Conclusion the WTO is Taking Over

Summarizing the major implications of the abovementioned and some further cases, three major sets of observations can be made. First, with regard to extent and quantity, the WTO has definitely been assuming considerable competency and power about numerous non-trade issues [31]. Through decisions on various environmental topics, from species protection via air pollution (namely in the U.S.-Reformulated Gasoline report) to consumer and health standards, the WTO Dispute Settlement Body has constantly broadened its ecological agenda. If this development continues apace, the WTO will also "colonize" other environmental domains, thereby ultimately deciding to what extent countries can unilaterally set trade restrictive standards in these issue areas. What is more, since neither the Panel nor the Appellate Body can issue reports on its own initiative, it is not the WTO as such which exerts this extensive influence across policy fields; after all, it is the member states who can invoke the DSB in order to block the implementation of other countries' ecological policies [32]. Hence, paradoxically, by using the instrument of WTO law, these parties do the very thing they are complaining about: they have a severe impact on extraterritorial standards. This observation appears to be a strong corroboration of the race-to-the-bottom argument brought up against the WTO.

Nonetheless, a second major trend—which goes hand-in-hand with the aforementioned formal extension of the WTO's agenda—qualifies this finding. In terms of substance and quality, there has been a tendency towards more flexible and integrative decisions by the WTO dispute settlement mechanism. This concerns both key types of contested environmental standards, namely the precautionary principle, as addressed in the asbestos and hormone cases, and the PPM-related provisions, as addressed in the tuna and shrimp cases. Whereas in the first Tuna Dolphin case, the GATT Panel had clearly refused to take into account the environmental or social relevance of the production cycle of a good, later reports by the WTO Appellate Body (who sometimes overruled a previous panel decision) stressed the strong interdependence between international trade and other policy issues. These non-trade preoccupations have eventually become positively integrated into the decisions—either through demands for multilateral negotiations and agreements in order to specify WTO law (as in the U.S.—Shrimp report) or through the intensified recognition of the actual objectives of the contested trade-restrictive measures (especially health issues as in the EC—Asbestos decision). However, given increasing protests by WTO members about the Appellate Body's flexible interpretation of the agreement [17], only time will tell to which extent this tendency towards more environmentally friendly rulings will prevail.

Third and most generally, the key object of contention in all cases was the WTO consistency of trade-related measures in national environmental law with WTO law. In this regard, three kinds of jurisdictional scope should be distinguished [25]. First, measures to protect the domestic environment are consistent with WTO law as long as they affect similar goods of all exporting countries in the same way. Second, measures aimed at safeguarding trans-boundary resources need to stand tests of appropriateness and necessity; furthermore, they have to be backed up by previous negotiations or agreements, and they need to be applied equitably across all exporting countries. Third, measures to protect the global commons, as they are promoted by MEAs, have so far been beyond concern: no Panel or AB report has dealt with the relationship between the WTO and such agreements in the first place. This notwithstanding, one should not conclude that overlaps or conflicts of WTO law and international environmental treaties do not exist or have no impact on the effectiveness of these treaties. The next section will therefore outline some of the most notable of these overlaps.

Negotiating Essentials

Negotiating Essentials

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