Is there legal compatibility of the measures on environmental protection, both derived from national policies and from commitments acquired through international agreements with the rules and commitments of the World Trade Organization (WTO)?
2. General Objective
Delimit the degree of legal compatibility of measures on environmental protection, both derived from national policies and from commitments acquired through international agreements with the rules and commitments of the World Trade Organization (WTO).
3. Background
In 1994, at the ministerial meeting in Marrakech, the member countries of the WTO adopted concrete collective decisions on the environment.
At said meeting, a decision was approved by which the General Council of the WTO was entrusted with the establishment of a Committee on Trade and the Environment (CCMA), which basically had to fulfill the following tasks
- Establish the "existing relationship between trade measures and environmental measures" adopted in order to promote "sustainable" development. Make recommendations on "possible modifications" of provisions of the multilateral trading system "to say of rules of the legal system of the Environment-related WTO
It was established that the CTE is responsible in the first part to review the relationship between the provisions of the multilateral trading system and the following aspects of national and multilateral environmental policies:
- Trade measures adopted for purposes Environmental policies related to trade Environmental measures that have significant effects on the charges and taxes applied for environmental purposes Prescriptions applied for environmental purposes to products, including standards and technical regulations and requirements on the matter of container, labeled packaging and recycling.
Finally, it was also agreed that, as an additional task, the Committee include in its work, the analysis and discussion of the following matters:
- The provisions of the WTO legal system regarding the transparency of trade measures used for environmental purposes and environmental measures and requirements that have significant trade effects The relationship between the WTO dispute settlement mechanism and those provided for in the Multilateral environmental agreements The effect of environmental measures on market access, especially in developing countries The issue of the export of goods whose sale is prohibited in the countries of origin.
- Scope of the question
During the discussions carried out before the adoption of this Decision, doubts that existed about the relevance of incorporating, within the framework of the WTO, the questions referring to the relationship between trade policies and environmental policies were revealed. These doubts were related to the nature and scope of the WTO legal system, and the competence of these bodies.
In other words, it was not known exactly to what extent there could be compatibility between commercial and environmental matters and what would be the scope of the WTO regulation in these matters.
To delimit the scope of the issue, the Decision on which the establishment of a CTE was established, indicated that the "multilateral trading system" or the WTO, is "limited to trade policies" and "aspects of environmental policies related to trade that may have significant commercial effects for the countries of the Organization ”.
In other words, the functions of the Committee were limited to establishing studies only on environmental matters related to WTO policies and trade, excluding the study and analysis of the composition of environmental policies. In other words, the functions of the committee were restricted to analyzing the possible effects of some measures applied in the implementation of environmental policies, especially in terms of affecting the rights and obligations enshrined in the WTO legal system and did not include the examination in the strict sense of these policies.
The Decision states that there should not be nor is it necessary for there to be a political contradiction between the defense and safeguarding of an open, non-discriminatory and equitable multilateral trading system on the one hand and the measures for the protection of the environment and the promotion of sustainable development on the one hand. other. According to Zelada, this postulate, however, should not be interpreted in the sense that, in reality, certain conflicts may arise between the provisions applied with a view to preserving the environment with the rules on free trade agreed within the framework of the WTO. Hence precisely the importance of delimiting the scope of jurisdiction of multilateral trade regulations and their trade regimes, that is,To what extent is a regulation that regulates harmonious and efficient sustainable development compatible with multilateral trade regulation that is based above all on trade liberalization and non-discrimination?
In the same debates, before the approval of the Decision on the Committee on Trade and Environment, the understanding that the member states of the Organization enjoy the right or the power to adopt, in a relatively discretionary, measures to protect the environment, both through internal legislation and through the application of commitments agreed in international treaties. That is to say,We are talking about a position of self-determination and sovereignty, although this also implies the question of what would be the degree of applicability and primacy of a national or international environmental norm and even supranational, as is the case of the community provisions of the European Union against a multilateral trade rule such as those established in the WTO.
