Symbolic Politics and Normative Spins: The Link Between U.S. Domestic Politics and Trade-Environment Protests, Negotiations, and Disputes

Gregory Shaffer

Gregory Shaffer is an Assistant Professor of Law at the University of Wisconsin. He can be reached by e-mail at gshaffer@facstaff.wisc.edu. Thanks go to Jeff Atik, Jagdish Bhagwati, Peter Carstensen, Steve Charnovitz, Carin Clauss, Jon Graubart, Robert Hudec, Paul Joffe, Neil Komesar, Kal Raustiala, and David Trubek for their cogent comments, and to Steven Coon, Jon Graubart, and Monica Riederer for valuable research assistance. He would like to note that all errors remain his own. Portions of this Article appeared in the Fordham International Law Journal (which also addressed trade-labor issues) and are being republished with permission.

[31 ELR 11174]

While scores of western commentators criticize the nontransparency¹ of the World Trade Organization (WTO) in their examination of "green" trade-environment issues, they often ignore the linkage between domestic politics in powerful states and international trade measures. Consciously or unconsciously, they blur this crucial linkage that divides WTO members and exacerbates conflicts and scuttles them to the WTO in the first place. Yet it is this underlying domestic-international, two-level game² that also needs to be made more transparent, since its examination demonstrates that it is this nexus more than the WTO's lack of transparency that results in trade-environment conflicts.³

This Article makes two central points about debates over the WTO's treatment of trade-environment matters. First, the U.S. public is relatively government-averse and foreigner-wary. It is thus far less likely to support financing of domestic and international programs that directly address environmental concerns than to support trade restrictions against foreign imports. Trade restrictions against foreign imports impose costs on domestic constituents, but these costs are less transparent than the costs of positive environmental programs. Domestic politicians and the mass public therefore respond more favorably to critics' calls for trade restrictions against unrepresented foreigners. WTO critics employ the rhetoric of fighting "multinational corporations,"⁴ but the sanctions that they advocate can harm developing country workers, and these workers are rarely consulted about them. Positive assistance programs, on the other hand, are both more efficient and equitable. Yet whatever political party is in control, domestic political processes prefer to shift costs through trade restrictions onto foreigners who, in a world of asymmetric power, tend to come from poorer, smaller countries.⁵ The result is North-South, trade-environment policy controversies brought before the WTO on account of U.S. imposition of unilateral trade restrictions against developing country imports, as opposed to negotiated package agreements involving financial and technical assistance.⁶

Second, domestic laissez-faire-oriented policies within the United States, whether concerning social policy or environmental [31 ELR 11175] protection, should encourage further backlash against the WTO and the international trade liberalization policies that it facilitates. Although it is primarily these domestic policies that are problematic, U.S. political processes more easily focus on trade liberalization as the culprit. To attempt to counter this backlash, trade-liberals could work with environmental advocates to address their concerns through specific domestic and international environmental programs. This policy response, however, is constrained by U.S. domestic politics for the reasons just stated. Thus, should the United States continue to push for trade liberalization policies without more coherently addressing domestic and international environmental concerns, it should trigger further backlash against the international trading regime.

This Article first provides a brief overview of the dominant discourse on linkages, which focuses on whether WTO rules should be modified (or interpreted) to permit trade restrictions on environmental grounds. The Article then examines the political economy of trade-environment policy, particularly in the United States. The Article addresses the politics of trade-environment agenda-setting and the reasons why U.S. critics more likely target their criticism on the WTO instead of on environmental policy decisions made domestically. The Article concludes with a discussion on the nexus between U.S. domestic politics and the WTO's future development.

The Current Focus on Trade-Environment Linkages: Should WTO Rules Facilitate Trade Restrictions on Environmental Grounds?

Overview of the Debates

The WTO is increasingly a household name not because of the almost one-half century of multilateral trade negotiations leading to its current state, nor because of its multiple daily committee meetings in Geneva, but because of the dramatic anti-WTO protests and riots in Seattle, Washington, in November 1999 at the WTO's third Ministerial Meeting.⁷ The two central claims of the protestors were: (1) the WTO system favors large corporate interests at the expense of workers, consumers, the environment, and developing countries; and (2) it is a closed, trade-biased, anti-democratic institution. Critics link these substantive and procedural claims, declaring that it is the nontransparent procedures of the WTO that lead to pro-corporate, neoliberal outcomes.

The preferred remedy of many of these critics is trade restrictions on environmental grounds. I call this the western perspective because it is almost solely a demand of western nations and western constituents.⁸ This does not in itself signify that the demand for trade restrictions is correct or incorrect, but the situation's political economy needs to be recognized. Although developing country critics of the WTO demand fewer WTO constraints on their abilities to implement social and development policies,⁹ they largely oppose trade restrictions on environmental grounds, particularly where they would be implemented through a unilateral determination by the United States.¹⁰ On the other hand, western protestors, western academics, and often western leaders and the western media, call for WTO authorization of unilaterally determined trade restrictions without any significant complementary financial assistance. Well before the Seattle concatenations, reams of U.S. law review articles addressed how WTO rules should be modified or interpreted to accommodate trade restrictions imposed on environmental grounds.¹¹ In response to the Seattle mayhem, the U.S. media supported some of the protesters' demands. The New York Times' lead editorial concluded that WTO dispute settlement [31 ELR 11176] panels "should bend over backward to side with the environmental advocates when the cause is just and not a disguised form of protectionism,"¹² ignoring developing country claims that the cause is not just if no financial assistance is provided to them,¹³ and that self-interested producers are always in league with well-meaning environmental activists when it comes to bans on the importation of developing countries' competitive products.

Overview of WTO Rules: The Product-Process Distinction

WTO law prohibits discriminatory regulatory treatment of foreign products by WTO members,¹⁴ subject to certain exceptions, such as those "necessary to protect public morals" and "human, animal, or plant life or health," provided that the measures do not constitute "arbitrary or unjustifiable discrimination."¹⁵ In the consumer health field, the WTO Agreement on Sanitary and Phytosanitary Measures supplements these provisions. Among other matters, it permits countries to maintain sanitary and phytosanitary requirements higher than internationally agreed standards so long as they are based on a risk assessment and "do not arbitrarily or unjustifiably discriminate between Members."¹⁶ Under this approach, domestic clean air regulations cannot apply more stringent standards to foreign-produced gasoline than to domestically produced gasoline.¹⁷ Similarly, domestic health agencies cannot apply more stringent pesticide testing requirements to foreign-grown apples. Apples are apples and must be treated the same, whether they are produced in Washington, Chile, or Japan, whether they are Red Delicious or Granny Smith.

General Agreement on Tariffs and Trade (GATT) judicial interpretations of these provisions traditionally distinguished between product and nonproduct-related production and process methods.¹⁸ Apple growers, for example, can adopt widely different production processes. They could employ nonunionized or child labor, or use genetically modified seeds or a cocktail of pesticides and fertilizers. Under the traditional GATT approach, to the extent that production processes affect the safety of the product itself, WTO members may ban imports so long as they treat domestic products no more favorably. However, where there is no danger from the product's importation or consumption (for example, no pesticide or fertilizer remains on the fruit), then a WTO member may not ban its importation, regardless of the actual production methods used.¹⁹ This view treats the use of biotech and traditional agricultural techniques similarly to soil and climate differences. Together, such differences determine a country's comparative advantage to produce certain types of products as opposed to others.²⁰

The Traditional Trade-Liberal Approach

Supporters of the traditional trade-liberal approach maintain that environmental standards are fundamentally a matter of domestic policy to be determined by domestic political processes. Many of them favor a regulatory competition model whereby environmental standards constitute domestic political choices that form part of a country's comparative [31 ELR 11177] advantage.²¹ They base their arguments on concepts of federalism (in the United States) and subsidiarity (in the European Union (EU)), whereby decisionmaking is to be made at a level closest to the citizen. Under a regulatory competition model, when consumers purchase products on the market, they effectively choose a regulatory system under which those products are produced, leading to competition between regulatory systems and (these commentators argue) more efficient, better regulation.²²

