Steve Charnovitz
At today's DSB meeting, press reports state that the US representative "charged that China and the EU, in calling for the continued use of Rule 15, were supporting what the U.S. sees as the Appellate Body’s blatant rule breaking." In addition, the US representative was reported to have complained that "we have heard today statements actively encouraging the Appellate Body to continue to break the rules set out in the DSU." Such USTR arguments, if they were actually made, demonstrate clearly the tendency of the Trump Administration to project its own addiction to rule breaking onto others and to improperly accuse judges and courts of breaking rules.
As the representative from China carefully and thoughtfully explained at the DSB today: Rule 15 "is in conformity" with the DSU and "has been applied on a number of occasions for over twenty years. These precedents have established a routine and customary practice agreed on by all WTO Members which, prior to the end of August 2017, the United States had never objected to."
The Trump Administration, of course, is free to change the US government's position regarding the validity or appropriateness of Rule 15. But as with any action by the Trump Administration, one has to ask what the motive would be in changing the US position so many years after the working procedure was established. Plainly, the motive of the USTR in raising this sham objection regarding the Appellate Body was to justify the false accusation that the Appellate Body has acted ultra vires.
The more the Trump Administration takes outlandish positions at the DSB, the more the United States will marginalize itself in the vital work of the WTO.