However, in these debates prior to the approval of the Decision that creates the Committee on Trade and Environment, the criterion prevailed that the national prerogative is limited by the binding obligations of the WTO, that is, it should be ensured that the policies international nationals, etc. that the states apply when they are of a commercial nature referring to environmental matters, or have significant effects on international trade, must comply with the provisions and commitments assumed with the WTO. In other words, the criterion that there would be a subordination of the local environmental norm to the multilateral commercial norm seems to be true, insofar as the former manifests a commercial economic relevance susceptible to regulation.
However, in the report of the committee issued in 1996, the discretion that states had to regulate the environmental provision according to their convenience was made more explicit when it was established that governments have the right to establish their national environmental standards in accordance with the respective environmental conditions, needs and priorities and their development.
- Main aspects of the question
From what is established in the Decision that creates the Committee on Trade and the Environment and the national and international provisions applied by the WTO member states, it follows that one of the most important issues is the adequacy by said members of their environmental regulations to free trade rules, This need becomes evident above all, when said measures are of a strictly commercial nature or scope or when, even lacking these features, they have effects on international trade
In some cases, these measures are the consequence of the application of national policies regarding the preservation of the environment, in other cases they derive from the norms and commitments acquired through international treaties that aim to promote, develop and regulate international cooperation in matter
protection or preservation of the environment.
Not all these measures are and cannot necessarily be of concern to the WTO bodies, that is, the rules that have obvious effects on international trade will be a concern of the WTO.
Therefore, it is reasonable to think that the WTO bodies have the task, as in relation to other policies connected with trade policy, to pay attention to the possible consequences of the measures adopted in the framework of environmental policies, in the free trade conditions agreed within the legal framework of the Organization. Said bodies must prioritize which area of environmental competences then constitute possible barriers to the exercise of free trade and, where appropriate, determine the incompatibilities between environment and trade.
The member states of the WTO have the ability to dictate their environmental standards at their discretion, now the question arises as to what is the margin to resort to these environmental standards of the member countries without altering or colliding with the trade policies of the WTO. In the same way, the question about the determination of the provisions of this legal system under which it is possible to apply this type of rules is also latent.
According to Castedo, a possible answer to these questions cannot be ignored that in response to the need to protect other social values, the regulatory system of the WTO, in the same way as the General Agreement on Tariffs and Trade did in his time, contains stipulations by virtue of which exceptions to the application of various general and particular norms of this order are allowed, that is, a specific protection of such social values is allowed through exception rules but they will be in accordance with the obligations and the rights agreed in the framework of the WTO, to the extent that their adoption and application are in accordance with the conditions and requirements set by regulations specially dictated in this area.
Within this line of reasoning, it is possible to assimilate, in a certain sense, the situation of the use of measures to protect the environment with the situation of measures to protect the health of people, animals and plants. Or also with the situation of the adoption of standards or technical regulations for the products and even the production processes.
To further deepen this relationship of equating environmental standards with other protection measures such as health, basic principles established in the Agreement on the application of Sanitary and Phytosanitary Measures as well as the Agreement on Technical Barriers to Trade should be named.
Number 1 of article 2 of the first of these agreements establishes the right of member countries to “adopt the sanitary and phytosanitary measures necessary to protect the health and life of people and animals or to preserve plants, provided that such measures are not incompatible with the provisions of the agreement ”. In turn, paragraph 2 of the same article 2 stipulates the "obligation for member countries to ensure that any measure of this type is based on scientific principles."
On the other hand, according to the Agreement on technical barriers to trade, it “should not prevent any country from adopting the necessary measures to ensure the quality of its exports or to protect the health and life of people and animals, or the preservation of plants for the protection of the environment, or for the preservation of practices that may be misleading, at the levels deemed appropriate ”. However, this discretionary power is limited by the obligation derived from numeral 2.2 of article 2 of the same agreement in the sense of "preventing unnecessary obstacles to international trade from being created through technical regulations"
Otherwise, it is not possible to establish an eminently environmental characteristic of these technical regulations, since their fields of regulation are different and therefore the objectives of their applicability, in other words, the measures for the protection of the environment may not be fully assimilable. to measures in the field of animal and plant health or to technical standards and regulations. For example, it is not possible to apply to environmental policies and their respective instrumental agreements the regulatory framework of the "Agreement on Technical Barriers to Trade", despite the declarations that it makes of the need to protect the environment, there simply is no purpose technical or substantive to regulate environmental matters from these agreements.
