The United States lost a case before the World Trade Organization on September 15. A three-judge panel issued a comprehensive ruling on a charge from China that the US had arbitrarily raised tariffs on Chinese goods in violation of lawful trade policy.
A key finding, from the ruling: “(T)he United States has not adequately explained how the measures chosen by it are necessary to protect public morals, the United States has not met its burden of demonstrating that the measures are provisionally justified.”
In response, on Monday morning the United States appealed “into the void”. This is a term which has been used at the World Trade Organization since December 2019. It means that an appeal has been filed against a ruling, and the dispute, under the laws of the WTO, now goes to an appeals court which effectively no longer exists.
In 2019, the terms of two of the last three judges assigned to the WTO appeals court expired, and the United States, which has veto power, has systematically blocked the elevation of new members to what was originally a seven judge panel. This action began in 2016, when President Obama stopped two judges from being seated as a political maneuver to pressure the WTO to act more aggressively against China and on behalf of the United States. President Trump continued Obama’s policy, resulting in the WTO losing its ability to seat a full appeals court last year.
Since that time, many findings of the international court have been appealed to the nonexistent body, rendering the actual judgements useless save as moral victories. The WTO enforcement mechanisms are limited, in that they effectively recommend penalties like economic sanctions and request their member nations to enact them, but diverting all decisions to an appeals limbo negates even those meager weapons. Without finality there is no punishment.
In recognition of the inability of the WTO to conclude any case, China has already retaliated against the United States for its sanctions. The indefinite delay created by the appeal does little beyond serving to further diminish the image of the United States for the international community.