While critics charge that the regulatory competition model leads to downward competitive pressure on environmental standards,²³ defenders counter that, in the international context, many of these critics wrongly focus on a country's absolute advantage instead of its comparative advantage.²⁴ Although companies can produce a product at a cheaper cost in jurisdictions with lax environmental standards, a low-standard country cannot produce all products consumed in the world. Similarly, a country with higher standards cannot import everything and produce nothing for export. Rather, a country can have an absolute advantage in nothing (whether on account of low skills, high social standards, or otherwise) and its citizens still benefit through trade vis-a-vis the alternative of an inward-looking, autarchic domestic system.²⁵

Even where they admit that there is a theoretical case for potential downward pressure on standards,²⁶ defenders of the regulatory competition model maintain that there is little to no empirical evidence of this occurring.²⁷ This is particularly the case as regards environmental protection. Polluting industries have not, in fact, shifted operations to the developing world to any significant extent.²⁸ Rather, liberalized trade appears to have helped leverage up standards, not ratchet them down, through informal means.²⁹ Moreover, trade-liberals argue that the most sure means to ratchet up standards in developing countries is to foster economic growth, and, in particular, through open trade.

Critical Approaches

As is true with the perspectives of supporters, the system's critics employ many arguments, not all of which are adequately summarized here. I divide the critics into two camps, those who oppose trade liberalization generally, and those who desire a modification or interpretation of existing [31 ELR 11178] trade rules to accommodate trade sanctions on environmental grounds. More radical critics assert that globalization trends must be countered through eliminating or severely curtailing the WTO and International Monetary Fund, thereby granting importing countries full discretion to implement trade and capital controls as they deem appropriate, whether for protectionist or other policy reasons.³⁰ More moderate critics support liberalized trade policies provided that they are complemented by appropriate environmental regulation at the international and domestic level.³¹ A primary difference between some moderate critics and some defenders of the current system is that these critics maintain that countries should be free to restrict imports on environmental grounds even where multilateral standards have yet to be agreed, provided that they do not do so for "predominantly" protectionist purposes.³² In this section, I summarize the approach of these more moderate critics.

Critics of liberalized trade policies maintain that globalization processes, facilitated by liberalized trading rules, shift negotiating leverage to capital and away from other constituencies.³³ In a world without trade barriers or investment or capital controls, capital can threaten to invest elsewhere unless government officials agree to reduce regulatory controls. In the last decades, environmental advocates in Europe and the United States have aimed to curtail companies' ability to compete through reduced standards. Globalization forces, however, reintroduce market forces. Critics claim that globalization processes, facilitated by the WTO's legal regime, thereby buttress capital's negotiating leverage and undermines domestic environmental regulations.

Critics maintain that existing GATT rules should be interpreted or modified to permit "legitimate" trade restrictions imposed unilaterally on account of foreign production processes. They argue that the production process is an integral part of the product ultimately consumed and that it is disingenuous to maintain otherwise. Holes in the ozone layer and global warming so attest. Moreover, critics state that consumers do not wish to support practices that they find environmentally destructive or socially repressive. Were consumers to have the time and information to know how each product is produced, they would adjust their buying practices for social ends. Yet consumers lack the time and information, thus, they depend on government intervention.³⁴

Critics contend that their approach would not blow a hole in the WTO system because countries would not be able to restrict imports simply based on some difference in some production method in a country at a wholly different level of development.³⁵ Critics would shift the test, they argue, from the current arbitrary one, which asks whether products are physically "like," to a more nuanced one that asks whether the import restriction has a predominantly protectionist purpose.³⁶ These critics argue that the WTO has been trade-biased because it has focused on protecting trade of physically "like" products and not on protecting social values reflected in their production processes. In light of the difficulty of international political negotiations over social and environmental standards and their enforcement,³⁷ and in light of the critics' distrust of the regulatory competition model, they are more willing than defenders of the current system to entrust the analysis of purpose, appropriateness, and proportionality of national trade measures to international judicial processes.

Critics similarly assert that the WTO's treatment of intellectual property under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) already contradict [31 ELR 11179] the alleged product-process distinction. The TRIPs Agreement now mandates harmonized recognition and enforcement of patent, copyright, and other intellectual property rights. Under the WTO's Dispute Settlement Understanding, countries may impose import restrictions on products and services entirely unrelated to the violated property right in question. If the WTO system can protect Madonna's, Puff Daddy's, and Eli Lilly's royalties, critics pointedly remark, then there is no reason why it should not enforce "core" labor standards and environmental norms.³⁸

Developing Countries' Realist Concerns

National representatives before the WTO may adopt trade-liberal or social policy rhetoric when advancing arguments in WTO negotiations. This does not mean that they are trade-liberals or social activists. Rather, as shown by this author's detailed study on state positions within the WTO on trade-environment matters, state representatives primarily react to domestic constituent pressures.³⁹ Although developing country nongovernmental organizations (NGOs) may be harsh critics of their governments at home, they have largely supported them internationally in opposing developed country NGO demands for WTO accommodation of U.S. trade restrictions.⁴⁰

Even though the primary aim of the WTO is to facilitate the negotiation of liberalized trade policies, state representatives typically take mercantilist positions within it. As mercantilists, they strive to expand national exports, limit foreign imports, and in this way, satisfy both their exporting and nonexporting producer interests.⁴¹ Given mercantilist intergovernmental bargaining in the WTO, developing countries are concerned that, in practice, the United States and EU would impose trade restrictions on environmental grounds to satisfy domestic producer interests. In both the controversial tuna-dolphin and shrimp-turtle cases, although environmentalists may have had idealist ends, domestic producer interests used environmental concerns to mask self-serving motives. Indeed, in the shrimp-turtle case, it was conservative Gulf Coast representatives in the U.S. Congress who were the sole sponsors of the relevant legislation. They sponsored it only after the state of Louisiana and its shrimping industry failed to block application of a similar domestic regulation before U.S. federal courts.⁴²

Developing country representatives may rhetorically employ a trade-liberal rationale for not adopting a WTO social clause. Yet their primary concern is how such clause would operate in practice.⁴³ They fear that it would be constructed and used by developed countries to restrict developing country imports, and not vice versa, thereby worsening existing biases against them.⁴⁴ They fear that the integration of environmental mandates into the WTO could be used predominantly by the big powers to appease domestic constituencies by blocking developing country imports, without any compensation to developing countries. Developing country NGOs often have very different priorities than their developed country counterparts. Yet even where developing country NGOs have identical ideals, they have experienced in a more direct manner how power politics in international economic relations affects their application. While it is appropriate for developing countries to enact social standards, it is not apparent to them why this should be imposed and enforced by an international trade regime or through unilateral action by the United States. Many of them assert that such measures are coercive and undemocratic because they interfere with developing country policymaking choices to advance developing country-determined priorities.⁴⁵ It is the law-in-action of international economic relations that they distrust.

[31 ELR 11180]

Domestic Politics in the United States Over the Trade-Environment Nexus

The pyrotechnics of anti-WTO protests to the contrary, the WTO can do little about the underlying trade-environment nexus until there is a change in domestic politics within the world's great economic powers. If the United States wishes to seriously address critical international environmental problems such as global warming, the United States needs to do much more than impose trade restrictions. It can implement policies to reduce greenhouse gas emissions and spur the development and use of new technologies at home that can be exported abroad. If the United States is serious about environmental problems in developing countries, it can provide financial and technical assistance to assess and implement appropriate sustainable development policies, including through market-based mechanisms.⁴⁶ In each case, however, the United States does little because of U.S. domestic politics. Yet U.S. protestors target their disdain on the WTO and not so much on their own home government.

