Thanks again to Rob for all of his posts on the Seal Products hearing. Maybe some day WTO hearings will get press coverage that is as extensive as U.S. Supreme Court hearings, but for now that is not the case, so it was nice to have access to Rob's detailed reporting and commentary.
Along the lines of some of the issues in Seal Products, this is from a WTO report by a panel of experts convened by Pascal Lamy, on "Defining the Future of Trade":
Principles are the foundation of the system
We focus on three areas where principles defining the system are crucial. These relate to non-discrimination, transparency and the relationship between flexibility and reciprocity. ...
Non-discrimination: managing non-tariff measures
As mentioned in Chapter 2, the topography of trade barriers is changing. With the reduction in tariffs, NTMs naturally attract more attention. While we urge vigilance as to the manner in which they are designed and used from a trade perspective, we also recognize that NTMs are here to stay. Where they serve public policy objectives, the issue is not elimination. Rather, we must manage them appropriately in relation to their effects on trade.
Regulations in key areas of the economy, such as health, safety, environmental quality and labour rights are not set in the WTO. What this means is that the WTO must consider how to articulate the relationship between trade opening and the existence of measures outside its remit that are nevertheless relevant to the conditions under which trade takes place. While a convergence of public policy design would facilitate matters from a purely trade perspective, we recognise that respect for differing social preferences is paramount. We must work towards a shared understanding of what constitutes a level playing field. As a matter of principle, we argue that the discriminatory application of NTMs must be avoided where possible and that members should not restrict trade where this is not essential to the pursuit of public policy objectives. Capacity-building and technical assistance should also be available to help developing countries in this area of policy.
There are two parts to this that intrigue me.
First, my sense is that particular words become sensitive over time. Just like "aim and effect" became very controversial a while back, and people came up with new words to reflect similar ideas, there is a lot of nervousness about the word "necessary." So here we have a substitute word, "essential": "members should not restrict trade where this is not essential to the pursuit of public policy objectives." The specific word choices dealing with the connection between measures and their goals are important. Does a measure need to be "related to," "necessary for", "essential to"? At some point, I would love to see one of these expert panels that come around every few years get into the weeds and discuss the nuances of the different options.
Second, there's the issue of how non-discrimination as a principle relates to these concepts. Here, the panel starts off by saying the principle it is discussing is "non-discrimination." Then it elaborates, "the discriminatory application of NTMs must be avoided where possible." So that's all clear. Discrimination is not allowed.
But that's not the end of the sentence. The panel then adds the part mentioned earlier: "members should not restrict trade where this is not essential to the pursuit of public policy objectives." Does the panel think this is another way to state the non-discrimination principle? After all, this is all being said under the general heading of non-discrimination. Or is this an additional principle, going beyond non-discrimination?
People tend to gloss over these issues, but one of my goals is to highlight them and get people to talk about them. So, feel free to talk about this in the comments!