Suggestions from the Outside

In the absence of an accord within the CTE, "the question of whether and how environmental aspects should be integrated into the world trade regime has mainly been taken up outside the context of the world trade regime— above all, in academic and environmental institutes" [16]. Generally, three groups of proposals can be distinguished: a first one focusing on a reform of WTO law, a second one suggesting changes in the organizational structure,

* These MEAs included the Basel Convention, the CBD, CITES, the International Tropical Timber Organization (ITTO), the Montreal Protocol and the UNFCCC.

t Besides these inter-regime meetings, the WTO has been organizing internal consultations on the trade-environment nexus among experts of its various divisions, e.g., at the occasion of the WTO Symposium on Trade and Sustainable Development in Geneva in October 2005.

* "Members at this stage are still attempting to define what constitutes an STO [specific trade obligation], which MEAs should be considered, and ultimately how to go about clarifying the WTO-MEA relationship.. [I]t was not clear that MEAs had anything to gain from devoting resources to the WTO-MEA endeavour" (ICSTD 2003). At the meeting, special emphasis was put on decisions taken at MEA Conferences of the Parties (COPs) which might bear trade-related implications, e.g., the Marrakesh Accords, resulting from UNFCCC COP7 in November 2001.

and a third one which, instead of "greening" the WTO, shifts the focus on the strengthening of MEAs.

As for the proponents of the first group, some of their suggestions follow those voiced by reform-oriented parties in the CTE who promote an "environmental window" or a "savings clause" for certain MEAs. More precisely, some observers call for an expansion of Article XX GATT, either by amending clauses XX(b) or XX(g) or by entering a new clause XX(k) [50,51]. Such proposals are not as unrealistic as they might sound at first glance; in fact, they can point at a prominent role model: Article 104 NAFTA contains a priority clause which confirms that in cases of inconsistency between NAFTA on the one hand, and CITES, the Montreal Protocol and the Basel Convention on the other hand, the obligations of the latter shall prevail.*

Hence, akin to the initiatives taken up within the WTO, a large number of scholarly suggestions also concentrate on legal exceptions to the benefit of multilateral environmental treaties. This might be the time to ask why certain principles inherent to domestic environmental rules are not considered in these proposals. The answer is that in fact these principles are not at all excluded from the debate. Quite on the contrary: what has been said in Section 10.5.5 about a potentially negative "domino effect" of legal challenges against MEA rules, in turn implies positive effects for domestic standards under reversed premises. An environmental window for MEAs would also open up for related national regulations, enhancing the robustness of the latter against legal challenges before the WTO. For instance, a savings clause for trade-related measures under the Montreal Protocol should equally provide a backup for national import bans on ODS from certain countries.

This interconnectedness among multilateral and national environmental law notwithstanding, there are also alternative reform proposals which propagate safeguards for specific green principles and standards. In particular, suggestions are dedicated to the precautionary principle. Environmental NGOs as well as the European Union advocated a change of the corresponding provisions in the SPS agreement, thereby reverting the burden of proof for health risks from importers back to exporters [16]. Drawing lessons from the Tuna Dolphin cases, other observers demand stronger consideration of processing and production methods (PPMs) when determining the alikeness of products. To this end, Helm [51] suggests the inclusion of PPMs into Article III GATT on national treatment.

No matter how adequate some of these ideas might appear, they will remain fruitless academic exercises as long as they only focus on the legal side of the problem. Clearly, in order to bear practical relevance, suggestions have to

* NAFTA is also more progressive than WTO law when it comes to general exceptions under Articles 904, 907, and 915 which expressively take into account factors like climate impact and scientific risk assessment. Apart from such explicit treaty modifications, treaty changes can also be made implicitly, e.g., through shifts in customary law (Neumann 2002: 343ff.).

equally address the political or institutional reasons for the WTO's inflexibility, namely the weak agenda-setting position of the CTE and the ongoing stalemate among its members. Therefore, a second group of proposals advises structural changes within the WTO. Environmental groups opt for the dissolution of the CTE and, instead prefer a mainstreaming of environmental issues across the other WTO committees and sub-committees. Gary Sampson [17], former director of the organization's Trade and Environment Division, strongly disagrees with this idea, warning that this move would even further dilute ecological interests: "resources by governments to questions relating to the environment are already spread thinly in WTO meetings."

