Date01 November 2014
AuthorHarro Asselt
Published date01 November 2014
The intricate and multifaceted relationship between a
wide array of environmental problems and the institu-
tions, laws and policies created to promote trade liber-
alization has been on the forefront of scholarly debate
in international (environmental) law for some time
now.1Indeed, the very first issue of RECIEL, published
in 1992, contained various short articles offering
insights into this relationship, discussing environmen-
tal issues ranging from endangered species to ozone-
depleting and other chemical substances. That issue
also focused specifically on the North American Free
Trade Agreement (NAFTA), which at the time was still
being negotiated and was drawing the attention of
many analysts. Looming in the background were the
ongoing trade negotiations in the context of the
Uruguay Round. The General Agreement on Tariffs and
Trade (GATT) had already been in existence since 1947,
but its gradually expanding membership and coverage
had led to calls to establish a new international organi-
zation (proposals to establish an International Trade
Organization in 1948 had failed due to Congressional
opposition in the United States). At the conclusion of
the Uruguay Round in Marrakesh in 1994, this led to an
agreement to establish the World Trade Organization
(WTO), which came into being on 1 January 1995.
Over the years, the role of the WTO as either an
impediment to, or a catalyst for, environmental pro-
tection has been fiercely debated. This debate was trig-
gered mainly by several high-profile cases involving
the use of unilateral measures aimed at extraterritorial
protection of the environment. While some of these
cases actually preceded the creation of the organiza-
tion – notably the tuna-dolphin cases in the early
1990s – they put the spotlight on the WTO’s relation-
ship with environmental law and policy. The attention
for the trade-environment nexus was also a sign of the
times. Unlike the 1947 GATT, the WTO was created
following some key developments in international
environmental law, including the conclusion of several
multilateral treaties (such as the Montreal Protocol,
the United Nations Framework Convention on Climate
Change (UNFCCC) and the Convention on Biological
Diversity), and the adoption of the Rio Declaration in
1992, which included a principle dealing on the trade-
environment relationship.2This shift was in part
reflected in the preamble to the Agreement establish-
ing the WTO, which includes a specific reference to
the objective of sustainable development.
The case law developed by the WTO’s dispute settle-
ment body drew different reactions. Some cases were
hailed as an important victory for the environment
(notably US-Shrimp), but criticized from the perspec-
tive of developing countries;3yet others were heavily
criticized because of a lack of engagement with multi-
lateral environmental agreements (e.g., EC-Biotech).4
What has become clear in the past two decades is that
‘trade and environment’ disputes are not straightfor-
ward. Whereas initial cases may have focused on rela-
tively ‘simple’ measures aimed at the conservation of
specific species (e.g., dolphins, turtles), in recent years
they have come to include complex measures aimed at
achieving multiple objectives, such as measures seeking
to ensure energy security by promoting the share of
low-carbon energy sources in the energy mix (Canada-
Renewable Energy), as well as measures reflecting the
moral concerns of citizens that simultaneously promote
animal welfare (EC-Seals). Moreover, the relevant
bodies of trade law invoked in disputes have increased.
While disputes initially focused on the GATT (particu-
larly its main non-discrimination provisions and its
environmental exceptions), they have come to involve a
range of other agreements adopted under the auspices
of the WTO, such as the Agreement on Technical Bar-
riers to Trade (TBT Agreement), the Agreement on
Sanitary and Phytosanitary Measures and the Agree-
ment on Subsidies and Countervailing Measures (SCM
Agreement). ‘Environmental’ disputes, in other words,
have become heterogeneous, challenging any straight-
forward assessment of the WTO’s progress and limita-
tions in this area.
The role of the WTO in promoting or hampering envi-
ronmental protection further needs to be seen in light of
1See, e.g., D.E. Esty, Greening the GATT: Trade, Environment and
the Future (Institute for International Economics, 1994); T.J.
Schoenbaum, ‘International Trade and Protection of the Environment:
The Continuing Search for Reconciliation’, 91:2 American Journal of
International Law (1997), 268; R. Howse, ‘The Appellate Body
Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the
Trade and Environment Debate’, 27:2 Columbia Journal of Environ-
mental Law (2002), 489; E. Vranes, Trade and the Environment.
Fundamental Issues in International and WTO Law (Oxford University
Press, 2009).
2Rio Declaration on Environment and Development, in: Report of the
UN Conference on Environment and Development (UN Doc.
A/CONF.151/26/Rev.1 (Vol. I), 14 June 1992), Annex, Principle 12.
3For a positive analysis of US-Shrimp, see R. Howse, n. 1 above; for
a critique see, e.g., F. Biermann, ‘The Rising Tide of Green
Unilateralism in World Trade Law: Options for Reconciling the Emerg-
ing North-South Conf‌lict’, 35:3 Journal of World Trade (2001), 421;
B.S. Chimni, ‘WTO and Environment: Legitimisation of Unilateral
Trade Sanctions’, 37:2 Economic and Political Weekly (2002), 133.
4See, e.g., M.A. Young, ‘The WTO’s Use of Relevant Rules of Inter-
national Law: An Analysis of the Biotech Case’, 56:4 International and
Comparative Law Quarterly (2007), 907.
Review of European Community & International Environmental Law
RECIEL 23 (3) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12100
© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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