1.1 The fast pace of changes in the global economy and the resulting consequences on the law of international trade, particularly after the conclusion of the Uruguay Round of the GATT in 1994, have made anachronisms of commerce related national laws in several countries. Such laws were the results of predominant GATT inconsistent attitudes of largely protectionist character in a different era. As with old habits, old law die hard. Thus, all over the word, adjustments to the new international legal reality have become a necessity and the respective implementation a painstaking process.
1.2 I would like to thank the Inter-American Law Review for the invitation and for allowing me to choose this topic for today´s presentation, which I have done with the sole purpose of highlighting the magnitude of the obstacles to be encountered in the legal framework of different relevant national laws for a Free Trade Area of the Americas (FTAA) to be founded, as it must, on the rule of law.
1.3 The disproportionate size of the U.S. economy in the projected FTAA, as well as its past history of political isolation and economic unilateralism, warrant an in-depth study of the internal frame of US laws and how they relate to international law.
1.4 I have divided today´s presentation as follows:

1.4.1. This Introduction:
1.4.2 Types of international agreements under U. S. law;
1.4.3 The formation and implementation of treaties under U.S. law;
1.4.4 The Vienna Convention on the Law of Treaties and U.S. law;
1.4.5 The US trade legislation and the Section 301 of the Trade and Tariff Act; and
1.4.6 Conclusion.

2.1 Under United States law, a distinction is made
between treaties and other international agreements. In contrast, in international
law, both “treaties” and “executive agreements” are considered to be treaties
as that term is used in international law. This distinction bears significant
legal differences and relevant practical consequences derive domestically in the
United States as a result thereof.

2.2 The United States makes the following classifications of international
agreements under United States law: Treaties; Congressional Executive Agreements
and Presidential Executive Agreements.

2.2.1 Treaties. Pursuant to the United States Constitution, these must be procured through the advise and consent of the Senate.

2.2.2 Congressional Executive Agreements. These fall into two subcategories: “previously” or “subsequently” authorized. In previously authorized executive agreements, the Congress enacts legislation delegating to the President the authority to enter into such agreements. [1] In subsequently authorized executive agreements, the President seeks authority from Congress to accept his previously made agreement as a binding international commitment of the United States. [2]

2.2.3 Presidential Executive Agreements. Where the President accepts an agreement as binding on the United States without any congressional approval, by virtue of his inherent power under the Constitution. [3]

2.3 Federal statutes and treaties are deemed to be
of equal rank. Therefore, if a treaty and federal statute conflict with each other,
courts tend to construe the one made last in time as the operative law at the
time of a particular litigation. Both treaties and federal statutes prevail over
executive agreements in case of conflict. Additionally, treaties prevail over
state law. The U.S. Supreme Court case of Missouri v. Holland, 252 U.S. 416 (1920),
held that valid treaties prevail over state law, even if a U.S. federal statute
on the same subject might be considered an unconstitutional interference with
state power in the absence of the treaty.

2.4 Under the US Constitution, the President has “power, by and with the advice
and consent of the Senate, to make treaties, provided two-thirds of the Senators
present concur. [4]
The treaty power is thus divided between the executive branch and the legislative
branch of the United States government. The Senate´s role is to advise and consent
to a treaty; the President´s roles are to make and to ratify or accede to a treaty.
The Senate can attach a condition to its consent requiring that the treaty be
amended by the President, or that the President enter certain “reservations.”
The President may only ratify or accede to the treaty with the Senate´s changes.

2.5 The Senate´s Committee on Foreign Relations has exclusive jurisdiction over
treaties and executive agreements. The Committee prepares the resolution, which
gives the Senate´s consent to the ratification of the treaty. The Senate can base
its approval on conditions set forth in the resolution. Conditions can be amendments,
reservations, understandings, declarations, and statements (or provisos) and they
may be offered at any time during the Committee´s deliberations, or during consideration
in the full Senate prior to the vote on the resolution.