Environmental problems require positive policy responses, but the trade-environment debate in the United States has almost solely revolved around the WTO legality of negative trade restrictions against those least well off. Were the United States serious about assisting with environmental protection efforts abroad, it would not simply ban foreign imports, but would help fund assessments of problems and implementation of improvements. There are international institutions mandated to do this, and in particular the United Nations (U.N.) Development Programme, the U.N. Environmental Programme, and the Global Environment Facility. Working with and through these institutions is a more coherent way of addressing foreign environmental issues than bringing them to an international trade organization in which countries truck and barter their trading interests. Yet, the United States has not only failed to pay $ 1.77 billion in U.N. dues,⁴⁷ it has successfully pressured the United Nations to reduce the amount of U.S. allotment even though it is based on a smaller contribution in terms of U.S. per capita wealth than for any other developed country.⁴⁸ Moreover, the United States, which is by far the wealthiest country in the world, currently gives only 0.015% of its gross domestic product in foreign aid, most of it targeted to Israel and Egypt for political and security reasons.⁴⁹ During the 1990s, the amount of U.S. foreign aid declined an average of 8% per year.⁵⁰

There are numerous examples of the U.S. domestic political preference for trade bans over financial outlays. The Seattle protestors lambasted the WTO for failing to support the U.S. ban on imports of South and Southeast Asian shrimp because of these countries' failure to require their shrimp trawlers to use sea turtle protection devices required in U.S. domestic regulation. However, there have been no mass protests against the U.S. refusal to take domestic measures to reduce its contribution to global warming, even though the United States is responsible for over one-third of all greenhouse gas emissions.⁵¹ Nor have there been mass protests against the U.S. failure to provide financial assistance for environmental improvements in developing countries, a need documented in Agenda 21 signed at the 1992 "Earth Summit" in Rio de Janeiro. Under pressure from oil-producing interests, the U.S. Congress has refused to enact a tax on carbon emissions that would create incentives to reduce them. In response to lobbying from U.S. automobile manufacturers, Congress has relaxed fuel efficiency requirements for minivans and sport utility vehicles (SUVs) to 20.7 miles per gallon (mpg) (as opposed to 27.5 mpg for all other automobiles).⁵² Under pressure from U.S. pharmaceutical and petroleum interests, the United States has refused to ratify the U.N. Convention on Biodiversity or the Kyoto Protocol on global warming.⁵³ Yet there have been no significant protests in the United States against these policy decisions supported by U.S. multinational corporate interests, certainly nothing comparable to the scale in Seattle.

The primary explanation for the U.S. political preference for trade bans is that it is much easier to feign taking the normative high ground, complain about foreigners, and use economic power to impose costs on foreigners than to look critically at what one does at home. It is much easier to close markets to foreigners—and poor ones at that—than to protest against U.S. middle class preferences for cheap oil and treasured gas guzzling minivans and SUVs. If U.S. environmental NGOs wish to receive large contributions from the U.S. public, it is easier for them to challenge poor countries' production processes than central aspects of American consumer culture with its negative environmental impacts. To be fair to U.S. environmental groups, many have been on [31 ELR 11181] the forefront of demanding greater U.S. contributions toward sustainable development projects and a more aggressive domestic approach to confront global warming. However, they are less successful on these fronts because of U.S. political constraints.⁵⁴

The WTO shrimp-turtle case again provides a prime example of the domestic political context behind U.S. trade-environment policy choices. The U.S. legislation was easy to pass because it appeased the U.S. shrimp industry by forcing developing country shrimp trawlers to either use the same standards required in the United States or face an import ban. Legislation of this sort is more easily passed than financing serious environmental studies of the local sea turtle problems in developing countries and the most effective ways to address them. Through conditioning access to the U.S. market on the requirement of a developing country's adoption of a U.S. regulatory framework, the United States was attempting to force developing countries to assume the costs of these U.S. congressional priorities.⁵⁵ In the end, neither the United States nor U.S. NGOs have offered any serious financial assistance to allay these costs.⁵⁶ Although the United States and U.S. NGOs claim that the costs are minimal, they ignore that local regulatory enforcement costs are significant. Without local enforcement, the regulations become merely symbolic.⁵⁷ Yet it is the symbolism of trade restrictions that assumes more importance than real financial outlays and tax incentives targeted toward environmental protection.

The United States chooses trade restrictions over financial outlays even though they impose costs on U.S. residents and are not necessarily cheaper for the United States in aggregate. A ban on Asian shrimp imports results in higher priced shrimp in the U.S. market and less consumer pocket money for other goods. Although the costs are marginal per American consumer, they add up. This de facto shrimp tax, however, is far easier to pass because it is more beneficial to the U.S. shrimp industry, on the one hand, and less transparent to the U.S. general public, on the other.

A de facto shrimp tax is less transparent than funding for environmental protection in two important ways. First, the de facto shrimp tax does not appear on receipts when U.S. consumers buy shrimp, so that they remain unaware of the tax's existence. Second, it is easier to track how targeted funds for a conservation program are being used and whether the program is cost-effective. Whereas the de facto shrimp tax's aggregate amount is impossible to calculate, a line item budget allocation for Asian sea turtle conservation is easily reported in the media. Although an import ban and subsidization of environmental improvement projects may have similar aims, and although both impose costs on U.S. consumers, the ban is typically chosen instead of positive financial assistance on account of the lack of transparency of its costs to the U.S. public.

In addition, and probably most importantly, import bans directly benefit U.S. producers, unlike financial assistance to fund environmental protection efforts abroad. U.S. producers have high per capita stakes in the outcome of congressional policy choices. They are thus more likely than other U.S. constituents to lobby Congress and to present it with informed views on alternative policy options. The result is U.S. legislation that triggers controversial disputes brought before the WTO, ensuing challenges to WTO legitimacy, and largely ineffective environmental protection because developing country governments and their constituencies are treated primarily as antagonists.

It is this linkage between domestic politics and international trade and environmental policies that is the fundamental challenge to the WTO and other international institutions. The United States does not provide significant financial support to international environmental institutions to promote positive sustainable development measures. The United States does not take measures to reduce its own emissions that lead to the world's gravest environmental challenge—global warming. For domestic political reasons, U.S. activists are most successful in garnering support when they focus on trade restrictions to compel change in developing country regulatory policies, as opposed to the need for greater financial assistance that more transparently taps the pocketbooks of U.S. taxpayers. It is this fundamental disconnection between international and foreign environmental needs and U.S. domestic politics that is the central trade-environment linkage that both confronts the world with its severest environmental problems and the WTO with controversies that it is ill-equipped to address. Developing countries recognize U.S. hypocrisy. But it looms low in legal analysis of the international "trade-environment linkage" and the "future of the WTO."

[31 ELR 11182]

Conclusion: U.S. Domestic Politics and the WTO

This Article has taken a separate track from that of most western commentators on trade-environment linkages by assessing a second linkage—the domestic-international one. Simply stated, trade restrictions alone will not achieve most of the goals of anti-WTO protestors. To be effective, an international campaign to protect the environment requires positive programs by national governments and international agencies, whether or not these are implemented independently or as a complement to trade restrictions. Required initiatives include multilateral efforts to address global issues, such as global warming, and assistance to developing countries in devising effective environmental policies at the national level.

The debate over trade sanctions is intense and there are persuasive arguments on both sides as to whether certain minimum environmental standards should be negotiated and enforced at the international level. While I support the need for international cooperation, oversight, and enforcement capacity on social matters as a complement to open trade policy,⁵⁸ this Article does not attempt to resolve that issue. Rather, this Article demonstrates that it is unlikely that the debate over trade sanctions in support of environmental goals will advance until there is greater evidence of political will within developed countries, and particularly within the United States, to address their own internal environmental problems and to expand their foreign economic assistance. WTO critics from northern states will not be successful in having developing countries agree to a modification (or interpretation) of WTO rules that would facilitate the imposition of trade restrictions on agreed environmental grounds,⁵⁹ unless the United States, Europe, and other developed countries also agree to provide significant financial assistance to developing countries for implementing appropriate environmental policies.⁶⁰ Moreover, from both equity and efficiency perspectives, developing countries and developing country constituencies should retain a significant role in shaping and adapting these policies to their local conditions so that developing country constituencies have a stake in them and the policies are appropriate for the local situation.

