Picking the Wrong Fight
Alasdair R. Young

Picking the Wrong Fight: Why Attacks
on the World Trade Organization
Pose the Real Threat to National
Environmental and Public
Health Protection
•
Alasdair R. Young*

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The World Trade Organization (WTO) has existed for more than 10 年. 作为
mass demonstrations at the WTO Ministerial in Seattle in December 1999 illus-
trated, it has become a lightning rod for much anti-globalization sentiment.
One of the principal reasons for this is concern that national rules—especially
those protecting the environment and public health—may be overturned be-
cause they are incompatible with the WTO’s rules.1

I argue that while these concerns are not totally unfounded, they are exag-
gerated. A central reason for this exaggeration is that some environmental and
consumer advocates discount the pivotal role of governments in the dispute res-
olution process. Governments agreed to the multilateral rules in the ªrst place.
Governments decide which market access barriers to pursue and how aggres-
sively. Governments determine how to comply with WTO judgments that go
against them.

此外, I argue that by exaggerating the constraint imposed upon na-
tional governments by the WTO, consumer and environmental advocates run
the risk of actually discouraging the very regulations they favor. By proclaiming
that international rules are hostile to public health and environmental protec-
tion they give the opponents of regulation an additional argument to use in the
domestic debate and give reluctant governments another excuse not to act.
他们, 所以, may be creating a self-fulªlling prophecy and contributing to a
so-called “regulatory chill.”

* An earlier version of this paper was presented at the School of Social and Political Studies, 大学-
versity of Edinburgh, 11 可能 2004. I would like to thank the participants, Anthony Lott and
three anonymous referees for their comments. The research on which this paper is based was
made possible by a grant from the British Academy (SG-35702). I am also grateful to the practi-
tioners who took the time to discuss these issues with me.

1. Kelemen 2001, 622; and Kelly 2003, 131.

Global Environmental Politics 5:4, 十一月 2005
© 2005 by the Massachusetts Institute of Technology

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48 •

Picking the Wrong Fight

I begin by providing a ºavor of consumer and environmental advocates’
concerns about the WTO and by spelling out how the crude articulation of these
concerns runs the risk of creating a self-fulªlling prophecy. I then examine what
is new about the WTO that provokes such concerns. I then examine how the
politics of WTO dispute resolution serve to ameliorate the implications of the
WTO’s rules for national public health and environmental regulation.2 I con-
clude by drawing out the implications for how we should understand the chal-
lenge that the WTO poses to domestic regulatory autonomy and for the strate-
gies of consumer and environmental advocates.

A Flavor of the Concerns

At the outset it is worth noting that the potential implications of WTO rules for
national environmental and public health regulations are not the only substan-
tive concern that civil society groups have about the WTO.3 In particular, a sig-
niªcant number of groups are concerned about the impact of multilateral trade
rules on global poverty.4 There is also extensive concern that the WTO’s rules
and free trade ethos inhibit the development of effective global environmental
governance.5 It is with respect to national environmental and public health
规则, 然而, that the WTO’s dispute settlement process comes into play and
where there is the potential for WTO rules to roll back national rules, 还有
as to inhibit their development. It is on this aspect of the WTO that this article
focuses.

Environmental organizations in developed countries, 尤其, 有
serious concerns about the potential of WTO obligations to adversely affect na-
tional rules. A WWF-UK discussion paper, 例如, states that the WTO and
regional integration projects are “threatening . . . legitimate national policies in
the areas of health and the environment.”6 The Canadian nongovernmental or-
ganization West Coast Environmental Law contends that “ . . . [t]he primary

2. Given that my argument focuses on governments’ use of and response to WTO dispute settle-
蒙特, I interviewed United States and European Union trade ofªcials and business represen-
tatives involved in WTO dispute settlement. These interviews were conducted on a not-for-
attribution basis. The focus on trade ofªcials and business representatives is justiªed because
the thrust of my argument is that governments exercise restraint in pursuing trade barriers stem-
ming from environmental and public health protection measures. Trade ofªcials and business
representatives would be expected to be the most aggressive in pursuing market access barriers.
最后, that they initiate disputes with care and caution provides more robust support
for my argument. I have focused on the United States and European Union because they are the
most frequent users of WTO dispute settlement and because one or the other of them has been
涉及, as either complainant or respondent, in virtually all of the WTO complaints concern-
ing environmental and public health rules.

3. In addition to the substantive concerns, there is a cross-cutting concern about the lack of trans-
parency in and access to WTO decision-making, in both negotiations and dispute settlement.
Wilkinson 2002, 131–134.

