Trade

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Trade Environment Law in the Context of
Sustainable Development

• Dr Markus Gehring, LL.M. (Yale)
• Lecturer in European and Intl Law, Centre of
  Intl Studies, University of Cambridge
• Lead Counsel, Trade, Investment Competition,
  Centre for Intl Sustainable Development Law
• Marie-Claire Cordonier Segger, MEM (Yale), LLB
  BCL (McGill), BA Hons
• Director, Centre for Intl Sustainable
  Development Law / Fellow, LRCIL, University of
  Cambridge

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Sustainable Development in World Trade Law

• Outline
• Part I Introduction
• - Globalisation and Sustainable Development
• - Evolution of World Trade Law
• Part II Sustainable Development Law in the WTO
• - Trade and Environment in the WTO
• - Trade and Development in the WTO
• - Sustainable Development in WTO Disputes
  (Exercise)
• Part III Outlook
• - Integrated Trade Law and Policy-Making
• - Conclusion

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Part I - Sustainable Development and
Globalisation?

• Mutual Supportiveness of Trade Environment
• Rio Declaration / Agenda 21, 1992 Rio Earth
  Summit
• Globalisation for Sustainable Development
• Joburg Declaration / JPOI, 2002 Johannesburg
  World Summit on SD
• Globalization offers opportunities and
  challenges for sustainable development. We
  recognize that globalization and interdependence
  are offering new opportunities to trade,
  investment and capital flows and advances in
  technology, including information technology, for
  the growth of the world economy, development and
  the improvement of living standards around the
  world. At the same time, there remain serious
  challenges, including serious financial crises,
  insecurity, poverty, exclusion and inequality
  within and among societies.

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Part I -Introduction to International Trade Law

• 1. GATT/International Trade History
• 2. The World Trade Organization (WTO)
• 3. Governance Structure of the WTO
• 4. Key concepts Tariffs, Most Favoured Nation
  and National Treatment, Non-discrimination
• 5. Dispute Settlement
• 6. Reform Trade Negotiations

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- one of the oldest areas governed by intl
rules- multi-layered trading system bilateral,
regional, intra-regional and global-
provisional set of rules - originally 23
contracting parties - enacted 1 January 1948
- terminated 31 December 1995- negotiated eight
multilateral trade "rounds" - reduced tariffs,
attempted to reduce other trade barriers -
converted intl trade to a rules-based system
1. The General Agreement on Tariffs and Trade
(GATT) / International Trade History
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- Objectives ?- Main functions
implementation, administration and operation
of the covered agreements
negotiation of trade agreements settlement
of trade disputes review of trade policies
fostering coherence in policy making-
Pillar structure GATT, GATS, TRIPS and
horizontal agreements DSU, TPRM and
plurilateral agreements
2. The World Trade Organization
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3. Governance Structure of the WTO
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-Tariffs (reciprocal and mutually
advantageous basis) - Actual value tariffs-
Tariff schedules (Art. II GATT)- Tariffication
of other barriers to trade- Brussels Convention
on Tariff Classification- Harmonized system
of customs classification
4. Key Concepts - Tariffs
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- Art. I GATT Any advantage, favour,
privilege, or immunity in negotiated
concessions extends to all WTO members.-
Unconditionally, like products, de facto
discrimination- Rationale of MFN - Important
exceptions Grandfathered preferences, Art.
XXIV on RTAs, Enabling Clause, Waivers such
as for the Cotonou Agreement.
4. Key Concepts Most Favoured Nation Principle
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- Art. III GATT prohibits discrimination of
foreign producers vis-à-vis domestic producers
- Early GATT jurisprudence a formally origin
neutral taxation can violate Art. III2 GATT-
Centrality of likeness- Non-fiscal measures (Art
III4 GATT)- Relationship with Art. XX GATT
4. Key Concepts National Treatment
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- Integrated dispute settlement system
based on Articles XXII and XXIII GATT and the
DSU- Function of the DSB- Coverage goods,
services and intellectual property -
Procedures strict time-limits - Adoption of
panel reports negative consensus principle -
Appellate Body Review - Non-compliance with
recommendations
5. Dispute Settlement
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- Consultation phase - Panels (Art. 6-8 DSU)-
Panel process (Art. 12 DSU) - Panels time
periods (Appendix 3) - Appeals process (Art. 17
pp. DSU)- Adoption of reports- Compliance -
(Cross) retaliation
5. Dispute Settlement
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- Ministerial Conference ? between Green
rooms and NGO scrutiny- Consensus decision
making (Art. XI WTO) - Trade negotiation
committee- Doha-Round Agriculture as the most
contested issue (initially also competition
and investment)- Hong Kong Ministerial
Declaration- Reflection period and negotiations
resumed
6. Trade negotiations
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Part II - Rapid Evolution in Law and Policy on
Trade, Environment Development

• Physical linkages (impacts)
• - Complex relationships- Neither good nor bad
  (shades of grey)
• Legal linkages
• - Three distinct bodies of international law-
  Areas of intersection and integration
• Institutional linkages
• - WTO vis-à-vis MEA Secretariats and IGOs,
• - UNEP, UNDP
• - National and international NGOs

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2. Part II Different Perspectives

• The trade perspective
• Economic growth through trade will solve all
  environmental problems
• The environment perspective
• The environment is threatened by the status quo
• The development perspective
• Poverty needs first and foremost policy attention

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Part II Global Environmental Management

