Trade Agreements Blog

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Simon Lester at International Economic Law and Policy Blog raises a question about the current US Trade Preference policy, based on recent comments by the USTR General Counsel Tim Reif regarding the eligibility criteria for US Trade Preference Programs:

“First, the criteria were intended to and have achieved four core goals: (1) strengthened the rule of law in beneficiary countries; (2) provided incentives for sensible policies and policy reforms; (3) promoted development; and (4) improved the operating environment for U.S. exporters in the beneficiary countries…”

- USTR General Counsel Tim Reif

Here’s my question:  In using these criteria, is there an intent to discriminate among countries?  (Putting aside the question of whether intent should matter under the relevant WTO non-discrimination standards, which is a separate issue).

On the one hand, it could be argued that the purpose of the criteria is to have every country satisfy the criteria, and thus meet the policy goals that have been set out.  Thus, the hope is that no one will be discriminated against.

On the other hand, it may not be realistic to expect everyone to comply.  Thus, there is likely to be a disparate impact, and this outcome is known with a reasonable degree of certainty.

To me, it sounds like there is an intent to discriminate, as trade policymakers know that certain countries will not comply with these criteria. Obviously not every country does satisfy the criteria and meet the 4 goals described above.