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New alliances of globalization: labor, environment, “anti-globalists” Worries about governance: non-

accountable role of large corporations and of WTO itself

Loss of local networks and control Loss of jobs: concern for both South and

North Lowering of environmental standards Race to the bottom: in pay; in labor

standards; in environmental quality11/02/11 ESPP-78 2

Spheres of action: Political: United Nations Economic: World Trade Organization (also World

Bank, International Monetary Fund) Environmental: Many institutions have a slice of the

pie Types of international legal frameworks

Soft law: not binding (e.g., codes of conduct, Global Compact, Agenda 21)

Treaties: binding powers delegated by nation states Constitution: living federal system (EU?)▪ Successive treaties but also practices▪ Current strains

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WTO and the Environment

Can free trade and environmental protection co-exist effectively?

Are the WTO’s governing principles sound?

What needs to be reformed?Is a new institution required?

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Successor to GATT (General Agreement on Tariffs and Trade) 1947, created in Uruguay Round (1994)

New global norm “trade liberalization” Expansion from 50 countries to 185 Legalization of trade disputes

Compulsory adjudication Binding outcomes, with serious monetary sanctions Dispute Settlement Panel Appellate Body Dispute Settlement Body (“reverse consensus”): must go

ahead unless there is consensus against it

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Environmental regulations may operate

as non-tariff barriers (NTBs) to trade:

-- e.g., EPA requires turtle-friendly trawlers

Cultural preferences may conflict with

harmonized regulations:

-- e.g., Genetically Modified Organisms,

hormone-fed beef

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Overall aims Freer trade, through rounds of negotiation Predictable environment for trade More competitive trading, through elimination of

“unfair” practices More beneficial for developing countries, with

adjustment opportunities and special privileges where needed

National Treatment Imported and locally produced goods to be treated

equally Most Favored Nation (MFN) status

Members are required to treat all nations equally11/02/11 ESPP-78 8

Preamble language (cited in Shrimp-Turtle case)

“. . . expanding the production of and trade in goods and services, while allowing for the optimal use of the world's resources in accordance with the objective of sustainable development . . .”

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Article XX So long as “such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination, . . . .this Agreement shall not be construed to prevent the adoption or enforcement by any contracting party of measures . . .

(b) necessary to protect human, animal or plant life or health; . . . (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption. . . .”

Shrimp-Turtle case (1998) - tests scope of Art. XX Dolphin-Tuna case (1991 panel report)

“Product” not “process”

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Goals: harmonization, technical rationalization

Key language and features: “based on scientific principles and is not maintained without

sufficient scientific evidence” “Members shall base their sanitary or phytosanitary measures

on international standards” (Codex Alimentarius Commission, UN)

If not in compliance with international standards, then must “justify” deviation.

Level of protection must be “based on risk assessment” as developed by the relevant international organizations (5.1)

Is Europe’s precautionary approach justified (e.g., beef hormone case)?

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153 members in mid-2008

U.S.A. as 800 lb. gorilla Unclear role of citizens:

transparency; standing; amicus briefs

Who decides law? Not bound by precedent.

Who decides (e.g., dispute settlement panels)?

Validity of basic principles?

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For Need explicit

authority for environment

WTO’s trade bias Economist values

may override environmental ones

Against

Unnecessary?

Unwieldy?

Unrepresentative?

Unscientific?

Unrealistic?

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