The World Trade Organization's Anti-Discrimination Jurisprudence: Free Trade, National Sovereignty, and Environmental Health in the Balance

Abstract

The protests in Seattle and Genoa embody the growing controversy surrounding the World Trade Organization (WTO). The popular protest, which is echoed in the academic literature, centers on the tension between the free trade commitment of the General Agreement on the Tariffs and Trade (GATT) and domestic policies regarding such matters as environmental, health, consumer, and labor protection. The WTO and its related dispute resolution bodies have increasingly been confronted with challenges by importing trade partners claiming that environmental and health regulations violate multilateral international trade commitments. In a series of cases adjudicated by early GATT panels (pre-1995), and the newly formed WTO dispute settlement bodies (post-1995), an emerging jurisprudence has developed a framework for resolving such conflicts.

In this article we illustrate how this jurisprudential framework, and the cases that comprise it, articulate and apply an anti-discrimination norm that pervades the GATT. In applying the GATT's anti-discrimination norm, the WTO's jurisprudence strikes a balance between "free trade" and its sovereign members' pursuit of non-trade interests, some of which openly conflict with liberalized trade practices. This balancing accords with the fundamental structure of the GATT as a "negative integration" treaty, the character of which necessarily constrains the WTO's ability to undermine the sovereign policy choices of its contracting parties, particularly when those policy choices implicate public interest regarding values such as environmental and public health protection. If properly articulated and applied, we argue, the anti-discrimination jurisprudence of the WTO embodies a legitimate application of the trade principles by which the GATT contracting States agreed to be bound. In other words, the democratic legitimacy and other concerns raised by the protests and the general malaise associated with what has been loosely termed "globalization" are not implicated by the cases under review. While the liberalization of free trade raises highly complicated and legitimate concerns for domestic agendas on environmental health and other issues, the WTO anti-discrimination norm may root out protectionism, up to the point where the GATT intended domestic sovereignty to preempt supranational intrusion. That is not to say that the GATT is a wonderfully functioning treaty that does not implicate any concern for domestic sovereignty. The negative integration feature of GATT is a double-edged sword. At the same time as it shelters domestic measures from aggressive judicial review, it permits States to choose low levels of regulatory protection and uses this regulatory comparative advantage to attract manufacturers. How to address this and other problems associated with economic globalization lies beyond the scope of this Article, but is the subject of a forthcoming article.