The Mutual Supportiveness of Trade and Environment

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INTRODUCTION The trade and environment relationship has become a most contentious issue involving concerns, fears, misinterpretations, and, of course, a rich and rapid growing list of academic and non-academic publications. While some are afraid of attempts to veil protectionism with green arguments, others are concerned that the WTO is used to impose massive destruction of our environment. However, the typical debate about green protectionism versus reckless free-trade pollution is often a debate between the dumb and the deaf and is typically overpoliticized and-over emotionalized, based on fears from hidden agendas and other ghosts, and focusing only on potential conflicts and not on common interests. I would suggest another approach, an approach that assumes that despite seemingly insurmountable differences, there are also most important commonalities. I would argue that the states, when developing the trade and environment regimes, did not want to create conflicting, but mutually supportive rules that complement each other. In order to present this approach, I will first take a brief look at the international environment and trade regimes and then present the principle of no hierarchy, mutual supportiveness, and deference. THE SIMILARITIES AND DIFFERENCES BETWEEN THE TRADE AND ENVIRONMENT REGIMES The first international environmental treaties were bilateral, ad hoc, and limited in terms of subject matters they addressed, regions they covered, and measures they provided for. The increasing recognition of the dimensions and complexities of the environmental challenges was reflected by an evolution from bilateral to multilateral approaches. Today the international environmental regime is multifaceted; it includes numerous treaties, institutions, processes, and instruments providing sometimes for complex policies. Multilateral Environmental Agreements (MEAs) include typically general but rather weak obligations, reference to means of implementation, a compliance mechanism which is focusing rather on support than on policing, and a not very effective dispute settlement mechanism. The goal of the international environmental rules and treaties is to contribute to sustainable development through the protection of the environment. The international trade regime pursues the same overarching goal of sustainable development and well-being and the efficient use of natural resources by promoting and ensuring open and transparent markets. It similarly evolved from limited bilateral into complex multilateral approaches. The characteristics of the trade regime include clear obligations such as nondiscrimination, most favorite nation and national treatment, transparency and predictability, and prohibition of non-tariff trade measures. And while it gives only limited focus to means of implementation and support, it includes an effective dispute settlement mechanism. Thus it can be concluded that both regimes grew from limited, narrow, bilateral approaches into complex multilateral regimes and that both pursue the same overarching goal of sustainable development, either by protecting the environment as natural resource base for life and prosperity, or by ensuring open, transparent, and competitive markets. THE PRINCIPLE OF No HIERARCHY, MUTUAL SUPPORTIVENESS AND DEFERENCE Generally--unless there is a clear intention to do otherwise--different international treaties are seen as having the same legal force. With regard to trade and environment, there is no obvious reason to deviate from this general approach of no hierarchy. Moreover, as both trade and environmental regimes serve the same objective of sustainable development, they should be seen--and construed--as supporting each other. And in order to support and complement each other, each framework should remain responsible and competent for the issues falling within its primary competence, and each framework should focus on its proper tasks and expertise and pay deference to the specific competence of the other. …