World Trade Organization

The precautionary principle was arguably developed and originally implemented in Germany and Sweden, and it is these nations that remain the leading proponents of it. For example, it was one of these nations (Germany) that put the precautionary principle on the international stage, and today with regard to environmental regulation (in particular chemicals) it is Sweden that is pushing forward precautionary legislation in the European Union. There is a conflict between those who support the principle and those who oppose it.

For example, American policy-makers have become increasingly concerned with the use of the concept by the EU, seeing it as a threat to scientific risk analysis as the main tool for regulation used hitherto. Academics in the United States point out that the US had precautionary elements in their regulations during the 1970s; but these elements turned out to be excessively costly and faulty, and so were abandoned following a Supreme Court judgment in 1980 (in an infamous case concerning benzene) which insisted that regulation must depend on scientific proof of risk.

There is no one definition of the precautionary principle. One Swedish author, Per Sandin, lists 19 formulations, often individually vague and mutually contradictory. [1] The most commonly used definition is contained in the 1992 Rio Declaration, which stated that in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

One of the more rigorous analyze of the meanings of the precautionary principle have been put forward in work by Wiener and Rogers. They argue that there are three different formulations of the precautionary principle. These are:[2] • Uncertainty does not justify inaction. In its most basic form, the precautionary principle is a principle that permits regulation in the absence of complete evidence about the particular risk scenario. Lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation-Bergen Declaration]. • Uncertainty justifies action. This version of the precautionary approach is more aggressive. • Uncertainty requires shifting the burden and standard of proof. This version of the precautionary principle is the most aggressive. It holds that uncertain risk requires forbidding the potentially risky activity until the proponent of the activity demonstrates that it poses no (or acceptable) risk.

In this part of the report, the precautionary principle is analyzed in the context of the World Trade Organization and with respect to: i) GATT and exceptions in Article XX, ii) the Subsidiary Agreement on Sanitary and Phytosanitary Measures (SPS), and iii) the Agreement on Technical Barriers to Trade (TBT). The precautionary principle is the focus of intense debates in the fields of food safety and GMOs, particularly in the World Trade Organization. 3] Tensions over these issues grew in 1998 after an EC moratorium based on the precautionary principle was applied to GM products from the United States, Canada and Argentina. [4] In 2003, the affected exporting countries requested the establishment of a Dispute Settlement Body by the WTO. [5] World Trade Organization (WTO) The World Trade Organization (WTO) emerged on April 15,1994, predicated on the General Agreement on Tariffs and Trade (GATT) of 1947. The reforms of this organization introduced ‘resolutions’ regarding the environment.

In its preamble, it mentions the ‘objective of sustainable development’ and “seeking both to protect and preserve the environment”. In 1995, the Committee on Trade and the Environment was created to promote sustainable development and to identify a relationship between trade and the environment.  This Committee was created at the behest of the WTO at the end of the Uruguay Round. [9] WTO legislation since then has ad- dressed trade issues that substantially relate to the environment. 10] In spite of the ‘greening’ efforts to integrate the environment and trade, the WTO continues to pursue its objectives “by entering into reciprocal and mutually advantageous arrangement directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international relations”. [11] WTO agreements that can potentially apply to ‘GMO restrictive measures’ contained in: Art. XX of the General Agreement on Tariffs and Trade (GATT) of 1947,[12] The Subsidiary Agreement on Sanitary and Phytosanitary Measures (SPS). 13] A concise application of GATT rules to the GMO controversy will probably not allow stringent regulation of transgenic products such as the one by the European Community and consequently, the WTO will not allow the application of the precautionary principle. Among the measures contained in the GATT agreement that may represent a problem for the application of precautionary measures is the definition of a ‘like product’[14] and the ostensible product regulation the WTO has employed for products. 15] If the WTO decides to take this approach under GATT to GMOs, it will be largely impossible to sustain bans on these products. The precautionary principle as well may not survive scrutiny from the WTO since it would need to show sufficient scientific evidence that health effects derive from the consumption of GM products. Subsidiary Agreement on Sanitary and Phytosanitary Measures (SPS) The SPS agreement was created in 1993, which by WTO parties to help reduce the incidence of non-tariff trade barriers imposed to protect, ostensibly, human, animal or plant life. 16] The WTO describes the focus of the SPS agreement: “To maintain the sovereign right it deems appropriate, but to ensure that these sovereign rights are not misused for protectionist purposes and do not result in unnecessary barriers to international trade”. [17] The SPS agreement does not provide states with acceptable sanitary standards; instead, it guides governments in establishing SPS rules. These guidelines are aimed at helping WTO members to (1) harmonize standards and (2) to assess the appropriate level of SPS protection based on an assessment of risks. Regarding (1) harmonization, under Art. , it recommends that states base their sanitary measures on international standards, guidelines or recommendations, whenever they exist. (2) With respect to the level of SPS protection, Art. 5 encourages states to base their sanitary standards of risks on scientific evidence. The precautionary principle or at least parts of this principle can be found in various parts of the SPS agreement. [18] Precaution is specifically incorporated in (1) the levels of protection, mentions that states can determine “the appropriate level of protection of human, animal or plant life or health”. 19] (2) In Art. 3. 3, which is precautionary in nature, the level of protection that can be implemented by states is addressed in the following manner: “members may introduce or maintain sanitary or Phytosanitary measures which result in a higher level of protection than would be achieved on measures based on the international standards”[20] and (3) Art. 5. 7, states that states can adopt higher standards provisionally “in cases where relevant scientific evidence is insufficient”. 21] The first case to put to the test precautionary measures under the SPS was the Beef Hormones Dispute,[22] which was based on an embargo imposed by the European Community against US beef treated with artificial growth-enhancing hormones. This case seems to indicate how the WTO applies the precautionary principle. In this case, the European Community did not look at international standards for selecting the SPS l protection level, namely, in the Codex. According to Art. 3. 3 of this agreement, the EC had a right to increase the level of protection only when the ‘higher protection’ was based on a risk assessment.

