The Doha Declaration and beyond: giving a voice to non-trade concerns within the WTO trade regime.

• Author: DiMatteo, Larry A.

ABSTRACT

The World Trade Organization (WTO) has been a significant force in the liberalization of trade across international borders since its inception in 1995. Commentators suggest that its reforms have converted the focus of international trade policy from removal of barriers to positive policy-making--a field historically occupied by domestic authorities. And although largely successful in the promotion of international trade, the Authors suggest that the binding provisions of the WTO ignore non-trade concerns such as environmental protection, consumer rights, labor rights, and state sovereignty. The Agreement's inattention to these related concerns is the primary locus of criticism of the WTO, culminating in the breakdown of the 1999 Ministerial Meeting in Seattle, Washington. The Article examines the relationship between the Agreement and environmental, consumer protection, and labor policy, as well as the implications of WTO membership on state sovereignty. The Authors conclude that to improve the WTO's treatment of non-trade concerns, the WTO must increase participation to include non-trade stakeholders, develop and support expertise within the WTO to address nontrade concerns, and follow the "blueprint" articulated in the Ministerial Declaration at the Fourth Ministerial Conference in Doha. The Declaration recognizes the importance of non-trade concerns and suggests a course of action that is likely to require the WTO to more squarely address the relationship between trade and non-trade policy.

TABLE OF CONTENTS I. INTRODUCTION II. ENVIRONMENTAL CONCERNS FACED BY THE WTO A. The Impact of Environmental Regulation on Trade B. WTO Disputes Involving the United States C. Current Issues and Proposals D. Trade Measures in Multilateral Environmental Agreements E. Unilateral Use of Trade Measures F. Role of the Environment in Trade Agreements III. FREE TRADE AND LABOR CONDITIONS A. GATT and Labor Standards B. Core Labor Rights Debate C. Enforcing Labor Rights Using WTO's Unfair Trade Provisions D. Proposed Plan of Action 1. Labor Rights and Free Trade Stakeholders 2. U.S. Unilateral Efforts 3. MNC-Based Solutions IV. CONSUMER PROTECTION A. Theory of Consumer Benefits of Free Trade B. Consumer Criticisms of the WTO Regime C. Consumer Case Studies 1. Growth Hormone-Treated Beef 2. The Banana Trade Dispute 3. TRIPS and Third World Access to Life-Saving Drugs D. Challenges for WTO Reform in the Consumer Domain V. SOVEREIGNTY CONCERNS AND THE WTO A. Defining Sovereignty: The U.S. Perspective B. Sovereignty in the International Arena C. The Sovereign Status of the WTO 1. The WTO and National Sovereignty D. NAFTA and the WTO Compared E. Summary VI. RECOMMENDATIONS: BROADENING THE INTELLECTUAL BASE OF THE WTO A. Broadening the Participant Base to Include Non-Trade Interests B. Funding New Programs to Protect the Environment, Consumers, and Workers C. New Rules and Policies: The Doha Declaration as an Initial Step VII. CONCLUSION I. INTRODUCTION

The World Trade Organization (WTO) was established on January 1, 1995. It was the capstone achievement to the extensive negotiations (1) culminating the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). The WTO Agreements' (2) principal aim is to establish a free trading system in which one state's products and services are allowed to gain free access to the domestic markets of all other WTO member countries. The primary objectives of the WTO as recognized in the U.S.'s enactment of the WTO Agreements are "to obtain open, equitable, and reciprocal market access, eliminate barriers and other trade-distorting polices and practices, and [create] a more effective system of international trading disciplines and procedures." (3) The WTO Agreements fundamentally shifted the focus of the multilateral trading system from the mere reduction in trade barriers, mainly in the area of tariff reduction, to one of "positive rule-making." (4) The domain of positive rule-making had been previously regarded as the sole province of domestic economic regulation. The WTO Agreements, in essence, require "countries to adopt measures which hitherto fell within the universe of domestic economic regulation and thus reach deeply into the traditions and practices of domestic governance." (5) It is this intrusion into domestic governance that has become a linchpin in the anti-globalization movement. (6)