4. For a survey see Said and Desai 2003.
5. 看, 例如, Conca 2000; and Shrybman 1999.
6. McNally 2000, 7.

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Alasdair R. Young • 49

goal of trade law is to limit government law making and regulatory authority”
and that “ . . . trade dispute processes have now become a popular weapon for
attacking environmental and conservation measures in Canada, the US and Eu-
rope.”7 The San-Francisco-based Earthjustice Legal Defense Fund states that the
WTO’s rules “treat [health and environmental] protections as obstacles to trade
that should be eliminated.”8 Although many consumer organizations see
beneªts to free trade and recognize a need to strike a balance between consumer
protection and disguised protectionism,9 a recent book by Public Citizen’s Lori
Wallach and Patrick Woodall has dramatic chapter titles such as: “The WTO’s
Coming to Dinner and Food Safety is Not on the Menu” and “Warning: 这
WTO can be Hazardous to Public Health.”10

These groups belong to what Said and Desai have dubbed the “Isolation-
ist” segment of global civil society, which sees global trade as inherently bad
and seeks to abolish the WTO.11 Further, Said and Desai contend that since the
Seattle Ministerial in 1999, in response to a resurgence by actors who see the
WTO as good so long as it serves their ends (“Regressives”) and a weakening of
those seeking reform of the multilateral trading system (“Reformers”), the “Iso-
lationists” have been gaining strength. 作为结果, such views are becom-
ing more politically prominent.

Two central worries underpin these concerns about the WTO. 第一的, 那
foreign ªrms, acting through their national governments, will use the WTO to
challenge existing domestic rules. 第二, that fear of such challenges will
make governments reluctant to adopt strict public health or environmental
regulations—creating a so-called “regulatory chill.”

Risking a Self-fulªlling Prophecy

I contend that these attacks aimed at abolishing the WTO may actually exacer-
bate the impact of the WTO on domestic regulation by discouraging the adop-
tion of new rules. By exaggerating the threat that the WTO poses to national reg-
计算, the very champions of such regulation are playing into the hands of
their opponents. That consumer and environmental critics of the WTO risk of
encouraging a “regulatory chill” by exaggerating the WTO’s hostility to national
environmental and public health measures was suggested by George Hoberg.12
This possibility also resonates with the argument that Colin Hay and Ben
Rosamond have developed with regard to the impact of globalization on do-
mestic politics.13 They argue that, as far as domestic politics is concerned, it mat-

7. Shrybman 1999, 3 和 4.
8. Wagner and Goldman 1999, 19.
9. Consumers International 2003.
10. Wallach and Woodall 2004.
11. Said and Desai 2003, 66.
12. Hoberg 2001, 213.
13. Hay and Rosamond 2002.

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50 •

Picking the Wrong Fight

ters less whether globalization actually restricts domestic policy choices than
whether political actors believe that it does or perceive it as a useful justiªcation
for action.14 In particular, Hay and Rosamond distinguish between globaliza-
tion as a discourse—in which actors adopt it as a conceptual lens through which
they interpret events—and globalization as rhetoric—in which the discourse is
已部署, often in order to legitimate speciªc courses of action.15

同样地, it matters less whether the WTO strictly constrains national regu-
latory autonomy than whether political actors believe it does, and so do not act,
or invoke it in order to avoid paying a political price for not taking popular ac-
的. Lori Wallach and Patrick Woodall16 provide numerous anecdotes of gov-
ernment action not taken for fear of WTO censure. Whether this is causal or not
is debatable, but there are indications of policy makers, even those favorably in-
clined towards environmental and public health regulation, echoing the view
that the WTO is inherently hostile to such measures.17 Further, governments fre-
quently seek to shift blame for costly or unpopular domestically-motivated
measures to international institutions.18 This is common with regard to the Eu-
ropean Union19 and the International Monetary Fund,20 尤其. It is a
short logical step from blaming international institutions for having to adopt
unpopular measures and blaming them for not being able to adopt popular
那些. 最后, those environmental and consumer groups that persis-
tently build the WTO up as the enemy of environmental and public health regu-
lation run the risk of either persuading policy makers that adopting environ-
mental and public health measures is futile or making more credible their
excuses for not adopting popular policies. Thus activists’ attacks on the WTO
risk contributing to the “regulatory chill” that they claim the WTO causes.

Why the Concerns? (or What’s New about the WTO?)

Although overselling the WTO’s antipathy to environmental and public health
regulations may be counterproductive, the concerns of these environmental and
consumer groups are not without some foundation. The Uruguay Round of
multilateral trade negations that led to the creation of the WTO in 1995 intro-
duced some major changes to how the multilateral trading system operates.
These changes involved extending the breadth of issues covered by multilateral
rules and making those multilateral rules more binding on the members. In do-
ing so, the Uruguay Round made multilateral trade rules more challenging to
domestic policy autonomy.

尤其, the Uruguay Round increased the extent to which multilat-

14. Hay and Rosamond 2002, 148.
15. Hay and Rosamond 2002, 151–152.
16. Wallach and Woodall 2004.
17. 看, 例如, 欧洲议会 1999, 7 和 11; Meltzer et al. 2000, 106.
18. Hobson and Ramesh 2002; 征收, 基奥哈内, and Haas 1993; and Martin and Simmons 1998.
19. Hutton 2005; Mandelson 2005; and The Economist, 28 可能 2005, p. 28.
20. Rogoff 2003.