According to article 5. 7, the EC could have chosen higher standards temporarily until it acquired scientific evidence to support the SPS measures. Accordingly, when countries regulate GMOs, and impose standards more stringent than those found on the international level, they will be required to demonstrate a rational relationship between the regulations and the respective risk assessment. With respect to the precautionary principle, both the WTO panel and the appellate body refused to consider its evolution into a principle of international law. 23] However, they recognized that it was the focus of debate “among academics, law practitioners, regulators and judges”. [24] The appellate body, though, found that the precautionary principle was ‘reflected’ in the SPS agreement, but did not override the specific obligations in that agreement.  Based on the hormones case, the SPS agreement’s version of the precautionary principle relies on a scientifically based risk assessment. This standard is not likely to afford protection in cases where scientific evidence has not yet been developed.

Nevertheless, countries can impose restrictions based on “provisional measures” to protect, at least temporarily, human health. The temporary moratorium is still more attractive than any alternative yet devised. Core elements of the precautionary principle have been included in trade agreements, particularly, a) in the SPS agreement, b) in chapter XX of the GATT. Although exceptions in these agreements allude to precaution, the discussion of this principle has been directly addressed under the SPS agreement; particularly, in the Hormone Case.

The Appellate Body, in this case, said that the provisions of the SPS Agreement embraced the precautionary principle. This principle, however, has been interpreted as being subordinated to clear and convincing scientific evidence to deal with uncertainties caused by lack of scientific evidence. The WTO, when deciding the case between the US and the EC over the moratorium on transgenic products, is obliged by its own decisions to consider its rules not in isolation but in accordance with international law. The precautionary measures by the EC have to be interpreted in accordance with multilateral environmental agreements.  The precautionary principle rests in the hands of the WTO; the way these institutions will interpret this principle will shape the future of protection in the international arena. If the WTO declares illegal the EC moratorium on transgenic products, countries will be reluctant to apply the precautionary principle even when the application of this principle is required by a multilateral environmental agreement such as the Cartagena Protocol.

An attack on the precautionary principle by the WTO can result in international conflicts between the trade and environmental regimes. Regional View of Precautionary Principle At the regional level, the precautionary principle has been embraced in different ways. In the European Community (EC), this principle plays a fundamental role in biodiversity and health protection, particularly in the field of GMOs. In North America, this principle does not play as fundamental a role in the North American Free Trade Agreement, but has been tangentially alluded to when GMO issues have been raised.

The precautionary principle is particularly essential in the management of risk, which is considered in the EC within a structured approach to the analysis of risk encompassing, such as risk assessment, risk management and risk communication. To apply the precautionary principle, decision makers need to start with a scientific evaluation as comprehensive as possible for the purpose of identifying the degree of uncertainty. [30] Unlike in the European Community, the precautionary principle does not play a central role in the North American Free Trade Agreement (NAFTA). The principle is, nevertheless somehow embraced in this agreement through national legislation. It can be said, however, that the mere creation of the Commission of Environmental Cooperation (CEC) is a precautionary measure to prevent parties from indiscriminately exploiting the environment in the name of trade. While the CEC furthers environmental protection by promoting citizen complaints, its effectiveness is yet to be seen, particularly in the promotion and endorsement of environmental principles such as the precautionary principle.

Conclusion In the areas of trade and environmental law, the GMO debate has escalated to the WTO. This organization, when considering the European moratoriums, will definitely shape the application of this principle. If the WTO finds European regulation to be inconsistent with trade agreements, countries will be less willing to apply this principle. At the regional level, while this principle has not been embraced in NAFTA, core elements are contained in national legislation.

Although the precautionary principle has been considered in NAFTA by the CEC, this environmental organization is not fully independent and lacks authority to truly promote environmental values such as the precautionary principle. It has also argued that the precautionary principle is not contrary to science but to provide answers with regard to new technologies and in this case, GMOs. With regard to the foundations of this principle, it was argued that it was based on common sense (natural law), and that some of these elements are embodied in the statute of the international court of justice.

The precautionary principle departs from anthropocentric attitudes and encompasses a holistic approach. It is not a definite solution and it will not change the world overnight, but it can make a difference in the protection of human health and the environment by providing guidance to policy makers when considering threats posed by GMOs.

Bibliography

1. R. Burnett & V. Bath, Law of International Business in Australasia, The Federation Press, 2009. J. Mo, International Commercial Law, LexisNexis Butterworths, 4th edition, 2008.
2. P Sandin, ‘Dimensions of the precautionary principle’ Human and Ecological Risk Assessment, Vol. 5(1999), n. 5, pp. 889-907.
3. JB Wiener and MD Rogers, ‘Comparing precaution in the United States and Europe’, forthcoming in Journal of Risk Research, pp. 4-5.
4. Shaw, Sabrina y Schwartz, Risa, “The Cartagena Protocol and the WTO: Reflections on the Precautionary Principle”, 10 Swiss Review of International and European Law at 537.
5. Bridgers, supra note 2, at 181 y 182. [5] Isaac, Grant E. y Kerr, William A. , Genetically Modified Organisms at the World Trade Organization: A Harvest of Trouble (2003) 37 J. World Trade at 1083.
6. Macmil l an, Fiona, WTO and the Environment, London, Sweet & Maxwel l , 2001, at 7.
7. See preamble of Marrakech Agreement of the World Trade Organization, Annex 1A, Legal Instruments of the Uruguay Round vol. 1, 33 ILM 1154 (1994).
8. Macmillan, supra note 92 at 12.
9. Ibidem, at 12 y 13.
10. Ibidem, at 12-16. Among the cases the WTO has addressed are: the Tuna-Dolphin cases, The Automobiles case, The Reformulated Gasoline and the Sea Turtle Case.

