Solution under the Legal Status

The creators of the WTO did not build any comprehensive and sustainable clause into the agreements in order to address specific multilateral or domestic environmental standards. Instead of such an ex ante approach, they relied on a strategy of case-by-case interpretation. With regard to potential collisions with domestic environmental law, such an interpretation should concretize generally phrased exceptions under Article XX GATT. And as for potential collisions with MEAs, negotiators hoped for sufficient backup by existing superordinate international law—in particular by the 1969 Vienna Convention on the Law of Treaties (VCLT). Strikingly, it is this very reliance upon the VCLT which can also be held responsible for the inclusion of trade-related measures into MEAs such as CITES or the Montreal Protocol.

Indeed, at first glance, the Vienna Convention hosts satisfying principles to determine the hierarchy among agreements in a given legal dispute. For instance, as laid out in Articles 30-32 VCLT, agreements prevail when containing more specific rules (lex specialis) or when being adopted later (lex posterior) than a rival treaty. However, in order for these principles to apply, the colliding treaties should feature identical parties, which is a rather hypothetical and obsolete request given today's fragmentation of international law.*

In sum, sole confidence in the VCLT's applicability is at best outdated and at worst, could backfiring at MEA objectives—in particular when leaving treaty coordination between MEA parties and non-parties to WTO dispute settlement organs. Hence, in order to reduce the potentially disruptive impact of the world

* This notwithstanding, some AB reports have referred to MEA rules, arguing that it is sufficient that the dispute parties are members of the respective MEA. Thus, in the U.S.— Shrimp case, the AB referred to the CBD and to the Convention on Migratory Species. This can be justified by the fact that WTO agreements, unlike MEAs, are bipolar contracts, implying that inter se modifications are possible, i.e., ad hoc modifications of WTO law which only apply to the conflict parties in a particular dispute (see Section 10.3.3; cf. Neumann 2002: 368ff.; Pauwelyn 2003: 52ff.).

trade regime on both domestic and multilateral environmental regulations, jurisdictional clarity via an explicit ex ante approach is desirable—for at least two obvious reasons: first, as long as no legal disputes take place, such clarity can help diminish the anticipative effect of the WTO "shadow" on environmental legislation both national and international, as outlined in the preceding Section 10.5.5; and second, if it comes to actual disputes, a respective approach could set limits to the current process of a self-expanding mandate of the WTO Dispute Settlement Body.

Negotiating Essentials

Negotiating Essentials

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