Following up on Senator Portman's speech discussed here, Senators Portman and Cardin have introduced bipartisan legislation "to revoke free trade privileges from Russia and other countries that invade sovereign nations." They explain that "[t]he No Trading with Invaders Act would automatically revoke Permanent Normal Trading Relations (PNTR) for any Communist, or formerly Communist, country that commits an act of aggression against another member of the World Trade Organization (WTO)." (There is also a Global Magnitsky Human Rights Accountability Act component to the legislation, but I'm going to focus here on the trade part).
The legislation itself is here. The key trade provision is as follows:
SEC. 2. WITHDRAWAL OF NORMAL TRADE RELATIONS TREATMENT FOR COUNTRIES OR TERRITORIES THAT COMMIT ACTS OF AGGRESSION.
(a) WITHDRAWAL OF NORMAL TRADE RELATIONS TREATMENT.—
(1) IN GENERAL.—Notwithstanding any other provision of law, effective on the date of the enactment of this Act, if the President determines that the government of a subject country or territory has committed an act of aggression in violation of international law, that the President does not consider to be a legitimate act of self-defense, against a WTO member, the President shall deny nondiscriminatory treatment (normal trade relations) in accordance with paragraph (2) to products of that country or territory.
(2) DUTY RATES APPLICABLE.—If the President makes a determination of aggression under paragraph (1) with respect to a subject country or territory, not later than 15 days after that determination, the President shall, by proclamation, cause all products of that country or territory to be dutiable at the rates set forth in the column 2 rate of duty column of the Harmonized Tariff Schedule of the United States.
(3) REQUEST BY CONGRESS FOR DETERMINATION.—If the President receives from a relevant congressional committee a request to make a determination under paragraph (1) as to whether the government of a subject country or territory committed an act of aggression in violation of international law against a WTO member, the President shall make such a determination not later than 15 days after receiving the request.
(4) DETERMINATION OF NON-AGGRESSION.—If the President determines that the government of a subject country or territory has not committed an act of aggression in violation of international law against a WTO member, whether pursuant to a request by a relevant congressional committee under paragraph (3) or otherwise, the President shall brief each relevant congressional committee on the justification for such a determination.
(b) RESTORATION OF NORMAL TRADE RELATIONS TREATMENT.—
(1) IN GENERAL.—The President may restore nondiscriminatory treatment to products of a subject country or territory with respect to which such treatment has been withdrawn under subsection (a) on and after the date that is 30 days after the date on which the President certifies to Congress that—
(A) the subject country or territory has ceased committing acts of aggression in violation of international law towards the WTO member that led to the withdrawal of such treatment and has fully removed its armed forces or proxy forces from the WTO member; and
(B) the WTO member has fully regained its sovereignty and territorial integrity as in existence in that country before the commencement of the acts of aggression in violation of international law.
(2) CONSULTATION WITH CONGRESS.—Before making a decision to restore nondiscriminatory treatment under paragraph (1), the President shall consult with each relevant congressional committee to determine whether the conditions of that paragraph have been satisfied.
(c) DETERMINATION OF ACTS OF AGGRESSION.—For purposes of this section, the President shall consider an act of aggression in violation of international law by a subject country or territory against a WTO member to include—
(1) an invasion of the territory of the WTO member by the armed forces or proxy forces of the subject country or territory;
(2) the occupation of the territory of the WTO member by the armed forces or proxy forces of the subject country or territory; or
(3) any other armed attack by the armed forces or proxy forces of the subject country or territory on the WTO member.
(d) DEFINITIONS.—In this section:
(1) RELEVANT CONGRESSIONAL COMMITTEE.—
The term ‘‘relevant congressional committee’’ means any of the following committees:
(A) The Committee on Finance, the Committee on Foreign Relations, or the Committee on Armed Services of the Senate.
(B) The Committee on Ways and Means, the Committee on Foreign Affairs, or the Committee on Armed Services of the House of Representatives.
(2) SOVEREIGNTY.—The term ‘‘sovereignty’’ means the international independence of a state, including its right to regulate its own internal and external affairs without foreign dictation, such as by conducting free and fair elections.
(3) SUBJECT COUNTRY OR TERRITORY.—The term ‘‘subject country or territory’’ means a country or territory that is or was at any time subject to the provisions of chapter 1 of title IV of the Trade Act of 1974 (19 U.S.C. 2431 et seq.).
(4) WTO MEMBER.—The term ‘‘WTO member’’ has the meaning given that term in section 2 of the Uruguay Round Agreements Act (19 U.S.C. 9 3501)).
So you would start with a presidential determination (which Congressional committees can request) that a government "has committed an act of aggression in violation of international law, that the President does not consider to be a legitimate act of self-defense, against a WTO member." After this determination is made, the President "shall deny nondiscriminatory treatment (normal trade relations)," in particular, the President "shall, by proclamation, cause all products of that country or territory to be dutiable at the rates set forth in the column 2 rate of duty column of the Harmonized Tariff Schedule of the United States." As one law firm puts it, Column 2 is the “bad boy” duty rate "that the US charges on imports from countries which we do not have normal trade relations with" (e.g. Cuba and North Korea).
Normal trade relations can be restored if acts of aggression stop and sovereignty and territorial integrity have been restored.
One part of this I'm not sure I understand is that the press release says this applies to "any Communist, or formerly Communist, country." But the legislation seems broader than that. If Canada were to invade Mexico, to take a ridiculous example, could this legislation be applied to withdraw NTR from Canada? (I'm going to ignore any suggestions that Canada, with its universal, government-run health care system is actually socialist!). That makes me wonder how this legislation would be applied to the various other military conflicts going on around the world.
Finally, unlike the earlier Blumenauer/Doggett bill, there is nothing in this legislation about trying to kick countries out of the WTO, which seems like it would be a political challenge.
UPDATE:
I missed this from the definition provisions: "The term ‘‘subject country or territory’’ means a country or territory that is or was at any time subject to the provisions of chapter 1 of title IV of the Trade Act of 1974." So, that means the statute is limited to the countries covered by the Jackson-Vanik amendment, and my hypothetical concerns about a situation in which Canada invaded Mexico were misplaced.
