At the barricades in downtown Quebec.
Declaring Defeat in the Face of Victory
By MICHAEL M. WEINSTEIN
REMEMBER all those protesters dressed up as sea turtles and carrying pictures of dolphins as they railed against the World Trade Organization in Seattle in 1999? Well, the W.T.O.-bashers are back, this time in Quebec, where President George W. Bush and 33 other heads of state are gathered this weekend to reaffirm a 2005 deadline for creating a free- trade zone stretching from Canada to Argentina. And once again their target is a global bogeyman that the Humane Society of the United States, speaking for animals, has labeled "the single most destructive international organization ever formed."
But a close look at several recent rulings by the trade organization suggests that the demonstrators' wrath may be misdirected: in fact, the free-trade group may be turning green.
Such a turnabout might sound bizarre, given the chorus of critics who have accused the W.T.O. of favoring the interests of business over those of groups seeking to protect the environment and endangered species. And in fact its goal of promoting open trade often does clash with the protesters' concerns &emdash; usually when countries like the United States block imports that they believe threaten the environment. That was certainly the message environmentalists took from well-publicized cases in which the trade group ruled against the United States over efforts to stop imports of South American gasoline and fish caught in nets that also trap sea turtles.
But surprisingly, in each case the W.T.O. affirmed the right of countries to impose trade sanctions to protect the environment. What it objected to were essentially administrative details. In other words, environmental groups "lost some battles, but won the war," said John Jackson, a trade expert at the Georgetown University Law School.
In one case, a W.T.O. appeals panel argued that the United States was unfairly blocking gasoline imports from Venezuela and Brazil. The United States maintained that the gasoline violated its clean-air statutes. In its ruling, the panel's reasoning is more important than its final decision. In a huge victory for environmentalists, the panel said the American statutes posed no problem under the 1995 global trade accord, which authorizes countries to establish such safeguards. But the panel went against the United States because it said the the clean-air statutes had been enforced in a discriminatory manner by imposing tougher restrictions on foreign refiners than on domestic refiners. Treating foreign and domestic suppliers alike is a central tenet of international trade agreements, the panel said, and it called on the United States to make administrative fixes &emdash; which it has done.
The trade organization also ruled against efforts by the United States to block imports of shrimp caught with nets that sweep up endangered sea turtles. Again, the decision found no fault with American statutes, finding that the 1995 accord even authorizes trade sanctions when, as in this case, the environmental harm takes place in foreign waters. But the appeals panel ruled against the United States because, once again, it found that Washington had unfairly discriminated against foreign suppliers and provided them inadequate legal safeguards. As in the gasoline case, the appeals panel successfully called on the United States to make modest administrative fixes.
These rulings don't appear to be isolated &emdash; in fact, in another case last year the right of countries to set strict environmental standards won both in principle and, for the first time, in fact. A W.T.O. appeals panel upheld France's right to block Canadian exports of products containing asbestos, a carcinogen. The ruling found that neither the statute nor its implementation discriminated against foreigners.
Taken together, the three rulings embrace the principle that the W.T.O. agreement protects the right of countries to use trade sanctions to protect the environment. This was not always the case. In an inflammatory ruling prior to the creation of the trade organization, an appeals panel rejected efforts by the United States to block imports of tuna caught with nets that also slaughtered dolphins &emdash; the opposite of the principle underlying the organization's ruling on shrimp. Some experts say the language of the 1995 accord paved the way for the new environmental thinking. Others, like Professor Jagdish Bhagwati of Columbia University, attribute the changed interpretation to intense lobbying, especially by the environmental movement. Either way, the environmentalists have gained some measure of success.
SOME environmental groups, like the Natural Resources Defense Council, concede as much. Yet many environmentalists remain firmly opposed to the trade organization. Todd Steiner, director of the Sea Turtle Restoration Project, said: "Every time the environment and trade come into conflict, the environment loses. More insidious, with the W.T.O. rules looming in the background, lawmakers shrink from passing strict environmental protections. Today it is the shy, gentle sea turtles, tomorrow it will be our forests, our right to protect children and prisoners from forced labor, and our very democracy."
Many environmental advocates want to add explicit language to the W.T.O. charter to give special status to environmental concerns. They want deliberations before dispute bodies to be opened to public scrutiny. And they want the trade group to honor trade sanctions imposed against countries that violate international environmental accords, like the one struck in Montreal in 1987 to restrict the use of ozone-depleting chemicals.
Yet the reluctance of some leaders in the environmental movement to cheer the environmental principles newly set forth by the trade organization raises an intriguing question: What would they lose by declaring victory, however limited? Perhaps part of the answer is that if the war were perceived to be going their way, they might have trouble rallying the troops in Quebec and keeping the pressure on.
Michael M. Weinstein is a senior fellow at the Council on Foreign Relations.