Hamid, Abdul Ghafur --- "The WTO Rules Versus Multilateral Environmental Agreements: The Search For Reconciliation" [2008] MqJlICEnvLaw 3; (2008) 5(1) Macquarie Journal of International and Comparative Environmental Law 57
[*] LL.B. (Yangon), LL.M. in International Law (Yangon), Ph.D. (IIUM), Professor of Law and Member of the WTO and Globalization Unit of the International Islamic University Malaysia. This is a revised and updated version of a research paper presented at the Asia WTO Research Network Regional Conference, “Trade, WTO and Sustainable Development: A Cause for Concern?” held on 23-24 April 2007 at Seri Pacific Hotel, Kuala Lumpur, Malaysia.
[**] LL.B (UM), LL.M (London), DSLP (IIUM), Ph.D (Aberdeen), Professor of Law and Member of the WTO and Globalization Unit of the International Islamic University Malaysia.
[1] The 1994 Ministerial Decision on Trade and Environment created the Committee on Trade and Environment (CTE), which is open to the entire WTO membership, with some international organizations as observers. The committee’s mandate is broad, and it has contributed to identifying and understanding the relationship between trade and the environment in order to promote sustainable development.
[2] United States - Restrictions on Imports of Tuna, DS 29/R, 16 June 1994, (1994) 33 ILM, 839.
[3] B M Hoekman and M M Kostecki, The Political Economy of World Trading System: WTO and Beyond (2001) 441, 441.
[4] United Nations Conference on Environment and Development (UNCED), Rio de Janeiro, 3-14 June 1992
[5] Rio Declaration on Environment and Development, A/CONF.151/26 (Vol. 1), 12 August 1992. Principle 12 of the Rio Declaration reads: “States should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus.”
[6] ‘Preamble’ to the Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 187, (entered into force 1 January 1995) <http://www.wto.org/english/docs-e/legal-e/04-wto.pdf> at 30 November 2007 (hereinafter referred to as the ‘WTO Agreement’).
[7] Doha Ministerial Declaration, art. 6, WT/MIN (01) DEC/W/1 (14 November 2001).
[8] Ibid, art. 31. These negotiations focus on how WTO rules are to apply to WTO members that are parties to environmental agreements, in particular to clarify the relationship between certain trade measures taken under the environmental agreements, and WTO rules.
[9] ‘Is the WTO the Only Way?: Safeguarding MEAs from International Trade Rules and Settling Trade and Environmental Disputes Outside the WTO’, Briefing Paper, Adelphi Consult, Friends of the Earth Europe and Greenpeace, (2005), 3.
[10] See WTO Agreement, above n. 6, arts II (Scope) and III (Functions).
[11] See Ibid, ‘Preamble’.
[12] See for example, General Agreement on Tariffs and Trade 1994 (hereinafter ‘GATT 1994’) art. XX; General Agreement on Trade in Services (hereinafter ‘GATS’), art. XIV.
[13] GATS art II: 1 provides: ‘With respect to any measure covered by this Agreement, each Member shall accord immediately and unconditionally to services and service suppliers of any other Member treatment no less favourable than that it accords to like services and service suppliers of any other country.’
[14] TRIPS art 4 provides: ‘With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members… .’
[15] GATT 1994, art I: 1.
[16] GATS art XVII, and TRIPS art 3.
[17] GATT 1994 art III: 4.
[18] Ibid art XI: 1.
[19] Ibid., art. XX.
[20] WTO Analytical Index: Guide to WTO Law and Practice, GATT 1994, Art. XX, see also United States - Standards for Reformulated and Conventional Gasoline, Appellate Body Report, WT/DS 2/AB/R (29 April 1996), 25.
[21] United States - Standards for Reformulated and Conventional Gasoline, Panel Report, WT/DS 2/R (29 January 1996); Appellate Body Report, WT/DS 2/AB/R (29 April 1996).
[22] United States – Standards for Reformulated and Conventional Gasoline, Appellate Body Report, 35 ILM 603 (1996), at 25.
[23] Environmental Disputes in GATT/WTO, <http://www.wto.org/English/tratop-e/envir-e/e-dis00-e.htm> at 4 September 2007.
[24] The “Tuna-Dolphin” case was brought by Mexico against the United States under the old GATT dispute settlement procedure. See <http://www.wto.org/English/tratop-e/envir-e/e-dis00-e.htm> at 5 September 2007.
[25] United States - Restrictions on Imports of Tuna, GATT B.I.S.D. (39th. Supp.) at 155 (1993) (hereinafter ‘Tuna Dolphin I’).