2.6 A majority vote is required in Committee and in the Senate for incorporating
a condition into the resolution. Adoption of the resolution then requires a two-thirds
vote in the Senate. The Senate has several options. It can amend, make a reservation,
issue a Senate “understanding” or “declaration” regarding the general issue, or
make “statements regarding related issues of United States law.”

2.7 After the Senate consents to a treaty, the President is free to ratify it.
Ratification is the formal process declaring the willingness of the state to be
bound by a treaty. Ratification is usually confirmed in a formal document called
an “instrument of ratification.” The President must give effect to all conditions
imposed by the Senate for its consent.

2.8 If the President decides that, under international law, the treaty cannot
be interpreted as the Senate has required, he has no authority to ratify the treaty,
unless the instrument of ratification is accompanied by express language conforming
to the Senate´s understanding. The instrument of ratification includes the title
of the treaty, the date of signature, the countries involved, and the languages

2.9 The President can also attach a statement of understanding or a declaration
regarding the Senate´s understanding of a treaty, even if the Senate did not offer
a formal reservation or understanding.

2.10. To be bound internationally, a country must exchange or deposit its instrument
of ratification. It is this international act of exchange or deposit which allows
the formal entry into force of a treaty, usually at a later specified date. Generally,
bilateral treaties are exchanged, whilst multilateral treaties are deposited.
If treaties are to be deposited, they usually state where and with whom.

2.11 When the necessary exchange or deposit has been completed and the treaty
has entered into force, the President issues a Presidential proclamation that
the agreement is in force. The proclamation of a treaty is a national act by which
the text of a ratified treaty is publicized.

2.12 After signing, the President returns the proclamation to the Secretary of
State, which will publish it with the treaty text in United States Treaties and
Other International Agreements, and register it with the United Nations Secretariat
pursuant to Article 102 of the UN Charter. Under Article 102, no party can invoke
a treaty agreement before any organ of the United Nations until it is registered
with the United Nations. [5]

3.1 Article VI of the United States Constitution, “The Supremacy Clause,” reads as follows:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.” [6]

3.1.1 Article III of the Constitution provides that cases arising under treaties
are within the Judicial Power of the United States. [7]

3.2 The framers of the U.S. Constitution adopted the aforementioned phrases
to minimize treaty violations attributable to the United States, a goal which
they hoped to advance through empowering the courts to enforce treaties at the
behest of affected individuals without awaiting authorization from state or federal

3.3 Whilst the Supremacy Clause appears to be dispositive of the effect to which treaties are to have on domestic law, the clause has been interpreted in a myriad of ways through judicial decisions since the signing of the Constitution.

3.4 Furthermore, although the Constitution mandates that treaties are to be regarded as “law”, and therefore enforceable by the courts without prior domestic legislation, this does not mean that treaties may be enforced by anyone at any time.

3.5 The principal controversy in interpreting the supremacy clause (and in fact the extent to which a treaty, or certain, provisions, may be operative under domestic law) arises from the distinction made between “self-executing” and “non self-executing” [8]
treaties, despite the fact that the clause itself makes no distinction between treaties as such.

3.6 Whether or not a treaty or executive agreement is self-executing (sometimes referred to as “directly applicable”) is a matter of constant interpretation of the American judicial system. In theory, the issue was decided in 1829 in the case of Foster v. Neilson, where Chief Justice John Marshall said, addressing the issue of a treaty´s domestic law effect, “Our Constitution declared atreaty to be the law of the land. It is, consequently, to be regarded in the courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not to the judicial department, and the legislature must execute the contract before it can become a rule for the court.” [9]

3.6.1 Foster v. Nielson was an ejectment action in which the plaintiffs claimed title to a tract of land in West Florida on the basis of a grant from Spain. The treaty by which sovereignty over the territory that included the disputed land was transferred to the United States provided in the English text that “the Spanish grants shall be ratified and confirmed to the parties in possession thereof.” [10]

3.6.2 The plaintiffs argued that their title to the property had been confirmed by the treaty and that the court was therefore required to recognize their title to the land. The Supreme Court, however, held that it could not recognize their title to the land until Congress enacted legislation confirming the grants.