It is unfortunate that so much of the trade-environment debate in the United States focuses on trade restrictions. The central explanation appears to be domestic politics within powerful states. It is simply easier to lambast the WTO than to get Congress' attention to pass legislation that transparently imposes costs on domestic constituents. To enact a greenhouse gas emissions tax and funding for sustainable development and social infrastructure projects abroad, all impose direct costs on domestic constituents in the form of taxes. When these initiatives are thwarted in the United States, it is more difficult to garner public sympathy through dramatic protests. Yet livelihoods and environmental welfare remain at risk. Activists more easily rally masses by proclaiming that the threat's cause lies in foreign (or multinational) producers and their protector, the WTO.⁶¹ They focus their limited resources where they are most likely to succeed. Yet, their demand for trade restrictions can become merely symbols that defuse and divert challenges away from U.S. domestic policies.⁶²

The U.S. 2000 election of a Republican administration bodes poorly for refocusing political pressure toward government funding of domestic and international environmental agendas.⁶³ The likely result is that the WTO will continue to be a target for attacks and a political symbol of the negative aspects of globalization and none of its benefits. The consequences for the WTO could be stagnation, hesitancy, and calls for curtailing the scope of its authority, from those [31 ELR 11183] at conservative think tanks,⁶⁴ to the demonstrators in Seattle demanding not a new round, but a "turnaround."⁶⁵

People saw the result of anarchism in the streets of Seattle. Yet Seattle's black-clad anarchists have white-collar allies in those who attack any government policy to assist the less privileged as "big government." Those who wish to curtail the role of government precisely at a time when the U.S. economy is more subject to foreign economic shifts than ever and the U.S. government has large projected budgetary surpluses, also preach a form of anarchy.⁶⁶ In the end, their anti-government policies will drive more Americans that are not benefitting from the global market to demand that the United States shut down its borders to foreign imports.⁶⁷

The WTO's future development depends, in large part, not on whether it facilitates the use of trade restrictions, but rather on how trade liberalization policies are coordinated with the provision of environmental protection, domestically and internationally. Trade negotiations at the international level traditionally involve package deals based on reciprocal trade concessions.⁶⁸ In order to sustain the welfare-enhancing, nondiscriminatory goals of liberalized trade, we need to direct more attention to U.S. domestic reciprocity packages.⁶⁹ These domestic packages should include the advancement of environmental policies domestically and internationally. The question becomes: in return for further trade liberalization, what domestic, foreign, and international environmental programs will trade-liberals endorse, and how energetically will they do so? This is what the 1999 WTO-U.N. Environmental Programme joint report on Trade and Environment suggests when it states:

There is no inherent conflict between trade and the environment. Rather, the conflict, to the extent it exists, arises as result of a failure of political institutions to address environmental problems, especially those of a transboundary or global nature that require a concerted effort to solve … The removal of economic borders and the associated increase in mobility of industries, has made cooperation more urgent …. But this need for cooperation goes far beyond what the WTO is cable of delivering by itself.⁷⁰

Resolution of the WTO's trade-environment imbroglios will require collaborative initiatives of trade-liberal policy networks, export-oriented commercial interests, and environmental constituencies. Only then will we attain the broad-based benefits that liberalized trade makes possible, and with them, a more positive future for the WTO.

Yet whatever one's position on these environmental and social policy questions—whether you believe in the virtues of laissez-faire or a role for government regulation and redistribution—there is not much that the WTO alone can do about them. While the management of green trade issues has become the greatest challenge for the WTO, it is a challenge that the WTO is ill-equipped to handle because of this second linkage to domestic politics in powerful states. This second underanalyzed, underlying linkage of domestic politics and international negotiating positions is a critical part of the explanation of the WTO's current funk. The lingering questions from Seattle remain: how will the United States react to the protests? Will it ignore them? Will it curtail trade from developing countries on "fair trade" grounds? Will it provide greater positive assistance, domestically and internationally, to those most at risk? Will it proceed with some combination of the above? These remain open questions. What is clear is that U.S. domestic politics, concerned with U.S. constituent interests, will continue to lie at the center.

1. The term "transparency" is a buzzword used in public discourse to assess public access—or lack thereof—to deliberations and dispute settlement hearings within the WTO over trade and trade-related policies. This public access could be either. (1) direct, through the provision of access of nongovernmental groups to WTO negotiating rooms, committee meetings, and dispute settlement hearings; or (2) indirect, through making the minutes of meetings and transcripts of hearings, as well as all position papers, secretariat studies, and legal briefs submitted to them, publicly available over the Internet and by other media on an expeditious basis.

2. Domestic politics remains the primary explanation for national negotiating positions in international fora, even though in some areas transnational advocacy groups can successfully act outside of national politics, and international organizations such as the WTO can somewhat constrain national policymaking. On two-level game analysis in international relations, see Robert Putman, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT'L ORG. 427 (1988); and DOUBLE-EDGED DIPLOMACY: INTERNATIONAL BARGAINING AND DOMESTIC POLITICS (Peter B. Evans et al. eds., 1993). For an application to the WTO, see Gregory Shaffer, The WTO Under Challenge: Democracy and the Law and Politics of the WTO's Treatment of Trade and Environment Matters, 25 HARV. ENVTL. L. REV. 1 (2001) [hereinafter Shaffer, WTO Under Challenge].

3. Social policy conflicts brought before the WTO are best explained by a more complex combination of factors, including the following: (1) the increasing importance of trade vis-a-vis domestic output in most WTO members; (2) the overall lowering of tariffs and protectionist barriers worldwide so that protectionist interests look to new means to protect home markets from foreign competition; (3) the fact that some environmental problems are clearly transnational or global in nature; (4) a shift in negotiating power in favor of capital against labor and environmental activists at the domestic level so that the latter attempt to restrict imports in order to reduce firms' negotiating leverage and exit options; (5) different social priorities of constituencies around the world so that, for example, preservationist environmental policies are of less importance to developing country nongovernmental organizations (NGOs) and constituents than to their developed country counterparts; and (6) conflicting national interests in a world characterized by asymmetric economic power in which developing countries fear that trade restrictions on alleged social policy grounds will be used primarily (or exclusively) against their exports because only economically powerful countries, such as the United States, will have the leverage to effectively implement them.

4. See, e.g., LORI WALLACH & MICHELLE SFORZA, WHOSE WORLD TRADE ORGANIZATION? CORPORATE GLOBALIZATION AND THE EROSION OF DEMOCRACY ix (1999) (where the preface by Ralph Nader refers to "an autocratic system of international governance that favors corporate interests").

5. The WTO shrimp-turtle case took place during a Democratic presidency and a Republican-controlled Congress, while the General Agreement on Tariffs and Trade (GATT) tuna-dolphin case took place during a Republican presidency and a Democratic-controlled Congress. In both cases, a coalition of environmental activists, together with producers seeking a level playing field, brought a court case to compel the United States to implement a ban that triggered the GATT/WTO proceedings. In both GATT/WTO cases, the U.S. position on the appropriateness of trade sanctions on environmental grounds was basically the same.

6. Package agreements could, of course, be combined with monitoring and, eventually, trade restrictions, whether through market boycotts, adverse labeling, tariffs, or import bans.

7. As an Asheville, North Carolina, newspaper reports: "Before this week, you might have thought the WTO was a wrestling organization seen on a cable channel you don't get." Mark Barrett, Trade Anger Reverberates; Issues Impact WNC, ASHEVILLE CITIZEN-TIMES, Dec. 2, 1999, at A1. These have been followed by large protests against the World Bank in Washington, D.C., in April 2000, against the International Monetary Fund in Prague, in September 2000, and against negotiations for a Free Trade Area of the Americas Agreement in Quebec City, in April 2001.