[26] Among the most vocal commentators has been, on the environmentalist side, Steve Charnovitz, and on the trade side, Jagdish Bhagwati. See, for example, Steve Charnovitz, ‘Free Trade, Fair Trade, Green Trade: Defogging the Debate’ (1994) 27 Cornell International Law Journal 459, 461; Jagdish Bhagwati, ‘Trade and Environment: The False Conflict’ in D. Zaelke et. al. (eds.), Trade and Environment: Law Economic and Policy (1993) 159.
[27] The Marine Mammal Protection Act (MMPA), October 21 1972, 16, USC Chapt. 31 <http://www.nmfs.noaa.gov/pr/laws/mmpa/pdf > at 23rd. Feb. 2008.
[28] United States - Restrictions on Imports of Tuna, DS 29/R, 16 June 1994, (1994) 33 ILM, 839 (unadopted) (hereinafter ‘Tuna Dolphin II’).
[29] United States – Import Prohibition of Certain Shrimp and Shrimp Products, Panel Report, WT/DS 58/R (15 May 1998); Appellate Body Report, WT/DS58/AB/R (12 October 1998).
[30] United States - Import Prohibition of Certain Shrimp and Shrimp Products, Appellate Body Report, WT/DS58/AB/R (Oct. 12, 1998), 185.
[31] Ibid., 172, 175, 186.
[32] Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975) (hereinafter ‘CITES’) <http://www.cites.org/eng/disc/text.shtml> at 6 September 2007.
[33] See Amicus Brief to WTO: Shrimp-Turtle Dispute (September 1997), at <http://www.field.org.uk/files/shrimpbrief.pdf> at 6 September 2007.
[34] European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, Panel Report (18 Sept. 2000), WT/DS 135/R; Appellate Body Report (12 March 2001), WT/DS 135/AB/R.
[35] United States - Standards for Reformulated and Conventional Gasoline, Panel Report, WT/DS 2/R (29 January 1996); Appellate Body Report, WT/DS 2/AB/R (29 April 1996); Brazil’s case (DS 4) was decided by the same Panel.
[36] European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Panel Report, WT/Ds 291/R (US), WT/DS 292/R (Canada), WT/DS 293/R (Argentina), (29 September 2006).
[37] The proclamation of the ‘precautionary principle’ can be considered one of the most important provisions in the Rio Declaration. Principle 15 provides: “In order to protect the environment, the precautionary principle shall be widely applied by States according to their capabilities…” For the text of the Rio Declaration on Environment and Development, see Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, A/ CONF.151/26 (Vol. 1).
[38] See ‘EC Decides Not to Appeal WTO Biotech Ruling’, Trade Biores Main Page, 6 (21), 1 December 2006, <http://www.ictsf.org/biores/06-12-01/story4htm> at 3 September 2007.
[39] Brazil – Measures Affecting Imports of Retreaded Tyres, WTO, DS 332.
[40] Brazil – Measures Affecting Imports of Retreaded Tyres, Panel Report, WT/DS 332/R, 12 June 2007. On 10 August 2007, at the joint request of Brazil and the EC (WT/DS332/8), the DSB agreed to extend the deadline for the adoption or appeal of the panel report. In the joint request, the EC said it would appeal the panel report on 3 September 2007. Brazil declared the findings of the panel were satisfactory and it would not appeal the report. ‘DSB agreed to extend the timeline for the adoption or appeal of the Panel report on retreaded tyres; Brazil Calls WTO Ruling in Retreaded Tyres Dispute “Favourable”’, WTO News Item 2007, <http://www.wto.org/English/news_e/news07_e/dsb_10aug07_e.htm> at 5 September 2007.
[41] Mitsuo Matsushita, Thomas J Schoenbaum, and Petros C Mavroidis, The World Trade Organization: Law, Practice and Policy (2003) 456.
[42] Montreal Protocol on Substances that Deplete the Ozone Layer, opened for signature 16 September 1987, 1522 UNTS 3 (entered into force 1 January 1989) (hereinafter ‘Montreal Protocol’)<http://www.globelaw.com/Climate/montreal.htm> at 6 September 2007. The Protocol has four amending instruments: the London Amendment of 1990, the Copenhagen Amendment of 1992, the Montreal Amendment of 1997 and the Beijing Amendment of 1999.
[43] See http://ozone.unep.org/Ratification_status/> at 6 September 2007.
[44] See Matrix on Trade Measures Pursuant to Selected MEAs, prepared by the WTO Secretariat, available at <http://www.docsonline.wto.org> at 6 September 2007.
[45] See Montreal Protocol, art 4.
[46] See Annex II of the Report of the 10th Meeting of the Parties. Source: Handbook for the Montreal Protocol on Substances that Deplete the Ozone Layer (Ozone Secretariat, UNEP, 7th ed, 2006).
