What is Free Trade? The Real Issue Lurking Behind the Trade and Environment Debate

Abstract

This article argues that a fundamental question, What is trade?, lurks behind the ongoing debate about the relationship between international law competing legal regimes. It also lurks behind much of the confusion in the Supreme Court's dormant commerce clause jurisprudence under the United States constitution, sometimes mentioned as a model for international law. Yet, the literature has remarkably little to say about trade's definition, although it contains volumes about the reasons for trade. This article explores three possible concepts of trade, from discrimination against foreign companies, from coercion, from restraint, i.e. laissez-faire, primarily in the context of environment disputes. Only defined as of discrimination offers a legitimate conception of that the World Trade Organization (WTO) can credibly administer. The misunderstandings between environmentalists traders reflect law's tendency to amalgamate the anti-discrimination, anti-coercion, laissez-faire concepts. Free traders tend to think of law as primarily aimed at policing discrimination, while environmentalists tend to think of it as aimed at laissez-faire, the least legitimate concept. The law provides some support for both views. Indeed, prominent environment cases combine holdings moving toward laissez-faire anti-coercion concepts with dicta disavowing any such move. Recognizing the conceptual question lurking behind and debates opens up the possibility of thinking about the debates as searches for an appropriate definition of trade. Until now, most scholarship on the subject has treated these debates as a search for the scope of permissible exceptions to trade, assuming (wrongly) that free trade has a simple agreed upon meaning. A concept of as from discrimination will only appear legitimate if the definition of discrimination is reasonably intelligible. The WTO has used a very ad hoc approach to discrimination. This article develops a concept of bright line discrimination to show that a more coherent approach is at least possible. Adoption of bright line discrimination would require some narrowing of the scope of in order to enhance its legitimacy. The search for an appropriate definition of is absolutely central to making progress in understanding and debates. This article seeks to spark a debate about this neglected question.