The international law gaze: America’s fist and the WTO Appellate Body

Abstract

Saturn Devouring His Son is a famous and disturbing painting by Francisco Goya that you can see at the Prado Museum in Madrid. (http://www.franciscogoya.com/saturn-devouring-his-son.jsp). It depicts the Greek myth of the Titan Cronus (Saturn), who, fearing to be overthrown by his sons, devoured each of them at birth, save one. Like Saturn, the United States seems to be attempting to devour the Appellate Body of the World Trade Organization (WTO), the jewel of the dispute settlement system of an organization that the United States much helped to give birth to. What is the United States doing? It is blocking the consensus within the WTO for the appointment or reappointment of Appellate Body members to the point that the Appellate Body has been forced to operate with a reduced number of members. You should not dismiss this policy as just a new expression of the tragicomedy that is taking place in Washington since January: the attack on the Appellate Body is one and the very same that the Obama administration put in place in 2016 when it blocked the reappointment of Seung Wha Chang, a South Korean Appellate Body member whom the United States thought of as having views that expanded the authority of the Appellate Body. (Alex Lawson, “US Playing with Fire in WTO Appellate Body Spat” QLAW360. May 24, 2016. https://www.law360.com/articles/799678/us-playing-with-fire-in-wto-appellate-body-spat). The action forced WTO members to elect another candidate, Hyun Chong Kim, at the end of 2016. However, he resigned to become South Korea’s Trade Minister in 2017, thus creating a vacancy again. Two other Appellate Body members, Ricardo Ramirez and Peter Van den Bossche, ended their second terms in 2017. The three vacancies have not been filled, due to the United States’ behaviour. For an institution of seven members, this situation is already severely affecting its operation