Environment and Trade: The GATT/WTO Regime in the International Legal System
Files
Description
Connections between environmental protection and international trade have been recognized for many decades. In recent years the political rise of environmentalism has focused acute attention on possible conflicts between environment and trade values and rules. National environmental law has become more comprehensive and more central in most polities, and present or proposed measures of environmental protection often touch matters addressed by international trade rules. International environmental law has also developed rapidly, with little systematic consideration of its relation to existing or evolving rules of the international trading system. The ability of institutions engaged with the law and policy of international trade to take account of environmental law and policy has varied sharply. The principal global trade institution of the period since the Second World War has been the General Agreement on Tariffs and Trade (GATT), which has evolved considerably through practice and through formal agreements reached in eight negotiating rounds culminating in 1994 in the Uruguay Round agreements folding GATT into the newly established World Trade Organization (WTO). The inability of the GATT/WTO regime to adapt trade rules to take fuller account of emerging environmental concerns has led to present and potential conflicts, not only of policy but also of legal obligation. GATT and the WTO, which at last provides a regularized institutional structure to encompass the improvised arrangements crafted after the failure of the Havana Charter for an International Trade Organization to come into effect in 1948, face the challenge of developing agreement on accommodation of environmental objectives within the structure of the GATT/WTO trade rules, and of responding effectively to concerns about the adequacy of GATT/WTO institutions and procedures for dealing with trade-environment issues. Failure to find adequate means of reconciling the GATT/WTO trade regime with heightened environmental interests threatens both to obstruct the attainment of environmental and trade objectives and to add the sustained weight of the environmentalist lobby to the existing pressures on liberal international trade. This chapter examines the extent to which GATT/WTO law may conflict with environmental objectives, and considers possible strategies for reconciling such conflicts within existing institutional constraints. The 1947 General Agreement on Tariffs and Trade, while raising no obstacle to many environmental initiatives states choose to take, contains no express reference to environmental objectives, and was crafted to accommodate only a limited range of trade-environment intersections. Supplemental agreements and other documents concluded over the following four decades made important contributions to the GATT system but for the most part treated environmental issues as peripheral. The Uruguay Round was already far advanced by 1991 when NGOs in the United States and elsewhere were galvanized by the report of the Dispute Settlement Panel upholding Mexico's complaint against a United States embargo on imports of tuna caught by vessels of countries with a high rate (measured by reference to United States practice) of incidental dolphin mortality. Recognizing the serious political controversies and technical complexities of integrating environmental objectives into the trade package, as well as the risk of the Round collapsing under the weight of new issues, negotiators elected to postpone most of the difficult environmental issues. The Uruguay Round agreements concluded in April 1994 take only very limited account of environmental concerns, although their adoption was accompanied by proposals for the establishment of a Trade and Environment Committee in the WTO in which environmental issues could be further addressed. It is not surprising that the GATT/WTO regime has had more difficulty in addressing trade-environment issues than regional institutions with much smaller and less diverse memberships. The greening of the European Community began with the adoption of the first environmental Action Plan in the aftermath of the 1972 Stockholm Conference, and has been implemented through amendments to the Treaty of Rome as well as numerous directives and other instruments in the environment field. It has thus been possible for the EU simultaneously to address environment and trade issues with a degree of coherence, although this has by no means eliminated all conflicts between the different objectives. In the case of the North American Free Trade Agreement (NAFTA), the initial unwillingness of the parties to include provisions on environmental protection was overborne by an NGO-led political outcry in the United States. The 1992 NAFTA together with the 1993 North American Agreement on Environmental Co-operation do not themselves establish significant environmental standards, but they provide means to address several of the most contentious environment-trade problems, and the 1993 Agreement provides for the establishment of a North American Commission for Environmental Co-operation with reasonably extensive powers to supervise enforcement of national environmental laws and to initiate and promote environmental co-operation. The GATT/WTO regime has no authoritative source of substantive environmental standards to weigh alongside trade standards, only a politically limited and arduous process for making new rules, and a system of dispute settlement and supervision that has not hitherto been environment-oriented or as open as many environmentalists wish.
Source Publication
Environmental Regulation and Economic Growth
Source Editors/Authors
A. E. Boyle
Publication Date
1994
Recommended Citation
Kingsbury, Benedict, "Environment and Trade: The GATT/WTO Regime in the International Legal System" (1994). Faculty Chapters. 1008.
https://gretchen.law.nyu.edu/fac-chapt/1008