8. For a detailed study of this issue in the environmental realm, see Shaffer, WTO Under Challenge, supra note 2 (assessing how NGOs from developing countries support their governments' opposition to an amendment of WTO rules that would facilitate unilateral trade restrictions on environmental grounds). The terms "western" and "northern" are used in this Article to distinguish developed country positions from those of the developing world. In many cases, U.S. politicians, academics, and interest groups play leading roles among developed country constituencies in pressing for trade sanctions on social and environmental grounds, so that this also could be dubbed a U.S. perspective. This, of course, does not mean that all constituencies around the globe can be divided on this basis, but the political economy of the situation is clear to any careful observer.

9. For example, developing country critics demand that developing countries be granted special status so that they retain more discretion to promote "infant industries" and other policies through subsidies and import barriers than under WTO rules.

10. See, e.g., Third World Intellectuals and NGOs Statement Against Linkage (TWIN-SAL), ECONOMIQUITY Nov. 1999, at 2 (the newsletter of the Indian organization Centre for International Trade, Economics, and Environment, listing 99 third-world intellectuals and NGOs as signatories, and declaring "our unambiguous opposition to Linkage of Labour and Environmental Standards to WTO and to trade treaties. We also wish to disabuse the media and the governments in the developed countries of the notion that those who oppose Linkage are corporate interests and malign governments." They propose that environmental issues be handled in environmental agencies, such as the United Nations (U.N.) Environmental Programme); Joint NGO Statement on Issues and Proposals for the WTO Ministerial Conference, 8-11, at http://www.twnside.org.sg/title/issue-cn.htm (last visited May 10, 2001) (signed by 34 NGOs from developing countries, including Bangladesh, Brazil, Colombia, Dominican Republic, Ghana, Guyana, India, Indonesia, Kenya, Malaysia, Mexico, Nepal, Philippines, South Africa, Thailand, Uruguay, and Zimbabwe stating: "The environment should not be made use of as an issue for protectionism by the powerful for that would unfairly shift the adjustment cost to the weaker countries and people …. There should be no recourse to unilateral trade actions for any purpose.").

11. See, e.g., Jeffrey Dunoff, The Death of the Trade Regime, 10 E.J.I.L. 733 (1999) (proposing new procedural mechanisms whereby WTO dispute settlement panels would avoid controversial trade-environment cases on standing, ripeness, political question, and related grounds, thereby permitting domestic trade restrictions imposed on environmental grounds to remain unchallenged before the WTO); Philip Nichols, Trade Without Values, 90 NW. U. L. REV. 658, 660 (1996) (proposing the creation of "an exception that would allow certain laws or actions to exist if they violate the rules of the [WTO]," provided that "the impediment to trade must be incidental," and the measure must be "undertaken for the purpose of reflecting an underlying societal value"). See also DANIEL ESTY, GREENING THE GATT: TRADE, ENVIRONMENT, AND THE FUTURE 113-36 (1994) (proposing a three-prong test to address trade-environment issues in a more balanced manner) [hereinafter ESTY, GREENING THE GATT]; and, more recently, Robert Howse & Donald Regan, The Product/Process Distinction—An Illusory Basis for Disciplining "Unilateralism" in Trade Policy, 11 E.J.I.L. 249 (2000) (maintaining that WTO rules already permit countries to differentiate and restrict products based on how they are produced) [hereinafter Howse & Regan, The Product/Process Distinction].

12. Messages for the WTO, N.Y. TIMES, Dec. 2, 1999, at A30.

13. See, e.g., noted in, Jeff Atik, Two Hopeful Readings of Shrimp-Turtle, 9 Y.B. INT'L ENVTL. L. 6 (1999).

14. Article 4 of the GATT for example, provides:

The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favorable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.

General Agreement on Tariffs and Trade art. III. 4, Oct. 30, 1947, 61 Stat. A-11, T.I.A.S. 1700 [hereinafter GATT].

15. These conditions are set forth in GATT Article 20, see id. art. XX.

16. Agreement on the Application of Sanitary and Phytosanitary Measures, arts. 2, 3 and 5, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, 33 I.L.M. 1125 (1994), as well as the WTO's interpretation in the APPELLATE BODY REPORT, EC—MEASURES CONCERNING MEAT AND MEAT PRODUCTS (HORMONES) (Jan. 16, 1998), available at http://www.wto.org/english/tratop_e/dispu_e/distab_e.htm.

17. APPELLATE BODY REPORT, UNITED STATES—STANDARDS FOR REFORMULATED AND CONVENTIONAL GASOLINE (May 20, 1996), available at www.wto.org/english/tratop_e/dispu_e/distab_e.htm (the Appellate Body upheld the finding of the panel that imported and domestic gasoline were "like products," and that, since imported gasoline was treated "less favorably" than domestic gasoline, the discriminatory U.S. regulations were inconsistent with Article 3.4 of GATT).

18. See, e.g., Joel Trachtmann, Decision: GATT Dispute Settlement, 86 AM. J. INT'L L. 142 (1992) (brief discussion of the relevant GATT articles (III, XI, and XX) and their application in the first tuna-dolphin case). This approach, however, has been somewhat called into question by the WTO shrimp-turtle case. See discussion in Gregory Shaffer, United States—Import Prohibition of Certain Shrimp and Shrimp Products, 93 AM. J. INT'L L. 507 (1999) [hereinafter Shaffer, Shrimp-Turtle Dispute].

19. Traditional GATT doctrine considers such an imported product to be a "like" product that cannot be subjected to more stringent regulations. The notion of a "like product" is, nonetheless, a rather fluid concept in GATT and WTO jurisprudence. As the Appellate Body stated in its Japan-Alcohol decision:

No one approach to exercising judgment [sic] will be appropriate for all cases…. The concept of "likeness" is a relative one that evokes the image of an accordion. The accordion of "likeness" stretches and squeezes in different places as different provisions of the WTO Agreement are applied. The width of the accordion in any one of those places must be determined by the particular provision in which the term "like" is encountered as well as by the context and the circumstances that prevail in any given case to which that provision may apply.

APPELLATE BODY REPORT: JAPAN—TAXES ON ALCOHOLIC BEVERAGES 23 (1996).

This GATT approach, however, can potentially conflict with other international treaty provisions. For example, the regulation of genetically modified seeds is also governed by the 2000 Biosafety Protocol to the Convention on Biodiversity. The Biosafety Protocol subjects import restrictions to a risk analysis, yet in doing so, grants importing countries greater discretion to restrict imports based on scientific uncertainty. For a review of the positions of biotechnology supporters and critics, as well as an overview of the Biosafety Protocol, see generally Mark Pollack & Gregory Shaffer, Biotechnology: The Next Transatlantic Trade War?, 23 THE WASH. Q. 41 (2000).

20. Traditional factors of production that determine a country's comparative advantage are land, labor, and capital. While human beings and the natural environment clearly are more than "factors of production," the issue remains as to which is the relatively better means, among imperfect alternatives, to address their plights, and who should determine those means. Some who support environmental negotiations at the international level as a counterpart to liberalized trade policy nonetheless oppose the integration of environmental standards into the WTO, arguing that the WTO is a relatively effective trade institution and should not address areas outside of its competence. If environmental standards are to be set and enforced at the international level, they argue, this should be done through international environmental organizations, such as the United Nations Environmental Programme or a new Global Environmental Organization.

21. See discussion in REGULATORY COMPETITION AND ECONOMIC INTEGRATION (Daniel C. Esty & Damien Geradin eds., 2000).

22. See, e.g., Charles Thiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956) (presenting what is known as to the Thiebout model, which maintains that the ability of individuals—or in our case, firms—to "vote with their feet" leads to an efficient allocation of local public goods). See also application to U.S. domestic environmental regulation in Richard Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Regulation, 67 N.Y.U. L. REV. 1210 (1992) (arguing that competition should not decrease social welfare but rather "produce an efficient allocation of industrial activity among the states"). Cf. Richard Revesz, Federalism and Regulation: Extrapolating From the Analysis of Environmental Regulation in the United States, 3 J. INT'L ECON. L. 219, 224-26 (2000) (noting that there are stronger arguments "for allowing countries to impose environmentally-based trade measures, in particular where there are physical spillovers or global commons issues and centralized regulation is not feasible").

