Diagonal Enforcement in International Trade Politics

Abstract

Scholarship on the enforcement of international legal obligations often makes a fundamental division between horizontal (inter-state retaliation) and vertical (national court) enforcement mechanisms. This paper argues that such a division of treaty enforcement mechanisms fails to capture how horizontal and vertical enforcement relationships can be combined in one important scenario, where a state's acceptance of an obligation on their domestic courts to automatically enforce trade-based treaty obligations is matched by an abandonment by the state's trading partners of more common forms of retaliation-based enforcement mechanism. On the one hand, therefore, states allow their trade treaty obligations to be automatically enforced by domestic courts, while on the other, the beneficiaries of such a commitment in other states forego any rights to threaten trade sanctions to enforce treaty obligations. Such a diagonal enforcement mechanism is illustrated with examples drawn from the World Trade Organization, European Union, Andean Community, and NAFTA Side Agreements.