Anjana Varma 1
2 Interactions between the legal regimes on trade and environment
This section of the paper will look at environment in the international trade law landscape, namely through the World Trade Organization (WTO)5 as well as the role of trade in international environmental law, mainly through the CITES treaty.6 2.1 Trade in the environment arena
It is estimated that there are over 250 multilateral environmental agreements (MEAs) currently in force, dealing with various environmental issues. However, only about 20 of these include provisions that can affect trade.7
This may reinforce the thinking that indeed trade remains at the periphery of en-vironmental issues. But, interestingly, one of the arguably most successful MEAs tackling wildlife conservation is one that is centered on trade. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) − as one of the oldest and most widely ratified treaties with 181 Parties – largely came into force in response to concerns over the ‘overexploitation of many vulnerable species as a result of unregulated international trade.’8
Historically, trade was perceived as ‘the driving force for the depletion and even
ex-5 See <http://www.wto.org>.
6 Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington DC, 3 March 1973, in force 1 July 1975, 993 United Nations Treaty Series 243, <http://www.cites.org>.
7 WTO, ‘The Doha Mandate on Multilateral Environmental Agreements (MEAs)’, available at <https://
www.wto.org/english/tratop_e/envir_e/envir_neg_mea_e.htm> (visited 1 May 2018).
8 UN Sustainable Development Knowledge Platform, ‘Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)’, available at <https://sustainabledevelopment.un.org/index.
php?page=view&type=30022&nr=650&menu=3170> (visited 2 August 2018).
57 Anjana Varma tinction of wildlife and thus had to be strictly controlled.’9 It was against this back-drop that the conservation movement of the 1970s era rallied behind the creation of this treaty to bolster efforts in preventing dwindling wildlife.
As a multilateral regulatory instrument that currently has over 35,000 species list-ed under it,10 trade-related measures remain at the heart of the implementation of CITES. The core regulatory system of the Convention primarily is based on trade related measures,11 such as import bans, regulatory quotas, limited trade, and other measures.
It is clear that given the nature of the treaty, trade is the core feature and means of implementation under CITES. In using trade as the medium to address wildlife conservation, CITES is a unique treaty that is placed at the intersection between trade and environmental concerns. Conservationists have hailed it as the ‘Magna Carta for Wildlife’, both a ‘conservation and trade instrument’ to protect wild fauna and flora both for humankind (‘present and future generations’) and as national heritage (of ‘peoples and States’).12
However, could the same be said about how trade law tackles environmental con-cerns? In the following section, this paper explores how the environment is featured in the international trade policy-making and trade dispute platform, the World Trade Organization (WTO).
2.2 Environment in the trade arena – a look at WTO
As the global body that deals with the rules of trade between nations, the WTO primarily functions to ensure that ‘trade flows as smoothly, predictably and freely as possible.’13 Thus, its prime mandate does not focus on protecting the environment.
The organization will be the first to admit that it has no specific agreement dealing with the environment.14
And yet, the Marrakesh Agreement – which established the WTO – makes explicit reference to sustainable development and environmental protection in the pursuit
9 Dale Andrew, ‘Trade and SDG 15: Promoting “Life on Land” through Mandatory and Voluntary Ap-proaches’, Asian Development Bank Institute (ADBI) Working Paper No. 700 (2017), available at <htt-ps://www.adb.org/publications/trade-and-sustainable-development-goal-15> (visited 10 June 2018) at 4.
10 CITES, ‘CITES Trade Database Passes 15 Million Records’ (2015), available at <https://www.cites.org/
eng/cites_trade_db_passes_15million_records> (visited 9 April 2018).
11 CITES, ‘CITES and Trade Agreements – Partnering to Combat Wildlife Crime and to Achieve Sustai-nable Development - CITES Secretary-General’s Op Ed’, available at <https://www.cites.org/eng/news/
cites_and_trade_agreements_partnering_to_combat_wildlife_crime_and_to_achieve_sustainable_deve-lopment_14102015> (visited 20 April 2018).
12 Sand Peter H, ‘Whither CITES? The Evolution of a Treaty Regime in the Borderland of Trade and Envi-ronment’, 8(1) European Journal of International Law (1997) 29-58.
13 See <https://www.wto.org/>.
14 WTO, ‘The environment: a specific concern’, available at <https://www.wto.org/english/thewto_e/wha-tis_e/tif_e/bey2_e.htm> (visited 22 April 2018).
