What is Free Trade? The Rorschach Test at the Heart of the Trade and Environment Debate

This chapter argues that a fundamental question, "what is free trade?," lurks behind the ongoing debate about the relationship between international trade law and competing legal regimes. Although the literature contains volumes about the reasons for free trade, it says remarkably little about free trade's definition. This chapter explores three possible concepts of free trade, trade free from discrimination against foreign companies, trade free from coercion, and trade free from restraint, that is, laissez-faire, primarily in the context of trade and environment disputes. The misunderstanding between environmentalists and free traders reflect trade law's tendency to amalgamate the antidiscrimination, anticoercion, and laissez-faire concepts. Free traders tend to think of trade law as primarily aimed at policing discrimination, while environmentalists tend to think of it as aimed at laissez-faire, the least legitimate concept. The trade law provides some support for both views.