• Trade Measures
• - Trade ban
• - Protection provisions
• - Trade restrictions
• - Trade prohibition 3. Part
• Trade Measures
• - Cartagena Protocol control of LMOs
• - Kyoto Protocol Trade links
• Trade Measures
• - Trade restriction
• - Trade ban
• - Multilateral system for IP

• Principal MEAs
• Early Agreements
• - CITES
• - UNCLOS
• - Basel Convention
• - Montreal Protocol
• Rio Agreements
• - CBD
• - Desertification
• - Climate Change
• New Generation
• - PICs
• - POPs
• - FAO Seed Treaty

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Part II Sustainable Development Aspects of the
WTO

• Preamble Art. V. 2
• Art. III, XX GATT
• Art. 2.2, 2.6 TBT
• Art. 2.1, 5 SPS
• Art. XIV GATS
• Art. 7, 30 TRIPS

• WTO Agreement
• Trade in Goods
• GATT
• TBT
• SPS
• Trade in Services
• GATS
• Trade in IPRs
• TRIPS

• And new Doha Negotiations

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Part II Trade and Development

• Growing WTO membership from developing countries
• New Development Theory
• GATT Article XVIII
• GATT Part IV
• Enabling Clause
• The WTO Agreements

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Part II Sustainable Development and the WTO

• Principles of Sustainable Development Law
• Integration (and inter-relationship)
• Inter and Intra-Generational Equity
• Sustainable Use of Natural Resources
• Precaution in Health, Natural Resources and
  Environment
• Common but Differentiated Responsibility
• Access to Information, Public Participation and
  Access to Justice
• Good Governance

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Part II- WTO Disputes (Exercise)

• Instructions for exercise
• Form a working group, with a rapporteur and
  chair.
• In 20 30 min, answer the following questions
  for your case
• What are the main trade provisions at stake?
• What are the environmental issues?
• How would the WTO AB resolve the case in trade
  law (3 4 elements of a solution)?
• What do you think is a sustainable solution?
• US Shrimp Turtle Case (GATT)
• EC Asbestos Case (GATT)
• EC Beef Growth Hormones Case (SPS / TBT)
• EC Biotech (SPS / TBT)
• Brasil Retreaded Tires (GATT)

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Part II- WTO Disputes

• Cases for Exercise
• US Shrimp Turtle Case (GATT)
• EC Asbestos Case (GATT)
• EC Beef Growth Hormones Case (SPS / TBT)
• EC Biotech (SPS / TBT)
• Brasil Retreaded Tires (GATT)

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Important GATT rules
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Important WTO rules
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Part II- WTO Disputes (Exercise Solutions)

• US - Shrimp Turtle Case
• WTO AB the objective of sustainable development
  must add colour, texture and shading to our
  interpretation of the WTO Agreement.
• EC Beef Growth Hormones
• WTO AB the precautionary principle is
  incorporated in Art 5.7 of the SPS Agreement,
  though this does not exhaust relevance.
• EC Asbestos
• WTO AB Carcinogenicity is relevant to product
  likeness, and ban could be necessary for human
  health
• Brasil Retreaded Tires
• WTO Panel Measure justified for health and
  safety reasons, but applied discriminatorily so
  requires refinements.
• EC Biotech
• WTO Panel EC and country measures violated GATT
  TBT as not based on risk assessment, but as
  already ended no implementation needed.

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Part III Outlook Integrated Trade Law and
Policy-Making

• Development that can meet the needs of the
  present without compromising the needs of future
  generations (Brundtland Report)
• Reconciliation of development and environmental
  objectives (ICJ in Gabcikovo-Nagymaros Case)
• Balance / integration / mutual support between
  economic growth, social justice and environmental
  protection objectives (WTO AB Report from US
  Shrimp Dispute)

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Part III - Outlook

• An integrated agenda for the ongoing Doha
  Development Round in the WTO (1)
• Procedural integration
• - consultations in CTE CTD,
• - sustainability impact assessment (inc. human
  rights impact assessment),
• - transparency participation (WTO Symposia),
• - reform of dispute settlement procedures
  (amicus curia briefs, public hearings),
• - other proposals?

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Part III - Outlook

• An integrated agenda for the ongoing Doha
  Development Round in the WTO (2)
• Substantive integration (beyond the sandbox)
• - standards (TBT, SPS),
• - agriculture,
• - intellectual property rights,
• - investment
• - services
• - and other negotiations?

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Part III - Outlook

• Innovations in regional trade agreements and
  (integration) processes
• - the European Union,
• - the Mercosur / Andean Com / CAC
• - the NAFTA / NAAEC / NAALC BTAs
• - the SADC / ASEAN
• - the FTAA...?
• - the EU ACP Cotonou Agreement EPAs..?

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Conclusions

• Current WTO negotiations and cases reflect that
  the objective of sustainable development has
  become an integral part of the world trading
  system.
• Legal arguments encompassing an integrated
  developmental and environmental approach have
  been made by the parties and accepted by the
  relevant trade dispute settlement organs.
• However, WTO dispute settlement organs will not
  lightly accept sustainable development as a trump
  card. A solid legal understanding of the
  objective and its underlying principles is
  required to make a successful sustainable
  development argument in world trade law.

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Thank you.www.cisdl.org

• Markus W. Gehring / mwg24_at_cam.ac.uk
• Marie-Claire Cordonier Segger / mccs2_at_cam.ac.uk