The World Trade Organization
The gradual opening of the arteries of world trade through the World Trade Organisation (WTO), while resuscitating international economics and being a symbol of the “hyperliberalisation” of trade, has been strangling environmental protection (Conca: 2000, Lowenfeld: 2008: O’Neill & Burns: 2005). The need for an effective, robust and objective way to resolve international disputes is arguably, in the light of the relentless and “inexorable integration of markets, nation-states and technologies to a degree never witnessed before” (Friedman: 1999), stronger than ever and a retreat to the unilateralist ideologies which gave birth to the First World War is almost unthinkable now given our interdependence on each other. The question is can the environment be protected while the aggressive expansion of trade continuesThe birth, by accident, of the General Agreement on Tariffs and Trade (GATT) in 1945, was part of an indefatigable drive to combat trade protectionism, discriminatory trade policies and most significantly armed conflict as a means of resolving disputes in the wake of the second world war (Irwin, Mavroidis & Sykes: 2008, Lowenfeld: 2008, Wilcox: 1949). One of the pronounced goals of trade liberalization is the removal of trade barriers and with the accession of China to the WTO, which replaced the GATT in 1995, the “hyperliberalisation” of trade is gathering pace with 153 members and 97% of world trade (Conca: 2000, p.484). This unrestricted access, while avowedly positive for economic growth, has been perceived by many commentators as being “inimical to the quest for global ecological sustainability” as Conca, the most skeptical critic, puts it (Ibid). World Trade Organisation rules have, to a large extent, acted as a barrier to international environmental governance both substantively and procedurally. In terms of the national laws and the WTO, the destabilization of international environmental regimes and procedural rules the WTO has hindered rather than helped environmental initiatives both nationally and internationally. There have been some signs of progress, however, with a joint report by the United Nations and the WTO in 2010 acknowledging for the first time that some restrictions on the liberalization of trade will be needed to fight climate change (WTO-UNEP Report: 2010) and other commentators discerning a move towards an “accommodation between the notions of free trade and environmental protection” (O’Neill & Burns: 2005, p.319). It is also vital to note that Conca’s strident objections, while relevant, were written in the year 2000 after just five years of the WTO and therefore omits one important WTO decisions. Nevertheless the author’s biting criticism must be answered and his view is not entirely without justification even in 2012:
“The WTO has proven to be profoundly anti-environmental both procedurally and substantively, handing down environmentally damaging decisions whenever it has had the chance to do so. Fears of a race to a dirty bottom are proving prescient, and optimism that trade rules can be greened from within has waned appreciably” (Conca: 2000, p.484).
Part 1:WTO rules and the environment
WTO/GATT, national laws and decisions
One of the central objections to the WTO rules in the sphere of environmental policy is that they, in Conca’s words, “undercut” national policies (2000, p.486). Erich Vranes adopts more mature terminology for this level of interaction which he labels as “vertical” as between domestic measures and WTO law (Vranes: 2009). Conca’s objections arise when a national environmental regulation is challenged under WTO rules and, without exception between 1995 and 2000, “handed down an anti-environmental decision” (Conca: 2000, p.486). There have been six decisions relating to environmental issues under the old GATT regime and just three under the new WTO rules (WTO website: 2012). The case which sparked the hostility to the GATT/WTO regimes is the Tuna/Dolphin case (case 1) where dolphins were being caught in tuna nets and dying unnecessarily in the hunt for tuna (Lowenfeld: 2008, p.315). The US government sought to ban all tuna imports from Mexico which brought a dispute settlement proceeding under the old GATT rules under article XXIII. America’s defence under article XX (the general exceptions article) was based on the protection of animal life and the “conservation of exhaustible resources” and proved futile as the Panel found in favour of the Mexicans with the ban on tuna contrary to article XI(1) of the GATT and unjustified by Article XX(b) or (g) (Lowenfeld: 2008, p.317). The other cases under the old GATT regime concerned American taxation on gas guzzling cars brought by the EU in October 1994, the so-called “son of Tuna/Dolphin” where the EU successfully challenged the Marine Mammal Protection Act in June 1994, the father of the Tuna/Dolphin dispute successfully brought by Canada against the USA in February 1982 and finally two successful cases brought by the US against firstly Thailand for the restriction and taxation of cigarettes in November 1990 and secondly against Canada regarding the exports of herring and salmon (WTO website: accessed 2012).
