The Nature and Function of the Necessity and Proportionality Principles in the Trade and Environment Context

• DOI: http://doi.org/10.1111/1467-9388.00088
• Author: Massimiliano Montini
• Date: 01 July 1997
• Published date: 01 July 1997

Volume 6 Issue 2 1997 Necessity and Proportionality Principles

Massimiliano Montini

give rise to international law questions as they require

Introduction

the Parties to apply bans against states that have not

adopted the Montreal Protocol, but are Parties to the

The controversial relationship between trade and General Agreement on Tariffs and Trade (GATT). No

environment has been extensively and comprehensively trade measure taken pursuant to a MEA has ever been

debated in various fora over the last few years.

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None- challenged under the GATT rules, and therefore no

theless, this relationship is basically still unresolved. GATT Dispute Settlement Panel has ever decided on this

UNCED gave a new impetus to the efforts aimed at recon- question. It is nonetheless clear that such trade meas-

ciling trade and environment at the international level. ures constitute a restriction to trade for which a justif‌i-

Principle 4 of the 1992 Rio Declaration calls for the inte- cation must be sought under the GATT provisions.

gration of environmental considerations into trade poli-

cies, aff‌irming that ‘in order to achieve sustainable devel- Notwithstanding the current trend towards a multilateral

opment environmental protection shall constitute an approach, there are still many circumstances where one

integral part of the development process and cannot be or more states may adopt unilateral environmental mea-

considered in isolation from it’.

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Agenda 21 further states sures, outside or beyond the context of an international

that trade and environment ought to be mutually sup- agreement, which may pose an undue burden on inter-

portive in order to achieve both environment and devel- national trade. Such unilateral measures include pro-

opment goals.

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duct-labelling requirements, import bans or quotas, and

other trade related environmental measures (TREMs),

Environmental priorities tend nowadays to be trans- which limit, directly or indirectly, international trade.

boundary or global problems and therefore can be bet-

ter tackled at the international rather than at the These unilateral measures should be assessed in the

national level. This is recognized by Principle 12 of the light of the global or regional agreements which govern

Rio Declaration, which states that: international trade, such as the GATT, the North Amer-

unilateral actions to deal with environmental problems should

ican Free Trade Agreement (NAFTA) and the European

be avoided and environmental measures addressing transbound-

Community Treaty (EC Treaty). These treaties present

ary or global environmental problems should, as far as possible,

both differences and similarities in their structure and

be based on an international consensus.

in the way they operate. Moreover, the development of

In recent years several Multilateral Environmental Agree- national or regional environmental legislation limiting or

ments (MEAs) have been adopted to deal with trans- restricting the free f‌low of international trade has

boundary and global environmental problems. Some of resulted in recent years in similar controversies in these

them provide for the use of trade measures for environ- various fora.

mental purposes. For example, the 1987 Montreal Proto-

col requires Parties to ban the import and export of con- This article analyzes the approach towards environmen-

tal unilateralism in these different legislative contextstrolled substances from non-parties and (following

amendments adopted in 1991 and 1992) to ban the i.e., the GATT/WTO, the US federal system, the NAFTA

and the EC, and highlights the similarities, rather thanimport from non-parties of certain products which con-

tain controlled substances.

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Trade provisions like these the differences, in the principles adopted by the courts

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