3.6.3 The court in Foster v. Neilson regarded the question of whether the treaty operated of itself to be a matter of treaty construction. The court focused on the words of the treaty, stating that had the treaty provided that the grants were “hereby” confirmed, it would have confirmed the grants. However, it interpreted (in the English text of the treaty) “shall be ratified and confirmed” as contemplating a future act of ratification by the United States. As “shall be ratified and confirmed” was executory in nature, the provision had to be executed before the court would recognize the grants.

3.7 The decision in Foster v. Neilson thus created the first of many distinctions concerning the enforcement and applicability of treaties domestically, even after the precepts of the supremacy clause are accepted. Foster stands for the proposition that the general rule established by the supremacy clause, under which treaties are enforceable in the courts without prior legislation, is narrower than previously thought in that there is a presumption that treaties are not necessarily self-executing if they may be altered by the parties to the treaty itself.

3.7.1 Specifically, a treaty which otherwise might be self-executing pursuant to the supremacy clause, may be non self-executing where the parties to the treaty (or perhaps even the United States treaty negotiators alone), intended that the treaty´s object be accomplished through intervening acts of legislation.

3.8 Interestingly, a subsequent case stemming from the same treaty discussed in Foster v. Neilson, United States v. Percheman [11], appeared at the time to have reversed the Foster decision by interpreting the supremacy clause to include a presumption that treaties are self-executing. In Percheman, the Supreme Court was given a Spanish text of the treaty which provided, in pertinent part, that grants “shall remain ratified and confirmed.”

3.8.1 The Percheman court held that the language here did not “stipulate for some future legislative act” [12] and thus it could enforce the land grants without waiting for legislation to provide for such.

3.9 However, some 150 years after the Foster and Percheman cases, Judge Bork in his concurring opinion in Tel-Oren v. Libyan Arab Republic cited Foster for the proposition that “treaties of the United States…do not generally create rights that are privately enforceable in courts.[13]” Lower federal courts have subsequently held that Foster may be interpreted to create a presumption that U.S. treaties are not self-executing, notwithstanding the Percheman decision. [14]

3.10 The Restatement (Third) of the Foreign Relations Law of the United States (hereinafter referred to as the “Restatement”) [15]
summarizes very well the implications and repercussions of international law and international agreements as law of the United States:

1. International law and international agreements of the United States are law of the United States and supreme over the law of the several states.
2. Cases arising under international law or international agreements of the United States are within the judicial power of the United States and, subject to Constitutional and statutory limitations and requirements of justiciability, are within the jurisdiction of the federal courts.
3. Courts in the United States are bound to give effect to international law and to international agreements of the United States, except that a “non self-executing” agreement will not be given effect as law in the absence of necessary implementation.
4. An international agreement of the United States is non self-executing:

a. if the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation,
b. if the Senate in giving consent to a treaty, or Congress by resolution, requires implementing legislation, or
c. if implementing legislation is constitutionally required.” [16]

3.11 As alluded to in item 4.10 hereinabove, intent of the parties is one of the crucial factors which will be considered by a United States court when determining whether a treaty may be deemed self-executing, such that it may be enforced in a U.S. court. Recent court decisions, however, have expanded upon the notion of “the parties´ intent” to include one party´s intent as a basis for analysis of the treaty.