Global trading has been a part of the world since the 1940s. As trade between countries began to grow so did the need for some sort of international commerce. In 1948, the International Trade Organization (ITO) was established, but fell through and triggered the creation of General Agreement on Tariffs and Trade (GATT). GATT was created through several negotiations, known as rounds.

For many years, GATT’s policies held strong and offered many countries the international support they needed to remain prosperous in global trade. Though, as time went on, certain trade policies established by GATT were being undermined by countries in order for them to continue conducting business. GATT’s rules and regulations were becoming obsolete in the rapid changing global economy. “By the early 1980s the General Agreement was clearly no longer relevant to the realities of world trade as it had been in the 1940s.

For a start, world trade had become far more complex and important than 40 years before: the globalization of the world economy was underway, trade in services – not covered by GATT rules – was of major interest to more and more countries, and international investment had expanded” (World Wide Web. http://www. wto. org/wtoabout/facts1. htm). The eighth round (Uruguay Round 1986-1994) was the most recent and thorough of them all. The Uruguay Round had 125 countries participating, it is the largest trade negotiation to ever take place.

Though this round was expected to fail from the start, it actually started some of the largest trade reforms since GATT and WWII. This round, lasting some 7 1/2 years, established the World Trade Organization (WTO) and a new set of agreements. The World Trade Organization was enacted on January 1, 1995. There are three main purposes of the WTO stated in the WTO web site. These three main goals are to help trade flow as freely as possible, serve as a forum for trade negotiations, and deal with dispute settlements.

How the WTO remains so effective is by setting up universal guidelines for members to follow and enforcing them. One of the most important changes made in WTO, is the addition of the trade rules regarding trade in intellectual property and services, as well as, products. The WTO site is currently discussing many articles. There are a few which strike my interest such as the EC and U. S. banana dispute which we had previously discussed in class, the increase of WTO members to 134, and the intellectual property proposal concerning the US and Japanese idea for a multilateral system and registering geographical locations.

There is an article on low income developing countries in the GATT/WTO framework, which is planning on discussing special provisions that should be offered to these under-developed and developing countries, which were involved in the Uruguay Round Agreements. “Developing Countries comprise the majority of the membership of the World Trade Organization. On the other hand, the European Communities, the United States, and other industrialized countries enjoy the greatest shares of international trade” (World Wide Web. ttp://www. wto. org/).

The Dispute Settlement Body (DSB) is the “law” of the WTO. It is the body in the WTO that analyzes the trade policies and interprets the rules regarding them. Two of the three sites we were advised to use on this paper were not accessible, so I just improvised and used Internet sites that had similar information on them. One of the articles I found on worker’s rights was very informative. It discussed the U. S. Secretary of Labor, Alexis Herman, and the ties of core labor standards.

Last June, a declaration was announced in Geneva by the International Trade Organization (ILO). The International Labor Conference, held by ILO members, adopted this declaration with intentions of creating a stronger protection on core rights of workers, and holding each country accountable for this protection. On May 18, President Clinton Made a speech stating that the ILO and WTO need to maintain a working relationship in order to advance the global trading system while protecting the worker’s basic rights.

This is a big step forward for the ILO and its members as we enter the 21st Century. With the passage of this Declaration, the ILO has underlined and clarified the importance of the fundamental rights of workers in an era of economic globalization” (Statement by Secretary Herman). Some of the current trade disputes discussed in the WTO are the disputes going on about the bananas between the United States and the European Communities. This dispute is actually being talked about this week in the Wall Street Journal.

Both sides are frustrated. The U. S. is because they feel the EU has unfairly made loop holes in WTO guidelines, and the EU is upset because they say the U. S. is trying to control too much of their rights as global traders. The U. S. has stated that the EU has been purposly avoiding banana purchases in Latin America, and doing business in areas like Africa, where Europe has many ties. The WTO has the responsibility to work on a plan that will hopefully satisfy both parties to some degree, but the U. S. as strong opinions of implementing 520 million dollars worth of tariffs on EU imports into our country.

Another dispute that is taking place is the Korean acoholic beverage tax. This is a matter the WTO is also trying to fix. The U. S. and EC don’t agree with the tax that Korea is implementing on their imported alcoholic beverages. Again, the WTO pages website is inactive so I found some information in another forum about certain issue which are being reviewed. One of the hottest items right now seems to be assistance for low-income developing countries.

Many changes are taking place for developing countries, and the way they are conducting their international business. For one, they are aborting many of their uses of tariffs on infant companies to try and support growth. Secondly, they are altering their management to make themselves more attractive to foreign investment, which in turn will increase foreign direct investment and help create more supportive trade balances. These developing nations are strongly advised to take part in the WTO, so they can reap the benefits it has to offer.

