E. Bryan - WTO and The Environment

Informational Session

WTO &
Environmental
Protection

Emerson O. St. G. Bryan
Information & Document Management Officer
Caribbean Regional Negotiating Machinery

Assignment Question

Evaluate whether WTO disputes on

environmental issues have been supportive of
environmental protection?

Session Outline:

First Things, First…

Structure of the WTO

Dispute Settlement Mechanism

Trade Disputes on Environmental Issues

Conclusion

17/03/2009


First Things, First…

First things, first…

Why do we need to examine this?

The Parties to this Agreement,

Recognizing that their relations in the field of trade and
economic endeavour should be conducted with a view to
raising standards of living, ensuring full employment and a
large and steadily growing volume of real income and
effective demand, and expanding the production of and
trade in goods and services, while allowing for the optimal
use of the world’s resources in accordance with the
objective of sustainable development, seeking both to
protect and preserve the environment and to enhance the
means for doing so in a manner consistent with their
respective needs and concerns at different levels of
economic development
Marrakesh Agreement Establishing the WTO


What is the WTO?

What is the WTO? (1)

Organization of 152 Member States;
Created Through the Uruguay Round of Trade
Negotiations;

Successor to the General Agreement on Trade & Tariffs -
GATT (1948-1994);
Supported by a Secretariat in Geneva;
System of Rules to govern trade between nations;
A forum for negotiations;
A means for settling trade disputes;
Single undertaking of decisions.

(Source: Marrakesh Agreement, 1994)

Simple Structure of the WTO


Ministerial Conference
Meets once every 2 years

General Council
(i) Oversees the operations of the WTO and its ministerial decisions;
(ii) Acts as a dispute settlement body;
(iii) Trade review mechanism.
Subsidiary Bodies:
Goods Council
Services Council
TRIPS Council


Dispute Settlement
Mechanism

Dispute Settlement Mechanism (1)

The dispute settlement procedures for trade have been
strengthened since the Uruguay Round. There is now

a unified settlement procedure covering the areas of:
goods, services and investment.

Annex 2, Marrakesh Agreement


Understanding on Rules & Procedures Governing
the Settlement of Disputes (DSU)

DSU Article 3.2

“The dispute settlement system of the WTO is a
central element in providing security and
predictability to the multilateral trading system”


Method of bringing a complaint, establishing a panel, appealing-

Source: WTO website


Source: WTO Trade & Environment Division


Trade Disputes on
Environmental Issues

Trade Disputes on Environmental Issues (1)

6 under GATT 4 under WTO

 US-Gasoline

 US-Canadian Tuna
 US-Shrimp (US Shrimp Art. 21.5)
 Canada-Salmon & Herring
 EC-Biotech Products
 Thailand-Cigarettes
 Brazil-Rethreaded Tyres
 US-Tuna (Mexico)
 US-Tuna (EEC)
 US-Automobiles


WTO Principles:
Non-discrimination:

Most Favoured Nation (MFN):
Art. I-GATT, Art. II-GATS, & Art. IV-TRIPS

National Treatment:
Art. III-GATT, Art. XVII-GATS, & Art. III-TRIPS


GATT Article XX (General Exceptions)

Exceptions for measures:
(b) Necessary to protect human, animal or plant life or health
(g) Relating to the conservation of exhaustible natural resources

Natural resources:
 “Chapeau” not applied in a manner which constitutes:
 a means of arbitrary/ unjustifiable discrimination or a disguised restriction on
international trade.


Steps to be followed in a dispute:

There must be an inconsistency with a GATT rule;

The Member whose measure is inconsistent with the
GATT has to follow a 2 tiered analysis and should
demonstrate:

1. First, that the measure comes within the scope of one of the exceptions
2. Second, that the measure does not constitute an abuse under Article XX
chapeau

Source: WTO Trade & Environment Division, 2007


Conclusion

Conclusion

Issues with trade & environment
disputes in the WTO

 No real test of the DSU (disputes so far?..Settled through mutual
agreement)
 Legal Capacity Issues
 Protectionism can be introduced under the guise of a T & E
dispute
 Development hindering for the South
 T& E overloads the Negotiating Agenda
 WTO is only competent to deal with trade matters
 Time for a World Environmental Organization?


Any Questions?

E. Bryan - WTO and The Environment

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