The following excerpts were taken from a law review article that appeared in the June 2005 issue of the UCLA Journal of Environmental Law & Policy. (See Brian K. Myers Trade Measures and the Environment: Can the WTO and UNCLOS be Reconciled?, 25 UCLA J. of Env'l Law & Policy (June 2005) accessible at:
"Traditionally, disputes concerning trade measures were handled at the WTO--often with disappointing results for environmentalists. With the advent of UNCLOS, however, an alternative forum was created for hearing such disputes--at least as they pertain to UNCLOS provisions. In this context, it is possible that a nation might use trade measures that are permissible under UNCLOS but which violate WTO rules."
..."Free trade advocates have correctly pointed out that WTO rules impose virtually no restrictions on the ability of a nation to protect its own environment against damage caused by either domestic production or domestically produced or imported products. (35) The problem arises when nations use trade restrictions as a means of unilateral action to impose environmental regulations on other countries. (36) Such measures usually run afoul of the WTO Agreement."
..."With respect to the oceans, for example, some nations have opted for strict environmental standards within their territorial waters and Exclusive Economic Zones (EEZs). On the other hand, developing nations--who control 90 percent of the world's coastal waters--may not share the same zeal for environmental protection. (38) Developing nations complain that environmental regulations amount to a cynical effort by rich countries to thwart the comparative economic advantage of poor countries. (39)".
..."It is difficult to understate the global environmental importance of UNCLOS. When Secretary of State Warren Christopher submitted UNCLOS to President Clinton, Christopher described it as the "strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time." (96) .
"...Perhaps most environmentally significant is the fact that 59 of the 320 provisions in UNCLOS relate directly to environmental protection. (98) As a result, the fundamental aims of UNCLOS can safely be said to differ from those of the WTO. While the WTO is concerned foremost with the promotion of free trade and the removal of trade barriers, UNCLOS contains numerous provisions whose purpose is environmental protection of the oceans."
[See also J. William Middendorf, II and Lawrence A. Kogan, The ‘LOST 45’ UN Environmental Restrictions on US Sovereignty, Institute for Trade, Standards and Sustainable Development (Sept. 2007) at: http://www.coin.dk/default.asp?aid=1370 ].
...The provisional orders issued by the ITLOS were justified--albeit indirectly--on application of the precautionary principle in international law. The ITLOS noted that all three parties had acknowledged that southern bluefin tuna stocks were at historic lows. (121) Moreover, there was major disagreement between the parties as to scientific data and the impacts of the experimental fishing program on bluefin tuna stocks. (122) In light of these factors, the ITLOS concluded that the precautionary principle was justified--at least until the case could be decided on the merits and the underlying scientific uncertainties resolved. (123)".
"...Vienna Convention on the Law of Treaties (Vienna
"...U.S. finally ratified UNCLOS in 2005 and UNCLOS obligations therefore superseded pre-existing U.S.
