April 2006, Volume 92, Issue 2
Rule-Based Dispute Resolution in International Law
by Rachel Brewster
92 Va. L. Rev. 251 (2006)
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This Essay examines why the United States government demanded a more rule-based dispute settlement system in the World Trade Organization ("WTO"). American support for a trade court limiting its international bargaining power is puzzling, particularly given the United States' general resistance to international courts and obvious advantage in a negotiation-based system. Access to the United States' market is one of the primary benefits of membership in the WTO and, by limiting access to its market, the United States can resolve trading disputes on favorable terms. Why would the United States give up this flexibility in favor of a strong international court?
This Essay addresses both the puzzle of the United States' preference for rule-based dispute resolution and the broader implications for international law. It argues that the WTO system strengthens the President's hand in trade policy negotiations with Congress. The United States' preference - or more specifically, the President's preference - for a rule-based system derives, in part, from the President's efforts to gain greater control over trade policy at the national level. A trade court imposes an international constraint that actually increases the President's power over lawmaking at home. The Essay then turns to the broader implications for international law. It shows how domestic actors, such as the President, may use international law to try to change domestic politics. International law influences state interests by shifting bargaining power among different players within the government and thereby changing the outcome of domestic politics.
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