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Afterword: The “Trade and … ” Conundrum—A Commentary

Published online by Cambridge University Press:  27 February 2017

Debra P. Steger
Debra P. Steger*
Affiliation:
University of Toronto; former Director
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Extract

The issue of whether and how the trading system should deal with social and economic policies not strictly within the ambit of the WTO has been with us at least since the inception of the GATT in 1947-1948. It is not a new question. The problem, however, has become even more vexing since the 1970s, as tariffs became less important in trading relationships and governments struggled to respond to a proliferation of nontariff barriers to trade. I will argue, in this Afterword, that the question is not whether the WTO should or should not deal with the “trade and … ” subjects—trade and environment, trade and public health, trade and labor rights, trade and human rights, trade and competition, trade and investment, and trade and intellectual property, to name a few. It already does and has done so, in many respects, since 1948. The question I would pose is this: how should these so-called nontrade subjects be dealt with within the WTO system? And who should define the scope of WTO recognition/cognizance of these subjects: WTO member governments (the “Members”) or the quasi-judicial bodies of the dispute settlement system (the panels and the Appellate Body)?

Type
Symposium: The Boundaries of the WTO
Information
American Journal of International Law , Volume 96 , Issue 1 , January 2002 , pp. 135 - 145
Copyright
Copyright © American Society of International Law 2002

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References

1 Leebron, David W., Linkages, 96 AJIL 5 (2002)CrossRefGoogle Scholar.

2 Trachtman, Joel P., Institutional Linkages: Transcending “Trade and . . .,” 96 AJIL 77, 77 (2002)CrossRefGoogle Scholar.

3 Id. at 78.

4 Id. at 80.

5 Id.

6 Howse, Robert, From Politics to Technocracy—and Back Again: The Fate of the Multilateral Trading Regime, 96 AJIL 94, 96–97 (2002)Google Scholar.

7 Bagwell, Kyle, Mavroidis, Petros C., & Staiger, Robert W., It’s a Question of Market Access, 96 AJIL 56 (2002)CrossRefGoogle Scholar.

8 Frieder Roessler, former director of the GATT Legal Affairs Division, has also expressed concerns that the misapplication of the concept of nullification or impairment in WTO dispute settlement could have serious consequences. Roessler, Frieder, The Concept of Nullification and Impairment in the Legal System of the World Trade Organization, in The Legal Structure, Functions and Limits of the World Trade Order: A Collection of Essays, ch. 3 (2000)Google Scholar. Another former GATT legal adviser, Ernst-Ulrich Petersmann, has also advocated limited use of “nonviolation” complaints under Article XXIII: 1 (b) and abolition of “situation” complaints under Article XXIII: 1 (c). Ernst-Ulrich, Petersmann, The GATT/WTO Dispute Settlement System: International I Aw, International Organizations and Dispute Settlement, ch. 4 (1997)Google Scholar.

9 Charnovitz, Steve, Triangulating the World Trade Organization, 96 AJIL 28, 28 (2002)CrossRefGoogle Scholar.

10 Id. at 36, 43.

11 Howse, supra note 6, at 96.

12 Id. at 97.

13 Id.

14 Mat 112.

15 Id.

16 See, e.g., Bronckers, Marco C. E.J., More Power to the WTO? 4 J. Int’l Econ. L. 41 (2001)CrossRefGoogle Scholar.

17 Perhaps in the 1940s, emerging from the carnage of World War II and with grim memories of the Depression, negotiators were prepared to cede sovereignty over economic policymaking, generally, to international organizations in order to ensure that peace and security would be preserved. Legislators, however, had the final word. The ITO did not come into being because the United States Congress did not share that internationalist view.

18 See Diverging Domestic Policies and Multilateral Trade Integration, in Roessler, supra note 8, ch. 6.

19 Professor Robert Hudec, as a result of his extensive study of GATT dispute settlement cases, maintains that of the first 207 legal complaints filed in GATT between 1948 and 1990, only a handful involved claims of de facto discrimination under Article III, and the first affirmative ruling relating to a claim of de facto discrimination was in the panel report in Japan—Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic Beverages, Nov. 10, 1987, GATT B.I.S.D. (34th Supp.) at 83 (1988). Hudec, Robert E., GATT/WTO Constraints on National Regulation: Requiem for an “Aim and Effects “ Test, in Essays on the Nature of International Trade Law, ch. 12 (1999)Google Scholar. See generally Hudec, Robert E., Enforcing International Trade Law: The Evolution of the Modern GATT Legal System 373–585 (1993)Google Scholar.

20 Roessler, supra note 18, at 119.

21 See the following Appellate Body reports: Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WTO Doc. WT/DS161/AB/R, WT/DS169/AB/R, para. 137 (Dec. 11, 2000) (adopted, Jan. 10, 2001) [hereinafter Korea–Beef]; Canada—Certain Measures Affecting the Automotive Industry, WTO Doc. WT/DS139/AB/R, WT/DS142/AB/R, paras. 78,140–42 (May 31, 2000) (adopted, June 19, 2000); European Communities-Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/AB/R, para. 233 (Sept. 9, 1997) (adopted Sept. 25, 1997).

22 United States—Taxes on Automobiles, WTO Doc. DS31 /R (Oct. 11,1994) (unadopted panel report); United States—Measures Affecting Alcoholic and Malt Beverages, June 19,1992, GATT B.I.S.D. (39th Supp.) at 208 (1993).

23 See , in particular, Japan—Taxes on Alcoholic Beverages, WTO Doc. WT/DS8/AB/R, WT/DS10/AB/R,WT/DS11/AB/R, at 18 (Oct. 4,1996) (adopted Nov. 1,1996). The Appellate Body set forth its interpretation of “like products” in Article 111:4 of the GATT 1994 in its recent report in European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WTO Doc. WT/DS135/AB/R, paras. 84–154 (Mar. 12, 2001) (adopted Apr. 5, 2001) [hereinafter EC—Asbestos].

24 Korea—Beef, supra note 21, paras. 152–85; United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/AB/R, paras. 111–60 (Oct. 12,1998) (adopted Nov. 6,1998) [hereinafter U.S.—Shrimp].

25 See United States—Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 of the DSU by Malaysia, WTO Doc. WT/DS58/AB/RW (Oct. 22,2001) (adopted Nov. 21,2001); EC—Asbestos, supra note 23; U.S.—Shrimp, supra note 24.

26 Charnovitz, Steve, The Moral Exception in Trade Policy, 38 Va.J. Int’l L. 689 (1998)Google Scholar.