"...Putting aside the issue of treaty competition, it is also worth considering which forum is more appropriate for settling our hypothetical dispute. In a comprehensive study, McLaughlin provides a chart summarizing the salient differences between the dispute resolution systems of UNCLOS and the WTO. (152) With respect to using trade measures to protect marine life, he concludes that UNCLOS provides a more accommodating forum. UNCLOS provisions regarding non-compulsory negotiations, choice of forum, tribunal composition, applicable law, burden of proof, and implementation of decisions are all more favourable to Members than comparable WTO provisions. (153) For example, a nation that uses trade measures to protect the environment has a better chance of succeeding before a UNCLOS tribunal comprised of experts in the field of maritime and environmental law, rather than a tribunal made up of trade experts at the WTO. (154) UNCLOS provisions also benefit countries seeking to improve their marine conservation practices. This is because WTO tribunals are limited to applying law as contained in relevant trade agreements; they generally do not refer to outside sources. (155) In addition, the burden of proof in a WTO proceeding will always fall on the Member seeking to employ an environmental trade restriction. Under UNCLOS, the burden of proof shifts under different circumstances and may actually fall to the party accused of using inadequate environmental measures. (156) Finally, with respect to the implementation of a tribunal's decision, the losing party in a UNCLOS dispute often has far more flexibility, versus WTO rules, in deciding how to bring their procedures into compliance. (157)"
"...the WTO Secretariat issued a report entitled "Trade and Environment" on 14 October 1999. (171)...the Report did contain a startling, if often overlooked, innovation. For the first time, the WTO explicitly recognized the importance of MEAs (175) Of the 200 or so existing MEAs, the Secretariat noted that about 20 of them had the potential to affect free trade (176) Agreements such as the Montreal Protocol for the protection of the ozone layer and the Convention on International Trade in Endangered Species (CITES) allow countries to ban or restrict trade for the purpose of environmental protection. Although these and other MEAs clearly violate WTO obligations, the Secretariat explicitly endorsed their use...MEAs are a valuable form of environmental regulation because they are by nature multilateral and tend to foster cooperation as opposed to conflict. (177) The WTO took a significant cooperative step by promising not to intervene in trade-related disputes when it is clear that an MEA governing the issue exists between the parties. "
"...Conceivably, this relegation might include UNCLOS matters or other agreements in furtherance of UNCLOS provisions. Of course, any such agreements must be precisely worded to meet Article 281 and 282 requirements if the parties hope to utilize UNCLOS dispute resolution as an alternative to the WTO."
"...Perhaps the most articulate critique of the WTO highlights the tension between basic WTO obligations and the need to protect the 'global commons,' including oceans."
"...Businesses often lobby their government to oppose environmental treaties on the grounds that they will be placed at a competitive disadvantage vis-a-vis nations that are not part of the agreement. By imposing trade measures on non-parties to the agreement, these disadvantages can be minimized. (186) As such, numerous commentators have concluded that WTO restrictions on the use of such trade measures present a serious handicap to the international community's efforts to protect the global commons. (187)
...U.S.
"...Rather than viewing the WTO as the dominant legal regime, international law suggests that WTO trade-liberalizing rules are simply lex generalis, permitting the continuation or development of other more detailed rules. (200) This approach looks remarkably similar to the "umbrella approach" of UNCLOS, which incorporates other environmental treaties within the broad scope of its obligations. (201) WTO Panels could be compelled to give credence to more specific rules dealing with the environment...The WTO is not a hermetically sealed regime incapable of considering other treaties and aspects of international law. (202) To the contrary, WTO Panels frequently refer to outside sources and customary international law when interpreting WTO agreements. (203)"
"...the WTO should not be viewed as the sole forum for dispute resolution in all trade-related disputes. (207) The near judicial monopoly that the WTO has exercised to this point is no fault of its own given the underdeveloped nature of alternative dispute resolution fora. Nevertheless, the recent proliferation of alternatives provides a unique opportunity to broaden the options available for parties seeking resolution to trade-related environmental disputes."
"...Commentators have also suggested that hitherto ignored WTO rules may actually contain untapped potential for environmental protection. (211) By drawing on rules of international law from outside the WTO, this potential could be realized. For example, the WTO often considers so-called 'non-violation' cases. These cases involve trade concessions granted by one Member to another in which the benefits that would normally accrue are nonetheless "nullified or impaired" by subsequent action. However, suppose one Member grants a trade concession to another Member--say, reduced tariffs on the importation of sardines--and the exporting Member realizes a benefit as a result. Subsequently, imagine that the granting Member begins to over-fish their waters for sardines, thus driving down the domestic price of sardines, and nullifying the benefit that the receiving country expected. The receiving country could argue that over-fishing for sardines violates UNCLOS provisions...If the case is pursued at the WTO, the Panel would need to determine whether over-fishing of sardines violates UNCLOS. Assuming that it does, the Panel would then determine whether the violation--despite being a non-WTO environmental violation--nullifies the benefit of the trade concession."
"...WTO Panels must become more accommodating to outside sources of law. Consider UNCLOS Article 293, which gives tribunals a broad mandate to 'apply this Convention and other rules of international law not incompatible with this Convention.'"