3.11.1 In an effort to obviate any doubt about a treaty´s status of being self-executing, United States treaty negotiators have recently added clauses to treaties through “declarations” which have expressed their intent that the treaty is not self-executing [17], and lower courts have even given conclusive weight to the aforementioned unilateral American declarations of non self-execution . [18]

3.12 Other sources of determination of “intent” accepted by American courts, in addition to that of both parties to the international agreement, have included intent of the United States treaty negotiators, the President in transmitting it to the Senate for its advise and consent, and even the Senate in giving its advise and consent. [19]

3.13 The Restatement apparently accepts the practice discussed in item 3.11.1 above, stating:

In the absence of a special agreement, it is ordinarily for the United States to decide how it will carry out its international obligations. Accordingly, the intention of the United States determines whether an agreement is to be self-executing in the United States or should await implementation by legislation or appropriate executive or administrative action. If the international agreement is silent as to its self-executing character and the intention of the United States is unclear, account must be taken of any statement by the President in concluding the agreement or in submitting it to the Senate for consent or to the Congress as a whole for approval, and of any expression by the Senate or by Congress in dealing with the agreement. [20]

3.14 In addition to distorting the principle established in the Supremacy Clause to focus on the unilateral intent of the United States, some lower federal courts have construed the “intent” issue to ask not whose intent, but rather the intent about what.

3.14.1 Accordingly, recent decisions have interpreted Foster and Percheman in a manner of establishing that, in the absence of evidence of an intent on the part the makers of the treaties to make them enforceable in courts of law, they are thus non self-executing and they will not be enforceable in the courts without prior legislative implementation. [21]

3.15 Regardless of the fact that it is entirely possible for some provisions of a treaty to be self-executing while others are not [22], many courts have taken an all or nothing approach in determining whether a treaty is self-executing and thus judicially enforceable in the United States without prior legislative implementation.

3.15.1 For example, The U.S. Court of Appeals for the Third Circuit found the treaty language, “Every country party to his convention undertakes to adopt, in accordance with its Constitution, the measures necessary to insure the application of this convention,” to reflect the parties´ intent that the treaty was not to be considered as self-executing. [23]

3.16 In addition to questioning the “intent” of the parties in determining whether or not a treaty is self-executing, many courts have looked at other factors as well. These additional factors create a second hurdle which must be overcome in enforcing a treaty provision in the U.S., even once it is established that the treaty is self-executing or the necessary legislation has in fact been implemented to give it effect domestically.

3.16.1 Other factors which courts will consider include: Whether the claim is “justiciable;” Whether the litigant has standing; and Whether the litigant has a “right of action”.

3.16.2 In an attempt to simplify their analysis of these additional issues, many courts have converted the issues into a formula composed of factors which they will consider in determining whether a treaty is self-executing. These factors include the following: The language of the agreement ; [24] The circumstances surrounding the execution of the agreement ; [25] The class of the agreement (addressing the group in which Constitutional treaties are classified) ; [26] The subject matter of the agreement ; [27] The history of the agreement ; [28] The historical purpose of the agreement ; [29] and The parties´ own “practical construction” of the treaty, i.e. their course of dealing . [30]

3.16.3 An example of the type of issue related to justiciability for which courts will often use the above factors is whether treaty provisions are meant to be obligatory on the parties or merely “precatory” (i.e. recommended or wistful thoughts or wishes, but not direct commands) in nature. American jurisprudence has taken great pains in showing that courts will not oversee actions for which there is no obligation to be imposed on the defendant.

3.16.4 In the context of treaties, U.S. courts, by applying justiciability analyses [31], are further expanding the concepts of non self-execution which was first brought forth in Foster.
3.16.5 It should be noted that the determination of what is and is not considered precatory language [32], and thus what constitutes self-executing and is judicially enforceable, is generally considered to be a matter of U.S. municipal Constitutional law. [33]

3.17 A final issue which American courts will consider in determining what effect to give treaties under United States law is whether private parties may pursue an action in court to enforce a treaty provision. This issue is often linked to the issue of whether a party has standing to sue.

