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The WTO law provides a comprehensive system for notification of trade measures and certain trade-related environmental measures (TREMS) including technical regulations and standards in the Agreement on TBT and the Agreement on Snitary and Phytosanitary Measures (SPS). Most transparent requirements prescribe ex ante notification before implementation of the measures. The TBT and SPS Agreements also provide for the establishment of national enquiry points capable of providing information on TREMS. The WTO Council for Trade in Goods has recently set up a Working Group to review all WTO notification obligations with a view to simplifying, standardizing and consolidating them. But there continue to be “gaps” and TREMS not yet covered by the WTO notification requirements, for example regarding environmental subsidies, eco-taxes, deposit-refund schemes, recycling, production-related and waste handling requirements including those applied or managed by private organizations, domestic measures implementing MEAs and other international rules, and trade measures applied pursuant to GATT Article XX.
Besides these challenges against principles of the WTO law, some legal regimes and specific rules are challenged by environmental protection in varying degrees, for example the three exceptions concerning environmental protection of general elimination of quantitative restriction regime in GATT Article XI (2) cause many ruckus. But they are either consequences of challenges against principles, or the reflections in specified fields of those challenges, so it won''t be addressed in detail for limited space.
Part III Ways of “Greening” the WTO Law
1. The Basic Standpoint of the WTO
From the developing trends of international society, the world has stepped into "the environmental protection era" and to protect the environment has been a trend of the times, and ecological, economic and social sustainable developments have become a common desire of all people from the world. As the WTO law is concerned, it could not keep status quo and bog down regardless of great challenges from environmental protection any longer; that to reform and develop the WTO law and to achieve sustainable development of the WTO law itself in order to suit the needs of “the environmental protection era” has consequently become a quite realistic problem faced with by the WTO. And the basic standpoint of the WTO on trade and environment will decide directly the orientation of development of the WTO law in the future. So it is necessary to understand the attitude of the WTO on this issue.
The WTO has, in the Decision on Trade and Environment and a series of working reports and announcements of the CTE, pointed out several times that: there should not be, or need be, any policy contradiction between upholding and safeguarding an open, non-discriminatory and equitable multilateral trading system, and acting for the protection of the environment and the promotion of sustainable development; the WTO will, without exceeding the competence of the multilateral trading system, desire to coordinate the policies in the field of trade and environment. These can be regarded as the basic standpoint and guiding principles on the issue of trade and environment. To this end, the WTO Committee on Trade and Environment had brought environment and sustainable development issue into the mainstream of the WTO work and engaged in establishing a constructive and supportive relationship between trade and environment so that it can enhance the dynamics of environmental protection and promote sustainable development without impairing the characteristics of openness, equality and non-discrimination of the multilateral trading system. The reason that the WTO takes such standpoint is following: on one hand, trade and environment are connected closely, and increase of international trade will raise the economic and technical strengths for environmental protection of all countries, esp. those developing countries; meanwhile ecology and environmental are the material base of international trade so that international trade can get enough natural resources and row and processed materials. Namely, liberal trade and environmental protection are compatible in principle and there is no irreconcilable between them, so the WTO law should incorporate enough considerations of environmental protection. On the other hand, the WTO law is the legal foundation of multilateral trading system, which decides that to safeguard and to promote multilateral liberal trade are the main task of the WTO law and that the objective of environmental protection can be achieved only within the framework of multilateral trading system. Meanwhile the policy scope coordinated by the WTO is limited to those environmental policies which may result in significant trade effects, the WTO law are not likely to become a specialized trade legal system for environmental protection.
Therefore, the reform and development of the WTO law must comply with the principles of existing system, in other words, the WTO shall, on the base of open, equitable and non-discriminatory principles, uphold members to take effective measures to protect the environment within the WTO or other international organizations through bilateral or multilateral cooperation.
2.Approaches for “Greening” the WTO Law
The CTE of the WTO has, since its establishment in January 1, 1995, been studying the issue of trade and environment in order to find the best way to reform and develop the WTO law. At the same time, many governments of members and non-members to the WTO and scholars from trade and environment communities came to pay attention to this issue and initiated research on the reconciliation of trade and environment. According to findings of the CTE and proposals of governments and scholars, there are four methods as following to green the WTO law:
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