Conca’s powerful criticism was written only after two WTO decisions on the environment had been handed down and the rules were interpreted narrowly: firstly United States – Standards for reformulated and conventional gasoline in 1996. In this case, brought by Venezuela and Brazil against the US, measures to ensure imported gasoline complied with air quality restrictions were found to be discriminatory although the WTO panel did emphasize that it was America’s discrimination against imports, which were subject to more stringent measures than exports, which crippled their case; not that they didn’t have a defence or indeed a noble cause. Secondly, in a “strikingly similar” complaint to the tuna/dolphin decision brought in 1998, India, Malaysia, Pakistan and Thailand all challenged US legislation which banned all imports of commercial seafood, pursuant to the Endangered Species Act, to save turtles instead of dolphins: United States Import Prohibition of Certain Shrimp and Shrimp Products. Although the US lost this case, again by virtue of discriminatory behavior, it is clear that the seeds were sown for a fresh start and as Lowenfeld points out, this appellate decision had “sought to dampen the conflict between the trade and environment communities” (2008, p.323). Furthermore, had the US not discriminated, then it is certain that they would have won both on imports of gasoline and shrimp and indeed the second decision in the shrimp case confirms this (O’Neill & Burns: 2005) . This analysis leaves just one WTO decision in the 21st century: European Communities — Measures affecting asbestos and asbestos-containing products. In this trailblazing decision, brought in 2001 by Canada against the EC ban on asbestos products, the WTO panel found, affirmed later on appeal, that France was entitled to ban such harmful products under the very provisions so controversial in the tuna/dolphins case:
“…the Panel found that the French ban could be justified under Article XX(b). In other words, the measure could be regarded as one which was “necessary to protect animal, human, plant life or health.” It also met the conditions of the chapeau of Article XX. It therefore ruled in favour of the European Communities. (WTO website: accessed 2012)
1.2 International environmental regimes
Another powerful criticism leveled at the WTO rules is the perceived parallel at an international level where Conca discerns a “WTO-based threat to a broad array of international environment regimes” (Conca: 2000, p.487). This threat, which Vrane labels as being on a “horizontal” level between WTO law and public international law including treaty agreements (Vrane: 2010), is, according to Conca, brought about because these international environmental regimes often depend on trade related measures for their implementation and observance (2000, p.488). The main problems are firstly that the WTO’s existence is having a chilling effect on “global political imagination” (Ibid). Conca justifiably points out that the 1994 Amendment to the Basel Convention, which sought to ban the trade in hazardous wastes, may well be one of the last to target the trafficking of environmental hazards. The continued political impasse concerning the Kyoto Treaty lends weight to Conca’s observations although perhaps, in light of the global recession, the international environmental arena is anyway sterile (Rajamani: 2008). Secondly Article XI of GATT, which prohibits quantitative import/export restrictions is often cited as being a stumbling block and could well be used as the basis of a WTO challenge against environmental regimes such as the one which exists with respect to logging (Conca: 2000, p.489). This problem is still a hypothetical one but nonetheless is relevant and demonstrates perhaps that the rules have had a “chilling effect” on numerous proposed environmental regimes (O’Neill & Burns: 2005, p.330). Conca cites the example of a new logging regime: which failed to materialize at the Seattle conference (ibid). Finally the Basel Convention on hazardous waste is cited by Conca as a battleground:
“Ineffectiveness and a huge loophole for waste ‘recycling’ kept the waste trade…alive, leading a coalition of developing countries and environmental activists to push through the ‘Basel ban’ at a 1994 conference of the parties. The constant threat of a WTO challenge has inhibited the collection of the national ratifications needed for the amendment to enter into force, and undercuts efforts to use the regime…” (Conca: 2000, p.489)
Part 2: Procedural Rules of the WTO
2.1 Burden of proof, precautionary principle and Amicus Curiae
Finally the rules of the WTO themselves have been justifiably seen as stacking the deck against those who are fighting for the environment (Lowenfeld: 2008, p.327). The burden of proof is, as Conca observes, “squarely on the shoulders of those arguing for environmental precaution” (Conca: 2000, p.485). The presumption of a violation means that “the Member against whom the complaint has been brought”, will “rebut the charge” and the party which is asserting the affirmative of a particular claim will bear the burden of proof: a rule which is universal to all disputes and not just the environmental issues (Sebastian: 2010). Lowenfeld also points to the “precautionary principle” which dictates that:
“…uncertainty regarding the adverse environmental effects of an activity should not be a bar to adoption of measures to prohibit or otherwise regulate the activity, but that such uncertainty provides an affirmative justification for adopting such measures” (2008, p.333).