3.17.1 Standing issues under United States law, as applicable to treaties, have yet to be fully enunciated by the courts. However, it is clear that there is no American doctrine which mandates that private parties may only enforce treaty provisions in court if the treaty itself provides for a private right of action. Nowadays, in bilateral as well as plurilateral international trade agreements, there is the robust tendency to allow private right of action. [34] Such a development is due to the lack of significant enforcement measures in international law and to the fact that it is often through national courts that international law is enforced. This is explicitly allowed by both the North American Free Trade Agreement, hereinafter referred to simply as NAFTA, as well as by the Common Market of the South, hereinafter referred to as MERCOSUL. [35]

4.1 The Vienna Convention on the Law of Treaties [36], which was concluded at Vienna on 23 May 1969 and entered into force on January 27, 1980, attempts largely to codify international law regarding treaties as well as, in a minor scale, to promote progressive developments in the area, focusing on such issues as conclusion, entry into force, observance and application, reservations, interpretation as well as invalidity, termination and suspension of the operation of treaties.

4.2 A distinction is drawn in international law between the international legal obligations of a state which is a party to a treaty and a state which is a signatory to a treaty. Under Article 11 of the VCLT, states may consent to be bound by a treaty through signature, exchange of instruments constituting a treaty, ratification, acceptance, approval, accession, or any other means if so agreed upon. [37]

4.2.1 The provisions of the VCLT are binding only on the parties to it. Further,
the provisions are applicable only to treaties entered into subsequent to the
VCLT´s entry into force. However, as many of its covenants were customary international
law [38], or have become
such, they are applicable to all treaties, even if the states concerned are not
parties to the VCLT. Indeed, those provisions of the VCLT which are not declaratory
of customary international law may constitute presumptive evidence of emerging
rules of international law.

4.2.2 Even those areas that were inserted in the VCLT for progressive development
rather than codification have, to a great extent, passed into the general corpus
of international law because of the sheer weight of its incorporation in the VCLT.
The most striking of these is the law on reservations (arts. 19-23) which didnot
represent universal practice at the time of its adoption. Similarly, the articles
on modification (arts. 40-41); some of the articles on invalidity and termination
and the rules on “Jus Cogens”. [39]

4.2.3 Indeed, the law on reservations is quite important, as article 19 of the
VCLT allows the formulation of a reservation unless:

a.- the reservation is prohibited by the treaty;
b.- the treaty provides that only specified reservations, which do no include the reservation in question, may be made; or
c.- in cases not falling under sub-paragraphs “a” and “b”, the reservation is incompatible with the object and purpose of the treaty. In addition, article 17 establishes that the consent of a state to be bound by part of a treaty will only be effective if the treaty so permits or the other contracting powers so agree.

4.3 Article 26 of the VCLT establishes the rule “pacta sunt servanda” in the law of treaties and the principle of good faith in international agreements. Article 27 determines that a sovereign state cannot invoke its internal law as an international legal justification for failing to perform its obligations under a treaty; and this rule is to be interpreted in conjunction with article 46 that disallows a state to invoke that its consent to be bound by a treaty has been expressed in violation of its internal law, unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

4.4 The United States, whilst a participant in the Convention itself and a signatory of the Convention, has not ratified the VCLT. On November 21, 1971, the President of the United States transmitted the treaty to the Senate for its consent to ratification, but thus far the Senate has not acted upon it. In considering whether to give their consent to the VCLT, the Senate Foreign Relations Committee sought to equate “treaties” as used in the Vienna Convention with “treaties” as used in the U.S. Constitution. The Senate declared that every agreement that is a “treaty” under the convention can be concluded as such by the United States only by the process prescribed for “treaties” under the Constitution. [40]

4.4.1 Senate´s position was rejected by the Executive branch. The Senate tried to uphold and reserve current American law which is conflicting “inter alia” to articles 12 (consent to be bound by a treaty expressed by signature) , 13 (consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty), 14 (consent to be bound by a treaty expressed by ratification, acceptance or approval), 19 (formulation of reservations), 24 (entry into force), 26 (pacta sunt servanda), 27 (internal law and observance of treaties), 31 (general rule of interpretation), 32 (supplementary means of interpretation), 42 (validity and continuance in force of treaties) and 46 (provisions of internal law regarding competence to conclude treaties) of the VCLT. The exception available under 46 would not be applicable to the United States, as it restricted to the manifest violations objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith.

