Sun Sentinel Broward Edition

Trump tariffs may threaten WTO

Other nations may use security rule to skirt trade system

- By Don Lee

WASHINGTON — By justifying sweeping tariffs on imported metals in the name of national security, President Donald Trump has lobbed what could be a grenade into the global trading order.

For decades that order has been underpinne­d by the World Trade Organizati­on, whose 164 memberstat­es have agreed to abide by WTO rules for open trade and settling disputes.

The United States has been the Switzerlan­d-based group’s chief architect in establishi­ng the principles and procedures governing internatio­nal trade.

But the Trump administra­tion has repeatedly upbraided the organizati­on as slow and incapable of resolving problems, like China’s mercantili­st behavior. Unhappy with the outcome of many WTO decisions, the U.S. has blocked appointmen­ts of judges to fill vacancies, rendering the appellate body ineffectiv­e.

Now the president is playing the national security card — and some fear that could do serious damage to the multilater­al trading system, even blow it up by encouragin­g other countries to use the same rationale to bypass WTO rules or give Trump an excuse to back out of the group.

“It is putting a lot of pressure on the WTO in a very sort of existentia­l way,” said Jennifer Hillman, a Georgetown law professor and former WTO appellate body member.

The Trump administra­tion justified the tariffs — 25 percent on foreign steel and 10 percent on aluminum — on the basis that imported metals presented a threat to the country’s ability to domestical­ly produce what is needed for the military, invoking a rarely used national security provision of a 1962 U.S. trade law.

Some are skeptical about that threat.

Despite a rise in imports, U.S. mills still churn out much more than what’s needed for the military.

“There’s enough (domestic) steel and aluminum for the ships, the armored vehicles, the aircrafts that we build,” said Nayantara Hensel, former chief economist for the Navy.

Trade statistics also show that much of the imported steel and aluminum comes from Canada, Germany and other allies in Europe and Asia that have military agreements with the U.S.

That was part of the thinking underlying the Bush administra­tion’s finding that steel imports, which in 2001 also were weighing on U.S. producers, did not pose a threat to national security.

But the Trump administra­tion took a broad interpreta­tion of “national security,” arguing that ensuring sufficient domestic supplies of steel and aluminum is crucial not just for national defense but also for economic security, which includes U.S. infrastruc­ture like transporta­tion networks, electric power grid and water systems.

“You don’t have steel, you don’t have a country,” Trump said in issuing the tariff orders March 8.

Trump has exempted just Canada and Mexico from the metals tariffs, and only conditiona­lly.

Others have begun negotiatin­g with the administra­tion about how they also might avoid the hit, although it’s still not clear what the criteria are for excluding certain countries or products from the duties.

At least some trading partners are likely to contest the tariffs with the WTO. The duties are set to take effect March 23.

The question is, what can the WTO do about it?

Trade lawyers say the Trump administra­tion’s metals tariffs are illegal under the WTO. The U.S. didn’t first negotiate through the Geneva-based organizati­on, as required.

In granting exemptions to some countries, the administra­tion has violated a cardinal rule of giving equal treatment in trade.

But there is an escape clause.

According to one of the WTO’s articles adopted from the earlier General Agreement on Tariffs and Trade, a member nation can break the rules of trade and take actions that it “considers necessary for the protection of its essential security interests.” This provision, Article 21, doesn’t specify what those interests are, or who determines them.

What is striking, said Georgetown’s Hillman, is that the Trump administra­tion has taken the position that once Article 21 is invoked, that instantly removes the WTO’s authority to settle the dispute.

“What I don’t know yet, and nobody knows yet, is whether the rest of the members of the WTO are willing to go along with that,” Hillman said.

If the WTO agrees with the U.S. position, many worry that other countries will raise tariffs or erect trade barriers under the same banner of national security, which could ultimately undercut the foundation of the WTO.

But if the WTO decides to take up the case, speculatio­n is rife that the U.S. could simply walk away from the WTO.

Trump could have chosen a different route to protect steel and aluminum manufactur­ers, whether giving them grants or turning to the more common trade remedy of levying “global safeguard” tariffs to stem the tide of imports.

That is what Trump did earlier this year on imported solar panels and washing machines.

But to apply safeguard tariffs, the independen­t U.S. Internatio­nal Trade Commission has to find that increased imports threaten to cause serious injury to the domestic industry. And it’s not clear the commission would have come to that conclusion on steel.

Last year the three largest U.S.-based steel makers were profitable, helped by a stronger global economy and higher steel prices. The largest, Charlotte, N.C.based Nucor Corp., reported a profit of $1.4 billion on a 25 percent jump in sales to $20 billion.

Dean Pinkert, a trade lawyer and former Internatio­nal Trade Commission member, pointed to another reason Trump may have gone with the national security justificat­ion: Unlike global safeguard tariffs, limited to four years, duties based on national security can last indefinite­ly.

The WTO’s head, Roberto Azevedo, has raised concerns about the new U.S. tariffs and urged restraint from all parties, worried about retaliatio­n.

“The potential for escalation is real, as we have seen from the initial responses of others,” he said.

 ?? MANUEL BALCE CENETA/AP ?? U.S. official Robert Lighthizer, center, Canada’s Chrystia Freeland and Mexico’s Ildefonso Guajardo Villarreal report after 2017 NAFTA talks. Canada and Mexico may not face tariffs.
MANUEL BALCE CENETA/AP U.S. official Robert Lighthizer, center, Canada’s Chrystia Freeland and Mexico’s Ildefonso Guajardo Villarreal report after 2017 NAFTA talks. Canada and Mexico may not face tariffs.

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