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Alasdair R. Young • 51

eral rules apply to national measures that have implications for trade even if
that is not their purpose, such as regulations. This is particularly the case with
rules affecting food safety and plant and animal health, which are covered by
the Sanitary and Phytosanitary (SPS) 协议, which is more proscriptive
than most WTO agreements.21 It encourages governments to adopt a science-
based approach and to harmonize standards based on those developed by inter-
national standards organizations, such as the Codex Alimentarius Commission.
The SPS Agreement permits governments to maintain or introduce measures
that establish stricter levels of protection than those provided by international
standards so long as the national measures are based on a risk assessment, 拿
account of available scientiªc evidence, demonstrate a consistent approach to
the level of protection that the government deems appropriate, are proportion-
ate and are not more trade restrictive than necessary.22

During the Uruguay Round trade-related environmental issues were ad-
dressed in the General Agreement on Trade in Services, and in the Agreements
on Agriculture, SPS, Subsidies and Countervailing Measures and Trade Related
Intellectual Property Rights.23 More signiªcantly, the Uruguay Round also tight-
ened the disciplines on national regulations that affect trade, the Technical Bar-
riers to Trade (TBT) 协议. Although broadly similar to the disciplines of
the SPS Agreement, the TBT is less strict in its scrutiny of domestic regulation, 作为,
例如, it lacks an explicit requirement that a risk assessment be con-
ducted.24

尤其, the Uruguay Round made the new and existing rules, 参与-
ularly Article III of the General Agreement on Tariffs and Trade, which prohibits
discrimination against foreign goods, more constraining through the introduc-
tion of binding dispute settlement. In the WTO agreements the participating
governments effectively delegated the binding adjudication of disputes to a
third-party body.25 They also formalized a system in which an aggrieved party
can punish non-compliance with a Dispute Settlement Body (DSB) 判断
by imposing trade sanctions. These changes mean that the multilateral rules
now have teeth.

The creation of the WTO is thus a prominent example of the increasing le-
galization of international relations.26 Increased legalization enhances compli-
ance by others by providing information about violations, deªning compliance
and providing mechanisms for enforcing commitments. Greater compliance

21. Charnovitz 1999, 173; and Marceau and Trachtman 2002, 863.
22. Marceau and Trachtman 2002.
23. WTO Secretariat 2004b, 2.
24. Marceau and Trachtman 2002.
25. Disputes are heard ªrst by a “panel” of trade experts, who can be drawn from a list of candidates
or from elsewhere. Either party may appeal the panel’s decision to the Appellate Body, 这是
made up of seven members. Decisions of the panel or, in the event of an appeal, the Appellate
Body are formally adopted by the Dispute Settlement Body, which is composed of all of the
member governments of the WTO. Because the DSB can block the adoption of a panel or Ap-
pellate Body report only by a unanimous vote against, dispute adjudication is effectively dele-
gated to the panels and Appellate Body.

26. 戈德斯坦, Kahler, 基奥哈内, and Slaughter 2000.

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52 •

Picking the Wrong Fight

provides greater legal certainty for economic actors, which encourages them to
take advantage of new market openings, 哪个, 反过来, increases the economic
value of the agreement.27 In exchange for greater compliance by others, 如何-
曾经, governments also face stricter disciplines on their own policy autonomy, 作为
the international rules apply equally to them.28 This is a trade off that govern-
ments do not accept lightly,29 as I shall explore below.

Any compromise of domestic autonomy is objectionable in principle to
those environmental and consumer groups most concerned about the WTO,30
but all seem to consider the development of the WTO to be extremely worrying
for two related, but distinct, 原因: 1) a selective reading of the agreements,
which assumes that the interests of free trade will prevail over other consider-
ations;31 2) an assumption that governments are simply the agents of big busi-
ness.32 The assumption that governments are agents of big business supports the
view that the multilateral rules have been negotiated to the beneªt of free trade
above all other considerations and anticipates that governments will aggres-
sively prosecute all foreign regulatory measures that impede trade.

Environmental and consumer groups’ concern about the WTO is based on
an often selective reading of the WTO agreements. This involves both interpret-
ing the agreements’ provisions in an extremely constraining way and ignoring
or discounting the exception clauses, which are intended to permit governments
to pursue public policy objectives. The West Coast Environmental Law’s guide
to the WTO for environmentalists, 例如, describes the TBT Agreement as
“an international regime for environmental standards that effectively creates a
ceiling but no ºoor for environmental regulation and a detailed procedural
code for environmental law making and regulatory initiative that would be
difªcult for even the wealthiest nations to meet.”33 The Earthjustice Legal De-
fense Fund, which is relatively rare in acknowledging that the WTO agreements
contain exceptions for measures to conserve exhaustible natural resources or to
protect human or animal health, claims that these exceptions “are riddled with
so many conditions that it is extremely difªcult for domestic regulations to pass
muster.”34 To the extent that these claims are believed by policy makers, 政策
makers will be less likely to pursue environmental and public health regulation,
and to the extent that they are accepted by citizens, the WTO will provide a
more credible scapegoat for government inaction.

It is worth noting, 然而, that both the TBT and SPS Agreements explic-
itly state that governments have the right to regulate to protect human, 动物
and plant life and health (see Box 1). The TBT Agreement, which is broader in

27. 史密斯 2000.
28. 史密斯 2000, 144–145.
29. 史密斯 2000, 145.
30. Said and Desai 2003. 看, 例如, Wallach and Woodall 2004.
31. 威廉姆斯 2001, 3.
32. Shrybman 1999, 部分 1, p. 3.
33. Shrybman 1999, 部分 1, p. 8.
34. Wagner and Goldman 1999, 1.

