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3. Is the GATT/WTO concerned of environmental interests satisfactorily?
For response of this question, it is necessary to examine both the dispute settlement system in GATT/WTO and its interpretations of rules in settling individual cases.
3.1. Environmental matters in a forum of trade dispute solution
The systems of dispute resolution in GATT regime have become increasingly rigid over time. The WTO, which superseded the former GATT structure, provides a new set of compulsory dispute resolution procedures under which panels is formed immediately upon the receipt of a claim and the decision must be implemented by parties. The defendant state can no longer block the establishment of a dispute settlement panel or the adoption of a panel report. The WTO also provides a standing Appellate Body (AB) as the ultimate arbiter of disputes, and rules and procedures governing the dispute settlement, including deadlines for legal procedures and tools used to enforce decisions. Currently, there are about 200 Multilateral Environmental Agreements (MEAs) of which about 20 incorporate trade measures, but there is no judicial or quasi-judicial dispute settlement mechanism in most MEAs. Even if the specialized regimes have their own dispute settlement systems such as the Kyoto Protocol and the Law of Sea Convention, they have rarely been used. No international environmental regime can compete with the WTO attributes of compulsory jurisdiction, efficient process and available sanctions.
The complainants choose WTO as a forum for settling trade disputes rather than settling environmental disputes. Environmental matters involved into the WTO forum have been always as defenses. As far as I can see, there have never existed a case that a complainant initiatively used environmental measures to take an action in WTO. Therefore, the only thing the WTO could do is to reconcile rather than resolve the environmental conflicts. Actually, given the WTO the jurisdiction to reconcile the trade-environmental conflict is no other than the creation of itself and the recognition in Rio Declaration 1992. The preamble to the 1994 Marrakesh Agreement Establishing the WTO acknowledges that the expansion of production and trade must allow for: ‘the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.’ Meanwhile, Principle 12 of the Rio Declaration 1992 requires states to co-operate in supporting free trade and economic growth and not to use environmental measures in a discriminatory way or as disguised trade restrictions. In particular ‘unilateral actions to deal with environmental challenges outside the jurisdiction of the importing state should be avoided. Environmental measures addressing trans-boundary or global environmental problems should as far as possible be based on an international consensus.’ At the first glance, the environmental policy is compatible with the international trade policy. However, the dispute settlement body of WTO has many chances to say that the interpretation of WTO agreements should follow the general rule codified in Article 31 of the Vienna Convention on the Law of Treaties 1969 that account may be taken of ‘any relevant rules of international law applicable between the parties.’ This jurisprudence has opened a room to the WTO for using environmental measures in the proceeding of settling trade disputes, although the room only extends to matters arising under ‘covered agreements’ .
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