It seems pertinent then to establish the need to develop within the WTO a specific legal regime to broadly regulate environmental provisions and to delimit the scope of discretion of member countries, according to Tredinick, “it is tempting to conclude that it is necessary to make the effort to develop a special legal regime destined to regulate the conditions to adopt and implement environmental measures ”. However, to reach this conclusion, it is necessary to establish whether the WTO legal system has the necessary competence to regulate this matter, that is, the problem must be approached from the compatibility of the obligations created by international cooperation treaties on the environment,its national ratification and the obligations derived from the WTO legal system.
It must be considered, first, that they are independent normative systems and therefore not subject to each other. In this sense, neither of them can impose the authority of its norms on the other, unless the participating states agree to do so. We enter a legal problem in the sense of delimiting the scopes and areas of legal entities that, although they have independence, must be seen the degree of limitations that each one has with respect to the other, and even the primacy of one provision over the other, including seeing the degree of international bilateralism between two states in the face of the effectiveness of commercial multilateralism referred in this case to environmental matters.
However, it is necessary to reiterate that the recognition of the states' own power to enter into bilateral agreements does not imply admitting that by being members of the WTO, they are released from their obligation to guarantee that the obligations contracted through these agreements are compatible with the Duties to which they are subject by rule of the legal system of the Organization, especially to the conditions of free trade and the non-application or application according to the relevant rules of non-tariff restrictions on trade.
It is clear that for either of these two circumstances, reflection must be made on the means of monitoring compliance with said obligations. One of these ex post means could be the Dispute Settlement Mechanism of the WTO. Others would be the dispute settlement mechanisms established in cooperation agreements or treaties regarding the preservation of the environment. As an ex ante surveillance procedure, the application of the transparency obligations determined in the WTO legal system has been suggested, as well as the use of the Trade Policy Review Mechanism.
According to the aforementioned Antecedents, these issues appear to be the compatibility with the WTO legal system of the environmental protection measures adopted unilaterally or as effects of commitments assumed in international agreements or treaties bilaterally and the of the most appropriate means to find a solution to the differences that may arise regarding them, constituted the nucleus of the discussions at the ministerial meeting before the approval of the Decision of April 14, 1994, relative to the Committee on Trade and Commerce. Environment. For this reason, this Decision can be considered to reflect the main concerns of the WTO member states in relation to this matter.
In order to perceive the scope of this rule more clearly, it is important to note the precision that this Decision makes when differentiating and listing the three matters towards which the work of the Committee on Trade and Environment should be directed: first, trade measures for environmental purposes second, environmental policies related to trade and third, environmental measures that have significant commercial effects.
6. Report of the trade and environment committee
In order to appreciate where the matter reached, it is of interest to examine some of the contents of the report prepared by the CTE at the end of 1996 and going to the first Ministerial Conference of the WTO, held in Singapore.
With regard to the relationship between the provisions of the WTO legal system and trade measures adopted for environmental purposes, including those adopted in application of multilateral environmental agreements, the report makes explicit the point of view supported in the deliberations in the sense that “measures to deal with transboundary or global environmental problems should as far as possible be based on an international consensus”.
The following points are listed below:
- The number of multilateral environmental agreements in which trade measures have been incorporated is relatively small. Various provisions of the WTO legal system may provide for recourse to trade-related measures required for environmental purposes It is unlikely that in In practice, disputes arise within the WTO, regarding the application of trade measures relating to the environment.
Regarding the effect of environmental measures on market access, especially by developing countries, the Report outlines the concern expressed by the representatives of these countries about the possibility that such measures could be detrimental to competitiveness and market access opportunities for “small and medium-sized enterprises” (SMEs). In response to this concern, it underlines the importance of providing cooperation to developing countries to put into practice adequate policies in the field of development and the environment. This means that there is more and more a latent concern to channel a harmonious defense of environmental resources in accordance with adequate development policies that guarantee growth,but that they do not disturb the trade openness or the economic exchange promoted by the multilateral trading system.