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Alasdair R. Young • 53

Box 1
The Recognized Right to Regulate

Members have the right to take sanitary and phytosanitary measures necessary for
the protection of human, animal or plant life or health . . . .
[SPS Agreement, 文章 2.1]

Recognizing that no country should be prevented from taking measures necessary
to ensure the quality of its exports, or for the protection of human, animal or
plant life or health, of the environment, or for the prevention of deceptive prac-
泰斯, at the levels it considers appropriate . . . .
[TBT Agreement, 前言, paragraph 6]

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范围, also recognizes governments’ right to protect the environment and pre-
vent deceptive practices. 更远, the GATT contains a general exception clause
Article XX, which expressly permits governments to pursue measures to protect
the environment and human health so long as they are not arbitrary, unjustiªed
or are a disguised restriction on international trade. These exceptions reveal that
the governments that negotiated the multilateral trade rules have sought to
strike a balance between permitting protection of consumers and the environ-
ment while prosecuting disguised protectionism.35

The environmental and consumer groups’ dire interpretations of the
WTO’s rules is supported by a refrain of cases in which states’ environmental or
consumer protection measures have been found to be incompatible with WTO
规则. This list is rehearsed with little variation in each attack on the WTO (看
桌子 1 and the Appendix for details).

Those environmental and consumer groups that are worried about the
WTO tend to exaggerate the extent to which WTO rules impinge upon national
regulation.36 They tend to take a ruling in favor of the complainant(s) as proof
that the WTO’s rules are stacked against regulation, while only fairly technical
aspects of the measures have usually been found to be incompatible with WTO
规则, while important principles have been up-held.37 The EU’s ban on hor-
mone-treated beef, 例如, was found to be incompatible with the EU’s
multilateral obligations because it was not based on an adequate risk assess-
ment and it was permanent (not temporary, so the precautionary clause of the
SPS Agreement did not apply). The WTO’s Appellate Body, 然而, upheld the
important principle that a polity may set what level of risk it ªnds acceptable:

35. Marceau and Trachtman 2002, 811.
36. Hoberg 2001, 207; 凯莉 2003, 132; and Neumayer 2004, 1–3.
37. Davey 2005; Esserman and Howse 2003; Kelemen 2001; and Kelly 2003, 136.

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Alasdair R. Young • 55

Under Article 3.3 of the SPS Agreement, a Member may decide to set for itself
a level of protection different from that implicit in the international stan-
dard, and to implement or embody that level of protection in a measure not
‘based on’ the international standard. The Member’s appropriate level of
protection may be higher than that implied in the international standard.
The right of a Member to determine its own appropriate level of sanitary
protection is an important right.38

更远, the Appellate Body in its ruling on US reªnery standards went out of its
way to stress:

[This judgment] 并不意味着, or imply, that the ability of any WTO mem-
ber to take measures to control air pollution, or more generally, to protect
the environment is at issue . . . WTO Members have a large measure of au-
tonomy to determine their own policies on the environment (including its
relationship with trade), their environmental objectives and the environ-
mental legislation they enact and implement.39

The anti-WTO activists also tend to neglect or discount contradictory
案例. While environmentalists made much of the WTO’s ruling against the US
government’s ban on shrimp caught without turtle-excluding nets (DS58, 61),
they were largely silent on the WTO ruling up-holding the US government’s rel-
atively minor adjustments to the measure.40 The case against the WTO also
tends to ignore, or dismiss as a ºuke,41 the Asbestos case (DS135) in which a
French ban on asbestos products was upheld by the WTO even though it im-
peded trade, because it was justiªed under Article XX.

A note of caution, 然而, is warranted. 迄今为止, all of the successful
complaints against public, animal and plant health measures—Beef Hormones,
Australian Salmon, Japan-Apples and Japan-Agricultural Products—have hinged on
the inadequacy of the risk assessments on which they were based,42 哪个cre-
ates at least a suspicion that other concerns motivated the policy. The Appellate
Body, 然而, has allowed a signiªcant degree of discretion with the manage-
ment of identiªed potential risk—what level of risk is acceptable and how that
level is realized—even when there is uncertainty about the scientiªc evidence or
the risk involved.43 There are two potential problems, 然而. One concerns
measures adopted in response to public fear of a health risk while all the
scientiªc evidence appears to show a product is safe. This is arguably becoming
a more signiªcant problem, at least in Europe, where a number of recent food
scares have undermined public trust in scientiªc approaches and government
regulators.44 The second, and compounding problem, is that in the hurly burly

38. WTO Appellate Body 1998, 为了. 172.
39. WTO Appellate Body 1996, 30.
40. DeSombre and Barkin 2002; and Neumayer 2004, 3.
41. Wallach and Woodall 2004.
42. 凯莉 2003, 138.
43. PIU 2000, 94; and Skogstad 2001, 494–495.
44. Bohanes 2000, 329; and Consumers International 2002, 1 和 4.

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56 •

Picking the Wrong Fight

of legislative politics rules may depart signiªcantly from what is required to
address the risks identiªed.45 It is under such circumstances that the WTO is
most likely to challenge even well motivated environmental and public health
措施.