[47] ‘Indicative List of Measures That Might be Taken by a Meeting of the Parties in Respect of Non-Compliance with the Protocol’, Annex V of the Report of the Fourth Meeting of the Parties. Source, ibid.
[48] CITES, above n 32.
[49] See Matrix on Trade Measures Pursuant to Selected MEAs, above n 42.
[50] Decision 11.15 of COP XI in April 2000, for example, stated that four states parties (Fiji, Turkey, Vietnam and Yemen) had high volumes of international trade in CITES-listed species and that their national legislation did not meet the implementation requirements of CITES. They were given 1 year for compliance. Upon failure, Decision 11.16 of COP XI asked all Parties to suspend trade in all CITES-listed species with the four countries in question.
[51] CITES, above n. 32, art. XIV, para. 2.
[52] The Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and Their Disposal, 1989, opened for signature 22 March 1989, 1673 UNTS 57 (entered into force 5 May 1992) (hereinafter ‘Basel Convention’).
[53] See Matrix on Trade Measures Pursuant to Selected MEAs, above n 38.
[54] See Basel Convention arts 4, 6, 8, 9 and 13.
[55] See <http://www.basel.int/convention/basics.html> at 9 September 2007.
[56] Basel Convention, above n. 52, art 20.
[57] WTO Agreement, above n. 6, art IX: 3 provides: ‘In exceptional circumstances, the Ministerial Conference may decide to waive an obligation imposed on a Member by this Agreement or any of the Multilateral Trade Agreements, provided that any such decision shall be taken by three fourths of the Members… .’
[58] For criticism against the waiver approach, see Steve Charnovitz, ‘GATT and the Environment’, (1992) 4 International Economic Affairs 41.
[59] North Atlantic Free Trade Agreement, opened for signature 17 December 1992, (Canada, Mexico, and US), 32 ILM 296 & 605, art 104, para. 1 (entered into force 1 January 1994).
[60] WTO Agreement, above n. 6, art. IX: 2.
[61] The Statute of the International Court of Justice, 26th. June 1945, http://www.icj-cij.org/documents/index.php, art. 38(1)(a).
[62] Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2, WTO Agreements, above n. 6, art. 3: 2.
[63] For a detailed study of interpretation of treaties, see Abdul Ghafur Hamid & Khin Maung Sein, Public International Law: A Practical Approach, (2nd ed, 2007) 231-238.
[64] The issue of custom did arise in one important WTO proceeding. It relates to the question of whether ‘precautionary principle’ is part of customary international law. See Panel Report, EC - Hormones, Complaint by the US, para 8.157.
[65] The reference in art 3.2 of the DSU to the ‘customary rules of interpretation of public international law’ has been held by the Appellate Body to refer to arts 31 and 32 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)(hereinafter ‘Vienna Convention’). Other provisions of the Vienna Convention which may be law in WTO proceedings include art 26 (Pacta sunt servanda), art 28 (non-retroactivity of treaties), and art 30 (application of successive treaties relating to the same subject matter).
[66] European Communities--Measures Concerning Meat and Meat Products (Hormones), WTO Doc. WT/DS26/AB/R, WT/DS48/AB/R (16 Jan 1998).
[67] See Yearbook of the International Law Commission, (1996) vol. II, 214.
[68] Article 103 of the UN Charter, commonly known as the ‘clause paramount,’ provides: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’
[69] See e g, art 8 of the North Atlantic Treaty 1949.
[70] The United Nations Convention on the Law of the Sea, signed at Montego Bay, Jamaica, 10th December 1982, entered into force 16th November 1994, at www.un.org/Depts/los/convention
_agreements/texts/unclos, art. 311(1).
[71] Article 30 of the Vienna Convention is subject to art 103 of the UN Charter, which provides that ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’
[72] Vienna Convention art 30 (3). In determining which treaty is the earlier and which the later, the relevant date is the date of adoption, not entry into force. See Vierdag, ‘The Time of the Conclusion of a Multilateral Treaty: Article 30’, (1988) 59 BYIL 75, 90-111.
[73] Vienna Convention art 30 (4)(b).
[74] Aust is of the view that State A will have to seek to amend or terminate one or other of the treaties or risk being in breach of one of them. See A AUST, Modern Treaty Law and Practice (2000) 174.
[75] See Vienna Convention art 56 for denunciation of a treaty.
[76] It will be a question of construction in each case whether state A would be in a breach of its obligations by virtue of the mere conclusion of the inconsistent treaty, or only by virtue of some action subsequently taken pursuant to it. See Vienna Convention art 30(5).
[77] See Vienna convention art 30(5) and also arts 41 and 60.
[78] M E Villiger, Customary International Law and Treaties (1985), 36.
[79] See the comment of AGO, Yearbook of the International Law Commission (1966), Vol. 1, Part 2, 167, para 50.