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SYNOPSIS

INTERNATIONAL TRADE LAW (2019 – 2020)

TOPIC – ENVIRONMENTAL DISPUTES IN THE WORLD TRADE

ORGANIZATION.

I. STATEMENT OF PROBLEM

The purpose of the project is to determine whether “the WTO is a threat to the
environment and public health.”

II. HYPOTHESIS

‘The WTO favours trade at the expense of the environment.’

III. RESEARCH QUESTIONS

1. To study the aspect of WTO regulations related to the environment.

2. To study all the disputes before the WTO involving environment and public health.
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3. To suggest necessary reforms.

IV. RESEARCH METHODOLOGY

Doctrinal method of research was used during this project.

V. CHAPTERIZATION

The first chapter will discuss the GATT Article III and its implications, chapter two of the
project will discuss the MFN anti-disciplinary discipline w.r.t environmental issues, chapter
three will discuss the GATT Article XX, chapter four will discuss the Multilateral
Environmental Agreement, chapter five will contain a critique of WTO in trade and
environmental context and chapter six will contain the conclusion.

VI. REVIEW OF LITERATURE

‘Risk Management Experience in WTO Dispute Settlement/' In Globalization and the Environment: Risk
Assessment and the WTO, ed. D. Robertson and A. Kellow, 41-62. Cheltenham, UK: Edward Elgar.

The author lays out a set of linkages and policy issues collectively termed as “trade and
environment,” and then examine the role of the GATT and WTO in these areas. The author
focuses on relevant innovations made in the Uruguay Round and reviews recent economic
analysis and empirical findings on the trade environment nexus.

Environmental groups and green-leaning governments have come to view the WTO, with
its large membership and its relative success in achieving a rules-based international
regime, as the prime candidate for international arbiter on environmental issues.
However, many proponents of expanded global trade, and especially policy makers in
developing countries, are skeptical about an expanded role for the WTO in maintaining
environmental standards. They fear that WTO-approved trade sanctions may be used to
enforce adherence to environmental norms not necessarily shared by or appropriate for
all nations, and that environmental protection may in practice translate into a fresh
justification for old-fashioned protectionism.

VII. SCOPE

Free trade and national environmental protection measures are not always consistent.
Yet, the parties to the WTO decided, and committed in WTO law, that even where a
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national environmental protection measure would otherwise violate a free trade rule of
the GATT or GATS, the national environmental measure would generally be permitted,
subject to certain conditions. It is important to recognize that member states of the WTO
were serious both about allowing great flexibility for national environmental measures,
and about establishing some conditions so that this flexibility is not abused. It is also
important to recognize that, by establishing the WTO dispute settlement system, member
states decided that WTO Panels, and the Appellate Body on appeal, would generally
decide disputes about the scope of this flexibility.

The WTO Appellate Body has, in several important instances, sought to avoid carrying out
this responsibility, and has limited the scope of its analysis such that it cannot carry out
this responsibility effectively. Sometimes, the Appellate Body has done so by exalting
textualism over the broader context, object, and purpose of provisions of WTO law, and
sometimes the Appellate Body has done so by the opposite of textualism: by accepting
limits on the analysis carried out by Panels where those limits are not expressed in the
WTO treaty, and are inconsistent with the plain terms of that treaty. This type of selective
textualism is doctrinally incoherent, and can only be explained as a method of cloaking the
exercise of discretion by judges of the Appellate Body. While this discretionary authority is
best understood as granted by the WTO treaty, and so is not an abuse of judicial authority,
the attempt to cloak its exercise in textualism results in incoherence, and a failure to
articulate and legitimize the true bases for a decision.

VIII. INTRODUCTION

World Trade Organization (WTO) was established in 1995 to oversee the trade
agreements negotiated under the General Agreement on Tariffs and Trade (GATT)
framework. Since its inception, the WTO has been immersed in controversy. With a wider
mandate and greater enforcement powers than its predecessor GATT institutions, the
WTO is widely perceived to pose a greater threat to national sovereignty. While
corporations and traditionalists oppose extending the organization's reach beyond trade,
consumer groups and environmental organizations complain that the WTO favors trade at
the expense of environmental and health objectives. They fear that new provisions
negotiated during the Uruguay Round (1986-1994) threaten industrialized nations' high
environmental and health standards by promoting the adoption of international standards
(leveling down) and by requiring governments that choose higher standards to provide
scientific justification (French 2002). On the other hand, critics in the developing world
charge that the provisions allow wealthy nations to impose their standards on their trade
partners (leveling up) and to engage in a new form of protection in which measures that
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favor domestic producers masquerade as environmental or health regulations (Athukorala

2002; 'Turning Turtle" 2001). Since 1995, the WTO has made rulings in nine disputes
involving environmental and health regulations affecting gasoline, shrimp/ turtles,
hormones, asbestos, salmon, apples, agricultural products, generic drugs, and genetically
modified organisms (GMOs). These nine disputes address nearly all of the environmental
and health controversies surrounding the WTO. Yet they have done little to defuse these
controversies because all but the asbestos and generic drug rulings went against the
government imposing the regulations in dispute. For critics, these adverse decisions
demonstrate that the WTO favors trade at the expense of the environment and public
health and poses a threat to sovereignty (Wallach and Woodall 2004). But a more careful
reading of the rulings reveals that governments may pursue environmental and health
goals provided that they do not discriminate among their trade partners and can provide
scientific support for their regulations. In addition, the disputes demonstrate the essential
role that the nondiscrimination and scientific-justification requirements play in
distinguishing between legitimate environmental and health regulations and those
designed to protect domestic producers. However, the rulings also suggest that the
dispute-resolution process can be strengthened by instituting reforms that improve
compliance, enhance transparency, and reduce the cost of participation for poor nations.