Background

Preserving national security is a top trade enforcement priority for the Office of the U.S. Trade Representative this year, yet another indication of the changing focus of U.S. trade policy.

USTR’s 2023 trade enforcement priorities report states that trade enforcement encompasses a broad range of activities, including facility-specific rapid response labor mechanism actions under the U.S.-Mexico-Canada Agreement, state-to-state dispute settlement, and section 301 investigations and actions. Trade enforcement also includes the monitoring of trade agreements; engagement in bilateral, plurilateral, multilateral, and regional fora (such as committees of the World Trade Organization); and direct engagement with trading partners on key trade barriers.

According to the report, preserving U.S. rights to take actions necessary for its essential security is a top trade enforcement priority. The report does not enumerate specific examples of such actions (some can be found here) but instead reiterates the U.S. assertion that “issues of national security cannot be reviewed in WTO dispute settlement and the WTO has no authority to second-guess the ability of a WTO member to respond to a wide-range of threats to its security.” The U.S. government “has a responsibility to protect the security of its citizens” and to uphold its security commitments to allies and partners, the report states, and “neither of these responsibilities can be abridged by the WTO inserting itself into issues of national security.” The U.S. will therefore “continue raising this fundamental issue until necessary steps are taken to ensure our national security rights remain intact.”

Also with respect to the WTO, the U.S. intends to push forward a “fundamental reform” of the organization’s dispute settlement function. The U.S. will seek to replace “the needless complexity and interpretive overreach that has characterized dispute settlement in recent years” with “a system that reinforces principles of fairness, equity, and sovereignty that underlie support for the multilateral trading system.” The U.S. wants this system to “preserve the policy space in WTO rules for members to address their critical societal interests” and especially to “ensure that the WTO respects the essential security interests of WTO members, including the United States.”

USMCA enforcement will be a key priority for USTR as well. Most of the actions the U.S. has taken to date under this agreement have been directed at Mexico on issues including labor rights at Mexican factories, illegal fishing, energy regulation, and restrictions on genetically-engineered corn. The U.S. also continues to challenge Canada’s allocation of its dairy tariff-rate quotas.

Other trade enforcement priorities this year will include defending U.S. antidumping, countervailing, and safeguard actions (in fact a significant percentage of the report is given over to detailing the numerous ongoing WTO disputes on these issues), identifying opportunities to use trade tools and agreements to make supply chains more resilient, protecting intellectual property, and addressing “unjustified barriers stemming from technical regulations, standards, and conformity assessment procedures that discriminate against U.S. exports or do not otherwise comply with international commitments.”

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