4.5. As a result, the United States municipal law has numerous areas of inconsistency with international law, with respect to the domestic enforcement of international agreements, an area which is of great relevance in today´s world, particularly in connection with bilateral or plurilateral trade and investment agreements. As a result of such inconsistencies, ” the possibility arises that aUnited States court could come to a conclusion contrary to that of international law, and that such court decision would cause a breach of United States international obligations.[41]” This situation of obstinate refusal to limitation of its sovereignty by international law puts the United States in a singularly unique position in the international community. In contrast, for example, the United Kingdom is a party to the VCLT and, by the European Communities Act 1972, has incorporated the European Communities treaties into its national law, both of which represent an infringement of Parliament´s sovereignty. [42]5.1 General Legal Background.

5.1.1 Section 301 of the Trade and Tariff Act of 1974 [43] authorises the United States Trade Representative to investigate and sanction countries whose trade practices are deemed “unfair” to U.S. interests. It contains both mandatory and discretionary provisions and specific timetables for USTR action and originated as a revision to section 252 of the Trade Expansion Act of 1962 [44], which allowed the President to restrict import from countries that “unjustifiably” or “unreasonably” restricted U.S. exports. Section 301 also expanded the President´s authority to impose tariff and non-tariff import restrictions.

5.1.2 A series of amendments to Section 301 have been effected with the intention on expanding its scope as well as creating an arsenal of retaliatory actions with a view of ensuring the respective removal. Thus, the Trade Agreements Act of 1979 [45] amendments to section 301 set forth specific time frames for investigations and their final resolution therein. The Trade Act of 1984 [46] provided further amendments, such as requiring the preparation of an annual national trade estimate, as well as providing for self-initiation of 301 investigations by the USTR.

5.1.3 The most recent amendments, in the Omnibus Trade and Competitiveness Act of 1988 [47], transfer final decision making authority in Section 301 cases from the President to the USTR. Most significantly, the 1988 amendments require mandatory action when a foreign government´s policy is deemed “inconsistent” with its obligations under a trade agreement with the USA or is otherwise “unjustifiable”. “Unreasonable” and “discriminatory” practices on the part of a foreign government warrant retaliatory action on the part of the USTR. [48] The arsenal for action in the Trade Act of 1988 was inserted in the expansion of Section 301 to comprise three new categories: Super 301; Special 301; and telecommunications 301, all of which allowed the executive office to make sanctions in respect of the provisions therein.

5.1.4 Super 301 was intended to be a temporary measure in 1989 and 1990, but since integrated in U.S. law up to the present, in which the USTR was required to prepare, on schedule, a list of foreign trade barriers; a priority list of countries and their alleged “unreasonable” practices; a timetable for their removal; and in case of failure, a schedule for sanctions on the part of the U.S.A. Special 301 is very much similar to Super 301 in its methodology, but addresses specifically the field of intellectual property. Telecommunications 301, similar to the other categories, is designed to combat the “closed” nature of foreign telecommunications markets.