"...On a related point, the WTO must become more accepting of outside expert advice, especially in the form of amicus curiae briefs. Although the WTO has pledged to make the dispute resolution process more accessible to NGOs, such reforms have been limited. To its credit, the WTO has turned to expert advice in the form of scientific testimony."
"...A final area for consideration involves the availability of provisional measures. The WTO has never granted provisional relief in a trade dispute, let alone a dispute involving environmental issues...In such cases, relief should be available when it can be shown that irreparable harm will occur in the interim period before international cooperative agreements can be established."
...Additionally, provisional measures might be based on the precautionary principle. While debate persists over whether the precautionary principle has assumed the status of customary international law, it could eventually become a basis for provisional measures at the WTO. (219) Although the final ruling in the SBT Case was disappointing, the ITLOS established useful precedent with respect to the precautionary principle".
"...multilateralism is the fundamental trait characterizing both regimes. With respect to the WTO, significant progress has been made in expanding Article XX exceptions for environmental protection. WTO jurisprudence has been augmented by the endorsement of MEAs as a vehicle for environmental protection. While perhaps remaining deficient in the eyes of some, these developments suggest a trend toward ever greater acceptance of environmental measures".
"...UNCLOS, on the other hand, faces a different challenge. As a creature of the modern environmental movement, its numerous provisions establish its credentials as a vital component of international environmental law. The challenge for UNCLOS lies not in its attention to environmental issues, but in the meaningful implementation and enforcement of its provisions. While the "umbrella approach" of UNCLOS is commendable in its breadth, the lynchpin is the cooperation of Members under other treaties and international agreements in carrying out UNCLOS obligations. The precise relationship between these agreements and UNCLOS is unsettled, as demonstrated by the reluctance of tribunals to find jurisdiction in cases touching on both UNCLOS and outside agreements."
http://findarticles.com/p/articles/mi_hb3571/is_1_23/ai_n29237468 ; http://www.thefreelibrary.com/Trade+measures+and+the+environment:+can+the+WTO+and+UNCLOS+be...-a0143580597. This law review article provides further credible evidence concerning how U.S. UNCLOS Accession by THIS administration & THIS Congress would herald Europe's Precautionary Principle as U.S. and customary international law.
"Traditionally, disputes concerning trade measures were handled at the WTO--often with disappointing results for environmentalists. With the advent of UNCLOS, however, an alternative forum was created for hearing such disputes--at least as they pertain to UNCLOS provisions. In this context, it is possible that a nation might use trade measures that are permissible under UNCLOS but which violate WTO rules."
..."Free trade advocates have correctly pointed out that WTO rules impose virtually no restrictions on the ability of a nation to protect its own environment against damage caused by either domestic production or domestically produced or imported products. (35) The problem arises when nations use trade restrictions as a means of unilateral action to impose environmental regulations on other countries. (36) Such measures usually run afoul of the WTO Agreement."
..."With respect to the oceans, for example, some nations have opted for strict environmental standards within their territorial waters and Exclusive Economic Zones (EEZs). On the other hand, developing nations--who control 90 percent of the world's coastal waters--may not share the same zeal for environmental protection. (38) Developing nations complain that environmental regulations amount to a cynical effort by rich countries to thwart the comparative economic advantage of poor countries. (39)".
..."It is difficult to understate the global environmental importance of UNCLOS. When Secretary of State Warren Christopher submitted UNCLOS to President Clinton, Christopher described it as the "strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time." (96) .
"...Perhaps most environmentally significant is the fact that 59 of the 320 provisions in UNCLOS relate directly to environmental protection. (98) As a result, the fundamental aims of UNCLOS can safely be said to differ from those of the WTO. While the WTO is concerned foremost with the promotion of free trade and the removal of trade barriers, UNCLOS contains numerous provisions whose purpose is environmental protection of the oceans."
[See also J. William Middendorf, II and Lawrence A. Kogan, The ‘LOST 45’ UN Environmental Restrictions on US Sovereignty, Institute for Trade, Standards and Sustainable Development (Sept. 2007) at: http://www.coin.dk/default.asp?aid=1370 ].
