Here's an issue I've always wondered about, but never discussed with others. I'm going to put it out there, to see if anyone has thoughts.
I have this sense that there are two schools of thought about the scope of the international trade regime.
The first school believes that talking about "protectionism" is a bad idea. People of this school don't like the concept of protectionism as a basis for the trade regime, for a number of reasons. First, it is hard to define, in part because it involves determining the intent of a government, which can be difficult to discern. Second, it's a dangerous concept because it involves accusations that a country is acting in "bad faith,"and such accusations are considered inappropriate. Finally, a focus on protectionism misses a lot of other significant "trade barriers." As a result, this school tries to avoid any use of intent when interpreting non-discrimination obligations, and prefers to rely on more "objective" tests, such as evaluating the relationship between a measure and its stated objectives or looking at whether there are alternative measures that accomplish the same purpose in a less trade restrictive way.
The second school, by contrast, is concerned about the possible overbroad scope of a trade regime that does not have protectionist intent as a limiting factor. With tests such as "necessity," "reasonableness," etc., it is not clear how far beyond measures with protectionist intent the trade regime extends, and people of this view worry that it will go too far. Also, this school believes that it is hard to sell the public on a regime that is based on the undefined concept of "trade barriers." Anything could constitute a "trade barrier," and thus there is no clear way to define what policies are being targeted and what the scope is. By contrast, for this school, protectionism is a well-understood concept, and it is very clear to the public what is being targeted. Therefore, the focus of trade agreements should be on intentional discrimination against particular countries, or against foreign goods/services/investment in general.
Readers, any views on this? I don't think there is much doubt that a distinction exists between trade obligations based on "protectionism" and trade obligations based on "trade barriers." I guess my question is whether the distinction is important enough to rise to the level of being thought of as competing conceptions of the trade regime.
To illustrate the different conceptions, let's look at the Canadian and EU views of the Seal Products dispute, as expressed at the DSB meeting where the first Canadian panel request was blocked (these are from the brief summary of the statements posted on the WTO web site; the full minutes of the meeting will be available in a few weeks). Here's Canada:
Canada said that these restrictions resulted in an extreme decline of Canadian exports, especially exports of raw seal fur skins which fell by 94% in 2009, compared to 2008. Canada asked for the restoration of full market access.
And here's the EU:
The EU said that the measures were neither protectionist nor discriminatory.
Is it just me, or are the parties talking past each other? Canada is talking about trade barriers (i.e., a fall in exports), while the EU is talking about protectionism. Completely different conceptions of the trade regime.
To confuse things even more, here's Norway from the subsequent DSB meeting where its panel request in the case was first on the agenda:
Norway saw no justification for the ban and added that this dispute was not just about seal products but about a member's right to trade in marine resources harvested in a sustainable manner.
Is there a "right to trade" in certain products? What are the implications of that way of thinking about the trade regime?
