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Comparing to the prior WTO dispute solution regime, the new Dispute Settlement Body has reached remarkable improvement, particularly under the Dispute Settlement Understanding. Observers widely consider the new system to be more professional, more judicial, and more effective. The substantive improvements in WTO jurisprudence has been perceived as (a). the new system embraces more formalized rules and procedures; (b). the new system ensures that panelists and AB members are more independent from the disputing nations and less influenced by political interests; (c). the panelists themselves bring more legal training and experience; (d). the permanence of the AB membership ensures consistency across time; (e). the decisions would receive more respect and compliance. After hailing the progress, one thing should been borne in mind that the WTO laws are made by a trade community. The representatives attending the meetings of WTO are usually trade representative or trade Minister. What they bring to the forum is a series of economic data. They cannot get rid of the foremost task, the growth of domestic economy, during the rounds of negotiation. The environment community is so naïve to trust that the trade community could frequently release good news to environment. It is still necessary to analyze the substantive laws on which the WTO relies.
In theory, there are two justifications for ‘creative’ unilateral action, namely ‘opposability’ and ‘countermeasure’, which leave a room for individual states to assert an interests in ways that are not consistent with international law. Yet a unilateral ‘green trade barrier’ may be justified in a given circumstance but it is not necessary justified in another. For example, in Tuna-Dolphin dispute, the US unilateral action might be viewed as a countermeasure in retaliation for Mexico’s disregard of the duty of all states, recognized under customary international law to protect marine living resource, but this measure would not justify the US embargo of tuna imports from ‘intermediary’ nations because countermeasures against third parties are generally prohibited. However, as I learned from the Tuna-Dolphin dispute, the final chapter for preserving both free trade and dolphins was an MEA, the International Agreement for the Reduction of Dolphin Mortality signed by 12 states, as a result, that the incidental take of dolphins was no longer significant from a biological perspective and the US revoked the tuna embargo. I can see that the victory was promoted by GATT panel but accomplished by MEA.
From another point of view, many current MEAs (such as Montreal Protocol, Basel Convention, and Convention on International Trade in Endangered Species) provide parties to restrict or prohibit trade with non-parties in order to protect specific environmental factor, natural resources or endangered species. Provided that a dispute arose between two WTO parties, of which one was subject to a MEA, but the other was not, should the WTO law has priority to the MEA? In a national legal system, this might not be a problem because the implementing new law should prior to the old one. Is this domestic principle applied to international law which has been made by different numbers of parties? The WTO seems to have not yet had a chance to rule on particular MEAs. Actually, the WTO, itself, has been proved that it favored MEAs. The CTE has endorsed ‘multilateral solution based on international cooperation and consensus as the best and most effective way for governments to tackle environmental problems of a trans-boundary or global nature’, and in the Shrimp-Turtle decision the AB clearly upholds the right of WTO members to legislate for the protection of natural resources beyond national boundaries, providing they do so pursuant to an MEA . Above analysis demonstrates that the WTO law itself is lacking of enough ability to deal with environmental matters.
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