23. See, e.g., Herman Daly, From Adjustment to Sustainable Development: The Obstacle of Free Trade, 15 LOYOLA L.A. INT'L L.J. 33 (1992). See also ESTY, GREENING THE GATT, supra note 11, at 107 (noting the effect of "political drag,"—that is, "where a country with low environmental standards is perceived as having established a competitive advantage for its producers based on lower environmental compliance costs, companies competing in the global market against these producers may pressure their own governments to lowers standards to even the 'playing field'").

24. See, e.g., Kimberly Ann Elliot, Getting Beyond No …! Promoting Worker Rights and Trade, in THE WTO AFTER SEATTLE 187, 197-98 (Jeffrey Schott ed., 2000) [hereinafter Elliot, Getting Beyond No] ("theoretical studies suggest that there is no systematic relationship between core labor standards and comparative advantage, while empirical studies suggest any effect is probably small in magnitude."). See also Jagdish Bhagwati, Trade Liberalisation and "Fair Trade" Demands: Addressing the Environmental and Labour Standards Issues, in A STREAM OF WINDOWS 247, 251 (Jagdish Bhagwati ed., 1998) [hereinafter A STREAM OF WINDOWS]; and Jagdish Bhagwati, The Agenda of the WTO, and T.N. Srinivasan, International Trade and Labour Standards From an Economic Perspective, both in CHALLENGES TO THE NEW WORLD TRADE ORGANIZATION (P. van Dijck & G. Faber eds., 1996). Cf. David Leebron, Lying Down With Procrustes: An Analysis of Harmonization Claims, in FAIR TRADE AND HARMONIZATION: PREREQUISITES FOR FREE TRADE? 41, 60-61 (Jagdish Bhagwati & Robert Hudec eds., 1996) [hereinafter FAIR TRADE AND HARMONIZATION] (noting the claim that low standards constitute a form of "subsidy" and not "real" comparative advantage).

25. The theory of comparative advantage is ultimately based on relative productivity. What matters to investing firms is not wages nor regulatory compliance costs by themselves, but rather the relative productivity of all factors of production in a given jurisdiction. For overviews of the theory of comparative advantage, see, e.g., PAUL KRUGMAN & MAURICE OBSTFELD, INTERNATIONAL ECONOMICS: THEORY AND POLICY 14-24 (4th ed. 1997) [hereinafter KRUGMAN & OBSTFELD]; and JAN PEN, PRIMER ON INTERNATIONAL TRADE (1967). See also PAUL KRUGMAN, POP INTERNATIONALISM 79-80 (1996) (mocking the historian Paul Kennedy for his remark: "What if there is nothing you can produce more cheaply or efficiently than anywhere else, except by constantly cutting labor costs." Krugman notes that Kennedy's remarks reenact "the classic fallacy of confusing comparative advantage with absolute advantage").

26. See, e.g., John Douglas Wilson, Capital Mobility and Environmental Standards: Is There a Theoretical Basis for a Race to the Bottom?, in FAIR TRADE AND HARMONIZATION, supra note 24, at 393, 396 ("the theoretical case for a race to the bottom is mixed at best").

27. See, e.g., A STREAM OF WINDOWS, supra note 24, at 247, 253-53.

28. See, e.g., studies cited in Hakan Nordstom & Scott Vaughan, World Trade Organization, Special Studies No. 4, TRADE & ENV'T REP. (Oct. 14, 1999), available at http://www.wto.org [hereinafter Nordstom & Vaughan, WTO Special Studies] ("Little evidence bears out the claim that polluting industries tend to migrate from developed to developing countries to reduce environmental compliance costs."). See also Arik Levinson, Environmental Regulations and Industry Location: International and Domestic Evidence, in 1 FAIR TRADE AND HARMONIZATION, supra note 24, at 429, 453; and INTERNATIONAL TRADE AND THE ENVIRONMENT (World Bank Discussion Papers, Patrick Low ed., 1992) (an explanation for the difference between the rhetoric and the evidence is found in Levinson, who states: "Politicians receive support from many sources, including industry groups using pollution-intensive production processes. One convenient and inherently credible way of justifying favorable treatment for these polluting industries is to argue that regulations threaten their competitive position and that those industries might be forced to relocate.").

29. See, e.g., WERNER ANTWEILER ET AL., IS FREE TRADE GOOD FOR THE ENVIRONMENT? (Nat'l Bureau of Econ. Research, Working Paper No. 6707, 1998) (concluding "freer trade is good for the environment"); DAVID VOGEL, TRADING UP: CONSUMER AND ENVIRONMENTAL REGULATION IN A GLOBAL ECONOMY 5-8 (1995) [hereinafter VOGEL, TRADING UP] (assessing how firms adapting to more stringent regulation in jurisdictions with large markets can facilitate a raising of standards globally); and Gregory Shaffer, Globalization and Social Protection: The Impact of EU and International Rules in the Ratcheting Up of U.S. Privacy Standards, 25 YALE J. INT'L L. 1 (2000) (examining the conditions under which cross-border exchange can lead to a leveraging up of social protections such as data privacy standards).

30. In my view, in a world of imperfect alternatives, this policy shift would result in not only a significant efficiency trade off (reducing aggregate national and world welfare), but also have perverse consequences in terms of equity, on account of curtailed market access for developing country products.

31. Some commentators assert that environmental rules must be integrated directly into the WTO itself. See, e.g., Andrew Strauss, From Gattzilla to the Green Giant: Winning the Environmental Battle for the Soul of the World Trade Organization, 19 U. PA. J. INT'L ECON. L. 760 (1998).

32. See, e.g., Howse & Regan, The Product/Process Distinction, supra note 11, at 280 (noting that the test must focus on the "dominant" purpose, since there will likely be protectionist producer support for the trade restriction).

33. See, e.g., RAVI BATRA, THE MYTH OF FREE TRADE (1993); ROBERT KUTTNER, EVERYTHING FOR SALE: THE VIRTUES AND LIMITS OF MARKETS (1999); and Robert Scott, Trade, in RECLAIMING PROSPERITY: A BLUEPRINT FOR PROGRESSIVE ECONOMIC REFORM (Econ. Policy Inst. 1996). See also DANI RODRIK, HAS GLOBALIZATION GONE TOO FAR? 4 (1997) [hereinafter RODRIK, HAS GLOBALIZATION GONE TOO FAR?].

34. Moreover, Howse and Regan claim that labeling is not sufficient because the political majority in an importing country may not wish their country, as a whole, to contribute to what they consider to be foreign environmental harm or social injustice. Howse and Regan, The Product/Process Distinction, supra note 11, at 272-74.

35. Some trade-liberals and developing country members argue otherwise. See, e.g., John Jackson, Comments on Shrimp/Turtle and the Product/Process Distinction, 11 E.J.I.L. 303 (2000). They maintain that countries have agreed to minimize tariffs and not to discriminate against each other's products. Were WTO rules to permit trade restrictions based on production processes, countries could void their obligations by maintaining that they are not discriminating because the foreign product may be distinguished by how it is produced. Given the variety of labor, environmental, tax, and other regulatory structures around the world, they argue that no two products would ever be deemed to be alike, so that countries could be free to discriminate against each other's products and the WTO system could collapse. Critics counter that this alleged parade of horribles is a chimera, and that protectionism would still be checked by WTO judicial review.

36. That is, the test would be either (1) whether the imports were not "like" (but rather different) products under Article III of GATT 1994 because of the processes under which they were produced so that, in fact, no discrimination takes place, or (2) whether the import restriction constituted "arbitrary or unjustifiable discrimination" under the Article XX of GATT 1994. See, e.g., Howse & Regan, The Product/Process Distinction, supra note 11, at 260-61, 280-85. See also Robert Howse, The World Trade Organization and the Protection of Worker Rights, 3 J. SMALL & EMERGING BUS. L. 131 (1999); and Steve Charnovitz, The Moral Exception in Trade Policy, 38 VA. J. INT'L L. 689 (1998). Supporters of the current approach query whether this sort of review would indeed be more "transparent," or would rather permit protectionist interests to cloak their rationales under "environmental" and "social policy" guises.

