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Introduction

Coverage of the CTE's Mandate

Trade Measures Pursuant to MEAS

Eco-Labelling

Market Access

Other Technical Issues

Relations With IGOs & NGOs

Overall Conclusions


        


Trade Measures Persuant to MEAS

This issue was combined with that of the relationship between the dispute settlement mechanisms in MEAs and that in the WTO. The MEA question had originally been assumed to be one of the easier issues, as nobody had imagined that the WTO would want to invade the jurisdiction of MEAs. Yet the committee failed to make progress here precisely because it wanted the WTO to make decisions on what trade measures MEA parties may or may not authorize, and even decide on their behalf how to interpret the environmental treaty itself.

This section contains by far the most alarming conclusion in the whole report, namely that even trade measures agreed in MEAs, and applied between two parties to those agreements, could still be taken before a WTO dispute panel. This statement confirms that WTO Members could resort to the WTO dispute settlement mechanism to undermine obligations they have agreed to under environmental agreements. While the previous sentence in this paragraph (178) of the report notes that this has not happened, the CTE only "considers" that it will not happen, avoiding any recommendation that it should not.

This is a realization of some of the worst fears of many environmental groups. MEAs represent in many cases the only effective means to address transboundary and global environmental threats. As multilateral treaties, MEAs legally have and in practice should be accorded fully equal status to the WTO. The suggestion that the WTO court might yet offer a bolt-hole for parties to MEAs to escape their obligations puts the WTO in a hierarchy above MEAs, by supporting the notion that it judge actions taken within those MEAs.

This statement calls into even more serious question the WTO view of trade measures taken against non-parties to MEAs. Trade measures against non-parties have played a crucial role in making effective agreements such as the Montreal Protocol which protects the ozone layer. While the WTO will have a role here, it should be limited to ensuring that there is no protectionist abuse of trade measures against non-parties to MEAs.

The concerns raised by that one sentence far outweigh the rest of the text on the WTO and MEAs. By supporting the possibility of MEA parties taking other MEA parties to the WTO court, the CTE has set international trade law on a collision course with international environmental law. Such a dispute would seriously damage both legal regimes the environmental one in terms of effectiveness, and the trade one in terms of public perception. Is the CTE serious? Does it really want this?

Furthermore, the first signs are emerging that a WTO "chill factor" is starting to impair the effectiveness of existing MEAs, and possibly even future ones. That is, the continuing uncertainty over WTO rules is beginning to prevent the use of trade measures in individual MEAs. In existing MEAs, this takes the form of parties being unwilling to use trade measures at their disposal, for fear of a WTO challenge. Parties to MEAs may also be unwilling to add trade measures to make existing MEAs more effective, such as the Climate Change Convention. Even future MEAs, for example the Biosafety Protocol to the Convention on Biological Diversity now under negotiation, could suffer this chill if negotiators decline to incorporate trade measures because of the potential for conflict with the WTO. This argument is already being used both openly and privately in a number of MEAs and MEA negotiations.

Recommendations

  • After Singapore the CTE must urgently set about removing the potential for international trade and environmental regimes to clash in the WTO dispute settlement process. As a priority, the CTE should confirm that environmental negotiators have the mandate to determine both the objectives of MEAs and the means selected to achieve them.

  • The role of the WTO should be confirmed simply as ensuring that there is no protectionist abuse of MEA trade measures against non-parties. The CTE should otherwise provide broader environmental exceptions to trade measures taken in accordance with an MEA than it does to nations acting alone.



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