Editorial

• Date: 01 November 2014
• Author: Harro Asselt
• Published date: 01 November 2014
• DOI: http://doi.org/10.1111/reel.12100

Editorial

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.

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Review of European Community & International Environmental Law

RECIEL 23 (3) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12100

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