The rhetoric coming out of Washington has been consistent: Listening to Joe Biden you could believe that Washington planned to forcefully and rapidly reengage with multilateralism and that, after Trump’s assertive isolationism, international cooperation would be high on the list of the new administration’s priorities. Eight months later, International Geneva is still waiting for the rhetoric to become reality. For a number of US allies and partners, patience is not only running thin but there is also a growing consensus that Biden’s foreign policy will in fact be more continuity than a rupture with Trump’s.
A case in point: This week at the WTO, the Biden administration refused to break with Trump’s legacy, deciding to oppose the nomination of new judges to the seven-member Appellate Body. This strikes at the very heart of the WTO, for the Appellate Body is the ultimate adjudicator of trade disputes. Citing concerns over its operations, Donald Trump had blocked any new nominations since 2016, but there have been high expectations that the Biden administration would abandon this hard line and, with allies and partners, work on reforming the Appellate Body (once reconstituted) from within. However, Washington wouldn’t be swayed.
In a closed-door meeting earlier this week, speaking on behalf of 121 members, Mexico once again introduced the group’s proposal to start the selection processes for filling vacancies on the Appellate Body. “The extensive number of members submitting the proposal reflects a common concern over the current situation in the Appellate Body, which is seriously affecting the overall WTO dispute settlement system against the best interest of members,” said the Mexican delegation.
During the meeting, over 20 delegates took the floor to reiterate the importance of resolving the impasse over the appointment of new members as soon as possible, and of re-establishing a functioning Appellate Body. They included the EU, the African Group, and the LDC Group.
When the US took the floor, it simply reiterated that it was not in a position to support the proposed decision to unblock the crisis, as the US continues to have “systemic concerns” with the Appellate Body, which it has explained and raised over the past 16 years and across multiple administrations. The US made it clear the WTO must go through fundamental reforms if the dispute settlement system is to remain viable and credible. The American delegation once more insisted it is ready for discussions with members on those concerns and open to “constructive engagement with members at the appropriate time.”
On behalf of the 121 members, Mexico again took the floor to argue that the fact a member may have concerns about certain aspects of the functioning of the Appellate Body cannot serve as a pretext to impair and disrupt the work of the dispute settlement system. The group claims that there is no legal justification for the current blocking of the selection processes, which is causing concrete nullification and impairment of rights for many members.
The chair of the meeting, Didier Chambovey from Switzerland, emphasized that resolving the impasse is of great interest to all WTO members and a matter which also requires political engagement by all members. Seasoned WTO watchers will feel like history is repeating: It was the 46th time the proposal to start the process for filling vacancies has been blocked.