237.
131 CUSMA, supra note 71, art 33.1; Articles of Agreement of the International Monetary Fund, 27 December 1945, 2 UNTS 39 (entered into force 27 December 1945) [IMF Articles of Agreement].
132 IMF Articles of Agreement, supra note 131, art 33.4(1).
133 Ibid, art 33.5.
134 Ibid , art 33.6.
135 Ibid , art 33.8.
136 See discussion earlier in this article.
137 According to political economics professor Dani Rodrik, there is no need for China to change its ways. Rather, the multilateral trading system must adapt to the diversity of economic models, such as that of China. It should be mentioned that this article was published before President Trump’s tour de force, which seems to have led precisely to a change in model, at least in part, for China. “The WTO Has Become Dysfunctional,” Financial Times (5 August 2018), online: <www.ft.com/content/c2beedfe-964d-11e8-95f8-8640db9060a7>.
138 Some countries were tempted to adopt customs surcharges in response to American surcharges on steel and aluminum. China also adopted a series of measures in response to American attacks. Due to the illicit nature of these actions and reactions, a trade war has ensued, at least between China and the United States. The fact remains that, in the majority of cases, states that have adopted customs surcharges have also decided to trust the legal system and file a complaint with the WTO’s Dispute Settlement Body.
139 If the United States of Presidents Bush and Obama had also put pressure on the WTO’s Dispute Settlement Body — notably, by playing on the appointment of members of the Appellate Body — it was under the Trump administration that appointments were blocked. On this subject, see Lehne, Jens, Crisis at the WTO: Is the Blocking of Appointments to the WTO Appellate Body by the United States Legally Justified? (Berlin: Carl Grossmann Verlag, 2019)Google Scholar at 2, para 14.
140 Ibid. The formal arguments put forward by the United States are: (1) extended service for terminated individuals; (2) exceeding the ninety-day reporting limit; (3) capacity of the Appellate Body to review facts; (4) taking account of national law as a fact; (5) the Appellate Body to give advisory opinions to review questions of fact contrary to Article 17.6 of the understanding on rules and procedures governing the settlement of disputes; and (6) taking into account reports as precedents.
141 USTR, Issues Report on the WTO Appellate Body (February 2020), online: <https://ustr.gov/about-us/policy-offices/press-office/press-releases/2020/february/ustr-issues-report-wto-appellate-body>.
142 WTO, Summary of General Council Meeting of 9 and 10 December 2019 (2019), online: <www.wto.org/english/news_e/news19_e/sum_gc_dec19_e.htm>; WTO, Draft Decision, Functioning of the Appellate Body, WTO Doc WT/GC/W/791 (28 November 2019).
143 US Mission to International Organizations in Geneva, Matters Related to the Functioning of the Appellate Body (9 December 2019), online: <https://geneva.usmission.gov/2019/12/09/ambassador-shea-statement-at-the-wto-general-council-meeting/>. According to the USTR’s report, the United States would like to return to the original idea of an appellate body.
144 For example, during its interventions at the WTO, China recalled the importance it attaches to the systemic problems of the dispute settlement mechanism, as raised by the United States. However, China stated that it did not believe that paralyzing the appellate organ was the appropriate way to respond to these issues. The representative of the EU considered that the United States had deprived all members of the WTO of a right to appeal and stated that it did not support a system based on power relations. Minutes of the Meeting of the WTO Dispute Settlement Body, Doc WT/DSB/M/423 (18 December 2018).
145 Indeed, since 12 December 2019, there has only been one member of the Appellate Body who still has a valid mandate. As a result, it is no longer possible to appeal panel decisions.
146 For example, should a case arise between Indonesia and Vietnam and in the event of the freezing of the appointments of Appellate Body members, the parties have agreed not to bring the panel report to the Appellate Body. Indonesia – Safeguard on Certain Iron or Steel Products – Understanding between Indonesia and Viet Nam Regarding Procedures under Articles 21 and 22 of the DSU, WT/DS496/14 (27 March 2019).
147 Australia, Brazil, Canada, China, Chile, Colombia, Costa Rica, the EU, Guatemala, Hong Kong, China, Iceland, Mexico, New Zealand, Norway, Pakistan, Singapore, Switzerland, Ukraine, and Uruguay have agreed to this arrangement. WTO, Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU, WTO Doc JOB/DSB/1/Add.12 (30 April 2020).
148 Lehne, supra note 139 at 1.
149 Brewster, Rachel, “WTO Dispute Settlement: Can We Go Back Again?” (2019) 113 Am J Intl LGoogle Scholar 61 at 65.
150 Dufour & Ducasse, supra note 30 at 64.
151 Vandal, supra note 2 at 154.
152 Dufour & Ducasse, supra note 30.
153 Cf Geneviève Dufour, “Guerre commercial” in Valère Ndior, ed, Dictionnaire de l’actualité du droit international (Paris: Pedone, 2020). An example other than China would be the surtaxes Canada imposed on certain American products in reaction to the duties imposed by the United States on Canadian steel and aluminum products.
154 According to Beeson and Watson, faced with Trump’s obliteration of US leadership, there is a greater risk of facing a lack of world leadership than of a rise in power of China. Indeed, China is neither ready nor willing to occupy the place of the United States. Mark Beeson & Nathan Watson, “Is International Leadership Changing Hands or Disappearing? China and the USA in Comparative Perspective” (2019) 43:2 Asian Perspective 387: “Unfortunately for the rest of the world, in these circumstances, neither the United States nor China seems willing or able to provide the sort of leadership some observers think has been a vital prerequisite for the provision and maintenance of a rules-based international order.”
155 That is, “the geopolitics of the new world trade disorder” [our translation of the original French text]. Paquin, supra note 4.