The WTO, with its multilateral trade view, simply allows smaller economic powers to be more fairly involved in world trade without being victimized and taken advantage of by stronger economic powers in the old bilateral style of global trading. In the 21st Century global trading will be more fine-tuned than it is right now. We should see the elimination of tariffs, subsidies, quotas, etc. The world should be working like a large country, with open markets in every nation. Comparative advantage will establish itself, and trade balances will be less drastic.

Under-developed and developing countries will become developed. In my View, I think that in the 21st Century, the world will operate as one large entity in the aspects of economic markets. Though, the creation of the WTO brought many great new ideas and helped closer unite the world into one huge market, there are still bugs that need to be worked out, and as time goes on, we will see need for more changes and adjustments. A few of the areas that the WTO needs to rectify and further develop now are areas such as worker’s rights, environmentalism, and foreign direct investment.

Qualitative research is one of the ways doing research that involves only looking at the quality and not having any results that are quantifiable. This means that the conclusions that are made from a qualitative research are usually based on the secondary research, that is, other researches and conversations have to say. Qualitative research deals with either going through older researches that have already taken place and then using them as a support for taking interviews and focus groups of people or the target market that the research is looking for. This is the main objective of any qualitative research.

“Qualitative is one of the two major approaches to research methodology in social sciences. Qualitative research involves an in-depth understanding of human behaviour and the reasons that govern human behaviour. Unlike quantitative research, qualitative research relies on reasons behind various aspects of behaviour. ” (Wikipedia, 2007 ) Introduction to the Research The research that has been picked up for criticism is that which was done by a student on the garment industry in the subcontinent. There are a number of problems that are faced in this industry and there is not a lot that if happening from the WTO side.

This is what the research carries further. Criticizing a Research Firstly, looking at the introduction of the paper, it does not explain the garment industry completely. The paper begins with a lot of numbers being thrown such as the garment number in the United States of America. Whenever, a research is conducted it is necessary that the researcher ensure that the secondary research be comparable to that of the research that is being conducted. If the research is being conducted about the subcontinent then there is a need that the garment industry of another developing country be analyzed rather than that of a developed country.

The researcher must be careful when choosing such secondary data because it could be damaging to the results of the research. Another problem with the research’s introduction is that the explanation is too brief. The introduction is supposed to do a complete overview of the industry at to what the major products are and what are the current problems in this industry. Yet another point is that at this stage, the researcher should have provided some numbers of the subcontinent in a valid format so that the reader would have a better idea of the situation in the garment sector.

The researcher is not going with a flow. There is a need to take up a complete flow of the information and ensure that there are no dead ends to the text. The last sentence of the research does not go with the entire introduction and it seems too abrupt and a lot of rephrasing is required. The next section of the research is the introduction of the WTO. According to a reader’s understanding, the introduction of the WTO should have come before that of the garment industry because the WTO would then be related in the introduction of the industry, which has not been done.

The introduction of the WTO is not a complete flow of statements but is rather just a list of the events that had occurred for WTO. The researcher should have taken out time to phrase the numbers and the events into statements so that the reader would be able to make sense of the format of the paper. There are a number of abbreviations that have been provided in the research but there is no glossary at the end of the research that explains what each abbreviation means. There are also no definitions of the operational terms that have been used throughout the research.

The paper then goes about discussing the problems in the garment industry. There is no flow of the information and there is a lot of abruptness in the paper. Any reader will not understand what the research is about which also leads to another point. Any research always has an executive summary attached in the beginning of the paper so that the reader can have a quick preview of the contents of the paper, also by looking at the table of contents, and understand the matter of the paper, whether it is worth reading or not.

This is exactly what this researcher must also have done when he / she must have looked for articles. It is impossible going through the main matter of all the researches that a researcher would include in the secondary data. At first the researcher will look for understanding the article’s overview and then consider it as a source of data. To help guide the reader throughout the research, the researcher should have provided a clear summary of all the terms that are being used in the paper along with a few major points of the research as to what is being evaluated.

There is no clear indication of what the research aims to look for. “Simply put, it investigates the why and how of decision making, as compared to what, where, and when of quantitative research. Hence, the need is for smaller but focused samples rather than large random samples. From which, qualitative research categorizes data into patterns as the primary basis for organizing and reporting results. ” (Wikipedia, 2007 ) The researcher has then gone into providing recommendations and solutions to the two problems that were identified in the research.

The solutions have been described very technically with a lot of understanding and analysis and it seems that the researcher knows what is being talked about. However, there is still some discrepancy on the sentence phrasing. The researcher has concentrated upon the branding side of the garment industry and there are a number of terms that are used here as well. However, there is a need to note that the researcher did not help the reader understand the whole situation first before providing the recommendations. The reader must know what the situation is like and what has currently been done for such industries that are not flourishing.

There are a number of problems with the way the research is carrying forward because a reader would be unable to follow the whole idea and analyze it. The researcher has provided a lot of insight into the research such as the different options that are available to the industry to take control of such as branding themselves so that there would be a lesser possibility of competition from the foreign brands that have taken over such as Nike. The suggestions have proved to be quite helpful but then there is the problem of the researcher jumping from one section of the paper to another.

There is a lot to provide to the reader and it seems like the researcher was unable to put it in a logical manner. Arranging information in a logical manner is a very important part of research because there is a lot of text that is going about and there is a need to keep the reader on track and help him / her understand every bit of the research. There is a requirement to follow these guidelines so that the research can be deemed helpful and successful and help in future researches on the same topic if there is any.

The next thing that the researcher has jumped to is the external analysis of the industry. This should have been done before the whole introduction to the problems because there are a number of readers who would not have an idea of the factors that may affect the garment industry. The same problem occurs when the researcher is talking about the value chain analysis and this is why there could be a lot of problems with the technique that the researcher has used for placing the information. There is a need for the researcher to have a second look at the stream of information being provided.

