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The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)
TRIPs encourage each country to conduct more research, innovation, transfer and use of technology for environmental protection. Article 27 lists circumstances under which governments may exclude from patentability, including diagnosis, therapeutic and surgical methods for treatment of humans or animals, plants and animals other than micro-organisms, and essentially biological and microbiological processes. This Article specifies that members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment.
1-3 Ministerial Decisions in System of the WTO Law
The Decision on Trade and Environment
On April 15, 1994, the last moment in the Uruguay Round Negotiation, the Ministerial Meeting in Marrakesh adopted the Decision on Trade and Environment which was the first special document regulating the issue of trade and environment in the history of multilateral trading system. The Decision declares that the WTO will engage in harmonizing the policies in the field of trade and environment and will establish a Committee on Trade and Environment (CTE) in charge of specific matters concerning trade and environment in the framework of the WTO. The adoption of this Decision shows that in the future the newfound WTO will coordinate trade and environment policies when they are contradictive, rather than trade policies overwhelmed environment policies in any cases, just like what GATT had done in the past 40 years.
Decision on Trade in Services and Environment
The Decision expresses the WTO''s standpoint on trade in services and environment. It acknowledges that measures necessary to protect the environment may conflict with the provisions of GATS and so it is necessary to establish a Committee on Trade in Service and Environment to put up with recommendations on the relationship between services trade and environment.
2 The Institutional Grounds
In 1971, the GATT established a Working Group on Environmental Measures and International Trade (hereinafter referred to as "1971 Working Group") and entrust it with a mandate "to examine upon request any specific matters relevant to the trade-policy aspects of measures to control pollution and protect human environment especially with regard to the application of the provisions of the General Agreement taking into account the particular problems of developing countries." The 1971 Working Group was required to report its activities to Council. However, the 1971 Working Group had been the state of "hibernation" and never launched any activities since its establishment. During the course of the Uruguay Round Negotiation, the GATT began, encountered with dual pressures from the increasing trade disputes concerning environment among parties and the rising voice for protecting the environment in international communities, to attach importance to impacts of environmental issues on liberal trade. At 8 Oct. 1991, almost 20 years after the establishment of 1971 Working Group, the GATT Council decided to re-convene the 1971 Working Group to examine the following three points: trade provisions contained in existing multilateral environmental agreements (MEAs); multilateral transparency of national environmental regulations likely to have trade effects; and trades effects of new packaging and labeling requirement aimed at protecting the environment. Soon afterwards, the 1971 Working Group held a lot of meetings and submitted the GATT Council with many work reports and provided background materials for Uruguay Round Negotiation. But the GATT was still short of adequate understanding of environmental issues relating to trade, so the terms of reference of the 1971 Working Group was very limited and its legal status is indefinite. All these factors decided that the 1971 Working Group was only a temporary organ without legal grounds, and additionally the GATT was only an international institution in facto, so we can say, in the strict sense, the 1971 Working Group was not the institutional grounds of the GATT for environmental regulation on international trade.
However, the rigorous internal and external situations forced the GATT and its parties to establish a specialized organ under the command of the GATT Council responsible for the increasing matters relevant to trade and environment. Just under such circumstance, the Ministerial Meeting adopted the Decision on Trade and Environment before the deadline. According to the Decision, the WTO will establish a Committee on Trade and Environment (CTE) open to all members of the WTO that shall be directly under the command of the General Council of the WTO. It is well known to all that trade in goods, trade in service and trade in TRIPs are main objects of competency of the WTO, and correspondingly, the Council for Trade in Goods, the Council for Trade in Services and the Council for TRIPs are three Councils of General Council. The fact itself that the CTE obtains the equal legal position with those three Councils makes clear the WTO''s attitude that the WTO, unlike the GATT, will treat environmental issue and other issues relating to trade equally, in other words, the position of environmental issue in the considerations of WTO is markedly raised. The CTE constitutes the basic and the major institutional ground of the WTO for environmental regulation on international trade. The purpose of the CTE is to, without violating principles of the multilateral liberal trading system, coordinate trade policies and environment policies and to promote mutual supporting between trade measures with environmental effects and trade-related environmental measures. Its specific tasks include such aspects as following: (1) to develop trade and environmental measures and to identify the relationship between them, with noting the environmental objectives set forth in Agenda 21 and the Rio Declaration, and with special consideration to the needs of developing countries, in particular those of the least developed among them; (2) to adhere to effective multilateral liberal trading disciplines ensure to supervise and prevent those protectionist trade measures in name of environmental protection applied by members; (3) to deal with trade conflicts among members concerning charges and taxes, and requirements relating to products for environmental purposes, including standards and technical regulations, packaging, labeling and recycling; (4) to ensure the transparency of trade measures and those trade-related aspects of environmental policies which may result in significant effects, and to prevent adverse effect of environmental measures on market access; ect. . The CET, with a standing nature and broad terms of reference, lays a good foundation for the WTO to regulate matters relevant to trade and environment in the future.
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