International Affairs · Law

Environmental Protection or Trade Sovereignty – Can the WTO pick Environmental Concerns over Trade Protection?

The expansion of international trade and globalisation has deepened the relationship between  trade and environmental protection. The first time this nexus got international attention was in 1991 when the United States of America banned imports of tuna from Mexico because Mexico had not taken steps recommended by the US to reduce the number of dolphins killed each year due to tuna fishing. Even though the case was “settled” outside of  the WTO, in response to Mexico’s formal complaint, a GATT panel submitted a report with  its conclusions in August 1991.2 Even though the panel affirmed the WTO’s role in environmental protection, it ruled in favour of Mexico because of the “unilateral” solution that was adopted by the US. When dealing with international trade, “multilaterality” is possibly the most important element adjudicating trade-related conflicts. Is it then possible that the WTO rule in favour of the “environment” whenever there emerges a conflict between trade and the environment? The 1998 case of Shrimp-Turtle remains one of the most important ones in understanding the interface between environmental protection and trade restrictive practices under international trade law. The Appellate Body of the WTO (the “AB”) submitted a report on the legality of the measure in the case of the United States – Import Prohibition of Certain Shrimp and Shrimp Products, which came to be known famously as the US Shrimp-Turtle case. The AB decided that a measure by the US (which restricted the import of shrimp and shrimp products by countries that did not have a “turtle-excluder device” in their shrimp-trawl vessels) was unilateral inter alia and therefore, trade restrictive. Accordingly, the US amended its original guidelines to include taking into account other measures that harvesting nations employ for sea-turtle preservation. Despite the changes, Malaysia challenged the revised guidelines in 2001 but the AB held that the new guidelines accommodated sufficient flexibility under the relevant GATT provision.

This case remains pertinent to climate change and environmental protection because it deals with protection of a species that is endangered and facing extinction. With more species facing extinction and the growth of international trade and globalisation, Article XX (which is the exception clause dealing with environmental and species protection under the GATT) should play a vital role in the amelioration of biodiversity loss. In the Shrimp-Turtle case, the AB acknowledged the migratory nature of turtles and accepted that a national policy such as the US measure would apply justifiably to turtles living beyond national borders. This point could be of significance in climate change mitigation policies because it establishes a nexus between a member’s domestic mitigation policy and its intended objective i.e. the protection of the atmosphere which is a global asset, not unlike the sea-turtle.30 The protection of exhaustible natural resources as well as the protection of plant and animal life within the meaning of Art. XX (b) and (g) of the GATT therefore assume remarkable relevance in the trade-environment nexus. To extend this thought, it may be said that the WTO may permit environmental measures that have extra-jurisdiction which may be drawn from the idea of the “common concern of mankind” which links international trade directly to the Climate Change.

Having said that, under the current legal regime, the World Trade Organisation remains the only body which overlooks the interplay between environmental concerns and trade restrictions; and perhaps there is a need for a separate body addressing environmental issues that may arise in international trade. The search for the perfect multilateral arrangement may delay species protection irrevocably. Simultaneously, with increasing awareness for the need for environmental protection globally, a number of policies both national and international have emerged which might restrict international trade. Novel issues such as border tax adjustments and newer environmental standards reinstate the need for such a separate forum for the equal protection of both – trade and the environment so that one may not be preferred over the other towards a detrimental outcome.

About the Author

PhotoIpshita is an alumnus of W.B. National University of Juridical Sciences (BA/LLB (Hons) – 2006) and the University of Melbourne (LLM-2013). She has more than four years of research experience in environment and resources law, forests and biodiversity and carbon finance. She is currently working as the Executive Editor at Alexis Insights.

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