In short, within the context of trade liberalization, the trade community frequently argues that environmental damage coupled with trade liberalization is bad environmental management, not bad trade policy. While there may be truth in this, the maintenance of trade distortions can be both bad trade policy and bad environmental policy. Possible solutions include improved market access for the exports of developing countries to promote growth, coherent policies at the national level with respect to trade and the environment, technical assistance from organizations with environmental expertise, and special attention to “win-win-win” scenarios in future WTO negotiations. Implementing such a strategy does not require changing WTO rules, something that past experience shows is almost unachievable outside any new round of negotiations. What is required is a change in priorities for further negotiations, coupled with a more coherent approach to trade liberalization and environmental protection at the national and international levels.

Who’s the Boss?

Aside from trade liberalization, WTO rules are also fiercely criticized by environmental groups, which consider them an unwanted intrusion into the domestic affairs of sovereign states. These groups claim that such rules impede the proper workings of democratically elected governments by, for example, denying nations the possibility of restricting the importation of goods that were produced in an environmentally unfriendly manner. Some also argue that the WTO is a nondemocratic institution, unaccountable and unresponsive to public concerns with rules that are neither in the public interest nor decided upon through a transparent process.

While there have been numerous proposals for greater NGO involvement in WTO affairs, the reaction of governments to substantially changing the intergovernmental character of the WTO has been negative at best and hostile at worst. A visit to the WTO website reveals that there has been a remarkable response to calls for increased transparency. Defenders of the WTO rarely deny past (non-transparent) practices, but indicate that an inspection of the WTO website (with over 400,00 visits a per month and over 100,000 documents available) reveals there has been a remarkable response to the calls for increased transparency on the part of NGOs. NGOs’ ability to participate in WTO affairs, on the other hand, has not changed. Contrary to the views of many NGOs, member governments argue that the WTO’s processes are surprisingly democratic. Rules are created by a consensus of the officials or ministers of member countries and are then ratified by domestic parliaments or other relevant national bodies. As far as public interests are concerned, governments may not satisfy every one of their interests in the trade negotiations. But trade-offs are made in every negotiating process, and the WTO process assumes that government representatives have had their chance to best advance the interests of their nations. If national interests are not fairly represented in intergovernmental negotiations, fundamental questions relating to representation, advocacy, and the legitimacy of a state to act on behalf of its citizens will inevitably be raised. Importantly, however, it may represent a lack of the appropriate domestic infrastructure to ensure that national interest groups are properly informed and consulted. If this is the case, then reform at the national level is certainly appropriate. Those defending the status quo further argue that any governments that unwittingly joined the WTO and have since become dissatisfied can withdraw at will merely by offering written notification six months in advance. This has never happened in either the WTO or GATT, nor has any government ever expressed a desire to do so. On the contrary, 30 countries are attempting to join the WTO.

Many of the suggested reforms to WTO rules would profoundly change the nature of the WTO and its role in international affairs. Some, for example, involve a reinterpretation of nondiscrimination, the very foundation of the rules-based trading system. With very few exceptions (such as WTO rules relating to intellectual property rights), the general interpretation of nondiscrimination in the WTO is that products that are physically the same are “like products” and cannot be discriminated against because of the manner in which they were produced. Most-favored-nation treatment—a pillar of the multilateral trading system—means that the most favorable treatment offered to any country must be offered to the like products of any other WTO member. From a trade-policy perspective, goods produced in an environmentally unfriendly manner (or without respecting core labor standards or other social norms) are just like similar goods produced in less socially responsible ways. From an international-relations perspective, these rules serve to minimize encroachments on national sovereignty, when powerful countries ride roughshod over less powerful ones by forcing them to produce goods according to environmental or other standards. In this sense, the WTO is the antithesis of the supranational body it is frequently accused of being.

Resisting Mission Creep

Maintaining the status quo is naturally of the utmost importance to developing countries, which, like other countries, consider discrimination based on how they produce their goods as an infringement on national sovereignty and, in many cases, thinly disguised protectionism. At the same time, the thought of importing and consuming products that have degraded the environment through the excessive emission of greenhouse gases, loss of biodiversity, or deforestation is anathema to public-interest groups concerned about the global environment. This puts developing countries on a natural collision course with many NGOs and adds to the urgency of finding a solution to the problem of reconciling different views as to how the WTO should deal with production and other standards.

In fact, the problem is not the use of trade measures as such to enforce standards. Restrictions on trade in stolen goods, endangered species and ozone depleting substances have been accepted without controversy as governments have agreed to the conditions under which trade can be restricted. The problem of trade discrimination arises when agreements are not in place that set the universally accepted standards according to which trade measures can be applies, whether they are agreed standards for fishing practices to protect endangered species such as turtles or other environment-related concerns that have gravitated to the WTO in recent years. The importance of how proposals to seek the enforcement of such non- universally held standards through WTO approved trade discrimination cannot be understated. After all, according to many, former President Clinton contributed significantly to the demise of the Seattle Ministerial meeting by making the link between trade discrimination and the non-respect of core labor standards. Further, it would be hard to imagine China having a continued interest in acceding to the WTO, if its products could be legally discriminated against when certain environmental or other social norms were not met. One of China’s principal motivations for joining the WTO is the desire to end a long history of being discriminated against for precisely these reasons.