The WTO's binding provisions that define its scope and purpose largely ignore non-trade concerns (NTCs). Its monolithic mandate of liberalizing international trade generally does not allow the consideration of legal or ethical factors involving the environment, animal rights, consumer rights, labor rights, or sovereignty. The Agreement Establishing the World Trade Organization (WTO Agreement) (7) requires all member countries to "ensure the conformity of its laws, regulations and administrative procedures with its [WTO] obligations." (8) For example, the WTO settlement procedures allow Dispute Resolution Panels to declare municipal laws and regulations as illegal trade barriers. (9) The member country accused of "impairment" of its WTO obligations must either amend the noncomplying law or face WTO-authorized sanctions. This enforcement of its supranational powers, through WTO-appointed Dispute Resolution Panels, (10) has resulted in growing criticism that the WTO is a fundamentally undemocratic institution. Another feature imposed by the Uruguay Round that has worked to increase tensions between different interests is the "single undertaking requirement." (11) It mandated as a condition of membership to the WTO that a state comply and implement all of the Uruguay Round agreements. (12)

The impingement on national sovereignty through the operation of the WTO's Dispute Resolution Panels often coalesces around one of the previously mentioned substantive areas of controversy. For example, despite the existence of environmental exceptions in the WTO agreements, (13) national environmental protection laws have been challenged as unfair trade barriers. The protection of marine animals has been a favored target of legislation in the United States. The Marine Mammal Protection Act was enacted to protect marine animals such as dolphins, seals, and sea turtles. (14) A major emphasis of such laws is prohibiting practices that led to the slaughter of these animals. One prohibited practice is the fishing for tuna by placing fishing nets over schools of dolphin. (15) By using the dolphins as signals, millions have been killed in the tuna nettings. (16) In response, the United States passed a law requiring tuna manufacturers to label their cans as being "dolphin-safe." (17) The labeling requirement is intended to enable the environmentally conscious consumer to purchase accordingly. Similarly, turtles have been the unintentional victims of shrimp fishermen. In 1987, the U.S. National Marine Fisheries Service enacted rules requiring shrimp boats to be equipped with Turtle Excluder Devices (TED) that allow turtles to escape the shrimp nets. (18) Both the tuna labeling and TED measures have been challenged under WTO principles as discriminating against foreign fish and shrimp producers. (19)

The fair trade principles of the WTO dictate that a state can only band a product for safety or health concerns, but it cannot ban the process used to manufacture a product. (20) A state cannot ban the importation of a product simply because it was manufactured in a way that was harmful to the environment or wild animals. Thus, the U.S. dolphin consumer labeling program was held to be an illegal attempt to regulate natural resources outside the jurisdiction of the United States. (21) This was also the case for the Turtle Excluder Device. On a complaint filed by the countries of India, Pakistan, Malaysia, and Thailand, the WTO ruled that the law was a violation of U.S. WTO obligations. (22)

As mentioned in the above paragraph, the WTO Agreements recognize the individual countries' rights to set health and safety standards on imported goods. The WTO's position on such standards is in the Agreement on Sanitary and Phytosanitary Measures (SPS). (23) Although the SPS Agreement recognizes the rights of states to set health and safety standards, it admonishes that national standards aimed at consumer protection may not act as "disguised trade barriers." (24) This provision provides an avenue of attack against the denial of importation on the grounds that the standards of the country of import do not meet the requirements of the SPS. First, the state denying an importation must provide proof that the standard is based on scientific principles and is supported by sufficient scientific evidence. (25) Second, Article 5 of the SPS requires that a standard must not be "more trade-restrictive than required" to meet an appropriate level of protection. (26) Article 5 also provides that the determination of whether a standard is overly restrictive or not must take into account "technical and economic feasibility." (27) This requirement, more than any other, shows that the SPS is an agreement primarily aimed at reducing barriers to trade and not one aimed at enhancing consumer protection. It has been criticized as encouraging "downward harmonization." (28) This contention is supported by the fact that the burden is placed upon the country maintaining the health or safety standard and not the country challenging the standard. (29) For the future, it is vital that the WTO and the World Health Organization coordinate their activities to ensure that downward harmonization is prevented. The best way to do this is the development of minimal international health and safety standards that would be included in future trade agreements or incorporated into the existing WTO framework.

The need to incorporate NTCs in the next round of trade negotiations has been noted by some of the world's major trading countries. The European Union...