Environmental and Public Health Complaints in Context

显着, the anti-WTO activists’ refrain of cases is virtually the sum total of
serious complaints involving animal, plant or human health or environmental
protection regulations. In more than ten years in an organization with (当前-
租金地) 148 members only seven such measures have been the subject of WTO
rulings (see Appendix). A further 25 complaints have been initiated under the
SPS and TBT Agreements against 20 national measures. The vast majority of
these complaints have not progressed beyond the consultation phase for years,
an indication that the dispute is effectively dormant.

可以说, the high success rate of challenges to environmental and public
health protection measures (six out of seven), has less to do with an imbalance
in the WTO in favor of free trade, as the anti-WTO activists contend, than to do
with case selection. 可以说, WTO members have challenged only poor regula-
系统蒸发散, which are either disguised protectionism or use inappropriate tools to
achieve their intended objective.46 Governments being selective about which na-
tional rules to challenge would help to account for the relatively small number
of complaints and smaller number of adjudications concerning public health
and environmental regulations.

Considering the vast range of regulations that have not been challenged
supports this contention. 例如, the European Commission recently
identiªed 121 European Union rules that affect imports of animals and animal
products.47 Such measures are, to some extent, barriers to trade. In contrast to
这些 121 rules affecting imports of animals and animal products, 仅有的 29 欧洲联盟
measures concerning all aspects of food safety, animal and plant health (A
broader category) have been raised by the EU’s trading partners in the SPS Com-
mittee,48 a forum for exchanging information and negotiating solutions, 和
formal WTO complaints have been initiated against only two such measures

45. Both of these problems would arguably be addressed if the “precautionary principle” were in-
corporated into WTO law. There is no agreed precise meaning of the precautionary principle,
然而. The WTO’s Appellate Body has ruled that the precautionary principle is embodied in
the SPS Agreement (in the preamble, 文章 3.3 and Article 5.7) and acknowledged that Article
5.7 does not cover the entire scope of the precautionary principle. The Appellate Body has, 如何-
曾经, avoided deªning the precautionary principle or ruling on its status in international law
(Bohanes 2002, 336–337).

46. DeSombre and Barkin 2002, 18; and Kelly 2003, 136 和 138.
47. 欧盟委员会 2003.
48. WTO Secretariat 2004a.

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Alasdair R. Young • 57

(beef hormones and genetically modiªed crops).49 Thus the overwhelming ma-
jority of EU measures protecting consumer safety and plant and animal health,
even of those that impede trade, have not even been questioned by the EU’s
trading partners, let alone challenged before the WTO.

The EU’s experience is not unique. As of November 2003, 183 national
food safety and animal and plant health measures had been raised in the SPS
委员会, surely a tiny fraction of such measures adopted by all 148 WTO
members over more than 10 年. As of mid 2005, which allows ample time for
these disputes to have escalated, there had been formal WTO complaints involv-
ing only 19 such measures (the relevant complaints appear in bold in the Ap-
pendix).50 Disputes concerning 12 of those measures had been settled or were
effectively dormant. As of the time of writing (六月 2005), only four SPS mea-
sures have been the subject of Appellate Body rulings, while three (Genetically
modiªed crops; Quarantine of pig meat and poultry meat imports; and Mea-
sures affecting imports of fresh fruit and vegetables) were before active panels.
Thus only 10 percent of measures raised in the SPS Committee have become
formal disputes (见表 2).

Examining measures that fall under the SPS Agreement is a particularly ap-
propriate test of the threat posed by WTO rules to domestic regulation. 第一的, 这
Agreement covers issues at the heart of consumer and environmental protec-
tion—human, animal and plant life. 第二, the SPS Agreement establishes
stricter disciplines than the TBT Agreement, the other speciªc multilateral disci-
pline on regulatory policy. If WTO rules should bite on regulation anywhere, 它
should be here. 最后, this analysis suggests that the vast majority of
food safety issues, and by extension other social regulations that impede trade,
are not challenged under WTO rules.

The conclusion that public health and environmental protection measures
are only challenged exceptionally, suggests that the common assumption that
governments are simply the agents of big business is ºawed. If they were, 我们
should expect to see many more trade disputes challenging the many national
rules that impede trade.51

That governments are not simply the agents of business is crucial because
the enforcement of WTO rules is decentralized. Members bring complaints

49. WTO complaints have also been initiated against French labelling requirements for scallops
(DS7, DS12 and DS14); EU labelling requirements for sardines (DS231); and EU wine-making
要求 (DS263), which concern either product description or product quality, not safety.
The UK Consumers’ Association even assisted the Peruvian government’s complaint against the
EU’s regulation on labelling sardines, claiming that it “clearly acts against the economic and in-
formation interests of European consumers” and serves as “base protectionism in favour of a
particular industry within the EU.” Bridges 6 (7) 十月 2002, 15.

50. The Asbestos complaint (DS135) also cited the SPS Agreement, but it was ruled not to apply, 所以

it is not included here.

51. Although there are a number of reasons why ªrms might not want to pursue particular trade
barriers—including not wanting their rivals to beneªt from their efforts and fearing consumer
backlash—ªrms raise many more trade barriers with governments than governments pursue.

