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The in which they are released. The

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The
field of International law is the only one in which environmental previsions
could work properly, in the global way that the earth needs. Environment has no
nationality; hence, environment protection cannot be put in place by nations
individually. All the national regulation risks to be made useless by a
different regulation of a neighbour country. Ergo, it can be stated that one of
the goals of the international community must be the environment protection.
Problems arise if we think that the main goal of international concern trade,
trade law and the lowering of trade barriers.

Trade
must not be identified as the worst enemy of environment, as this paper will
try to analyse and to illustrate; (but from here it is quite clear to
understand why the former aim it is so limited by the development of the latter).
The purpose of this work will be to show in which way, and how much,
environmental protection and trade law are interconnected, with the explanation
of some basics principles of policy economics, and describing in which way the
international organizations are involved. Moreover, it will be made the point
about international treaties concerning both trade and environment, to analyse
the different possible approaches to the issue between this two areas of law,
and, in the end, it will be introduced some relevant judicial cases.

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Every goods production
and utilization need energy and emits waste. It is mainly for this reason that
the relationship between trade and environment has always been turbulent (find
a synonym); nowadays, during the mass-production and consumerism era the
implication cannot be underestimated anymore. Indeed, Energy needed by goods production/utilization
usually derives from carbon-fossil sources, which implies extraction that
endanger the environment, primarily on a local level; moreover, wastes emitted
by that kind of sources are highly polluting, and not only for the area in
which they are released. The latter consequence, which implies diffusion not
circumscribed at the national level only, points out how national’s
legislations can do very little, and this is the reason why the larger part of
environmental regulations has been set up in international field.

However, the majority of
international agreements has the commerce issues as central object, (considering
that the first historical target of International Community is to low trade
barriers and to establish a free-trade system as global as possible). Hence, they
end up to regulate environment protection as a side-effect exclusively.

The GATT (General
Agreement on Tariffs and Trade), for instance, was an agreement signed in 1947,
that took effect from the 1st January 1948, and in which 23
signatory Countries settled to enter into a ” reciprocal and mutually
advantageous arrangements directed to the substantial reduction of tariffs and
other barriers to trade and to the elimination of discriminatory treatment in
international commerce” (fn preamble gatt). Even if such central purpose is not
properly about the environment, following the economics theory that rules the
trade, the consequences resulting from it appear as evident.

To understand which have
been the environmental consequences of the GATT, it is necessary to take into
account the economic theory undertaken the trade, and its main principles.

We can begin from the
question: (RCT) how people makes choices? If John have to choose between two different paths to reach Smith why he will takes the shorter one?
He will, according to the Rational Choice Theory, because that choice has a
higher pay-off. Choices are guided by profit searching, and the best profit is,
in this example, the saving of time. In our society, profits are usually
identified in money value, so every choice, in the economics policy field, is
put in a costs/benefits analysis.

Environment protection implies
the utilization of sources, which have often high prices of availability and maintenance,
and in costs/profit graphic costs must be cut.

Moreover, the Comparative
Advantages Theory (which tells us that both trading partners gain specializing
in the goods that they can produce more efficiently) does not consider the
environment externalities made up by production or consumption of goods. For
instance, a Country, that decides to import goods at lower price than the
national one, exclusively considers producer’s and consumer’s externalities. Precisely,
consumer’s interest is to have more goods available at less price, and producer
needs to keep going selling the same quantities of items, to maintain the price
high. Thus, the Country will decide ( cfr RCT undoubtedly for the choice that
guarantees the highest pay off) regardless of the environment externalities. Even
if the goods were specific items with evident environment externalities, such
as electric cars or palm oil, these would be ignored in the C.A. Theory. As
evidence of such international behaviour, it is possible to quote the famous Restriction on Imports of Tuna case (so
called Tuna-Dolphin case, which will
be analyse later in this paper) between United States and Mexico. (cerca)

The 1st of
January 1995, the GATT was substituted by the World Trade Organization; the WTO
has assumed, in the context of the regulation of world trade, the role
previously held by the GATT: indeed, the former has implemented the agreements
and conventions adopted (among the most important the GATT itself, the GATS1 and the TRIPS2) with the purpose of
extending them; unlike the GATT, which did not have a proper institutionalized
structure, instead the WTO provides a structure comparable to those of similar
international organizations3.

