Improving the WTO Provisions on the Environment

The international environmental issues, which increase international friction and are related to acid rain, greenhouse gases, and ozone depletion, have inevitably become global. A state alone no longer solves these issues effectively when the problems are not centered within the state's borders. Before the WTO, in the mere trade liberalization perspective, the GATT had very strictly interpreted the article XX (b) and (g) of GATT 1947. With the Preamble to Agreement Establishing the WTO which suggests "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 development," environment issues become more and more one of the customary trade issues. Even though the main goal of WTO is trade liberalization, the article XX of GATT with the Preamble of Agreement Establishing the WTO provides more elasticity for the WTO member States to take their trade restrictive policy measures for environmental protection under particular conditions. The present WTO's provisions, however, are not delicate and sufficient enough to acquire the double-win: “a win for the environment and a win for trade.”To make the WTO, not only for the world economy through trade liberalization, but also for the global environment, we need the better provisions of WTO's. With the increased environmental concerns, the linkage between trade and the environment need to be strengthened. As the harmonization of following two principles in the “Shrimp/Turtle case I & II” cases: 1) “unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided” and 2) environmental protection measures should address trans boundary or global environmental problems, there is no longer any boundary between international trade law and international environmental law. The chapeau of GATT art. XX strictly prohibits "arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade. The burden of proof for the chapeau is assigned to the offender State, namely State relying on TREMs. The Preamble to Agreement Establishing the WTO could be considered as the WTO rule on Trade and Environment. The 'necessary' standards of the article XX(b) of GATT need to include: ① the relative importance of the common interests or value pursued by the TREMs, ② the contribution made by the TREMs to the realization of the ends pursued by measures, and ③ the restrictive impact of the TREMs on international trade. The term “exhaustible natural resources” in the article XX (g) of GATT 1994 includes living and non-living resources. The “exhaustible natural resources” could include certain resources beyond the jurisdiction of the state imposing the trade restrictive measures if there is a “sufficient nexus” with such resources within the jurisdiction. It is desirable that the comparative efficiency should be considered among the various TREMs for conservation. In global trade liberalization context, TBT or SPS regulations should be based on the internationally determined standards rather than local discretion. The green subsidy provision of the SCM Agreement should be revived. By the more detail regulation of the Agreement on Agriculture, the reduction of agriculture subsides should be managed. A policy exception for conservation measures need to be included to the general exception provision in the GATS. To harmonize the environmental provisions in the RTAs with that of the WTO, the WTO needs to serve new standards as well as GATT art. XXIV and the Understanding.