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58 •

Picking the Wrong Fight

桌子 2
SPS Measures in WTO Dispute Settlement (as of mid-2005)

Issues raised in
SPS Committee
(to Nov. 2003)

Measures subject
to WTO
complaints

Measures for which
complaints have
been pending for
多于 1 年

Measures for which
the dispute has
been settled

183

19

10

2

Measures subject to ac-
tive panels

Measures subject
to rulings

Measures subject to
rulings in favour of
complainant

3

4

4

笔记: The Asbestos complaint (DS135) cited the SPS Agreement, but it was ruled not to apply, 所以
that complaint is excluded.
来源: WTO Secretariat 2004a and summary of Appendix.

against other members—only the adjudication is centralized and delegated to
third parties. This means that why governments decide to pursue particular dis-
putes through the WTO is crucial to understanding the extent to which WTO
rules constrain national regulatory autonomy.

The “Gatekeeping” Roles of Government52

Although there is a substantial literature on trade disputes, it does not provide
much purchase on why governments choose to prosecute particular trade dis-
您认为. The few political science studies of the initiation of trade disputes focus
on business demand for action.53 Even if governments let business set the broad
outlines of the agenda by identifying the range of measures that impede trade,
governments still decide which measures to pursue and, 关键地, 通过
which channels and how aggressively.54

Why governments decide to initiate trade disputes thus remains a pressing
area for research.55 A rare exception to the neglect of governments’ decisions to
initiate trade disputes is Todd Allee, who argues persuasively that governments
take to the WTO those trade disputes that they expect to win, as well as those

52. The phrase “gatekeeper” is used by Keohane, Moravcsik, and Slaughter 2000, 469, but only with

reference to initiating disputes.

53. Milner and Yofªe 1989; and Noland 1997.
54. Hocking and McGuire 2002; and Shaffer 2003.
55. Busch Reinhardt 2002; and Elhermann 2003.

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Alasdair R. Young • 59

disputes that promise sizeable economic and domestic rewards.56 Central to his
argument is that governments do not perceive initiating disputes as costless, 和
therefore in order for them to initiate a complaint the expected beneªts of win-
ning must outweigh the resource and political costs of initiating a complaint.

This article makes a similar point; it stresses the crucial role of the govern-
ment as a “gatekeeper” between domestic business demand for action and
international redress, and elaborates on the concerns inºuencing governments’
decisions to pursue particular trade disputes. It also goes a step further by high-
lighting the pivotal role governments have in translating international obliga-
系统蒸发散, such as adverse WTO judgments, into domestic policies. I shall argue that
these dual “gatekeeping” roles mitigate the negative implications for national
regulatory autonomy of WTO law.

Government Considerations when Initiating a WTO Dispute

The preceding discussion has demonstrated that governments often do not pur-
sue foreign trade barriers through the WTO, even if business interests have com-
plained about them. One possible reason for this is that other business interests
might oppose such action. Such opposition, 然而, is rare, as initiating a
trade dispute only very occasionally imposes costs on other domestic actors; 这
costs of adjustment normally fall only on the other country. 最后, 这
concerns of governments themselves are the key to understanding why some
complaints are pursued and others are not.

Interviews with British, US and European Commission trade ofªcials and
representatives of European trade associations have suggested a number of con-
siderations that encourage governments to be cautious when pursuing WTO
complaints, especially when regulatory measures are at issue. 这些包括: 不是
wanting to jeopardize other foreign policy objectives, wanting to win, and want-
ing to avoid inadvertently constraining their own policy autonomy.57

The principal participants in WTO dispute settlement have extensive and
often intense political relationships with other countries in the world. Initiating
a trade dispute may disrupt those relationships. For this reason many export-
oriented ªrms dislike trade disputes because they sour the economic environ-
ment.58 Governments likewise may wish to avoid antagonizing important part-
书呆子. The European Commission, 例如, has been disinclined to initiate
complaints against key members of the G20(西德:1) group of developing countries
because of their prominent role in the Doha round of multilateral trade negoti-
ations.59 In the spring of 2003 the Bush Administration postponed challenging

56. Allee 2003.
57. Shaffer 2003; and Young 2004.
58. Author’s interviews with representatives of a British trade association, 伦敦, 可能 2003 and a

European trade association, 布鲁塞尔, 行进 2004.

59. Author’s interviews with European Commission trade ofªcials, 布鲁塞尔, 九月 2003.

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60 •

Picking the Wrong Fight

the EU’s rules on genetically modiªed food before the WTO because it did not
want to impede its efforts to build a coalition to invade Iraq.60 Not wanting to
antagonize important political or economic partners is a general consideration,
although to the extent that regulatory measures tend to be particularly emotive
issues and therefore especially politically sensitive, there is reason to think that
such concerns might have particular bearing on the decision to initiate a WTO
complaint concerning a regulatory measure.

Wanting to win disputes is a second general consideration that may have
particular bearing on the decision to pursue a regulatory barrier.61 A government
is likely to stick with bilateral negotiations if it does not think that its case is
strong enough to hold up before the WTO.62 This also contributes to a number
of complaints being initiated but not pursued. There are two key aspects to the
likelihood of winning a complaint: the facts of the measure in question and the
clarity of the relevant WTO obligations.63 The facts of the case concern how the
measure affects trade and whether it is de jure or de facto discriminatory. With re-
gard to legality, the WTO’s agreements vary in terms of the speciªcity of their
prescriptions and prohibitions; the breadth of their exceptions; and the degree
of deference that is paid to national policy makers.64 As discussed earlier, 那里
are a number of exceptions to multilateral rules that are particularly relevant to
regulatory measures. 此外, to date the Appellate Body has shown sig-
niªcant respect for preserving national regulatory autonomy, while challenging
aspects of particular national rules.65 This may make pursuing complaints con-
cerning regulations that are not egregiously contrary to WTO obligations espe-
cially unappealing to policy makers.