The Beef Hormones case is often cited in connection with this embryonic principle. The Appellate Body held here that this principle was not yet part of customary law but that it was commonsense to weigh the “severity of the danger against the degree of likelihood that the danger would be enhanced by the challenged activity” (Ibid). Lowenfeld suggests that this line of reasoning could lead to the WTO adopting a “worst- case scenario” argument which would, quite understandably, undermine environmental protection (Ibid). The author concludes by observing:
“…the precautionary principle as formulated by the European Community seems too harsh. On the one hand, it is susceptible to misuse for purposes of competition and protection; on the other, it seems both to overestimate and underestimate science” (Ibid at p.334).
Further to the burden of proof and the precautionary principle are the Amicus Curiae briefs: the closed door proceedings used to make it difficult for the stakeholders usually so closely intimated with environmental action (charities etc) to participate and are still difficult to surmount. This procedural innovation, which is a creature of statute, has enabled certain organisations to provide opinions to supplement decisions which are often made by lawyers and economists who usually have little knowledge of environmental effects (Conca: 2000, p.485). Those submitting the Amicus Curiae briefs can be WTO members or non-state actors and it is important to note that the acceptance of such briefs is an exercise of discretion on the part of the Panel (Stern: 2006). The fact that such briefs have become more commonplace undoes Conca’s arguments a little but, as noted above, it is ultimately a question of discretion as to whether an organization is allowed to submit such a brief. What is clear is that the complex ways in which ecosystems can be corrupted do not always fit easily into the burden of proof system.
2.1 Interpretation of Article XX of GATT
The interpretation of this article is key to much of the criticism of the GATT/WTO. In both Tuna-Dolphin and Shrimp-Turtle cases it has been noticed that these general exceptions to GATT provisions has been interpreted narrowly by both GATT and WTO panels respectively (O’Neill & Burns: 2005, p.325). This narrow interpretation has fuelled a lot of criticism with the panel in Shrimp/Turtle expressly saying that the WTO supports countries who hold such noble goals and that it was because of the US’s discriminatory behavior that they held against the US. As noted above, however, the decision in European Communities — Measures affecting asbestos and asbestos-containing products could be the beginning of a new era of interpreting the exceptions as they relate to environmental protection. Certainly the WTO has been sensitive to the criticism it has received from many quarters about its handling of such cases. Whether Conca’s observation that “Playing by WTO rules, the first definitive ‘proof’ of harm will often be irreversible ecosystem collapse” is debatable in the current climate and, arguably, about a decade out of touch (2000, p.485).
In conclusion the rules of the WTO to a large extent are acting as a barrier to international environmental governance. In terms of the undermining of national and international laws, the procedural flaws in terms of the burden of proof, the precautionary principle and the amicus curiae briefs as well as the narrow interpretation of article XX, the WTO has a lot of damage to undo in the coming years. Much has been written on this volatile subject and it is clear that Conca (2000) is the most scathing critic. His polemic is out of date, however, and although many of his conclusions are valid his overriding point, that there is an anti-green agenda in the WTO is slowly being unraveled. Indeed as far back as the 1998 Shrimp-Turtle case it has been discerned by astute commentators like O’Neill and Burns that the decision is a pro-environmental one, albeit resulting in ultimate defeat for the USA. The recent joint UN-WTO report (2010) is an indicator of the direction which the WTO is going in and the most recent case involving environmental action, the EU-Canada Asbestos case, confirms that a broader interpretation of article XX can provide positive environmental results. Perhaps the greening of the WTO has begun and no doubt the scathing criticism of authors like Conca had something to do with their new-found green credentials. A proper reform of the WTO rules is required but perhaps the tide has already turned as Barkin observes:
“…the incompatibility between the rules of the international trading regime and the need for responsible management of the global environment is substantially overstated, and that official interpretations of these rules are becoming consistently more environmentally-friendly over time” (Barkin: 2005, p.334).
