Eligibility Criteria for U.S. Trade Preference Programs
From a statement by USTR General Counsel Tim Reif to the House Committee on Ways and Means Subcommittee on Trade, related to the eligibility criteria for U.S. trade preference programs:
First, the criteria were intended to and have achieved four core goals: (1) strengthened the rule of law in beneficiary countries; (2) provided incentives for sensible policies and policy reforms; (3) promoted development; and (4) improved the operating environment for U.S. exporters in the beneficiary countries. There are numerous examples:
In response to a GSP review, Swaziland ratified a new constitution and amended its Industrial Relations Act to strengthen labor rights.
In response to GSP and AGOA reviews, Uganda enacted comprehensive labor reform, established a new industrial court to address labor issues, and has undertaken to assign labor inspectors in every district in the country.
To have GSP reinstated in 2006, Liberia repealed a decree that prohibited strikes and invited the International Labor Organization (ILO) to assist in bringing its laws and practices into conformity with international standards.
The April 2009 Special 301 report announced among other things that USTR would review the IPR practices of beneficiaries, including The Bahamas, as part of its biennial review of the operation of the Caribbean Basin Economic Recovery Act. Following a meeting with U.S. officials and industry representatives in August 2009, the government of The Bahamas announced that it would implement changes to its Copyright Act to restore copyright protection for U.S. pay television content. Those changes went into effect last month.
Similarly, increased protection and enforcement of intellectual property rights have occurred in Ukraine and India. Following the suspension of its GSP benefits, in July 2005, Ukraine passed legislation that strengthened its licensing regime and enforcement efforts to stem the illegal production and trade of CDs and DVDs, and its GSP benefits were restored. Also in 2005, India's GSP benefits were restored after it adopted legislation that strengthened its patent protection of pharmaceutical and agricultural chemical products.
Here's my question: In using these criteria, is there an intent to discriminate among countries? (Putting aside the question of whether intent should matter under the relevant WTO non-discrimination standards, which is a separate issue).
On the one hand, it could be argued that the purpose of the criteria is to have every country satisfy the criteria, and thus meet the policy goals that have been set out. Thus, the hope is that no one will be discriminated against.
On the other hand, it may not be realistic to expect everyone to comply. Thus, there is likely to be a disparate impact, and this outcome is known with a reasonable degree of certainty.