5.1.5 Amongs the sanctions available under Section 301 are the ability to suspend, withdraw or prevent the application of benefits of trade agreement concessions ; [49] impose duties or other import restrictions on foods; or impose fees or restrictions on the services provided by national of such foreign country for such time as the USTR shall deem appropriate [50]. Broad discretionary powers are conferred upon the USTR not only for imposing sanctions, but also to enter into “binding” agreements that commit such foreign countries to: a) eliminate, or phase out, the act, policy, or practice; b) eliminate any burden or restrictionÉ; or c) provide the U.S.A. with compensatory trade benefits . [51]

5.2 The Legality of Section 301 under International Law.

5.2.1 There are few doubts that the development of aggressive unilateralism in the U.S.A. in the early sixties with the enactment of the Trade Expansion Act of 1962 is intimately linked to the declining competitiveness of the U.S. economy on a global scale. The share of U.S. products in world exports fell from 17% in 1950 to 11% in 1980. [52] According to Bhagwati, ” the concerns with fairness of trade and with opening foreign markets arose in the early 1980s and must be traced, in subtle ways É., to the acceleration of import protectionism during the first term of the Reagan Administration.” [53] In 1985, “then, as a result of concerns over the huge U.S. trade deficits and mounting protectionist pressures, Congress began action on a new trade billÉ.. Many in Congress felt that strong action need to be taken to reduce the trade deficitÉ. Respondig to domestic pressures, the administration announced its support for “fair trade”, not just free trade.” [54] Subsequently, the U.S. administration compromised with Congress and cooperated with Congress in writing a new bill that would become the Trade Act of 1988.

5.2.2 Similarly, there is almost universal consensus that unilateral action taken based on Super 301 violates in at least three different ways basic norms of the General Agreement on Tariffs and Trade of 1947, hereinafter referred to simply as GATT 1947. In the first place, any retaliation based in the imposition of “ad valorem” tariffs applied selectively will violate the principle of the Most Favoured Nation (MFN) clause enshrined in article 1 of GATT 1947. Since such tariffs would be established at a level superior to that consolidated in the Uruguay Round of the GATT, then there would be a violation of article 2 as well. Thirdly, the fact the U.S.A. would at the same time be the self appointed prosecutor and jury of a foreign state in a tribunal not sanctioned by international law would represent a violation of a vast array of different norms.

5.2.3 During the Uruguay Round of the GATT, actions under the Super 301 were often justified with the argument that the multilateral system of the GATT did not allow for an efficient system of dispute resolution. [55] This view also substantiated US initiatives during the Round in order to modify dispute resolution within the GATT, which were endorsed by the international community, in the hope that the increased juridicity of the system would enhance the rule of law in international trade. [56] As a matter of fact, the increased respect for the rule of law in the Uruguay Round treaties was hailed by the then Director-General of the GATT as one of the respective three major achievements. [57]

5.2.4 Even with the upgraded dispute resolution system resulting from the Uruguay Round in place at the World Trade Organisation ( WTO), modelled very much along its suggestions, the U.S.A. has not ceased to resort to unilateral practices illegal under international law. According to a study prepared by the U.S. National Association of Manufacturers, in just a four year period ( 1993-1996), 61 U.S. laws and executive actions, targeting 35 countries, were enacted authorising unilateral economic sanctions for foreign policy purposes. [58] In addition, the U.S.A. continues to have the worst record in implementing adverse GATT-WTO dispute resolution decisions. [59]

5.2.5. Other major U.S. laws that could be used to impose economic sanctions are:

a.- The International Emergency Economic Powers Act (IEEPA) dated of October 28, 1977, and subsequently amended;
b.- The Trading with the Enemy Act (TWEA) dated of October 16, 1917 and subsequently amended;
c.- The Foreign Assistance Act of 1961, dated of September 4, 1961 and subsequently amended;
d.- The Arms Export Control Act (AECA) dated October 22, 1968, and subsequently amended;
e.- The Atomic Emergy Act from 1954 and subsequently amended; and
f.- The UN participation Act of 1945.6.1 In the United States, there are two thresholds to consider when analysing the legal status of international agreements and the respective enforcement thereof under domestic law:

a) the first is whether the international agreement is considered a “treaty” or a “presidential executive agreement”. Treaties are deemed to have the same hierarchy of federal laws, overruling the previous ones and being overruled by subsequent ones. [60]
Presidential executive agreements are subordinated to federal law. [61]
Both treaties and presidential executive agreements are deemed to be of higher rank than state laws [62] ; and
b) the second is whether the international agreement is “self-executing” or “non self-executing”. United States courts will not recognize “non self-executing” international agreements as local law and will deny the respective enforceability thereof. [63]
In the absence of very specific language as to the self-executing nature of an international agreement, any reference to “words of futurity” may be construed to signify that the treaty in question is not to be considered as self-executing. [64]