- Proposals for multilateral trade negotiations
Since the ministerial meeting in Marrakesh and throughout the work of the CTE, developed countries were the most interested in the treatment, within the scope of the WTO, of issues related to trade and the environment, whereas developing countries They were more reluctant to incorporate the topic both in the regular work of the Organization's bodies and in the WTO Ministerial conference held in Doha in November 2001
At the Fourth Ministerial Conference in Doha, Ministers instructed the CTE, in pursuing work on all items on its agenda, to focus specifically on three issues: the effect of environmental measures on market access, relevant provisions of the TRIPS Agreement and labeling requirements for environmental purposes.
7.1 European and American initiatives
Towards mid-1999, during the preparatory work for the Third Ministerial Conference of the WTO that took place in the city of Seattle in December, among several initiatives presented, those of the United States and Europe stand out, since they shed some light on the relationship of environmental and commercial regulations.
According to the point of view of the European Union, trade and environmental policies and regulations should be mutually supportive to promote sustainable development, in this way the European Union proposed that the WTO Bodies focus their attention on the following:
- Establish greater legal clarity regarding the relationship between WTO rules and trade measures adopted under multilateral environmental agreements Clarify the relationship of WTO rules to non-related production methods and processes products and in particular the compatibility of eco-labeling programs based on the life cycle approach Examine the need to clarify the relationship between multilateral trade rules and basic environmental principles, particularly the precautionary principle.
The European interest in delimiting the degrees of connection between environmental and commercial regulations is significant, from which it can be inferred that there is no clear dividing line that limits the discretion of state and international environmental policies in this matter, that is, it may be the trade, the main limitation of environmental regulations? Will the WTO have the capacity to transcend traditionally commercial aspects and market opening to a sustained and therefore necessary environmental policy? At least the European Union believes that a closer relationship is necessary between two vitally important issues such as trade and the environment.
The North American proposal establishes that:
- The central objective of the negotiations at the third Ministerial Conference is to identify and exploit areas in which trade liberalization offers special prospects for direct benefits for the environment, establishing that the CTE should function as a forum for identification and examination of the existing links between the elements of the program of negotiations on the environment and public health. The North American proposal also highlighted the importance of conducting national reviews of the possible effects, both positive and negative, of the round of negotiations multilateral trade on the environment. These studies could contribute to the identification of the interconnections between trade and the environment.
The European Union is concerned with reaching certain clarifications regarding the meaning and scope of the WTO rules regarding trade measures for environmental purposes adopted, especially through multilateral agreements, while the United States emphasizes the eventual effects on the environment of possible new commitments for the liberalization of trade and for this reason it postulates that understandings be reached that in any case reinforce environmental protection policies.
In general, Europe and the United States accept that there is no structured and uniform field on environmental regulations and this seems to be the main premise to be structured in the field of future negotiations. It is necessary to give environmental regulations a legal structure that clearly defines the field of application and effectiveness of its provisions, since the environment is one of the key issues for trade and development, hence the challenge for the WTO.
- Conclusions
- WTO member states enjoy the right or the power to adopt, in a relatively discretionary manner, measures to protect the environment, both through the rules of their internal legislation and through the application of commitments agreed in international treaties. All these measures are and cannot necessarily be of concern to the WTO bodies, that is, the rules that have obvious effects on international trade will be a concern of the WTO, although there are technical agreements that relate the importance of highlighting environmental issues Agreement on the application of sanitary and phytosanitary measures as well as the Agreement on Technical Barriers to Trade), these regulate other technical issues and do not assume environmental aspects as central points.The difference between state and international environmental regulations and the provisions relating to multilateral international trade have not yet been delimited in depth with a commercial environmental legal structure There are advances in the Doha Ministerial Meeting to regulate environmental issues, but these attempts are not enough The United States and Europe top the list of countries that propose alternatives to create areas of commercial and environmental legal interconnectionBut these attempts are not enough The United States and Europe top the list of countries that propose alternatives to create areas of commercial and environmental legal interconnection.But these attempts are not enough The United States and Europe top the list of countries that propose alternatives to create spheres of commercial and environmental legal interconnection
Bibliography
- Trade and Environment a controversial matter in the WTO, Zelada Castedo, Special Topics of Economic Law. National Publishing Corporation. Ecuador 2003. Decision of April 14, 1994. GATT / WTO activities on Trade and Environment. Document PRESS / TE 002, May 3, 1995. Effects of trade on the environment, Raul Kurgen, Editora Albea, 2002. Spain. Report of the WTO Committee on Trade and Environment. Document PRESS / TEC 014, November 18, 1996. Agreement on the Application of Sanitary and Phytosanitary Measures The Agreement on Technical Barriers to Trade (OTC). WTO environmental legal ties, Felipe Tredinnick, pg39, Editorial Murgeon, La Paz, Bolivia, 2001 Environmental aspects in the WTO, Walter Antelo, pg39, Editorial Andes, La Paz, Bolivia, 2002.
