|
In my opinion, the trade-environment conflict is very complex. It is not only a conflict between environmentalists and industrialists but also a conflict among North and South, political and economic factors, globalization and protectionism, even different ideologies and ethics. If the international community believe that the WTO is a good thing, then, the WTO should not carry out too many burdens and pressures. The WTO should work under its own legal framework, not beyond it. Nowadays, I find many environmental-friendly trade restrictions have been probably used as means of protecting national industry. It is obvious that there are rare restrictions on imports and exports of products derived from the ‘sun-setting’ or most pollution-caused industries such as steel, chemistry, pesticide, plastic and rubber. Why? I think these kind of production, in another word, the pollution, has been transferred to developing countries but the developed countries still demand those products. Observing the early cases, behind the disputes in Tuna-Dolphin, Shrimp-Turtle, EU-US Automobile Taxes (1993), Venezuela-US Gasoline (1993), and Beef hormone cases, there also existed strong conflicts between competing industrial groups. I cannot be persuaded by myself to believe that all environmentally trade restrictions merely started from environmental interests, without any pressure from domestic industrial factors. Someone has demonstrated his hypotheses as ‘the greater the political threat posed by a state’s or a group of states’ potential defiance, the more likely the court [panels or AB of WTO] is to adjust its jurisprudence to suit the state’s or states’ preferred outcome.’ and ‘the greater the clarity of treaty requirements, precedents, or legal norms in support of a particular judgment, the greater the likelihood that the court will make that judgment, regardless of political costs’. Therefore, the WTO needs to be protected by inherent improvement rather than to be transformed or distorted by temporary requirements or political pressures. To this respect, the most powerful members in the WTO should carry out more responsibilities.
Someone even goes further, as he suggested that we need a rational system for distributing jurisdiction amongst competing regimes in international law; and we need to learn from private international law system and find ways of characterizing disputes so as to choose the most appropriate forum; and ultimately, the Dispute Settlement Body of WTO ought to have ways of refusing jurisdiction or requiring mediation or arbitration instead of traditional dispute settlement. However, I think, it is too long to wait for creations of competing dispute settlement regimes. Indeed the national legislatures or courts could in principle decide to allow individuals to invoke WTO law to challenge the domestic laws, but it appears unlikely to happen. In contrast, the domestic laws appears to continuingly have chance to challenge WTO laws. Thus, if we believe the new WTO dispute settlement system can be praised, it might be the time to consider to reconfirm the existing MEAs for conformity with the provisions of WTO. Since the wording used in Article XX is vague and general, why not make the exemption more clarified? If the trade community has recognized that the trade liberation should enter into an ‘environmental era’, why not to negotiate what products should be still under free trade; what products should be restricted or prevented from imports and exports; which MEA should be directly recognized by WTO; which higher environmental standards should be harmonized globally.
|