Such considerations have shaped the US government’s WTO complaint
against the EU’s regime for genetically modiªed crops.66 The complaint is quite
narrowly drawn and does not challenge the basis on which the EU takes its deci-
西翁. Rather it focuses on the EU’s “moratorium” on approvals and the refusal
of some member governments to accept GM crops that have been approved by
the EU.67 Thus the challenge is to the EU’s failure to apply its own procedures
and to enforce its own rules rather than against the substance of those proce-
dures and decisions.

When initiating a WTO complaint a government also has to be careful that

60. 纽约时报, 5 二月 2003.
61. Allee 2003. Author interviews with US trade ofªcials, 华盛顿, 华盛顿特区, 一月 2005 and Eu-

ropean Commission trade ofªcials, 布鲁塞尔, 行进 2004.

62. Author’s interviews with US trade ofªcials, 华盛顿, 华盛顿特区, 一月 2001 and January 2005,

and European Commission trade ofªcials, Brussels September 2003 and March 2004.

63. Ehlermann and Lockhart 2004.
64. Ehlermann and Lockhart 2004.
65. Davey 2005; DeSombre and Barkin 2002; Ehlermann and Lockhart 2004; Esserman and Howse

2003; Hoberg 2001; 凯莉 2003; and Neumann and Türk 2003.

66. USTR 2004, 1; and Author’s interview with a US trade ofªcial, 华盛顿, 华盛顿特区, 一月 2005.
67. USTR 2004, 1.

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Alasdair R. Young • 61

it does not end up scoring an own-goal by winning a WTO complaint that also
applies to its own rules.68 Because of the importance of precedence within the
WTO’s legal framework, a government needs to have an eye on whether a suc-
cessful challenge to a foreign government’s rule might establish a precedent that
applies to its own policies. This concern is evident in the EU’s practice, 为了考试-
普莱. The European Commission has not been keen to challenge other govern-
ments’ rules protecting geographical indications, despite pressure from EU
ªrms, because the EU’s own rules are the subject of two WTO complaints.69 The
Commission is also reluctant to challenge other governments’ rules on product
labels, as the EU has adopted quite onerous labeling requirements for geneti-
cally modiªed foods, or on export subsidies, which are similar to those operat-
ing under the Common Agricultural Policy.70 In addition, before launching its
challenge to the US’s Foreign Sales Corporations legislation the Commission
surveyed the EU’s member governments to check that none of their measures
would be caught by a ruling in the EU’s favor.71 Thus when initiating disputes
governments are alert to the potential that winning the complaint might have
negative implications for their own policy autonomy.

As this discussion suggests, there are a number of reasons why members of
the WTO might not pursue a regulatory measure even if they are under pressure
from business interests to do so. The governments’ “gatekeeping” role, 那里-
fore, signiªcantly restricts the number of regulatory measures that are chal-
lenged before the WTO, thereby limiting the impact of multilateral obligations
on national rules.

The Role of Government on Containing the Costs of Compliance

Another problem with many environmental and consumer groups’ critiques of
the WTO, is that they do not consider what actual policy changes have followed
from the adverse WTO judgments they cite. Even if a complaint is initiated and
the complainant wins, the respondent government may well be able to comply
with its international obligations without fundamentally undermining the orig-
inal objective of the measure.

Although most governments have complied with most adverse WTO judg-
评论,72 they have tended to do so in ways that mitigate the impact of the ad-
verse judgement. This is the case even with most of the activists’ causes célèbres.
Although the US government revised its methodology for establishing compli-

68. Shaffer 2003. Author’s interviews with US regulators, 华盛顿, 华盛顿特区, 一月 2001; US trade
ofªcials, 华盛顿, 直流, 一月 2005; and European Commission trade ofªcials, 布鲁塞尔,
九月 2003 and March 2004; and Shaffer 2001.

69. Author’s interviews with European Commission trade ofªcials, 布鲁塞尔, 九月 2003.
70. Author’s interview with a British trade association representative, 爱丁堡, 二月 2004.
71. Author’s interview with a European Commission trade ofªcial, 布鲁塞尔, 九月 2003.
72. Davey 2005, 48.

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62 •

Picking the Wrong Fight

ance with its rules on conventional gasoline in order to eliminate the discrimi-
nation against foreign producers, this did not adversely affect the measure’s ca-
pacity to promote cleaner air.73 Arguably the adjustments the US government
made to its ban on imported shrimp not caught using turtle-excluding nets in
response to the WTO’s adverse ruling actually made the rule more effective at
achieving its environmental objective, because it is now more focused on pro-
tecting turtles and less on protecting the US shrimping industry.74 The WTO’s
adverse judgment on the EU’s ban on hormone treated beef and even the subse-
quent imposition of sanctions by Canada and the US have had no practical ef-
fect on the ban. The EU’s response has been to conªrm its ban on the basis of a
new risk assessment. The new rule75 establishes a deªnitive ban on one hor-
mone (oestradiol-17ß) as a growth promoter and further restricts its therapeutic
use and imposes provisional bans on the other ªve hormones, while greater
scientiªc understanding is sought, thus enabling it to claim protection under
SPS Agreement’s provisions on precautionary action in the face of incomplete
信息 (Art. 5.7).76 更远, the US government’s victories against Japan’s
SPS restrictions on agricultural products (DS76 and DS245) have led only
slowly to changes.77 Thus far, in response to adverse WTO judgments, 治理-
ments have largely made changes of style rather than substance.

