Political support for trade liberalization, both in the general public and among elected officials, was badly undercut in past decades by a series of high-profile cases in which U.S. environmental laws were treated as non-tariff trade barriers. One can well imagine the same thing happening now that one WTO ruling has gone against U.S. restrictions on clove cigarettes and another case is being developed against Australian anti-smoking measures, as examined in the April 9 WTR (Vol.28 No.12).
On April 4 the Appellate Body (AB) of the WTO upheld a dispute-settlement panel’s finding in favor of Indonesia over the U.S. ban on clove cigarettes. Indonesia was challenging a U.S. law that imposed a ban on cigarettes that included flavorings or additives that would appeal to children, such as clove flavorings, but specifically excluded menthol-flavored cigarettes from the ban. In a related development, Honduras brought a complaint (DS435) against Australia to the WTO on April 4. The Central American tobacco exporter is challenging Australia’s Tobacco Plain Packaging Bill 2011 that requires all tobacco products sold in Australia to be in plain packaging without brands or logos starting December 1, 2012. It is aimed at discouraging the use of such products, particularly by underage consumers.
No matter what the legal merits of these cases, it is indisputable that the friends of free trade in general and the WTO in particular will not find it easier to make their case if the trade rules are seen as a means of undermining efforts to reduce teen smoking.
The most significant terms in the Dictionary of Trade Policy regarding labor, the environment, and related topics are as follows:
|Amicus Curiae||Multilateral Enviro. Agreement|
|Civil Society||Non-Governmental Org'n|
|Enlightened Self-Interest||Presence of Natural Persons|
|Fair Trade||Public Health|
|Forced Labor||Race to the Bottom|
|International Labor Organization||Sanctions|
|Internationally Recog'd Worker Rights||Social Clause|
|Jordan Standard||Social Dumping|
|Labor Rights||Sound Science|
|Liberalism||Suspension of Concessions|
|Marine Mammal Protection Act||Sustainable Development|
|Multifunctionality||Trade Adjustment Assistance|
|:: In the WTO||:: Environmental Agreements and ILO Conventions||:: U.S. Laws and Trade Agreements|
The principal provisions of GATT 1947 in this area are the general exceptions in GATT Article XX for measures that are "necessary to protect human, animal or plant life or health" (Article XX[b]), "relating to the products of prison labour" (Article XX[e]), or "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption" (Article XX[g]).
The number of multilateral environmental agreements (MEAs) is large and growing. The most controversial is the United Nations Framework Convention on Climate Change and its Kyoto Protocol. The first establishes broad principles and has been ratified by the United States, but the latter gives "teeth" to these principles and has never been submitted to the Senate. The United Nations Convention on the Law of the Sea (large PDF file) is another trade and environmental treaty that the United States has never ratified.
The following are, from the standpoint of trade policy, among the more significant of the remaining MEAs:
Among the more significant instruments of the International Labor Organization are the following:
The oldest labor provision in U.S. trade law is the prohibition of imports of the products of prison labor.
As for linking trade liberalization to labor rights and the environment, U.S. policy fluctuates with the shifting fortunes of the two parties. Democrats favor, and Republicans oppose, close links between these issues. For an example of the kinds of deals that may be demanded, see the May 10, 2007 agreement to the renegotiate the then-pending FTAs.
See also the North American Agreement on Environmental Cooperation and the North American Agreement on Labor Cooperation, the U.S. negotiating objectives on labor and environmental matters set by the Trade Act of 2002, and President Clinton's executive orders prohibiting acquisition of products produced by forced or indentured child labor and requiring environmental reviews of trade agreements.
There is much controversy over the investor-protection provisions, especially with respect fo investor-state disputes, in Chapter 11 of the North American Free Trade Agreement. Critics see these rules as favoring corporate over environmental interests.
Some U.S. import
and export compliance laws promote human rights and environmentalism. These include the