Cloves Cigarettes case - Will the ban be lifted?

A lot has been written about the Cloves Cigarette dispute (DS 406) between the United States and Indonesia which relates to the ban on clove based cigarettes which the WTO found inconsistent with U.S. obligations under the WTO. The Appellate Body ruled against the ban and the U.S. has a "reasonable time" up to July 2013 to comply with the decision. In what manner would the U.S. comply has been a subject matter of intense academic discussion which I have attempted to capture here, here, here and here.

Found this piece titled "Losing Flavor:Indonesia's WTO Complaint against the U.S. Ban on Clove Cigarettes"  in the American University International Law Review, though written prior to the Appellate Body decision, rightly forecasts the decision and offers a four options for the U.S. to follow:

1.It can legislate the ban to apply equally across all flavored-cigarette categories. A blanket ban on all flavored cigarettes would ensure that all flavored cigarettes, regardless of where they were manufactured, would be consistent with the nondiscrimination principles of Article III:4, GATT.

2.It can create other regulatory tools that can potentially realize the policy goal of reducing youth smoking. Such regulations could include any combination of the following policies, as long as the United States implements them consistently across all types of flavored cigarettes: taxation, packaging guidelines, or educational programs.

3. It can treat all flavored cigarettes equally by placing a temporary moratorium on the sale of all flavored cigarettes pending the result of a congressionally mandated scientific study.

4.It  can institute a temporary ban on menthol cigarettes that would “sunset” after the conclusion of the scientific report. After a temporary ban sunsets, Congress can choose to extend or eliminate it entirely.

How would the U.S. comply in this case? Will there be a "political" or "legal" settlement of this dispute? Will negotiations be the way out? Political feasibility, domestic pressure, elections and interpretation of what constitutes "compliance" will determine the course of action. One would have to wait for 2013 for this one to get solved.

Compliance in international law and Domestic political compulsions

Why do countries comply with international law? In the context of the WTO, why do countries follow the rules of multilateral trade embodied in its various Agreements? Is the fear of retaliation and reputational risk the primary reasons for compliance? Is the consequence of non-compliance so strong that a country would prefer to comply with trade rules even though it has an impact on domestic interests? Is a "country" a single entity when it comes to compliance with international law or is there an amalgam of complex, divergent interests that guide a country's actions? Do domestic interests have a role to play in compliance with international rules?

Joel Trachtman has offered complex mathematical models to understand the underlying rationale for compliance to international rules in his article "International Law and Domestic Political Coalitions: A Grand Theory of Compliance with International Law". He has essentially argued that compliance with international law is essentially a result of varying domestic compulsions and the competing strengths of these compulsions determine compliance.

" Compliance by any individual state with an international legal rule is, in the final analysis, dependent on a political decision to comply made within that state‘s domestic political process. This domestic decision is both necessary and sufficient to result in compliance. While this decision is purely a domestic political decision, it is importantly influenced by international dynamics. These international dynamics will include the likely response by other states to a decision by the target state whether to comply. But importantly, these international dynamics are neither necessary nor sufficient to cause compliance. Their causal effects are always mediated through domestic politics."

Explaining the advantage of following this rationalist theory of compliance wherein a State's international obligations are primarily dependent on domestic compulsions, the author explains:

" A theory of formation and compliance with international law that focuses on the role of domestic political coalitions achieves important theoretical advances. First, as suggested above, it allows for the possibility of greater explanatory and predictive power than ―unitary state‖ theories of compliance. Second, it encompasses the role of individuals in domestic politics, and therefore moves toward a more liberal and cosmopolitan understanding of the role and dynamics of international law. A domestic coalition-based theory of international law transcends the state and examines individual preferences, but takes the state as the partial mediator of individual preferences.

On the other hand, it is clear that domestic politics about the formation of and compliance with international law is fundamentally different from most other domestic politics. This is because domestic politics about formation of and compliance with international law must concern itself with the responsive actions of other states. International law that involves commitments by other states by definition involves the contribution of value, or the taking of value, by other states. This difference contributes to a different political equilibrium from that which would be possible if the only exchanges of political value took place within the state."

It would be interesting to study particular cases of compliance to international trade rules in terms of the domestic interests having a role. For example, what domestic interests will have a role in influencing US compliance in the Cloves Cigarettes case or Tuna case? An amalgam of interests of public health activists, domestic sovereignty advocates and international law lobbyists would ultimately determine the decision to comply or not. In a way, this churning of domestic political interests is a positive development. It brings about internal political debate and transparency. However, domestic interests are unclear in certain cases. For example, what would the apparent "domestic interest" be in Honduras or Ukraine be to challenge Australia's Tobacco  plain packaging law? Interests of multinational corporations operating in a country too can be construed as constituting an influential "domestic interest".

I have often argued on this blog that there is no "unitary" national interest in international trade law. It is an amalgam of interests of exporting producers, importing manufacturers, traders, domestic consumers and the government. Whose interest prevails when a country takes a decision of compliance or non-compliance depends on a variety of factors concerning impact, influence and interest. A country's international compliance record is influenced by domestic compulsions. However, is there an overriding national interest? Can governments play a role in arriving at a national interest template keeping in view divergent and often clashing domestic, political interests? Can the government play the role of a neutral mediator? Is the government above the influences of such interests?