At the end of the paper, there is a description of a store that is currently selling clothes in the subcontinent and has been very successful because it deals with a brand and this is why the company is also facing a lot of brand equity. The conclusion of the paper was not available and hence, there is nothing that could have been drawn from the whole paper that was read. There was also no referencing that was done at the end of the paper. Such a violation would cause plagiarism which is not considered as lawful. References Wikipedia. (2007). Qualitative Method. Retrieved on May 10, 2007 from: http://en. wikipedia. org/wiki/Qualitative_method

Introduction

The gradual opening of the arteries of world trade through the World Trade Organisation (WTO), while resuscitating international economics and being a symbol of the “hyperliberalisation” of trade, has been strangling environmental protection (Conca: 2000, Lowenfeld: 2008: O’Neill & Burns: 2005). The need for an effective, robust and objective way to resolve international disputes is arguably, in the light of the relentless and “inexorable integration of markets, nation-states and technologies to a degree never witnessed before” (Friedman: 1999), stronger than ever and a retreat to the unilateralist ideologies which gave birth to the First World War is almost unthinkable now given our interdependence on each other. The question is can the environment be protected while the aggressive expansion of trade continuesThe birth, by accident, of the General Agreement on Tariffs and Trade (GATT) in 1945, was part of an indefatigable drive to combat trade protectionism, discriminatory trade policies and most significantly armed conflict as a means of resolving disputes in the wake of the second world war (Irwin, Mavroidis & Sykes: 2008, Lowenfeld: 2008, Wilcox: 1949). One of the pronounced goals of trade liberalization is the removal of trade barriers and with the accession of China to the WTO, which replaced the GATT in 1995, the “hyperliberalisation” of trade is gathering pace with 153 members and 97% of world trade (Conca: 2000, p.484). This unrestricted access, while avowedly positive for economic growth, has been perceived by many commentators as being “inimical to the quest for global ecological sustainability” as Conca, the most skeptical critic, puts it (Ibid). World Trade Organisation rules have, to a large extent, acted as a barrier to international environmental governance both substantively and procedurally. In terms of the national laws and the WTO, the destabilization of international environmental regimes and procedural rules the WTO has hindered rather than helped environmental initiatives both nationally and internationally. There have been some signs of progress, however, with a joint report by the United Nations and the WTO in 2010 acknowledging for the first time that some restrictions on the liberalization of trade will be needed to fight climate change (WTO-UNEP Report: 2010) and other commentators discerning a move towards an “accommodation between the notions of free trade and environmental protection” (O’Neill & Burns: 2005, p.319). It is also vital to note that Conca’s strident objections, while relevant, were written in the year 2000 after just five years of the WTO and therefore omits one important WTO decisions. Nevertheless the author’s biting criticism must be answered and his view is not entirely without justification even in 2012:

“The WTO has proven to be profoundly anti-environmental both procedurally and substantively, handing down environmentally damaging decisions whenever it has had the chance to do so. Fears of a race to a dirty bottom are proving prescient, and optimism that trade rules can be greened from within has waned appreciably” (Conca: 2000, p.484).

Part 1:WTO rules and the environment

WTO/GATT, national laws and decisions

One of the central objections to the WTO rules in the sphere of environmental policy is that they, in Conca’s words, “undercut” national policies (2000, p.486). Erich Vranes adopts more mature terminology for this level of interaction which he labels as “vertical” as between domestic measures and WTO law (Vranes: 2009). Conca’s objections arise when a national environmental regulation is challenged under WTO rules and, without exception between 1995 and 2000, “handed down an anti-environmental decision” (Conca: 2000, p.486). There have been six decisions relating to environmental issues under the old GATT regime and just three under the new WTO rules (WTO website: 2012). The case which sparked the hostility to the GATT/WTO regimes is the Tuna/Dolphin case (case 1) where dolphins were being caught in tuna nets and dying unnecessarily in the hunt for tuna (Lowenfeld: 2008, p.315). The US government sought to ban all tuna imports from Mexico which brought a dispute settlement proceeding under the old GATT rules under article XXIII. America’s defence under article XX (the general exceptions article) was based on the protection of animal life and the “conservation of exhaustible resources” and proved futile as the Panel found in favour of the Mexicans with the ban on tuna contrary to article XI(1) of the GATT and unjustified by Article XX(b) or (g) (Lowenfeld: 2008, p.317). The other cases under the old GATT regime concerned American taxation on gas guzzling cars brought by the EU in October 1994, the so-called “son of Tuna/Dolphin” where the EU successfully challenged the Marine Mammal Protection Act in June 1994, the father of the Tuna/Dolphin dispute successfully brought by Canada against the USA in February 1982 and finally two successful cases brought by the US against firstly Thailand for the restriction and taxation of cigarettes in November 1990 and secondly against Canada regarding the exports of herring and salmon (WTO website: accessed 2012).

