Information revelation and structural supremacy: The World Trade Organization’s incorporation of environmental policy

Abstract

The international trade regime offers various instruments by which states can pursue environmental policies, even at the expense of freer trade. Why - and what are the implications? This article traces environmental instruments to pressures on governments when the World Trade Organization (WTO) was designed in the early 1990s: environment-related trade disputes were on the rise, environmentalists were concerned even with regional trade agreements, and countries from the North and the South clashed over the possibility of green-protectionism. Today, WTO-permissible environmental instruments share key features: 1) information-revealing conditions compel states to divulge private information in order to maintain trade-restricting environmental measures, and 2) that information is funneled through the trade regime’s formal dispute settlement mechanism, endowing WTO rules and officials with structural supremacy over areas of international law that lack such mechanisms of their own. An illustration from the WTO’s Sanitary and Phytosanitary (SPS) Agreement shows how this works in practice, putting trade law experts in the delicate position of adjudicating in matters beyond their area of expertise. Examining this advances knowledge in political science, law, and policy: about dispute settlement, institutional design, and information-provision in international organizations.