...The provisional orders issued by the ITLOS were justified--albeit indirectly--on application of the precautionary principle in international law. The ITLOS noted that all three parties had acknowledged that southern bluefin tuna stocks were at historic lows. (121) Moreover, there was major disagreement between the parties as to scientific data and the impacts of the experimental fishing program on bluefin tuna stocks. (122) In light of these factors, the ITLOS concluded that the precautionary principle was justified--at least until the case could be decided on the merits and the underlying scientific uncertainties resolved. (123)".
"...
"...
Additionally, the established doctrine of lex specialis specifies that when two treaties conflict, the more specific treaty shall govern. In the aforementioned hypothetical, the issue at stake--preservation of marine life on the high seas--is particularly relevant to several provisions in UNCLOS, while no such provisions exist under WTO rules. Thus, it is possible to argue that UNCLOS supersedes WTO rules per lex specialis. [But?] Similarly, regardless of which tribunal hears the matter, either a WTO Panel or UNCLOS tribunal may apply the rules in the MEA to the extent they are specific to the conflict.
"...Putting aside the issue of treaty competition, it is also worth considering which forum is more appropriate for settling our hypothetical dispute. In a comprehensive study, McLaughlin provides a chart summarizing the salient differences between the dispute resolution systems of UNCLOS and the WTO. (152) With respect to using trade measures to protect marine life, he concludes that UNCLOS provides a more accommodating forum. UNCLOS provisions regarding non-compulsory negotiations, choice of forum, tribunal composition, applicable law, burden of proof, and implementation of decisions are all more favourable to Members than comparable WTO provisions. (153) For example, a nation that uses trade measures to protect the environment has a better chance of succeeding before a UNCLOS tribunal comprised of experts in the field of maritime and environmental law, rather than a tribunal made up of trade experts at the WTO. (154) UNCLOS provisions also benefit countries seeking to improve their marine conservation practices. This is because WTO tribunals are limited to applying law as contained in relevant trade agreements; they generally do not refer to outside sources. (155) In addition, the burden of proof in a WTO proceeding will always fall on the Member seeking to employ an environmental trade restriction. Under UNCLOS, the burden of proof shifts under different circumstances and may actually fall to the party accused of using inadequate environmental measures. (156) Finally, with respect to the implementation of a tribunal's decision, the losing party in a UNCLOS dispute often has far more flexibility, versus WTO rules, in deciding how to bring their procedures into compliance. (157)"
"...the WTO Secretariat issued a report entitled "Trade and Environment" on 14 October 1999. (171)...the Report did contain a startling, if often overlooked, innovation. For the first time, the WTO explicitly recognized the importance of MEAs (175) Of the 200 or so existing MEAs, the Secretariat noted that about 20 of them had the potential to affect free trade (176) Agreements such as the Montreal Protocol for the protection of the ozone layer and the Convention on International Trade in Endangered Species (CITES) allow countries to ban or restrict trade for the purpose of environmental protection. Although these and other MEAs clearly violate WTO obligations, the Secretariat explicitly endorsed their use...MEAs are a valuable form of environmental regulation because they are by nature multilateral and tend to foster cooperation as opposed to conflict. (177) The WTO took a significant cooperative step by promising not to intervene in trade-related disputes when it is clear that an MEA governing the issue exists between the parties. "
"...Conceivably, this relegation might include UNCLOS matters or other agreements in furtherance of UNCLOS provisions. Of course, any such agreements must be precisely worded to meet Article 281 and 282 requirements if the parties hope to utilize UNCLOS dispute resolution as an alternative to the WTO."
"...Perhaps the most articulate critique of the WTO highlights the tension between basic WTO obligations and the need to protect the 'global commons,' including oceans."
"...Businesses often lobby their government to oppose environmental treaties on the grounds that they will be placed at a competitive disadvantage vis-a-vis nations that are not part of the agreement. By imposing trade measures on non-parties to the agreement, these disadvantages can be minimized. (186) As such, numerous commentators have concluded that WTO restrictions on the use of such trade measures present a serious handicap to the international community's efforts to protect the global commons. (187)
...