www.wto.org/spanish.
REFERENCES
- The WTO is not an environmental protection body. Nor is there the slightest intention that it is. This means that the WTO has limited competence in coordinating the relevant policies and that its limits are trade and environmental policy aspects that are trade-related and may have significant effects on the trade of WTO Members.. This includes examining how policies can benefit the environment, for example when restrictions and distortions to trade that are harmful to the environment are removed. Http://www.wto.org/english/tratop_e/envir_e/guiding_e.htm Decision of April 14, 1994 Said recommendations should refer in particular to the following aspects:a) The need to establish norms that increase the “positive interaction” between “trade measures and environmental measures”, b) The non-use of “protectionist trade measures” and c) The monitoring of trade measures used for environmental purposes ”of “The aspects of trade-related environmental measures that have significant commercial effects” and the effective application of the multilateral disciplines to which these measures are subject. (Zelada Castedo, 1993)b) The non-use of “protectionist trade measures” and c) The monitoring of trade measures used for environmental purposes ”of“ aspects of trade-related environmental measures that have significant trade effects ”and the effective application of multilateral disciplines these measures are subject to. (Zelada Castedo, 1993)b) The non-use of “protectionist trade measures” and c) The monitoring of trade measures used for environmental purposes ”of“ aspects of trade-related environmental measures that have significant trade effects ”and the effective application of multilateral disciplines these measures are subject to. (Zelada Castedo, 1993)Trade and Environment a controversial matter in the WTO, Zelada Castedo, Special Topics of Economic Law. National Publishing Corporation. Ecuador 2003. Decision of April 14, 1994. GATT / WTO activities on Trade and Environment. Document PRESS / TE 002, May 3, 1995. Trade and Environment a controversial matter in the WTO, Zelada Castedo, Special Topics of Economic Law. National Publishing Corporation. Ecuador 2003. Effects of trade on the environment, Raul Kurgen, Editora Albea, 2002. Spain Report of the WTO Committee on Trade and Environment. Document PRESS / TEC 014, November 18, 1996, cited by Zelada Castedo (2003)Report of the WTO Committee on Trade and Environment. Document PRESS / TEC 014, November 18, 1996, cited by Zelada Castedo (2003) Trade and Environment a controversial matter in the WTO, Zelada Castedo, Special Topics of Economic Law. National Publishing Corporation. Ecuador 2003. The Agreement on the Application of Sanitary and Phytosanitary Measures entered into force together with the Agreement establishing the World Trade Organization on January 1, 1995. The Agreement refers to the application of regulations on the matter. food safety and sanitary control of animals and plants. The Agreement on Technical Barriers to Trade (TBT)tries to ensure that regulations, standards, and testing and certification procedures do not create unnecessary obstacles. WTO environmental legal ties, Felipe Tredinnick, pg39, Editorial Murgeon, La Paz, Bolivia, 2001 Trade and Environment a controversial issue in the WTO, Zelada Castedo, Special Topics on Economic Law. National Publishing Corporation. Ecuador 2003 Environmental legal ties of the WTO, Felipe Tredinnick, pg39, Editorial Murgeon, La Paz, Bolivia, 2001 Report of the WTO Committee on Trade and Environment. Document PRESS / TEC 014, November 18, 1996, cited by Zelada Castedo (2003) The understandings on trade and the environment appear in numbers 31 to 33 of the Ministerial Declaration approved on November 20, 2001. Environmental aspects in the WTO, Walter Antelo, pg39, Editorial Andes, La Paz, Bolivia, 2002
