Adjudication vs. ‘Frontier Justice’ in International Economic Law Disputes: The Trump Administration’s Push for Unilateralism in Trade Enforcement

Abstract

After decades of U.S. efforts to build up the role of international courts in the area of international economic law, the Trump administration is looking for alternative approaches to international dispute settlement that increase the power of states over the process. Rather than rely on neutral adjudicators to interpret the law, to decide whether violations exist, and to authorize countermeasures, the Trump administration wants to be able to take on these tasks itself. There are two primary examples: The administration's view that Section 301 can be used to enforce trade agreements; and its push in the U.S.-China trade talks for a dispute settlement mechanism that does not make use of international adjudication at all. In this paper, we put the U.S. proposals in their international law context, and evaluate their impact. We begin with a discussion of the international law concepts of auto-interpretation, auto-decisions, and auto-enforcement. Next, we examine how international adjudication bodies provide legitimacy to determinations about compliance with international economic law agreements, contributing to their effectiveness. Finally, we turn to the Trump administration’s effort to internationalize unilateral enforcement, through the use of Section 301 as an alternative means of trade agreement enforcement, and more importantly through its efforts in the U.S.-China trade talks to dispense with neutral adjudication and, instead, to provide for unilateral determinations by each party that the other party is not in compliance.