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Berkeley ENVECON 131 - The WTO and Multilateral Environmental Agreements

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24The Big Chill: The WTO and Multilateral Environmental AgreementsRobyn EckersleyThe Big Chill: The WTO and MultilateralEnvironmental Agreements*•Robyn EckersleyIf sustainable development is about the integration of economic and environ-mental goals, then there seems to be a signiªcant lack of integration betweenthe preeminent global governance structures set up to manage trade and envi-ronment respectively.The international trade regime has evolved into one of the most powerfuland inºuential multilateral regimes in the world today in terms of its ability toattract members (with the lure of expanding markets) and discipline them. Thelegal norms in the World Trade Organization’s (WTO) trade agreements arebacked up by powerful sanctions (which include trade retaliation) and a sophis-ticated dispute resolution mechanism accompanied by a rapidly developingjurisprudence that is unequalled in other international regimes.In contrast, multilateral environmental agreements (MEAs), and interna-tional environmental law generally, provide a more fragmented form of gover-nance that lacks the coherence, reach, ªnancial backing and organizationalstructure of the WTO.1Most MEAs typically work in accordance with thevoluntarist tradition of international law and proceed on an ad hoc, issue-by-issue basis by inducing cooperation and generally avoiding punitive sanctionsand courts.2Judged in terms of size and teeth, we might regard the WTO as alarge tiger and MEAs as a ragged collection of small cats. The irony is that in theone area where certain MEAs do possess effective sanctions (i.e. trade restric-tion), they remain vulnerable to legal challenge in the WTO.One of the central points of dispute in the trade and environment debateis how conºicts between the international trade regime and international envi-ronmental regimes should be managed. Conºict between overlapping interna-tional regimes is not a novel problem, but it is often a contentious one. Whatmakes the overlap between the trade and environment regimes politically con-* An earlier version of this paper was presented to the Australian Political Studies AssociationConference, University of Tasmania, Hobart, 29 September–1 October 2003.1. Guruswamy 1998, 2.2. See, for example, Bodansky 1999, 598 and von Moltke 1997. One exception to this claim is theUnited Nations Convention on the Law of the Sea (UNCLOS) which creates a binding systemof adjudication and dispute resolution that confers upon the International Court of Justice(ICJ) jurisdiction and authority to hear trade and environment disputes in certain circum-stances (for a discussion, see Guruswamy 1998).Global Environmental Politics 4:2, May 2004© 2004 by the Massachusetts Institute of Technologytentious from an environmental point of view is that trade rules appear to havethe upper hand. In disputes brought before the WTO, trade restrictive environ-mental measures must be shown to be compatible with the basic WTO legalnorms or else fall within the WTO’s environmental exemptions, which arestrictly interpreted in ways that maximize their compatibility with trade norms.Once the measure is shown to fall within the exemptions, it must be shown thatit is necessary to protect the environment, that it is the least trade restrictivemeasure compared to any alternatives, and that the measure does not arbitrarilydiscriminate against any WTO member or form a disguised form of protectionfor local industry.3And increasingly in MEA negotiations, there is a political ex-pectation that parties demonstrate that proposed measures are compatible withtrade norms or are the “least trade restrictive” option available. The WTO Secre-tariat is free, by request, to attend and observe MEA negotiations.In contrast, there is no comparable right of parties to MEAs to challengetrade rules in MEA fora for being inconsistent with the requirements of MEAs,and no corresponding set of punitive remedies under MEAs that are comparablewith trade retaliation.4The context of dispute resolution is quite different inMEAs. Whereas WTO parties engage in bilateral disputes over the interpretationof particular trade agreements, MEAs tend to deal with noncompliance bymeans of a ºexible set of incentives and disincentives; these are generally muchmore cooperative and less punitive than under the WTO.5Nor is there any recip-rocal political expectation that WTO members demonstrate in trade negotia-tions that trade rules are consistent with the objectives, principles and legalnorms of particular MEAs, such as the climate change convention, or that theyare “the least environmentally damaging” from a range of potential options.While the WTO Secretariat is free to observe MEA negotiations whenever itwishes, MEA Secretariats must seek permission and WTO members have fre-quently vetoed their attendance as observers in trade negotiations.This somewhat lop-sided state of affairs lends support to the claim by criti-cal international theorists that the WTO rules form a particularly importantelement in a “disciplinary neoliberal” form of governance over state andRobyn Eckersley • 253. These last two requirements have their source in the chapeau to Article XX. The necessity testarises from Article XX(b), which refers to measures “necessary to protect human, animal orplant life or health” while Article XX(g), which applies to measures “in relation to conservationof exhaustible resources” has been interpreted as requiring a reasonable connection betweenthe measure and the goal of conserving the resource. See WTO Appellate Body Report on US—Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (April 29, 1996); WTOAppellate Body Report on European Communities – Measures Affecting Asbestos and AsbestosContaining Products, WT/DS135/AB/R (March 12 2001) and WTO Appellate Body Report onUnited States Import Prohibitions of Certain Shrimp and Shrimp Products, WT/DS58/AB/R(October 12 1998) (hereafter Shrimp Turtle 1998). All three reports are available at http://www.wto.org/english/tratop_e/dispu_e/distabase_e.htm.4. Parties to MEAs may pursue noncompliance against other parties via the procedures of the rele-vant MEA, but these are generally much less punitive (with the exception of UNCLOS—seenote 3). So the point is not that parties to MEAs have no rights to ensure compliance, merelythat they are not comparable to the rights of WTO members.5. Although recourse to the International Court of Justice


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