6.2. United States legislators, diplomats and trade negotiators have the basic thresholds referred to above always present in mind during the negotiation, execution and/or ratification of any international agreement. This attitude derives from an ingrained reluctance to place international law over municipal law and is to be found even in the case of treaties that, under domestic law, would revoke previous conflicting federal laws. This same reluctance has consistently been shared by members of the American Judiciary. An example, of this situation pertains to the United States internal legislation with respect to the implementation of the treaties of the Uruguay Round, which establishes in section 102 (a) that “no provision of any of the Uruguay Round Agreements, nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States shall have effect.[65]” In addition, nothing in such legislat on is to be constructed as limiting any authority conferred under any law of the United States including Section 301 of the Trade Act of 1974. Similarly, in connection with NAFTA, the apposite United States implementing legislation in section 102 (a) (1) reads that “no provision of the Agreement, nor the application of any such provision to any person or circumstance, which is inconsistent with any law of the United States shall have effect.” [66]

6.3 These examples partly explain why the United States Senate never ratified the VCLT, as it establishes, in article 27, that a sovereign state may not invoke the provisions of its internal law asjustification for its failure to perform a treaty. [67]

6.4 Such covenants inserted in the United States, NAFTA and Uruguay Round implementing legislation are flagrantly against international law in general and specifically against numerous provisions of the VCLT [68], including article 26 which establishes that “every treaty in force is binding upon the parties to it and must be performed by them in good faith”. This situation compromises deeply the position of the United States as a bona fides party in any international agreement and is further aggravated by the attempts of the United States to enforce its domestic laws [69] abroad, whilst eschewing acceptance of international law. Accordingly, recent report by the WTO Secretariat on the United States of America, for purpose of the trade policy review mechanism, indicated that the U.S. ´s multi-track approach (multilateral, bilateral and unilateral) to international trade policy can be a source of tension within the multilateral system. [70]

6.5 In today´s world, there is a trenchant tendency in international law to allow private right of action in bilateral as well as in plurilateral trade and investment agreements. [71] In such cases, domestic implementation of international law is essential for the enforcement of basic rights and assurance of fair competition. In a free trade agreement area, business cannot operate efficiently in an environment that does not permit such enforcement. Therefore, the referred to expedient, albeit constituting an illegal attitude of the United States, allows nationals of that country to enforce such international agreements abroad whilst preventing nationals of other countries enforcing the same in American courts against United States nationals.

6.6 The current legislative and judicial profile of the domestic legal implementation of international law and international agreements in the United States compromise substantially not only the country´s credibility as a responsible member of the international community, but the prospects of having it as a “bona fides” trade partner. For business in general, as outlined by the National Association of Manufacturers [72], “foreign companies and governments are understandably reluctant to enter into any long-term commercial relationship with U.S. companies if the threat of sanctions looms.”

6.7 From 1993 to 1996 only, all countries representing the major economies of the Americas, Brazil, Canada and Mexico ( in addition to others) have been subject to U. S. unilateral economic sanctions inconsistent with the GATT, in spite of the new dispute resolution mechanism of the WTO and of a similar credible system within NAFTA. Historically, Brazil, in particular has been, together with Japan and India, a favorite target of such unilateral measures, even with respect to the notorious balance of payment crisis of the 80´s, as well as a victim of US non-compliance with adverse panel decisions. Thus, it should be hardly surprising that public opinion in Brazil, as well as the government itself, are wary of a continued unilateral regime in the USA which is inconsistent with international law within the proposed FTAA.