The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec

By Daniel L. M. Kennedy; James D. Southwick | Go to book overview

18
International trade policy and domestic food safety
regulation: The case for substantial deference
by the WTO Dispute Settlement Body under
the SPS Agreement*
MICHAEL TREBILCOCK AND JULIE SOLOWAY

I
The nature of the problem

There has been a dramatic shift in the focus of trade policy concerns in recent years from the barriers that lie at the border to the barriers which exist “within the border. ” 1 The General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO) and other regional trading arrangements have been largely successful in reducing both the levels of tariffs worldwide and the scale of other border measures such as quotas. This has revealed a new and more subtle category of measures which restrict trade–the numerous regulations which governments enact to protect the health and safety of their citizens and the environment in which they live. Such regulations vary tremendously across borders: one nation's bunch of grapes is another nation's repository of carcinogenic pesticide residue. These efforts to protect citizens from the hazards of everyday life have become a virtual minefield for trade policy makers, in part because such differences can often be manipulated or exploited to protect domestic industry from international competition,2 andinpartbecause even when there is no protectionist intent on the part of lawmakers, through a lack of coordination, mere differences in regulatory or standard-setting regimes can function to impede trade through increasing multiple compliance costs. It has thus become increasingly difficult to delineate the boundaries between a nation's sovereign right to regulate and its obligation to the international trading community not to restrict trade. The question of how to address this problem has received increasing attention from trade policy scholars. As Miles Kahler states, “[t]he decades-long process of lowering trade barriers resembles the draining of a

____________________
*
We are indebted to Robert Howse and Daniel Farber for valuable comments on earlier drafts.
1
Fair Trade and Harmonization: Prerequisites for Free Trade? Vol. II: Legal Analysis (MIT Press, Jagdish N. Bhagwati & Robert E. Hudec eds., 1996).
2
Alan M. Rugman, John Kirton, & Julie A. Soloway, Environmental Regulation and Corporate Strategy: A NAFTA Perspective (Oxford University Press, 1999).

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