Conca’s powerful criticism was written only after two WTO decisions on the environment had been handed down and the rules were interpreted narrowly: firstly United States – Standards for reformulated and conventional gasoline in 1996. In this case, brought by Venezuela and Brazil against the US, measures to ensure imported gasoline complied with air quality restrictions were found to be discriminatory although the WTO panel did emphasize that it was America’s discrimination against imports, which were subject to more stringent measures than exports, which crippled their case; not that they didn’t have a defence or indeed a noble cause. Secondly, in a “strikingly similar” complaint to the tuna/dolphin decision brought in 1998, India, Malaysia, Pakistan and Thailand all challenged US legislation which banned all imports of commercial seafood, pursuant to the Endangered Species Act, to save turtles instead of dolphins: United States Import Prohibition of Certain Shrimp and Shrimp Products. Although the US lost this case, again by virtue of discriminatory behavior, it is clear that the seeds were sown for a fresh start and as Lowenfeld points out, this appellate decision had “sought to dampen the conflict between the trade and environment communities” (2008, p.323). Furthermore, had the US not discriminated, then it is certain that they would have won both on imports of gasoline and shrimp and indeed the second decision in the shrimp case confirms this (O’Neill & Burns: 2005) . This analysis leaves just one WTO decision in the 21st century: European Communities — Measures affecting asbestos and asbestos-containing products. In this trailblazing decision, brought in 2001 by Canada against the EC ban on asbestos products, the WTO panel found, affirmed later on appeal, that France was entitled to ban such harmful products under the very provisions so controversial in the tuna/dolphins case:

“…the Panel found that the French ban could be justified under Article XX(b). In other words, the measure could be regarded as one which was “necessary to protect animal, human, plant life or health.” It also met the conditions of the chapeau of Article XX. It therefore ruled in favour of the European Communities. (WTO website: accessed 2012)

1.2 International environmental regimes

Another powerful criticism leveled at the WTO rules is the perceived parallel at an international level where Conca discerns a “WTO-based threat to a broad array of international environment regimes” (Conca: 2000, p.487). This threat, which Vrane labels as being on a “horizontal” level between WTO law and public international law including treaty agreements (Vrane: 2010), is, according to Conca, brought about because these international environmental regimes often depend on trade related measures for their implementation and observance (2000, p.488). The main problems are firstly that the WTO’s existence is having a chilling effect on “global political imagination” (Ibid). Conca justifiably points out that the 1994 Amendment to the Basel Convention, which sought to ban the trade in hazardous wastes, may well be one of the last to target the trafficking of environmental hazards. The continued political impasse concerning the Kyoto Treaty lends weight to Conca’s observations although perhaps, in light of the global recession, the international environmental arena is anyway sterile (Rajamani: 2008). Secondly Article XI of GATT, which prohibits quantitative import/export restrictions is often cited as being a stumbling block and could well be used as the basis of a WTO challenge against environmental regimes such as the one which exists with respect to logging (Conca: 2000, p.489). This problem is still a hypothetical one but nonetheless is relevant and demonstrates perhaps that the rules have had a “chilling effect” on numerous proposed environmental regimes (O’Neill & Burns: 2005, p.330). Conca cites the example of a new logging regime: which failed to materialize at the Seattle conference (ibid). Finally the Basel Convention on hazardous waste is cited by Conca as a battleground:

“Ineffectiveness and a huge loophole for waste ‘recycling’ kept the waste trade…alive, leading a coalition of developing countries and environmental activists to push through the ‘Basel ban’ at a 1994 conference of the parties. The constant threat of a WTO challenge has inhibited the collection of the national ratifications needed for the amendment to enter into force, and undercuts efforts to use the regime…” (Conca: 2000, p.489)

Part 2: Procedural Rules of the WTO

2.1 Burden of proof, precautionary principle and Amicus Curiae

Finally the rules of the WTO themselves have been justifiably seen as stacking the deck against those who are fighting for the environment (Lowenfeld: 2008, p.327). The burden of proof is, as Conca observes, “squarely on the shoulders of those arguing for environmental precaution” (Conca: 2000, p.485). The presumption of a violation means that “the Member against whom the complaint has been brought”, will “rebut the charge” and the party which is asserting the affirmative of a particular claim will bear the burden of proof: a rule which is universal to all disputes and not just the environmental issues (Sebastian: 2010). Lowenfeld also points to the “precautionary principle” which dictates that:

“…uncertainty regarding the adverse environmental effects of an activity should not be a bar to adoption of measures to prohibit or otherwise regulate the activity, but that such uncertainty provides an affirmative justification for adopting such measures” (2008, p.333).

The Beef Hormones case is often cited in connection with this embryonic principle. The Appellate Body held here that this principle was not yet part of customary law but that it was commonsense to weigh the “severity of the danger against the degree of likelihood that the danger would be enhanced by the challenged activity” (Ibid). Lowenfeld suggests that this line of reasoning could lead to the WTO adopting a “worst- case scenario” argument which would, quite understandably, undermine environmental protection (Ibid). The author concludes by observing:

“…the precautionary principle as formulated by the European Community seems too harsh. On the one hand, it is susceptible to misuse for purposes of competition and protection; on the other, it seems both to overestimate and underestimate science” (Ibid at p.334).

Further to the burden of proof and the precautionary principle are the Amicus Curiae briefs: the closed door proceedings used to make it difficult for the stakeholders usually so closely intimated with environmental action (charities etc) to participate and are still difficult to surmount. This procedural innovation, which is a creature of statute, has enabled certain organisations to provide opinions to supplement decisions which are often made by lawyers and economists who usually have little knowledge of environmental effects (Conca: 2000, p.485). Those submitting the Amicus Curiae briefs can be WTO members or non-state actors and it is important to note that the acceptance of such briefs is an exercise of discretion on the part of the Panel (Stern: 2006). The fact that such briefs have become more commonplace undoes Conca’s arguments a little but, as noted above, it is ultimately a question of discretion as to whether an organization is allowed to submit such a brief. What is clear is that the complex ways in which ecosystems can be corrupted do not always fit easily into the burden of proof system.