Conca, Ken (2000) ‘The WTO and the Undermining of Global Environmental Governance’ Review of International Political Economy 7:3 Autumn pp 484 – 494
Rajamani (2008) ‘From Berlin to Bali and Beyond: Killing Kyoto Softly?’ International & Comparative Law Quarterly 57(4) pp909-939
Barkin, Samuel.J (2005) ‘The Environment, Trade and International Organisations’ in Dauvergne, Peter (ed) Handbook of Global Environmental Politics Edward Elgar Cheltenham
Friedman, Thomas (2000) The Lexus and the Olive Tree Anchor Books: UK
Irwin, Mavroidis & Sykes (2008) The Genesis of the GATT Cambridge University Press: worldwide
Lowenfeld, Andreas F. International Economic Law (2008) (2nd ed) Oxford Uni Press: Oxford, New York.
O’Neill, Kate & Burns, C.G William (2005) ‘Trade Liberalization and Global Environmental Governance: the Potential for Conflict’ in Dauvergne, Peter (ed) Handbook of Global Environmental Politics Edward Elgar Cheltenham
Sebastian, Thomas (2010) ‘The law of permissible WTO retaliation’ in Bown and Pauwelyn (eds) The Law, Economics and Politics of Retaliation in WTO Dispute settlement: Cambridge University Press: worldwide
Stern, Brigitte (2006) ‘The emergence of non-state actors in international commercial disputes through WTO appellate Body case-law’ in Sacerdoti, Yanovich and Bohanes (eds) The WTO at ten: The Contribution of the Dispute Settlement System: Cambridge University Press: worldwide
Van den Bossche, Peter (2008). The Law and Policy of the World Trade Organization, UK: Cambridge University Press
Vranes, Erich (2009) Trade and the Environment: Fundamental Issues in International Law, WTO law and Legal Theory Oxford University Press: Oxford
Endangered Species Act
GATT 1947: Articles XXII and XXIII
Marine Mammal Protection Act 1972
Understanding on Rules and Procedures Governing the Settlement of Disputes
WTO, ‘WTO and UNEP launch a report explaining for the first time the connections between trade and climate change’, 26 June 2009, Press/559. UNEP issued an identical press release on the same day, available at www.wto.org/english/news.e/pres09_e/pr559_e.htm.
WTO website accessed on 2nd February and available from: http://www.wto.org/english/tratop_e/envir_e/envir_e.htm
> United States — Taxes on Automobiles, ruling not adopted, circulated on 11 October 1994. Case brought by EU.
> United States — Restrictions on Imports of Tuna, “son of tuna-dolphin”, ruling not adopted, circulated on 16 June 1994. Case brought by EU.
> United States — Restrictions on Imports of Tuna, the “tuna-dolphin” case, ruling not adopted, circulated on 3 September 1991. Case brought by Mexico, etc.
> Thailand — Restrictions on the Importation of and Internal Taxes on Cigarettes, ruling adopted on 7 November 1990. Case brought by US.
> Canada — Measures Affecting Exports of Unprocessed Herring and Salmon, ruling adopted on 22 March 1988. Case brought by US.
> United States — Prohibition of Imports of Tuna and Tuna Products from Canada, ruling adopted on 22 February 1982. Case brought by Canada.
> European Communities — Measures affecting asbestos and asbestos-containing products. WTO case No. 135. Ruling adopted on 5 April 2001. Case brought by Canada.
> United States — Import Prohibition of Certain Shrimp and Shrimp Products, the “shrimp-turtle” case. WTO case Nos. 58 and 61. Ruling adopted on 6 November 1998. Case brought by India, Malaysia, Pakistan and Thailand.
Recourse to Article 21.5 of the DSU. Ruling adopted on 21 November 2001. Case brought by Malaysia.
> United States — Standards for Reformulated and Conventional Gasoline, WTO case Nos. 2 and 4. Ruling adopted on 20 May 1996. Case brought by Venezuela and Brazil.