Such limited changes to public health and environmental protection regu-
lations, even in the face of trade sanctions, reºect that the measures originally
resulted from domestic political pressures. These will not have abated, 虽然
international pressure gives those who lost the ªrst time a second bite at the
cherry and brings new players into the policy process—such as those that be-
lieve it is important to comply with international obligations and those that are
adversely affected by any sanctions.78 Consequently, there will be a domestic po-
litical contest over the extent of the reform. A WTO ruling only starts this pro-
过程. It does not determine its conclusion. As the preceding discussion suggests,
this domestic political process has tended to preserve the crucial public health
or environmental protection objectives of the challenged measures.

No Reason to Chill

Even if the preceding argument is incorrect and the WTO is as intrusive and
overbearing as its opponents claim, there is still no reason why this should pro-
voke a regulatory “chill.” As there is no right under WTO law to damages suf-

73. Hoberg 2001. The rules on reformulated gasoline were not changed as the discriminatory aspect

lapsed after a transition period.

74. DeSombre and Barkin 2002.
75. European Parliament and Council of Ministers 2003.
76. Canada and the US have refused to lift their sanctions, and the EU initiated WTO complaints
against the Canadian and US sanctions (DS321 and 320 分别) in November 2004 in or-
der to get a WTO ruling on the compatibility of its new measures with WTO obligations.

77. Davey 2005, 28.
78. Princen 2002; Putnam 1988; and Schoppa 1993.

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Alasdair R. Young • 63

fered while a WTO-inconsistent measure is in place, the only cost to adopting a
WTO-inconsistent measure is that of defending it before the WTO. 康塞-
经常地, it makes sense for governments to adopt whatever public health and
environmental protection rules they see ªt. 如果, and only if, such a measure is
challenged by others does the government need to decide whether it is worth
defending, both a legal and political calculation. Even if the measure is ulti-
mately overturned, either as the result of the government deciding to acquiesce
or because of an adverse WTO judgment, in the meantime the polity has en-
joyed whatever protective beneªts the measure provides. 最后, it does
not make sense for a government to self censor and refuse to adopt a measure
for fear that it might be challenged before the WTO.

结论

The WTO is a new form of governance and it represents a new trade-off between
the beneªts of increased compliance by others and the disadvantages of de-
creased policy autonomy at home. 因此, there is good reason to regard it
with circumspection.

Depicting the WTO’s rules as favoring free trade over all else, as some envi-
ronmental and consumer groups are wont to do, 然而, is distorting, and in a
dangerous way. There are three reasons why their critique is overstated. 第一的, 这
rules are not as pro-free-trade as they depict. Because the governments of the ad-
vanced developed countries have duties to their citizens, on whom they rely for
re-election, they were and are sensitive to the trade-off between increasing the
compliance of others and reducing their own autonomy.79 As a consequence,
the WTO’s rules reºect an attempt to balance permitting protection while prose-
cuting protectionism. This is evident in the WTO’s judgments to date, 哪个,
while ªnding fault with aspects of most of the few public health and environ-
mental protection measures brought before it, have supported their objectives
and demonstrated deference for national regulators.

第二, the high proportion of successful challenges to regulatory mea-
sures before the WTO is due less to the nature of the WTO’s rules than to the
careful selection of the few complaints brought. Governments have tended to
challenge only poorly developed regulations. This is because governments
weigh carefully the decision to initiate trade disputes, because doing so incurs
costs beyond simply the resources required. Not least among these consider-
ations when it comes to regulatory measures is a desire to avoid establishing a
precedent against a foreign rule that may affect their own policies.

第三, when confronted with an adverse WTO judgment, 政府
have tended to seek to comply without fundamentally altering the objectives of
the policy in question. This reºects the underlying political process that pro-
duced the measure in the ªrst place. Although an adverse WTO judgment alters

79. 沃格尔 2002, 20.

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64 •

Picking the Wrong Fight

the domestic political balance, it does not wholly transform it. 作为一个结论-
序列, compliance with adverse WTO judgments against public health and en-
vironmental regulations has been more of style than of substance. The interac-
tion of WTO deference in adjudication, (foreign) government caution in
dispute initiation and (国内的) government perseverance in compliance
means that the WTO poses much less of a threat to national public health and
environmental regulations than its opponents claim.

By exaggerating the extent to which the WTO constrains national regula-
tory autonomy, environmental and consumer activists risk contributing to the
regulatory chill that they claim the WTO causes. They are feeding the myth that
action to protect consumers or the environment is futile because it will ulti-
mately be undone by the WTO. This only aids the opponents of regulation.
Rather than demonizing the WTO, consumer and environmental advocates
should concentrate on winning the debate for regulation at home.

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• 65

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