The general objective of
the WTO is to reach the complete abolishment of the tariff barriers to
international trade, (through some steps reduction operations); differently
from what happened in the GATT, subject to the WTO’s legislation, are not only commercial
goods, but services and intellectual property also.

All members of the WTO
are required to guarantee the principle of the “most favoured nation”
status, to the each other of the members of the organization: the conditions
applied to the “most favoured” ( the ones applied to the least number of
restrictions) has to be applied (except for some minor exceptions) to all the
other states.

 

Hence, the basic
principles of economics, showed before, and the principles that rule the
international (economic) community, make understandable how much, trade, namely
trade laws and theory, has important consequences in respect of environment.
(citare casi)

 

However, the decisions
concerning such consequences taken under the ‘WTO regime’ move some steps
forward from the ones taken under the ‘GATT regime’. Namely, it is possible to
find different orientation in four cases, happened really close to each other:
before the WTO, Tuna-dolphin case I
and II (1991-92); after WTO, Standards
for Reformulated and Conventional Gasoline case and Import Prohibition of Certain Shrimp and Shrimp Products. The next
paragraph will focus on the first (tuna-dolphin)
and the last case (so called shrimp-turtles),
trying to underline in which way such orientations have changed.

In both of the cases
considered, a central role was covered by the article XX of the GATT.  Such provision regulates the general
exception to the principles of the “most favourite nation”, enumerating a
series of situations in which the states are allowed to implement specific
measure, with the aim of discourage (or limit) the importations of specific
kinds of goods; measures, for instance, are the ones “necessary to protect
public morals4”,
or “relating
to the importations or exportations of gold or silver5”, or  “necessary to protect human, animal or plant
life or health6”.
The latter is, obviously, very important in the relation between trade and
environment, and it was for a long debated into the international doctrine and
Jurisprudence. For instance, in the tuna-dolphin
case, the exceptional circumstance was not considered implemented, whereas in
the shrimp-turtle case it was,
although the cases were almost identical.

Both of these cases
concern about the limitations to the importation of some goods, that is tunas
and shrimps, because of environmental damage caused by their “production”, in
this case by their fishery technique. Indeed, in the first example, the United
States put an embargo regarding the yellow-fin tuna coming from Mexico and
Venezuela (and all the intermediary countries), basing it on the Marine Mammal
Protection Act (nota) , because of the dolphin-killer fishery technique adopted
by such States. In the second case, remarkably similar to the previous one, the
U.S. banned shrimps’ importation from such Countries whom fishery technique
standards were below the standards fixed in the 1989 Public Law 101-162,
Section 609. Hence, either the former and the latter concerned a unilateral
measure, taken to protect the environment, precisely the animals’ life. Such
different interpretation given to two similar situation evidence a mutation of
approach to environmental issues by the International Organization, before the
GATT and now the WTO, that rules the international trade.(sviluppare)

 

The previous paragraph
has analysed how some unilateral act that has the environment as main object,
interact, and conflict, with the rules of international law but the main
environmental law provisions are contained in Multilateral Environmental
Agreements (MEAs).

There are about 20 MEAs7 containing provisions that
limit the circulation of goods. Such limitations are not allowed in the WTO
policy, precisely they could be perceived as against the “most favourite
nation” principle. The Chile-Swordfish8
case, for instance, could be a good example to show the problems related
with the trade’s consequences of MEAs. Such case, whose judgment in front of
the Dispute Settlement Body (DSB) was interrupted, pointed out the risks of
interferences between Multilateral Environmental Agreements and WTO. Some WTO
Members have expressed the fear that MEA-related disputes could be brought to
the WTO dispute settlement system. Whereas disputes between two parties to an
MEA, who are both WTO Members, would most likely be settled in the MEA,
disputes between an MEA party and a non-party (both of whom are WTO Members) would
most probably come to the WTO since the non-party would not have access to the
dispute settlement provisions of the MEA. They have argued that the WTO should
not wait until it is asked to resolve an MEA-related dispute and a panel is
asked to opine on the relationship between the WTO and MEAs. It is WTO Members
that should themselves, through negotiations, resolve the issue.

1 gats

2 trips

3 The
History and Future of the World Trade Organization, §14, Craig VanGrasstek,
2013, WTO publications

4 Gatt
art xx a)

5 Ibid
c)

6
Ibid c)

7 WTO website

8
WTO, DS193: Chile — Measures affecting the Transit and Importing of
Swordfish

 

x

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