"...Rather than viewing the WTO as the dominant legal regime, international law suggests that WTO trade-liberalizing rules are simply lex generalis, permitting the continuation or development of other more detailed rules. (200) This approach looks remarkably similar to the "umbrella approach" of UNCLOS, which incorporates other environmental treaties within the broad scope of its obligations. (201) WTO Panels could be compelled to give credence to more specific rules dealing with the environment...The WTO is not a hermetically sealed regime incapable of considering other treaties and aspects of international law. (202) To the contrary, WTO Panels frequently refer to outside sources and customary international law when interpreting WTO agreements. (203)"
"...the WTO should not be viewed as the sole forum for dispute resolution in all trade-related disputes. (207) The near judicial monopoly that the WTO has exercised to this point is no fault of its own given the underdeveloped nature of alternative dispute resolution fora. Nevertheless, the recent proliferation of alternatives provides a unique opportunity to broaden the options available for parties seeking resolution to trade-related environmental disputes."
"...Commentators have also suggested that hitherto ignored WTO rules may actually contain untapped potential for environmental protection. (211) By drawing on rules of international law from outside the WTO, this potential could be realized. For example, the WTO often considers so-called 'non-violation' cases. These cases involve trade concessions granted by one Member to another in which the benefits that would normally accrue are nonetheless "nullified or impaired" by subsequent action. However, suppose one Member grants a trade concession to another Member--say, reduced tariffs on the importation of sardines--and the exporting Member realizes a benefit as a result. Subsequently, imagine that the granting Member begins to over-fish their waters for sardines, thus driving down the domestic price of sardines, and nullifying the benefit that the receiving country expected. The receiving country could argue that over-fishing for sardines violates UNCLOS provisions...If the case is pursued at the WTO, the Panel would need to determine whether over-fishing of sardines violates UNCLOS. Assuming that it does, the Panel would then determine whether the violation--despite being a non-WTO environmental violation--nullifies the benefit of the trade concession."
"...WTO Panels must become more accommodating to outside sources of law. Consider UNCLOS Article 293, which gives tribunals a broad mandate to 'apply this Convention and other rules of international law not incompatible with this Convention.'"
"...On a related point, the WTO must become more accepting of outside expert advice, especially in the form of amicus curiae briefs. Although the WTO has pledged to make the dispute resolution process more accessible to NGOs, such reforms have been limited. To its credit, the WTO has turned to expert advice in the form of scientific testimony."
"...A final area for consideration involves the availability of provisional measures. The WTO has never granted provisional relief in a trade dispute, let alone a dispute involving environmental issues...In such cases, relief should be available when it can be shown that irreparable harm will occur in the interim period before international cooperative agreements can be established."
...Additionally, provisional measures might be based on the precautionary principle. While debate persists over whether the precautionary principle has assumed the status of customary international law, it could eventually become a basis for provisional measures at the WTO. (219) Although the final ruling in the SBT Case was disappointing, the ITLOS established useful precedent with respect to the precautionary principle".
"...multilateralism is the fundamental trait characterizing both regimes. With respect to the WTO, significant progress has been made in expanding Article XX exceptions for environmental protection. WTO jurisprudence has been augmented by the endorsement of MEAs as a vehicle for environmental protection. While perhaps remaining deficient in the eyes of some, these developments suggest a trend toward ever greater acceptance of environmental measures".
"...UNCLOS, on the other hand, faces a different challenge. As a creature of the modern environmental movement, its numerous provisions establish its credentials as a vital component of international environmental law. The challenge for UNCLOS lies not in its attention to environmental issues, but in the meaningful implementation and enforcement of its provisions. While the "umbrella approach" of UNCLOS is commendable in its breadth, the lynchpin is the cooperation of Members under other treaties and international agreements in carrying out UNCLOS obligations. The precise relationship between these agreements and UNCLOS is unsettled, as demonstrated by the reluctance of tribunals to find jurisdiction in cases touching on both UNCLOS and outside agreements."
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