By Nicholas A. Ashford
The North American
Free Trade Agreement (NAFTA) and the agreements administered by the World Trade
Organization, particularly the General Agreement on Tariffs and Trade (GATT)
and the Technical Barriers to Trade (TBT), were adopted to promote
international trade and increase the economic benefits there from.
Harmonization of environmental, health, and safety, and (EHS) standards and
practices was generally not the goal of these agreements, except perhaps for
the TBT agreement, which was predicated on EHS standards being based on “strong
science” that could result in uniformity dictated by rigorous scientific
consensus focused on risk assessments.
NAFTA does not pretend to aspire to
harmonization of EHS standards and practices, but rather to encourage its three
North American countries to enforce their own laws that differ in their approach
to health, safety, and the environment. In the GATT, exceptions to “non-tariff
barriers” are specifically reserved to those measures in national law that are
necessary to protect human, animal or plant life or health; necessary to secure
compliance with other laws or regulations that are not inconsistent with the
provisions of the GATT; and that pertain to conservation of exhaustible living
and nonliving natural resources. Rather than leaving the impression that EHS
standards have generally been “declared a barrier to trade,” Pfotenhauer might
have instead emphasized that the ban of certain asbestos products by France was
actually declared permissible in a case brought by Canada against the European
Union and that the U.S. ban on shrimp caught along with endangered turtles
would have been regarded as permissible were it not for the fact that the
United States did not treat restrictions on shrimp imports from Asia the same
as the imports of shrimp from other countries.
These are very important decisions
of the WTO under the GATT that are likely to be controlling legal precedent in
future disputes. Particularly relevant is the established principle from these
cases that nations are entitled to set their own precautionary degree and
nature of protection in their EHS standards and practices without violating WTO
trade agreements.
However, most
disturbing was the opinion of the WTO appellate board in the asbestos case that
the dispute should have been decided under the TBT agreement, rather than under
the GATT. Under the TBT agreement, as mentioned above, technical standards are
to be based on “science,” although uniformity among nations is not required. To
the extent that what comprises strong science might be agreed on by scientific
bodies employing traditional scientific standards for compelling evidence, a
compromise of the precautionary principle might well be expected, and
uniformity could theoretically emerge, although the latter is not guaranteed.
The GATT and the TBT agreement are widely acknowledged to be in conflict with
respect to the extent of precautionary action permitted under each.
Finally worth
mentioning is the political influence that lobbying efforts by U.S. companies
have had and continue to have on the adoption of European Union EHS standards
and practices. This was most obvious in the case of the European Union’s
Registration, Evaluation, Authorization and Restrictions of chemicals and the
current flurry of activity in Brussels in the energy and global climate area.
Of course, one might say that trade policy has always been political, but when
commercial and economic interests are allowed to trump legitimate and serious
concerns about health, safety, and the environment, including those related to
energy production and global climate problems, advocates for the environment
and public health should press for adequate protections that are not held
hostage to these commercial interests. The devil of the U.S.-EU trade agreement
will ultimately be in the details of the agreement still to be worked out.
About The Author:
Nicholas A. Ashford, Professor of
Technology and Public Policy
Director, MIT
Program on Technology and Law
Massachusetts
Institute of Technology
Cambridge, MA
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Publication Details:
ISSN: 0748-5492 / 1938-1557
Citation: Ashford, Nicholas A. "Trade
Policy."
Publisher: National Academy Press
Version: Original manuscript
Terms of Use: Creative
Commons Attribution-Noncommercial-Share Alike
Detailed Terms: http://creativecommons.org/licenses/by-nc-sa/4.0/
Published As: http://www.issues.org/30.2/forum.html
Journal: Issues in Science and Technology