The International Trade Regime And TheMunicipal Law Of Federal States:How Close A Fit?

Professor Stewart invites us to draw an analogy between the international legal regime and federal or federalizing systems like the United States and the European Community (EC). Certainly the United States and the EC, particularly after the adoption of the Single European Act,(1) have the capacity to effectively reconcile the twin goals of trade and environmental quality. Although there are counterexamples,(2) it is remarkable how seldom these dual aims, both of which promote public welfare, have come into conflict in either system with the vehemence they recently have exhibited on the international level. While law and practice in federal or federalizing systems may provide informative and helpful perspectives about the international legal system, we need to be extremely careful not to overextend the comparison. Unless Professor Stewart is advocating the creation of a supranational world government--a proposition he does not seem to assert--recent developments suggest the limits of the correlation between the inter- national regime and federal systems.The international system contains no rulemaking authority with sovereign powers analogous to the Congress of the United States or the Council of the European Communities.(3) Instead, the principal "legislative" process, the negotiation of multilateral treaties(4) like the General Agreement on Tariffs and Trade (GATT)(5) and international environmental agreements, proceeds according to the related principles of consensus and consent. As demonstrated by the GATT Uruguay Round(6) and the climate change convention opened for signature at the United Nations Conference on Environment and Development (UNCED)--the so-called "Earth Summit"--in Rio de Janeiro, Brazil in June 1992,(7) a single powerful nation like the United States can in some cases dictate the terms of a multilateral agreement or prevent its adoption altogether. When multiplied by the number of participating states, this dynamic can produce least common denominator results(8) that are not responsive to real-world problems like excessive trade barriers or threats from environmental externalities. In other cases, as demonstrated by the United States' decision not to sign the UNCED biodiversity convention,(9) states need not accept the obligations even in supposedly universal instruments. Other states, although signing a multilateral treaty, may encounter domestic political obstacles that prevent acceptance of the international obligations. The necessity for signature and, especially, ratification can delay(10) or, in extreme cases, preclude(11) the entry into force of a multilateral agreement.International enforcement mechanisms are of limited availability and efficacy. Professor Jackson suggests that GATT dispute settlement has "developed into a remarkably full procedure that has been largely, but not totally, effective."(12) Unfortunately, the same cannot be said with respect to international environmental obligations. Whatever reservations there may be about the efficacy of dispute settlement in trade agreements are magnified many times over in the environmental field.(13) In short--although we do not often admit it--the international system as currently structured invites the proliferation of holdouts, free riders, laggards, scofflaws, and defectors.This situation is not necessarily good or bad, right or wrong. It is, however, a practical reality that creates dynamics that are totally different from those in a federal or federalizing system. Professor Stewart notes(14) that there is no precedent in federal systems for the use of countervailing duties to offset disparities among national production processes. The reason for this is obvious. In a federal system, there are effective law-making and law-enforcement mechanisms that provide alternatives to unilateral measures that disrupt trade flows enacted by subsidiary governmental units. Indeed, federal systems like the United States and the EC can and do invalidate rules adopted by their constituent components that impede trade. …