Still, instead of abolishing the CTE altogether, it might make sense to occasionally circumvent the impasse of its meetings via complementary activities by other WTO organs. Besides further intensifying its ties with UNEP, the WTO secretariat could initiate bilateral agreements with specific MEAs, similar to those it already negotiated with WIPO or the IMF. For instance, Asselt, Gupta, and Biermann [52] recommend a Memorandum of Understanding between the WTO and the UNFCCC in order to allow for package deals on contentious issues.

Another approach to tackle the CTE's stalemate might be to enhance the influx of ecological data into the WTO's policy-making processes, and, by the same token, to alter the positions of some of the hitherto eco-skeptical developing countries. With the help of improved impact assessment methods, science could provide for more robust and more comprehensive evidence about the world trade regime's effects on the environment [53]. Depending on the outcome of such impact assessments, developing countries might be persuaded to deviate from a one-sided perception of green standards as merely protectionist measures. Santarius et al. [16] name two ways to integrate environmental impact assessment into the WTO's institutional structures: either by incorporating them into the WTO's Trade Policy Review Mechanism (expost assessments) or by creating a new Strategic Impact Assessment Body within the organization (ex ante assessments). However, if not carried out by independent institutions, the initiatives for such assessments might be an easy prey for the very deadlock they want to overcome, since developing countries might resist the inclusion of environmental aspects into current evaluations from the beginning.*

Unlike the aforementioned ideas, a further group of proposals does calls neither for a legal reform of the WTO nor for a change in the organization's

* In fact, developing countries have already done so in a similar discussion, namely when debating the integration of labor standards into the annual Trade Policy Reviews (Santarius et al. 2004: 45). Moreover, there has already been a first WTO-internal debate about environmental impact assessment studies. Following an earlier proposal by the Commission on Sustainable Development (CSD), the EU, Canada and the United States announced in 1999 plans to perform environmental impact assessments. However, they could not convince further WTO parties to join in (ibid.: 36ff.).

institutional structure. In fact, they do not conceive of the WTO as the adequate arena at all for the strengthening of environmental interests. Rather, they argue that any further consideration or even inclusion of green rules and standards might prove counterproductive, since, this way, the WTO would keep expanding its jurisdiction and mandate at the expense of environmental regimes. For instance, via savings clauses for specific standards, the organization would assume the right to determine which regulations are trade restricting in the first place (only explicitly or also potentially trade-related measures); what is more, the WTO would also have the privilege to define which of these regulations are legitimate, and which ones are not [16].

As a counterweight to this "big brother" mentality, some observers suggest boosting the effectiveness of MEAs from within, i.e., independent from the mercy of the WTO and its parties. In this regard, it deems quintessential to strengthen the judicial side of MEAs, i.e., to come up with proper agencies for case-by-case decisions, thereby hampering further takeovers by the DSB. For instance, in light of prospective clashes with international trade regulations, Chambers [26] proposes the establishment of a strong dispute settlement system for the global climate regime. Likewise, Pfahl [32] makes a case for the International Court of Justice and the UN's International Law Commission as the most suitable institutions to decide upon disputes between WTO and MEAs.

Meanwhile, UNEP "should strengthen its technical role in order to influence the policy debate", e.g., through a clearinghouse "for identifying successful examples of MEA trade-measure implementation" [32]. A plethora of more audacious proposals propagates the establishment of a World Environment Organization or an even more ambitious World Environment and Development Organization [54]. The potential functions of the new organization might range from a UN specialized agency which harmonizes existing MEAs [55] to a direct competitor of other global institutions including the WTO [56].* Finally, some proposals focus less on the institutional design and more on the membership of MEAs, suggesting stronger efforts to integrate the global South. In this regard, regional environmental agreements could provide an effective stepping-stone; by dealing with ecological issues particularly relevant for countries in a certain area of the world, these agreements could help raise the environmental awareness in those nations [12].

Negotiating Essentials

Negotiating Essentials

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