As Thucydides taught in his Melian Dialogue, there are always those who believe that might makes right. The human struggle has long been to prove that it does not. Our tool in this struggle is the rule of law. Through the rule of law, right becomes might. Long a champion of the international rule of law, the United States of America, under the leadership of President Donald Trump, has now embraced the belief that might makes right, and is using its might to unmake right by assaulting the rule of law in world trade. Trump, and those who serve him, are taking illegal, unilateral actions and pursuing other trade policies that circumvent and threaten to undermine the rules-based world trading system. They are also engaged in a stealth war against the continued rule of law in the World Trade Organization (WTO) dispute settlement system through intimidation of those who serve at the apex of the system: the judges on the WTO Appellate Body. The other members of the WTO must not yield to the unilateral ultimatums of the Trump administration or to its actions of intimidation that threaten to halt WTO dispute settlement. In the near term, the other WTO members should circumvent the recalcitrance of the United States by using arbitration under article 25 of the WTO Dispute Settlement Understanding as an alternative form of WTO dispute settlement. In the long term, they should eliminate the possibility of intimidation of WTO judges by the United States, or by any other country, by removing the design flaw of the possibility of reappointment to a second term for any member of the WTO Appellate Body. At the same time, the Appellate Body should be recast as a full-time, standing tribunal of judges who will serve longer single terms and will have the resources sufficient to improve the performance of the WTO dispute settlement system. These changes in the WTO in the near term and in the long term will prevent might from unmaking right in world trade.
