The WTO Law in “the Environmental Protection Era”: challenges and development
秦天宝
【全文】
The WTO Law in “the Environmental Protection Era”: challenges and development
By Qin Tianbao*
Abstract: In “the environmental protection era”, although the WTO, the legal foundation of multilateral trading system, provides the legal and institutional ground for environmental regulation on international trade, the WTO law, esp. its basic principles, is still challenged by environmental protection. In order to adjust to the new circumstance, the WTO is looking for actively the way in innovating and developing the WTO law and has decided to initiate a new multilateral trade negotiation to “green” the WTO law.
Introduction
The World Trade Organization (WTO), as the legal and institutional foundation of multilateral trading system, is playing an active role in promoting the increase of world trade and the liberalization of global trade since its found in January 1,1995, and it is hereby regarded as the symbol of the trend of liberalization of international trade. And meanwhile, the trend of environmental protection in international communities is becoming greater and greater, and environmental protection is used as an important condition in regulating international trade and is likely to form a new kind of non-tariff barriers (NTBs) --- “the green trade barrier”. In this context, the WTO, as the legal safeguard of multilateral trading system, is inevitably challenged greatly by environmental protection. So, to harmonize environmental protection and liberal trade and to promote sustainable development are becoming a new task and the orientation of development of the WTO law.
This article attempts to address the reaction of the WTO law to environmental protection and its correspondent development. It is divided to four parts. Part I describes the legal and institutional grounds for environmental regulation on international trade in the WTO framework. Part II analyses the impacts of environmental protection on the WTO law. Part III provides some ways of “greening” the WTO law. Part IV gives a brief introduction of the latest development of the WTO law in “the environmental protection era”.
Part I The Legal and Institutional Ground for Environmental Regulation on International Trade in the WTO Framework
With the increase of trade disputes relating to environment among contracting parties of the General Agreement on Tariff and Trade (GATT) and international concerns over environmental protection, the GATT stipulates many obligations about environmental protection for the WTO and its members in the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiation with quite large space, and provides the WTO with the legal and institutional grounds for environmental regulation on international trade.
1.The Legal Grounds
Many documents in the system of the WTO law have provisions on trade and environment, which can be divided 3 categories as following.
1-1 Provisions of GATT 1994
GATT 1994, the core of the WTO law, is basically the reprint of GATT 1947. The text of GATT 1947 did not touch upon environmental issue and has not been amended in the Uruguay Round, however some Articles still are considered to be relating to the environment.
Provisions on taxes and charges imposed on imported products in Article II
Article II:2 says: “
othing in this Article shall prevent any contracting party from imposing at any time on the importation of any product: (a) a charge equivalent to an internal tax imposed consistently with the provisions of paragraph 2 of Article III in respect of the like domestic product or in respect of an article from which the imported product has been manufactured or produced in whole or in part; ．．．”.The Para. 2 of Article III is a provision on National Treatment. According to this Article, contracting parties may, not inconsistent with National Treatment, decide to impose internal taxes or charges aimed to protect the environment in light of its own environmental plan.
Provisions on quantitative restrictions on importation or exportation of products in Article XI
The Para. 1 of Article XI prohibits generally quantitative restriction on importation or exportation of products, but the Para. 2 of the same Article gives following exceptions: “ (a)
xport prohibitions or restrictions temporarily applied to prevent or relief critical shortages of foodstuffs or other products essential to the exporting contracting party; (b) Import and export prohibition or restriction necessary to the application of standards or regulations for the classification, grading or marketing of commodities in international trade; (c) Import restrictions on any agricultural or fisheries product, imported in any form, ．．．”.These three exceptions are more or less related to environmental protection: “foodstuffs or other essential products” refers mainly to products of resources relating to eco-environment; “standards or regulations for the classification, grading or marketing of commodities in international trade” includes those environmental standards, environmental labeling and regulation for environmental protection for the classification, grading or marketing of commodities in international trade; and most of “agricultural or fisheries products” are relating to eco-environment. In order to protect the environment, contracting parties may apply quantitative restrictions pursuant to the above provisions.
