By Manfred Elsig, Mark Pollack and Gregory Shaffer for the Washington Post
The World Trade Organization and its dispute-settlement system usually operate quietly in the background — but there was a great deal of controversy last month over an Appellate Body (AB) judge’s reappointment. What happened here is part of a larger trend, but what does it really mean for international courts? Here are three things to know:
1) What happened
The WTO system provides a legal forum in Geneva for states to file complaints against other members for alleged violations of WTO law. A three-member arbitration panel hears each appeal and issues its decision, with the possibility of appeal to the WTO’s Appellate Body, a seven-member independent court that takes the final decision on the meaning of WTO law and its application to WTO members. AB members, nominated and appointed by member governments, serve a maximum of two four-year terms.
But on May 12, the U.S. government announced that it would block the reappointment of South Korean Judge Seung Wha Chang to a second term. The Office of the U.S. Trade Representative (USTR) objected to Chang’s role in a series of decisions with which the United States disagreed. Although AB members issue rulings as a collective three-judge panel, the United States accused Chang of making “wrong” decisions, as well as decisions that went beyond what was needed to settle an individual dispute based on the parties’ specific arguments.
The international trade community responded quickly to the U.S. announcement. The South Korean delegation warned that the U.S. message “is loud and clear: ‘if appellate body members make decisions that do not conform to US perspectives, they are not going to be reappointed.’”
The other six AB judges sent a letter to Xavier Carim, the chairman of the Dispute Settlement Body, noting their concerns “about the tying of an Appellate Body member’s reappointment to interpretations on specific cases and even doing so publicly.”
All 13 living former AB members — including three from the United States — followed up with an equally strong warning that linking an AB member’s consensus on a particular decision to reappointment would jeopardize the credibility and integrity of the WTO’s dispute-settlement mechanism.
Indeed, the United States has come in for widespread criticism from other WTO members, with the European Union publicly criticizing the U.S. move as “unprecedented” and “a very serious threat to the independence and impartiality of current and future appellate body members.”
2) What’s at stake
What’s at stake here is not just the fate of Chang but the independence of the international judiciary, in the WTO and beyond. Social science and legal research has documented past episodes of the U.S. politicization of WTO judicial appointments, as well as examples of the politicization of international courts more generally.
Sure, many in the United States are accustomed to hearing political arguments about U.S. judicial appointments, particularly when a U.S. Supreme Court nomination is up for discussion. Elsewhere in the world, however, the process of judicial selection is generally less politicized.
At the WTO, selection of AB judges began in 1995 as a largely technocratic enterprise, but recent research makes clear that the WTO judicial appointment process has become progressively more politicized over the past two decades, with the United States playing the leading role in such politicization. Candidates for the Appellate Body have come under increasingly close scrutiny — and frequently are blocked if their previous writings appear problematic to the more powerful member states.
The politicization of WTO judicial appointments is aggravated by the fact that judges at the WTO (and most other international courts) do not enjoy life tenure but serve for short, renewable terms: nine years for judges at the International Court of Justice, six years for the European Court of Justice and a mere four years for the WTO’s AB judges. This means that most international court judges face the prospect of having their reappointments blocked, either by the states that nominated them (typically their home state) or by other states.
In 2011, the United States blocked the reappointment of Jennifer Hillman, a widely respected U.S. member of the AB, raising early concerns about the AB’s judicial independence. In 2013-2104, the the United States blocked consensus over James Gathii, a chaired law professor in Chicago who would have been the first and only black African on the Appellate Body. The WTO thus needed to restart the nomination process while the position lay vacant.
The U.S. action to block Chang’s reappointment is considered an escalation because for the first time it involves the reappointment of a non-U.S. judge. Over this period, the USTR even pressed to meet separately with AB judges who were up for renomination while the judge was sitting in cases in which the the United States was a party. WTO rules prohibit ex parte meetings, and the U.S. demands raised questions of legal ethics.
The very principle of judicial independence comes under attack when sitting judges are forced to contemplate the likely response of states with the power and the willingness to deny their reappointment at the end of a four-year term.
3) International justice is fragile
Looking at the bigger picture, the situation at the WTO’s AB is part of a broader backlash against international courts. In retrospect, the post-Cold War years of the 1990s represented something of a golden age for the creation and working of international courts, including the WTO AB, the International Criminal Court and a slew of regional economic and human rights courts in Europe, Latin America and Africa. Dispute settlement by international courts seemed to be the wave of the future, and the judges of those courts appeared as insulated and independent trustees, beyond the reach of member governments.
International courts, however, are coming under increasing assault from their member states in response to unwelcome rulings. In the past decade alone, states have launched increasingly virulent attacks on the European Court of Human Rights and the International Criminal Court, among others. And in the most far-reaching and disturbing set of cases, African governments undertook successful efforts to curb the East African Court of Justice and to suspend entirely the Southern African Development Community Tribunal in response to unwelcome human rights rulings.
International courts, it turns out, remain fragile. Although countries may agree in principle on the need for independent international judicial bodies to resolve disputes regarding human rights, trade and other issues in an increasingly globalized world, individual states (and, in particular, powerful ones) can and still do act to undercut them in light of perceptions of their (at least short-term) interests. The actions of particular administrations (such as the USTR General Counsel), however, can have long-term effects on the ability of international judicial bodies to function, and possibly undermine them. Whether the principle of judicial independence will survive in the WTO will depend on the actions of the United States and other WTO member states in the days and weeks to come.