Environmental Concerns And Trade Disputes: An Overview From The Gatt And The Wto Dispute Settlement System

AuthorMaria-Alejandra Calle
PositionLLM, MSc, PhD (candidate) University College Cork
Pages48-64
48
ENVIRONMENTAL CONCERNS AND TRADE DISPUTES: AN OVERVIEW FROM
THE GATT AND THE WTO DISPUTE SETTLEMENT SYSTEM
Maria-Alejandra Calle*
A INTRODUCTION
The relationship between trade, development and environment has been one of the most
complex issues that the multilateral trading system has faced during the last decade. The mere
definition of environmental concerns would be problematic since there are different
stakeholders (governments, international organisations, NGOs, companies, consumers, citizens)
with different priorities and even philosophical approaches to what is worthy to be considered
as an environmental concern and therefore a legitimate goal to achieve even if it leads to trade
restrictions affecting local and international producers.
The way in which an environmental concern would be defined and the links with International
Conventions and instruments of Soft Law would be a legitimate way to identify the content and
scope of such concept. Nonetheless, due to the ambiguity and the open texture that characterise
provisions of International Law, referring to environmental goals and the broad idea of
Sustainable Development is insufficient, especially if we consider that the multiple issues that
are classified as environmental concerns by NGOs and individual WTO Member States as a
matter of policy space are deeply influenced by social values and ecological ethics. The
question is neither meaningless nor trivial if we consider the potential implications for current
or future trade and environment disputes at the WTO Dispute Settlement System and the
challenges for the whole idea of policy space in a context of a decentralised regulatory regime
as a relevant matter of global governance.
A BACKGROUND
It could be argued that environmental concerns may give the substance for many Preferences
For Processes,1 Production Methods2 (PPMs) and the Non Physical Aspects Of Products
(NPAs) in environmental matters, in particular for consumers and other non state actors that are
also relevant in the multilateral trading system and for the achievement of different
environmental goals expressed in different international instruments of international
environmental law.
The debate on trade and environment has been not only a matter of extensive negotiations in
the framework of the multilateral trading system like in the case of the Doha Negotiations on
Environmental Goods and Services, Agriculture and Non- Agricultural Market Access.
Extensive discussions have been held at the Trade and Environment Committee and at the
* LLM, MSc, PhD (candidate) University College Cork.
1 See D A Kysar „Preferences for Processes: The Process/Product Distinction and the Regulation of Co nsumer
Choice‟ (2004) 118 Harvard Law Review 525.
2 Also called Process Related Measures. The concept generally refers to the importa nce given to non-physical
aspects of the product, inter a lia values associated to the way in which it was produced (eg environmentally
friendly processes).
49
Technical Barriers to Trade Committee (TBT) in which multiple non-tariff barriers grounded
on environmental concerns have been brought by concerned Member States. Nevertheless, one
of the most visible scenarios to understand the tensions between trade and environmental
concerns is perhaps the Dispute Settlement system of the WTO (and the GATT as its
predecessor). Environment related disputes have been relatively constant during 50 years of the
multilateral trading system and by their mere existence it is possible to intuit a current overlap
between environmental concerns and trade obligations (or at least in the way that they have
been pursued).
The classification of environmental concerns in this type of scenario is deducted from the
alleged environmental objective of the trade restrictive measure usually framed on the
conservation of exhaustible natural resources (GATT Article XX(g)) but also from the
connections identified by the respondent with the objectives of protecting human, animal or
plant life or health (GATT Article X(b)). Additional relevant provisions in other WTO covered
agreements are often invoked by the parties (eg TBT Agreement) in order to defend or to
challenge the measure at issue. In this sense, it is not always particularly easy to identify when
the dispute is intrinsically linked with environmental concerns and when the objective has a
closer link with human health and safety. In addition, a broad definition of environmental
concerns based on issues covered by ecological ethics would theoretically set the defence of the
challenged measure on the grounds of public morals (GATT Article XX(a)).
B ENVIRONMENTAL CHALLENGES OR ENVIRONMENTAL ETHICS?: THE
IMPACT WHEN ASSESSING THE SCOPE OF ENVIRONMENTAL CONCERNS AS
NON-TRADE ISSUES
It is noteworthy to mention that even if the environment as such is an epicentre of
multidisciplinary studies, the „ecological debate‟ and the analysis of the broad scope and
texture of environmental concerns is commonly referred to as Environmental Ethics (also
known as ecological ethics). This broad approach argues that environmental concerns are the
consequence of human interaction with nature and its side effects.‟ 3 In this sense, the
diminution of natural resources due to demographical factors such as overpopulation,
destruction of habitats, reintroduction of extinct species and removal of exotic ones, wildlife,
erosion, preservation of species and special habitats and in general terms the ecological
imbalance that endangers the fragile habitats necessary for the preservation of species are the
traditional grounds of environmental awareness.
Environmental Philosophy (in which the broad notion of environmental concern is grounded)
covers specific ethical dimensions incorporated in environmental awareness. In this scenario,
animal welfare, scientific ecology, environmentally friendly process and production methods,
are therefore matters of environmental concern. Theoretical approaches to the definition of
environmental concerns by including an ethical component can be found in Hargrove4, Varner5,
3 R Attfield The Ethics of Environmental Concern (2nd edn University of Georgia Press 1991) 2 80.
4 EC Hargrove Founda tions of Environmental Ethics (Environmental Ethics Books 1996) 229.
5 GE Varner In Nature’s Interests?: Inter ests, Animal Rights, and Environmental Ethics (Oxford University
Press Oxford 1998) 154.

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