The Basel Convention Cites and the Montreal Protocol Direct Import Restrictions

All three regimes include TREMS (trade-related environmental measures) which collide with the MFN principle "by banning the import of various substances on

* Roughly over the last ten years, the fragmentation of international environmental law has been attracting the attention of scholars from various disciplines, with many of them focusing on the overlaps with trade agreements (e.g., Bernauer and Ruloff 1999; Moltke 1996; Neumann 2002; Pauwelyn 2003; Stokke 2001; Young 1996). Two encompassing and comparative research projects about the interplay of international trade and environment institutions are: first, the Institutional Interaction Project (Oberthür and Gehring 2006a); and second, the ongoing Institutional Dimensions of Global Environmental Change (IDGEC) project (cf. King 1997; Young 2002, 2002a).

Moreover, it is not only scientists which grow aware of the increasing overlap between trade and environmental agreements, but also the negotiators of these very agreements. Chambers (2001:85ff.) observes a tendency towards implicit or explicit recognition of such overlaps in the text of respective treaties, e.g., in MEAs such as the Convention on Biological Diversity (CBD, Article 22) and the United Nations Framework Convention on Climate Change (FCCC, Articles 3[5] and 4[2e]), but also in trade law, e.g., in NAFTA Article 104 (granting three MEAs prevalence in case of conflict), the preamble of the WTO Agreement or GATT Article XX on general exemptions.

t In two more recent documents, the CTE has narrowed its focus down to 14 agreements, namely: International Plant Protection Convention, ICCAT, CITES, CCAMLR, Montreal Protocol, Basel Convention, CBD, Cartagena Protocol on Biosafety, UNFCCC, Kyoto Protocol, International Tropical Timber Agreement, UN Fish Stocks Agreement, Rotterdam Convention, and Stockholm Convention on Persistent Organic Pollutants (Docs. WT/CTE/W/160/Rev.1, 14 June 2001, and WT/CTE/W/160/Rev.2, 25 April 2003).

the basis of the status of the country of origin (e.g., countries that are not Parties to the MEA, Parties to the MEA that fall into particular categories, and Parties not in compliance with the MEA)" [33].

In its Articles III, IV and V, the Convention on International Trade in Endangered Species (CITES) requires the "prior grant and presentation of an export permit" for the export of any specimen of a species included in the appendices of the convention, no matter whether the importing country is party or non-party.* Likewise, in its Article 7, the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal demands notification of importing countries, no matter if such wastes are traded from a party to a non-party or vice versa.f In addition, the 1995 Ban Amendment to the Basel Convention, which is one single ratification short of entering into force, prohibits exports from OECD to non-OECD countries for final deposit.*

Of the three mentioned regimes, the Montreal Protocol to the 1985 Vienna Convention for the Protection of the Ozone Layer presents the most interesting case, since its negotiators explicitly anticipated a potential conflict with the GATT. Article 4 of the protocol deals with the "Control of trade with non-parties"; it obliges each party to ban the import and export of the controlled substances in the different annexes of the Protocol from or to "any State not party to this Protocol". These substances include ozone-depleting substances (ODS) and products containing ODSJ However, import bans were not extended to goods produced with the use of ODS into the Protocol, because such a rule seemed hardly applicable and might have deterred potential signatories. According to statements by some of the protocol's negotiators, this decision was not primarily motivated by the desire to avoid a legal collision with the GATT [33,23]. Nevertheless,

* More precisely, the three appendices differentiate between different levels of protection and subsequent measures, namely: permits for both import and export (Appendix I), only export permits (Appendix II), and permits by countries which have previously acknowledged the need to protect the corresponding species (Appendix III). CITES, which entered into force in July 1975, has been strongly supported by the U.S.A. which advocated the cooperation with the initiator, the World Conservation Union (then: International Union for Conservation of Nature [IUCN]). Despite its regulations, each year between $20 billion and $50 billion specimen are traded, about a quarter of them illegally.

t Originally, some African countries were against the convention, asking for more intensive restrictions, similar to those adopted two years later in the 1991 Bamako Convention, which nearly banned exports of hazardous wastes to Africa altogether. On the other hand, the U.S. (no member until present) had reservations concerning the ratio of municipal waste to hazardous waste. This criticism notwithstanding, the Basel Convention entered into force on 5 May 1992 ( [8 May 2006]).

* By May 2006, the Ban Amendment had been ratified by 61 countries. The 1999 Liability Protocol to the Convention has been facing more lack of support (only 7 parties as of May 2006; ratification by 20 parties needed).

^ Furthermore, it grants developing countries a special status (Article 5: "Special situation of developing countries"), entitling them "to delay for 10 years" the compliance with the control measures, i.e., standards and phase-out dates under Article 2.

compatibility with international trade law was a carefully-regarded issue when drafting the protocol: parties agreed on the establishment of an Ad Hoc Working Group of Legal and Technical Experts which should detect and prevent potential collisions with GATT rules. Surprisingly though, the working group did not see any need for immediate action such as modifications of the draft text [34].* Chambers [26] explains this finding with the fact that, at the time, the issue of compatibility in international environmental politics "was not the focus of as much concern as it is today". Indeed, the same question was interpreted quite differently a few years later, i.e., after the establishment of the WTO: the WTO Secretariat voiced clear opposition to the Montreal Protocol's trade restrictions, fearing they could serve as a role model for future MEAs. In this spirit, the CTE "opted not to welcome their replication in an emissions-trading scheme" [35].

A common property of the three named MEAs is the range of their jurisdiction, since they are all operating on a global level and display a nearly universal membership. This feature might well prevent these MEAs from being challenged before the WTO dispute settlement system, since party vs. non-party constellations should be rare. Comparably, regional environmental regimes with similar trade restrictions might be more prone to such a challenge. Such regional MEAs which collide with WTO law are the International Commission for the Conservation of Atlantic Tunas (ICCAT) and the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). Both include import bans (based on PPMs) which—just like in the cases of CITES, the Basel Convention, and the Montreal Protocol—contradict the GATT's MFN principle [36].

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