37. See, e.g., Daniel Bodansky, What's So Bad About Unilateral Actions to Protect the Environment, 11 E.J.I.L. 339 (2000) (noting that the choice might be "between unilateralism or inaction," not "multilateralism"). Many critics envy the WTO's well-functioning dispute settlement system. The WTO's judicial process has no functioning analogue in institutions overseeing their preferred policy domains, such as the international councils overseeing international environmental agreements. Were mandatory trade restrictions possible through these institutions, and were WTO rules not to constrain their application, some might be less critical of the WTO. But since they are not currently applied, these critics see an imbalance not only in how GATT and WTO panels have applied GATT rules, but also between the existing trade regime and its labor and environmental counterparts. See also Howard Chang, An Economic Analysis of Trade Measures to Protect the Global Environment, 83 GEO. L.J. 2131, 2150 (1995) (maintaining that a "carrots only" solution is an endorsement of the "victim pays" principle because it would allow countries that hurt the global environment to extract concessions from others).

38. Some defenders of the WTO, however, argue that the TRIPs Agreement is a mistake that should be corrected. Under their view, the TRIPs Agreement in no way implements comparative advantage theory. For a study of the impact of the TRIPs Agreement on India, see, e.g., Jayashree Watal, Pharmaceutical Patents, Prices and Welfare Losses: Policy Options for India Under the WTO TRIPS Agreement, 23 WORLD ECON. 733 (2000) (noting "that prices are likely to increase and welfare likely to decrease" in India). See also Alan Deardorff, Should Patent Protection Be Extended to All Developing Countries? 13 WORLD ECON. 497, 507 (1990) ("patent protection is almost certain to redistribute welfare away from developing countries"). Puff Daddy now goes by the name "P. Diddy."

39. Shaffer, WTO Under Challenge, supra note 2, at 68-74, 81-83.

40. Id. For example, in respect of the shrimp-turtle dispute between India and the United States, the Center for Science and Environment (CSE), an Indian environmental NGO, criticizes the Indian government for not insisting "that all trawlers catching shrimp must use a turtle excluder device." The CSE maintains, "trust the government of India and its arms like the ministry of environment and forests to sit idle while the turtle massacre goes on…. The government of India is probably the most hypocritical government of the Earth." Yet in the same publication, the CSE confirms that it "has consistently opposed the use of trade sanctions to conserve the global environment because of the simple reason that only economically powerful nations can impose effective trade sanctions against less economically powerful nations." Anil Agarwal, Turtles, Shrimp, and a Ban, DOWN TO EARTH, June 15, 1998, at 4. See also Trade Control Is Not a Fair Instrument, DOWN TO EARTH, Aug. 15, 1992, at 4 (referring to how "trade and human rights are being used today as sticks to beat the South").

41. Shaffer, WTO Under Challenge, supra note 2, at 30-35, 52.

42. See Gregory Shaffer, Trade and Environment: Options for Resolving the WTO Shrimp-Turtle Case, 15 Int'l Trade Rep. (BNA) 294, 295 (Feb. 18, 1998). U.S. environmental group, however, allied with the Gulf Coast shrimping industry to sue the U.S. government before U.S. courts to enjoin it to implement the import ban on South and Southeast Asian shrimp.

43. For a sample of a developing country perspective, see, e.g., Jose M. Salzar-Xirinachs, The Trade-Labor Nexus: Developing Countries' Perspectives, 3 J. INT'L ECON. L. 377 (2000).

44. See, e.g., STREAM OF WINDOWS, supra note 24, at 262-63 (noting that, in light of the power politics of international trade negotiations, the social clause would likely be constructed so that there would not be challenges to U.S. regulations and business practices concerning union organization and the treatment of migrant workers. Rather, the clause would likely cover child labor, which is a problem only in developing countries on account of their level of development.). On existing biases within the WTO dispute settlement system, see generally Gregory Shaffer, Public-Private Partnerships (paper given at Law and Society Annual Meeting, Miami, June 2000) (on file with author).

45. See, e.g., comments of Vandana Shiva, Director of the Research Foundation for Science, Technology and Natural Resource Policy, India, in POLICING THE GLOBAL ECONOMY: WHY, HOW, AND FOR WHOM? 105, 194 (Sadruddin Aga Khan ed., 1998):

The principle that was the basis of the negotiation of the Rio treaty … was a principle of human rights, democracy, sovereignty and development. It was the right to development, which also implies the full realization of the right of peoples to self-determination, which in turn includes the exercise of their inalienable rights to full sovereignty over all their natural wealth and resources. That right to development, to me, is the key test in every dispute decision by the WTO.

46. See, e.g., discussion of market-based mechanisms, in Jonathon Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 YALE L.J. 677 (1999).

47. Tim Weiner, Solitary Republican Senator Blocks Peacekeeping Funds, N.Y. TIMES, May 20, 2000, at A1.

48. See UN Approves Deal Cutting U.S. Dues, N.Y. TIMES, Dec. 24, 2000, at A10. Christopher Wren, U.S. Told It Must Pay $ 550 Million or Risk Losing U.N. Vote, N.Y. TIMES, Oct. 6, 1999, at A14 (noting that Richard Holbrooke, the American representative to the United Nations, was lobbying to have the U.S. contribution share reduced from 25% to 22%). See also THE STATESMAN'S YEARBOOK: THE POLITICS, CULTURE, AND ECONOMIES OF THE WORLD 2001, at 1687 (Barry Turner ed., 2001) ("In terms of a percentage of [gross domestic product], the USA was the least generous major industrialized country" in granting international aid.).

49. Tim Weiner, House Votes to Cut $ 2 Billion From Clinton Foreign Aid Plan, N.Y. TIMES, Aug. 4, 1999, at A3 (noting that the U.S. House of Representatives passed a $ 12.6 billion foreign aid bill for 2000 with $ 4.88 billion earmarked for Israel and Egypt).

50. Joseph Kahn, The World's Bankers Try Giving Money, Not Lessons, N.Y. TIMES, Oct. 1, 2000, at A5.

51. The United States accounted for 36% of total greenhouse gas emissions in 1990. Moreover, between 1990-1998, emissions from the United States increased more rapidly than from any other industrialized country: a 21.8% increase in U.S. emissions. In 1998, the United States emitted 5,954 million metric tons (in carbon dioxide equivalents) of the Kyoto Protocol's 6 targeted heat-trapping greenhouse gases. Japan was in second, far behind at 1,225.6 million metric tons. See, e.g., Andrew Revkin, 2 Weeks Starting Today to Argue Fine and Crucial Details of Cutting Greenhouse Gas, N.Y. TIMES, Nov. 13, 2000, at A6 [hereinafter Revkin, Cutting Greenhouse Gas].

52. Keith Bradsher, With Sport Utility Vehicles More Popular, Overall Automobile Fuel Economy Continues to Fall, N.Y. TIMES, Oct. 5, 1999, at A22 (noting that average fuel economy has been falling ever since the 1987 and 1988 model years, with the decline having "accelerated").

53. Revkin, Cutting Greenhouse Gas, supra note 51; James Brooke, U.S. Has a Starring Role at Rio Summit as Villain, N. Y. TIMES, June 2, 1992, at A10; Barbara Crossette, Tying Down Gulliver With Those Pesky Treaties, N.Y. TIMES, Aug. 8, 1999, at A3 (noting that the United States has also refused to ratify treaties prohibiting the use of child soldiers, banning land mines, creating a permanent international criminal court, and prohibiting nuclear weapons tests).

