|
2. Are the GATT/WTO laws adequate to deal with trade-environment matters?
2.1. The ambiguity of general provisions
The core of the GATT/WTO system are two non-discrimination principles namely ‘most favored nation treatment’, which requires equality of treatment of ‘like products originating or destined for the territories of all other contracting parties’(Article I of GATT), and ‘national treatment’, which requires imported and domestic ‘like product’ to be treated equally with respect to internal taxes and regulations (Article III). However, the unilateral trade restrictions are permitted for the purpose of environmental protection insofar as ‘such measures are not applied in a manner which would constitute a means of arbitral or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade’(so-called chapeau), and the trade regime allows two exceptions that ‘nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:… (b) necessary to protect human, animal or plant life or health;… (g) relating to the conservation of exhaustible natural resources if such measures are made in conjunction with restrictions on domestic production or consumption.’ (Article XX). There are also some general ‘green provisions’ dealing with environmental issues in other agreements such as Article 27 of TRIPS, Article 14 of GATS, Agriculture Agreement, and etc. There is no specialized environmental agreement in WTO laws.
The brief review of the most pertinent GATT articles makes it clear how trade disputes could arise concerning environmental regulations. A state may enact an environmental regulation that in some way distorts trade to the disadvantage of one or more other GATT signatories but claim that the distortion is justified under Article XX. A disadvantaged state may, otherwise, claim that the unilateral environmental regulation actually serves as protectionist, non-tariff barrier to trade and should not be justified under the Article XX exemption. Without further interpretation, even within the same Article, conflict may arise. Furthermore, the wording used in WTO laws neither provides a simple or straightforward framework for resolving conflicts of trade-environment matters, nor does it easily to be applied in practice.
2.2 The deadlock in the CTE
Although the CTE, established under the auspices of WTO, has been designated to make recommendations on ‘the need for rules to enhance the positive interaction between trade and environment measures for the promotion of sustainable development’, there is little progress in the CTE on its tasks which are expected to be accomplished. The CTE failed to produce policy solution at the first WTO Ministerial Conference in Singapore in 1996. Both the CTE’s report and the final declaration of Singapore revealed that the work on ‘contributing to build a constructive policy relationship between trade, environment and sustainable development needs to continue’, and since then the CTE has not taken any concrete decisions on how to reconcile the trade and environmental concerns. The deep division between the Northern and the Southern Members in WTO still remains. While the former calls for introducing environmental values into trade agreements, the latter regards this as a cover for discrimination against their products. The divisions also exist among powerful states and among developing countries, and that even within states (such as divisions within the US and the EU). Since the WTO laws are not environmental agreements nor is the WTO an environmental agency, and the cumbersome ‘doctrine of consensus’ in its decision-making process assures continuing deadlock in negotiations, we cannot expect that the detailed and practicable environmental protection measures will be written into the WTO agreements. The WTO suggested that the further policy may rely on the need for transparency, co-operation and the determination to accommodate environmental values. The realistic expectation might be in the reference of the case-to-case approach to examine whether the GATT/WTO has set out satisfied principles to reconcile the trade-environment conflicts.
|
