WTO and U.N. Law: Institutional Comity in National Security

Abstract

This Article proposes a new theory for locating the World Trade Organization (WIO) in the larger transnational legal system. The theory would require "institutional comity" between the VITO and other equally significant institutions, in particular the United Nations, in the emerging global "constitutional" structure. Institutional comity would govern the conflicts between the VITO and United Nations, much as the traditional public international law concept of comity facilitates the management of analogous conflicts arising between sovereign nation states in the implementation of their regulatory policies. The theory of institutional comity presented in this Article accommodates the competing global interests in trade and security, as well as balances contending visions of national sovereignty and globalization. It also provides a more compelling account of the place of the WTO in international law than that currently available in WTO scholarship, which would treat the VITO either as a mere bargain among states or as having a quasi-constitutional status. The explanatory power of the institutional comity approach is revealed in analysis of the national security exception under the General Agreement on Tariffs and Trade (GA77), which the United States recently threatened to invoke before the WTO in the case concerning "Helms-Burton" sanctions against countries doing business with Cuba. The interpretation advanced by the Article would limit the so-called "self-judging" national security exception by permitting the VITO to look to the practice of the United Nations in questions relating to national security to identify objective indicia for whether a state invokes the exception in good faith.