54. Although U.S. environmental NGOs may pursue altruistic environmental goals, as any political actor, they are self-interested in their own continuity and political relevance. I do not mean to suggest that U.S. environmental NGOs act in bad faith. They do what they can within a given political context to attempt to protect the oceans, the atmosphere, endangered species, and their habitat. Even if northern NGOs were to take a more aggressive approach, it is unlikely they could whip up the sort of passions seen in the streets of Seattle. The issue addressed here is not whether U.S. environmental NGOs are right or wrong in challenging developing country production processes. Rather, I am addressing the domestic politics of which method of confronting this issue is more likely to win U.S. domestic political support—positive financial assistance and market-based programs, or trade restrictions.

55. While it is true that some of these costs could be passed onto U.S. consumers in the form of higher prices, this is not the case with foreign government programs to introduce the requirements to their shrimpers, instruct them how to use the new technology efficaciously, monitor compliance, and enforce the requirements. Moreover, although it may be important for developing countries to require the use of turtle excluder devices by shrimp trawlers, no one in the U.S. Congress ever asked whether it was the most appropriate or effective way to proceed in a developing country context. No one in the U.S. Congress looked at a study of local Asian conditions or heard any testimony as to what was the nature of the Asian sea turtle problem. No one assessed whether there might be other first order problems, such as the stealing and sale of sea turtle eggs, such that the U.S. legislation might be mistargeted. Moreover, developing country parliaments and constituents were never consulted to see if this was in fact their social priority. Yet it is they who will have to expend resources on this U.S.-determined social priority, with less funds available for competing social programs. I am not arguing that this is not an important social priority. I, for one, believe that it is. The issues, however, are the process and means chosen to address the environmental problem.

56. The World Wildlife Fund does, however, support some local NGO efforts to protect sea turtle nesting habitats and related programs. Telephone Interview with Jerry Tupasz, an employee/consultant with Wildlife Fund Thailand, a Thai NGO (Jan. 2000).

57. For example, to avoid U.S. trade restrictions on shrimp imports, the foreign country must enact the shrimping regulations desired by the United States. When the United States, about one week per year, sends an observer who is accompanied by a foreign fisheries official as translator, it is relatively easy for shrimp trawlers to use turtle exclude devices that week so as to demonstrate compliance with the U.S. program. The program can become a charade.

58. See Shaffer, WTO Under Challenge, supra note 2, at 84-93 (assessing the practicable role and limits of a World Environment Organization), and infra note 59.

59. Developing countries, and most developing country NGOs, justifiably fear that their interests will not be seriously considered by U.S. decisionmakers. They are not assuaged by the retort that developing countries would retain the right to challenge the proportionality of the U.S. trade restrictions, on a case-by-base basis, before the WTO Dispute Settlement Body. WTO procedures are expensive, take almost two years to complete, and their central remedy is the removal of the trade restrictions long after they have inflicted their harm. Moreover, this remedy assumes that the United States would comply with an adverse WTO ruling. Were the United States not to comply, WTO rules authorize the developing country to retaliate by withdrawing an equivalent amount of trade concessions from the United States. However, because of developing countries' relatively smaller markets, and because of potential U.S. political leverage in other areas, a developing country's threat of withdrawing trade concessions is less likely to be effective than is a U.S. threat.

If transnational enforcement of environmental standards is to take place, it arguably should occur through a neutral forum determining that a violation has occurred, and not through unilateral determination (as by the United States), subject to ex post review under GATT Article XX. On the difference between ex post review under GATT Article XX and third-party review under GATT Article XXIII as applied to core labor rights, see Erika de Wet, Labor Standards in the Globalized Economy: The Inclusion of a Social Clause in the General Agreement on Tariff and Trade/World Trade Organization, 17 HUM. RTS. Q. 443, 455-60 (1995).

60. The members of the EU, for example, are at a much more equal level of development. But even in the EU, there have been significant financial transfers to poorer EU members through the EU's cohesion and structural funds. See, e.g., Andre Sapir, Trade Liberalization and the Harmonization of Social Policies: Lessons From European Integration, in 2 FAIR TRADE AND HARMONIZATION, supra note 24, at 543, 565-66 (noting that while "'social harmonization' remains a distant reality inside the [EU]," the EU has created a "European Social Fund" and "Structural Funds" to respectively "improve employment opportunities in the common market" and to assist "low-in-come regions"); and Mark Pollack, Regional Actors in an Intergovernmental Play: The Making and Implementation of EC Structural Policy, in BUILDING A EUROPEAN POLITY? (Carolyn Rhodes & Sonia Mazey eds., 1995). However, given the relatively similar levels of development in the EU, the trade off between financial assistance and demands for higher standards is not nearly as challenging.

61. It could be that activists believe that by attacking the WTO, they threaten U.S. multinational export interests that, in order to preserve an open trading system, will pressure Congress to enact positive domestic and international environmental and social policies as part of a domestic package deal. I have, however, seen little evidence of this. As noted earlier, environmental advocates work within the parameters of U.S. domestic politics, which responds more favorably to demands for sanctions than to demands for policies requiring more direct financial expenditure.

62. On the symbolism of politics and law and their uses, see, e.g., MURRAY J. EDELMAN, THE SYMBOLIC USES OF POLITICS (1964); MURRAY J. EDELMAN, POLITICS AS SYMBOLIC ACTION: MASS AROUSAL AND QUIESCENCE (1971).

63. There are two prongs to the "Washington consensus" that are often treated as indivisible: (1) trade and capital liberalization, on the one hand; and (2) reduced taxes, government regulation, and social programs, on the other. In fact, they may be in contradiction. Take for example the recent conservative push for large-scale tax cuts in the United States. There is nothing in trade liberalization that mandates a repeal of the U.S. estate tax or a $ 1.3 trillion dollar tax cut that benefits primarily the wealthiest 1% of Americans.

64. See, e.g., CLAUDE E. BARFIELD, FREE TRADE, SOVEREIGNTY, DEMOCRACY: THE FUTURE OF THE WORLD TRADE ORGANIZATION (forthcoming 2001, published by the American Enterprise Institute Press).

65. See The New Trade War, THE ECONOMIST, Dec. 4, 1999, at 25.

66. Although the underlying political philosophies of the two groups are opposed, they nonetheless are linked in their opposition to centralized government and to the strengthening of international institutions. Moreover, conservative opponents to government policies that assist the less privileged should only swell the ranks of anti-globalization critics.

67. As the political scientist John Ruggie writes,

large segments of the American public and its leaders alike are trapped by their own ideological predispositions, which make it difficult for them to see the contradiction between espousing an increasingly neo-laissez-faire-attitude toward government and the desire to safeguard the nation from the adverse effects of increasingly denationalized economic forces. What is needed is a new "embedded liberalism" compromise.

JOHN RUGGIE, WINNING THE PEACE 172-73 (1996).

68. Sylvia Ostry, the former Canadian ambassador to the WTO, refers to the Uruguay Round of trade negotiations as the "North-South grand bargain," in which developing countries acquiesced to new services and intellectual property agreements in return for U.S. and European concessions on trade in textiles and agriculture. Sylvia Ostry, The Uruguay Round North-South Grand Bargain, Implications for Future Negotiations, in The Political Economy of International Trade Law (Robert Hudec ed., 2001) (unpublished manuscript, on file with author) (noting that the South now believes that it received the worse of the "bargain"). See also David Sanger, A Grand Trade Bargain, 80 FOREIGN AFF. 65 (Feb. 2001).

69. Of course, political deals are also made domestically to "buy off" different producer interests. See, e.g., C. O'Neal Taylor, Fast Track, Trade Policy, and Free Trade Agreements: Why the NAFTA Turned Into a Battle, 28 GEO. WASH. J. INT'L L. & ECON. 2, 10-11 (1994); and Youri Devuyst, The European Union and the Conclusion of the Uruguay Round, in 3 THE STATE OF THE EUROPEAN UNION 449 (Carolyn Rhodes & Sonia Mazey eds., 1995) (concerning the payoff to Portugal for its textile industry). This Article, on the other hand, points to the potential desirability of trade-environment, trade-social policy domestic packages within the United States. It nonetheless recognizes the political constraints on their potential.

70. Nordstom & Vaughan, WTO Special Studies, supra note 28, at 11, 59.