EEP 131, Fall 2004: Prof. Karp Term Paper: Mark Philbrick [DRAFT: NOT FOR CITATION] Disputed Hormones: Risk Assessment, the Cartagena Protocol, and the Legitimacy of the WTO. Environmental Regulations and the WTO Concerns about possible collisions between the World Trade Organization (WTO) and environmental laws have haunted the trade regime from its inception. The combination of coverage of national health and safety regulations under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) with the binding dispute procedures in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) gives the WTO powerful influence over national legislation. Although the DSU provides that parties to a dispute may appeal matters of law to the newly constituted Appellate Body (AB), the AB’s rulings can only be overturned by a consensus of the membership (WTO 1994b). The AB has no direct authority to vacate national legislation, but failure to do so in the case of an adverse ruling can result in the authorized imposition of substantial countervailing penalties by the complainant. The arbitration awards can be substantial, amounting to hundreds of millions of dollars per year or more, impelling national legislatures to insure the WTO-compliance of their trade-related regulations. Similar pressures apply to Multilateral Environmental Agreements (MEAs), several of which incorporate trade restrictions. Though no WTO cases have yet directly challenged any MEAs, observers are concerned about the chilling effect of the threat of WTO sanctions on MEA negotiation and implementation (Eckersley 2004). The WTO is seen as undermining the basis of2global environmental governance by granting primacy to free trade over environmental issues (Conca 2000), a perception that threatens the regime’s legitimacy (Esty 2002; McMichael 2000). Even Jadish Bhagwati (2001), a staunch supporter of free trade, has called on the WTO to “lighten up” in order to maintain its credibility and legitimacy. In response to such criticisms, and in consonance with the views of those that see possibilities for mutual supportiveness between the WTO and other multilateral agreements (Kelly 2003; Matsushita 2004; Ogolla, Lehmann, and Wang 2003; Samson 2001), the WTO’s Doha Declarations call for an examination of the relationship between the WTO and MEAs. In particular, paragraph 31 states: “With a view to enhancing the mutual supportiveness of trade and environment, we agree to negotiations, without prejudging their outcome, on: (i) The relationship between existing WTO rules and specific trade obligations set out in multilateral environmental agreements (MEAs). The negotiations shall be limited in scope to the applicability of such existing WTO rules as among parties to the MEA in question. The negotiations shall not prejudice the WTO rights of any Member that is not a party to the MEA in question” (WTO 2001). Paragraph 32, which the declarations also assign to a special session of the WTO’s Committee on Trade and Environment (CTE), further cautions: “The outcome of this work as well as the negotiations carried out under paragraph 31(i) and (ii) shall be compatible with the open and non-discriminatory nature of the multilateral trading system, shall not add to or diminish the rights and obligations of Members under existing WTO agreements, in particular the Agreement on the Application of Sanitary and Phytosanitary Measures, nor alter the balance of these rights and obligations” (WTO 2001). The CTE is to carry out these directives as part of the single Doha round undertaking, with a nominal deadline of Jan. 1, 2005, though the breakdown of agricultural talks in Cancun renders this schedule suspect.3 The CTE’s narrow mandate precludes more than it includes. Limiting the negotiations to existing WTO rules, in conjunction with the prohibition against alteration of SPS rights and obligations, largely bars consideration of substantive amendment to the WTO texts. As Ogolla, Lehmann, and Wang (2003) astutely note, the emphasis on specific trade obligations omits consideration of MEA provisions that implicitly, rather than explicitly, require trade measures to meet their objectives. Perhaps most seriously, the exclusion of non-party issues, of cases where one WTO member is party to an MEA, but another is not, defers consideration of one of the most probable (and contentious) arenas of conflict. The possibility is not merely theoretical: The U.S., which is not shy about litigating cases before the WTO, is not party to several MEAs, including the Convention on Biodiversity (CBD), the Kyoto Protocol, and the Cartagena Protocol on Biosafety (Cartagena). Cartagena addresses the transboundary movement of what it terms “living modified organisms” (LMOs), known as genetically modified organisms (GMOs) in other contexts. Although its scope is limited, several articles of the protocol articulate much more expansive visions of the precautionary principle and risk assessment than those set forth in the SPS agreement. While Cartagena’s preamble explicitly avers, “Trade and environment agreements should be mutually supportive with a view to achieving sustainable development” (CBD 2000), scholars see potential for collision between the two treaties (Safrin 2002; Winham 2003). Furthermore, the US and the European Union (EU) are already engaged in one dispute over restrictions on the import of GMOs (WTO 2004a), and on track for a second (USTR 2004). The stage is set to drag the Cartagena Protocol into the larger transatlantic food fight.4Much of the literature to date has focused on the possible negative influence of the WTO on environmental regulations and performance (Esty 2000); this paper takes the opposite tack. Rather than succumbing to Eckersley’s (2004) “big chill”, I argue that incorporating Cartagena’s broader conception of risk assessment into the WTO agreements would enhance the WTO’s efficacy and legitimacy in the long term. The Doha deadlines and political realities render such a proposal unattainable at the moment, but international negotiations are protracted processes. Consensus comes slowly, if at all; work on the foundations of future agreements needs to start now. While superficially unrelated, as LMOs are not at issue in EC-Hormones, the transatlantic battle over hormone-fed beef superbly highlights the precise
View Full Document
Unlocking...