2.1 Interpretation of Article XX of GATT

The interpretation of this article is key to much of the criticism of the GATT/WTO. In both Tuna-Dolphin and Shrimp-Turtle cases it has been noticed that these general exceptions to GATT provisions has been interpreted narrowly by both GATT and WTO panels respectively (O’Neill & Burns: 2005, p.325). This narrow interpretation has fuelled a lot of criticism with the panel in Shrimp/Turtle expressly saying that the WTO supports countries who hold such noble goals and that it was because of the US’s discriminatory behavior that they held against the US. As noted above, however, the decision in European Communities — Measures affecting asbestos and asbestos-containing products could be the beginning of a new era of interpreting the exceptions as they relate to environmental protection. Certainly the WTO has been sensitive to the criticism it has received from many quarters about its handling of such cases. Whether Conca’s observation that “Playing by WTO rules, the first definitive ‘proof’ of harm will often be irreversible ecosystem collapse” is debatable in the current climate and, arguably, about a decade out of touch (2000, p.485).

Conclusion

In conclusion the rules of the WTO to a large extent are acting as a barrier to international environmental governance. In terms of the undermining of national and international laws, the procedural flaws in terms of the burden of proof, the precautionary principle and the amicus curiae briefs as well as the narrow interpretation of article XX, the WTO has a lot of damage to undo in the coming years. Much has been written on this volatile subject and it is clear that Conca (2000) is the most scathing critic. His polemic is out of date, however, and although many of his conclusions are valid his overriding point, that there is an anti-green agenda in the WTO is slowly being unraveled. Indeed as far back as the 1998 Shrimp-Turtle case it has been discerned by astute commentators like O’Neill and Burns that the decision is a pro-environmental one, albeit resulting in ultimate defeat for the USA. The recent joint UN-WTO report (2010) is an indicator of the direction which the WTO is going in and the most recent case involving environmental action, the EU-Canada Asbestos case, confirms that a broader interpretation of article XX can provide positive environmental results. Perhaps the greening of the WTO has begun and no doubt the scathing criticism of authors like Conca had something to do with their new-found green credentials. A proper reform of the WTO rules is required but perhaps the tide has already turned as Barkin observes:

“…the incompatibility between the rules of the international trading regime and the need for responsible management of the global environment is substantially overstated, and that official interpretations of these rules are becoming consistently more environmentally-friendly over time” (Barkin: 2005, p.334).

Bibliography

Journals

Conca, Ken (2000) ‘The WTO and the Undermining of Global Environmental Governance’ Review of International Political Economy 7:3 Autumn pp 484 – 494

Rajamani (2008) ‘From Berlin to Bali and Beyond: Killing Kyoto Softly?’ International & Comparative Law Quarterly 57(4) pp909-939

2.0 Books

Barkin, Samuel.J (2005) ‘The Environment, Trade and International Organisations’ in Dauvergne, Peter (ed) Handbook of Global Environmental Politics Edward Elgar Cheltenham

Friedman, Thomas (2000) The Lexus and the Olive Tree Anchor Books: UK

Irwin, Mavroidis & Sykes (2008) The Genesis of the GATT Cambridge University Press: worldwide

Lowenfeld, Andreas F. International Economic Law (2008) (2nd ed) Oxford Uni Press: Oxford, New York.

O’Neill, Kate & Burns, C.G William (2005) ‘Trade Liberalization and Global Environmental Governance: the Potential for Conflict’ in Dauvergne, Peter (ed) Handbook of Global Environmental Politics Edward Elgar Cheltenham

Sebastian, Thomas (2010) ‘The law of permissible WTO retaliation’ in Bown and Pauwelyn (eds) The Law, Economics and Politics of Retaliation in WTO Dispute settlement: Cambridge University Press: worldwide

Stern, Brigitte (2006) ‘The emergence of non-state actors in international commercial disputes through WTO appellate Body case-law’ in Sacerdoti, Yanovich and Bohanes (eds) The WTO at ten: The Contribution of the Dispute Settlement System: Cambridge University Press: worldwide

Van den Bossche, Peter (2008). The Law and Policy of the World Trade Organization, UK: Cambridge University Press

Vranes, Erich (2009) Trade and the Environment: Fundamental Issues in International Law, WTO law and Legal Theory Oxford University Press: Oxford

3.0 Statute

Endangered Species Act

GATT 1947: Articles XXII and XXIII

Marine Mammal Protection Act 1972

Understanding on Rules and Procedures Governing the Settlement of Disputes

4.0 Websites

WTO, ‘WTO and UNEP launch a report explaining for the first time the connections between trade and climate change’, 26 June 2009, Press/559. UNEP issued an identical press release on the same day, available at www.wto.org/english/news.e/pres09_e/pr559_e.htm.

WTO website accessed on 2nd February and available from: http://www.wto.org/english/tratop_e/envir_e/envir_e.htm

5.0 Decisions

GATT

> United States — Taxes on Automobiles, ruling not adopted, circulated on 11 October 1994. Case brought by EU.
> United States — Restrictions on Imports of Tuna, “son of tuna-dolphin”, ruling not adopted, circulated on 16 June 1994. Case brought by EU.
> United States — Restrictions on Imports of Tuna, the “tuna-dolphin” case, ruling not adopted, circulated on 3 September 1991. Case brought by Mexico, etc.
> Thailand — Restrictions on the Importation of and Internal Taxes on Cigarettes, ruling adopted on 7 November 1990. Case brought by US.
> Canada — Measures Affecting Exports of Unprocessed Herring and Salmon, ruling adopted on 22 March 1988. Case brought by US.
> United States — Prohibition of Imports of Tuna and Tuna Products from Canada, ruling adopted on 22 February 1982. Case brought by Canada.

