Unravelling the Trade and Environment Debate Through Sustainable Development Law Principles
ESIL 2004 Inaugural Conference Agora Paper
10 Pages Posted: 16 Mar 2005
Date Written: January 3, 2005
The goal of this paper is to see whether, and how, Public International Law (PIL) principles and, in particular, International Environmental Law (IEL) principles can be used in order to find a balance between trade and environment in the study of the legal relationship between Trade Related Environmental Measures (TREMs) in Multilateral Environmental Agreements (MEAs) and World Trade Organization (WTO) rules. TREMs can ban, limit or affect in other ways international trade and this may lead to a conflict with WTO Agreements norms and rules. Three main approaches have been followed by States and scholars in this last decade to solve these conflicts: a 'WTO approach', an 'extra-WTO approach' and a 'cooperative approach'.
Within these approaches several PIL aspects have been used including treaty law provisions and customary rules, such as the lex specialis rule. The non isolation of the WTO from PIL has been stressed by many important authors. IEL principles are becoming more important within the international community, and in particular the law of sustainable development. In fact, principles such as the precautionary principle and the common but differentiated responsibilities, among others, are being strengthened both by academics (the ILA principles of International law Relating to Sustainable Development) and by the entry into force of recent MEAs (Cartagena Biosafety Protocol, Rotterdam Convention, etc..), where these principles play a pivotal role. Currently, sustainable development is only mentioned in the preamble of the Agreement that establishes the WTO. Furthermore, WTO jurisprudence has not strongly recognised the legal nature of some of its principles. Notwithstanding these difficulties, we consider that the WTO could learn from other organisations which foster free trade such as the European Community. In fact, Art. 6 of the EC Treaty maintains clearly that all European policies must be undertaken accordingly to the overall sustainable development goal. If this were to be the case also in the WTO, then sustainable development should be included within the text of the different Agreements and mentioned as one of the organization's goals. Hence, panels and appellate bodies would use sustainable development law principles to interpret WTO norms and decide trade and environment disputes. In conclusion, we argue that PIL principles have already been used to deal with trade and environment disputes and that some IEL principles can currently be used within the WTO dispute settling system. Furthermore, we consider that, if sustainable development law progresses and its principles are strengthened by MEAs, the WTO Agreements should explicitly include sustainable development as one of its goals. This would allow WTO panels and appellate bodies to consider sustainable development as the framework under which to decide trade and environment disputes.
Keywords: trade, environment, sustainable development, trade measures, Multilateral Environmental Agreements, World Trade Organization
JEL Classification: K33, K32
Suggested Citation: Suggested Citation