Steve Charnovitz
3 December 2019
I was delighted to see the open letter from two current and one former member of the Appellate Body disputing yesterday's news item that various Appellate Body members are seeking the ouster of the Director of the Appellate Body Secretariat.
When I wrote my post yesterday "Comments on the Appellator Graham Affair" I directed my remarks only to Graham and not to any of the other Appellate Body members who were mentioned in the news item. I am not surprised to hear that the news item contained misrepresentations and misinformation. To repeat what I said in my post yesterday, I hope that the allegations about Graham are also untrue.
The rapid denials by three appellators (not including Graham) should be another reminder to the WTO community of how successful the Appellate Body experiment has been. Looking back to 1995, the individuals elected by the WTO to be appellate judges have served with distinction and honor. I can't think of any international court where the quality of judging overall has been as good as it has been on the Appellate Body.
Therefore, I am constantly amazed at the public relations success of the Trump Administration in getting its anti-Appellate Body narrative accepted, in the absence of any evidentiary basis. It is now a commonplace that Appellate Body members go to work every morning thinking about how they can exceed their mandate, engage in judicial overreach, deny rights, and add obligations. The Trump Administration has accused the Appellate Body of becoming a rogue organization that routinely breaks the rules and people who should know better assume that the Administration is telling the truth. If the Trump Administration's story is to be believed, the WTO appellators perform so badly in their role that they operate beyond the pale of how national or international judges perform. And the most remarkable charge in the US indictment of the runaway Appellate Body is that for 24 years WTO members persist in selecting by consensus new WTO judges who immediately begin to commit the identical judicial errors (such as following precedent) that were made by the previous judges on the Appellate Body.
For the Trump Administration, the WTO Appellate Body was an ideal target to bully and denigrate because WTO appellators would behave as international judges and not fight back. But why have the supporters of the rule of law not fought back?