WTO

> European Communities — Measures affecting asbestos and asbestos-containing products. WTO case No. 135. Ruling adopted on 5 April 2001. Case brought by Canada.

> United States — Import Prohibition of Certain Shrimp and Shrimp Products, the “shrimp-turtle” case. WTO case Nos. 58 and 61. Ruling adopted on 6 November 1998. Case brought by India, Malaysia, Pakistan and Thailand.
Recourse to Article 21.5 of the DSU. Ruling adopted on 21 November 2001. Case brought by Malaysia.

> United States — Standards for Reformulated and Conventional Gasoline, WTO case Nos. 2 and 4. Ruling adopted on 20 May 1996. Case brought by Venezuela and Brazil.

Introduction

WTO and Trade Libralization

“The world Trade Organization (WTO), is the only global international organization monitoring and controlling the rules of trade between nations. It was formed in 1995 with the General Agreement of Trade and Traiffs (GATT) as its basis.” (Paul and Aserkar, 2010:1)

The Doha Development Agenda

The fourth ministerial conference in Doha, in its November 2001 declaration, highlights the directives of negotiations around 21 subjects and the problems faced in their execution. The declarations support the WTO agreement objectives in order to amend the restrictions and biases in the world agriculture markets. (http://www.wto.org/english/tratop_e/dda_e/dohaexplained_e.htm#subsidies)

The member countries are entitled to focus on the following facts:

• Access to Market
• Subsidies on Export
• Reduction in domestic support.

For developing countries like Africa and Latin America, the Doha Declaration provides a differential treatment during the negotiations with some special provisions to monitor if the countries meet with the basic needs like food security and overall development.

Competitive Environment

“No prohibitions or restrictions other than duties and taxes whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting country on the importation of any product of any other member country.” (GATT 1947)

According to the original GATT, introduction of non-tariff barriers such as subsides and import quotas, creates an unfair environment, highly distorting the agricultural trade especially with the use of export subsidies. (http://www.wto.org/english/tratop_e/dda_e/dohaexplained_e.htm#subsidies)

The Multilateral Agreement in the agriculture sector produced in the Uruguay Round laid the foundation to a fair competition with minimum distortions, through constant restructuring in the negotiations. (http://www.wto.org/english/tratop_e/agric_e/agric_e.htm)

Africa and Latin America have predominantly large population especially in the rural areas, wherein the prime focus of these groups is agriculture. As per the FAO 2000 reports, agriculture occupies 50 percent and 20 percent of the total employment in the African and Latin American countries. (Morrison and Sarris, 2007: 340)

The European Union and The United States trade polices play a major role in promoting the overall progress of the developing nations by providing adequate support in accordance to the WTO agreements. No doubt that, agricultural products occupy a major share in exports of the developing countries. The United States and European Union impose higher controls on the agricultural exports of these developing nations by excising or imposing subsidies.

However it would be quite unfair on their part, just to focus on either Africa or Latin America or only on the agricultural products and no other major industries or sectors. Moreover they are not legally obliged to focus on the concerns of other countries for their own benefits. In this competitive world, the big players should promote equal opportunities for all the countries, especially the developing ones. The core sectors need to be classified and equally promoted for a balanced overall growth.

As in most developing countries, the rules and procedures of the multilateral trading system are regarded as unfair by the developing countries. They view the rules and procedures as favouring the developed countries. For example, although the WTO is supposed to be a member-driven organization, important issues and decisions are taken in “Green Room” meetings and African countries do not have proportionate and adequate representation at these meetings. In addition, because of their relatively low bargaining power, countries in the region have difficulties setting and influencing the agenda and pace of negotiations. The lop-sided power structure of the multilateral trading system is evident in the fact that developed countries managed to get the Singapore Issues on the agenda of the Doha Work Programme at the WTO Ministerial Conference in Doha despite mounting opposition from developing countries, who comprise more than two-thirds of the membership of the WTO. The Singapore Issues contributed to the failure of the 2003 WTO Ministerial Conference in Cancun and three of the four issues were eventually taken out of the Doha Agenda. (Morrison and Sarris, 2007: 344-345)

To stabilize farmers’ incomes and preserve a practical, diverse agricultural system is by combining the supply management and the price supports. In order to be effective, The United States and European Union should impose superior tariff controls along with the price supports on the imported farm goods. However such a policy prescription, of course, runs completely counter to the entire neoliberal thrust of the last twenty-five years, and would effectively remove US farm policy from the regulatory jurisdiction of the WTO, signalling the end of the WTO’s Agreement on Agriculture. (http://www.foodfirst.org/backgrounders/subsidies)

References

1. Justin Paul and Rajiv Aserker (2010) 5th edn. Export Import Management. New Delhi: Oxford University Press
2. WTO (n. d.) WTO | DOHA Declaration [online] available from <http://www.wto.org/english/tratop_e/dda_e/dohaexplained_e.htm#subsidies> [1 May 2011]
3. WTO (n. d.) WTO | Agriculture Gateway [online] available from <http://www.wto.org/english/tratop_e/agric_e/agric_e.htm> [1 May 2011]
4. Morrison and Sarris (2007) WTO rules for agriculture compatible with development. Rome: fao.org
5. Karl Bietel (2005) ‘U.S. Farm Subsidies and the Farm Economy’. FOOD FIRST 11 (3), 3