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Understanding the Trade and Environment Nexus: Legal Interactions and the Case of Wildlife Trade
of trade optimization.15 This perhaps indicates that the establishment of the WTO in 1994 did not happen in isolation and was in some ways affected by the major developments of that period, most notably, the emerging priorities of the post-Earth Summit and the ensuing Rio Conventions.16
Despite there not being a central environmental instrument that caters to environ-mental issues of trade under the WTO, one cannot deny that there exists a body of relevant decisions, committees, texts, and agreements that are positioned between the interface of trade and environment. This includes:
• the WTO Committee on Trade and Environment, which serves as a key plat-form for emerging issues and dialogue on this topic;
• the GATT17 Article XX on exemptions, which enables WTO members to be exempted from GATT rules, in particular relevance to the protection of the environment;18
• the specialized agreements such as the Agreement on Technical Barriers to Trade19 (which deals with product regulations), and the Agreement on Sani-tary and PhytosaniSani-tary Measures (which concerns food safety and animal and plant health),20 providing scope for environmental objectives to be secured.
Nevertheless, one could argue that the WTO’s interaction with environment has been passive rather than proactive and is limited in scope to when states bring dis-putes to WTO’s dispute mechanism – not on the basis of rectifying an environmen-tal wrong doing but in ensuring that the national environmenenvironmen-tal measure is not going against the core principle of the WTO i.e. non-discriminatory trade behavior.
The emphasis on removing the garb of environmental protectionism as a means of discriminatory trade behavior in a number of cases is indicative of the passive nature in which environment features in WTO as an incidental issue rather than as the main one.
15 WTO, ‘Marrakesh Agreement Establishing the World Trade Organization’, available at <https://www.
wto.org/english/docs_e/legal_e/04-wto_e.htm.> (visited 10 April 2018).
16 In reference to the three legal instruments that emerged directly as a result of the 1992 Earth Summit:
United Nations Framework Convention on Climate Change (New York, 9 May 1992, in force 21 March 1994, 31 International Legal Materials (1992) 849, <http://unfccc.int>), the Convention on Biological Diversity (Rio de Janeiro, 5 June 1992, in force 29 December 1993, 31 International Legal Materials (1992) 822, <http://www.biodiv.org>) and the United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and or Desertification, Particularly in Africa (Paris, 17 June 1994, in force 26 December 1996, 33 International Legal Materials (1994) 1309, <http://www.unccd.
int>).
17 The General Agreement on Tariffs and Trade, Marrakech, 15 April 1994, available at <http://www.wto.
org>.
18 WTO, ‘WTO rules and environmental policies: GATT exceptions’, available at <https://www.wto.org/
english/tratop_e/envir_e/envt_rules_exceptions_e.htm> (visited 3 April 3 2018).
19 Agreement on Technical Barriers to Trade, Marrakesh, 15 April 1994, in force 1 January 1995, <http://
www.wto.org>
20 Agreement on Sanitary and Phytosanitary Measures, Marrakesh, 15 April 1994, in force 1 January 1995,
<http://www.wto.org>.
59 Anjana Varma This is not to deny the impact of historically iconic legal cases such as the tur-tle-shrimp case that brought forth many questions on the role and impact of na-tional environmental measures in the internana-tional trade system. The Shrimp-Turtle case21 – where the US imposed a ban on the importation of shrimp and shrimp products that were negatively impacting endangered sea turtles in the process – is perhaps the only example so far in the history of GATT and WTO, of how ‘a uni-lateral, exterritorial national measure involving trade restrictions has been upheld on environmental grounds.’22 The protection of sea turtles was at the heart of the ban. By upholding the law, the Appellate Body confirmed that under WTO rules, countries have the right to take trade action in the interest of the environment, and that the organization does not have to ‘allow’ nations this right.23
Interestingly, RV Anuradha’s account follows the evolution of the environment from an ‘exception’ to a ‘trade obligation’ as seen in more recent trade agreements.24 RV Anuradha makes the argument that unlike multilateral environmental agreements, trade agreements can use the tool of trade sanctions for the enforcement of envi-ronment-related obligations as set forth in the agreement.25 However, over-reliance on these environment-related obligations can be problematic as arguably, they exist in the broader context of mercantile interests rather than environmental interests.26 Lurie and Kalinina argue that trade’s engagement with the environment has been increasing, positively.27 Reviewing the last two decades of intergovernmental regula-tion of trade affecting animals, they argue that ‘the evolving worldwide conscious-ness of animal welfare as a matter of ethical concern will lead to greater protection of animals involved in international trade.’28 Moreover, there is an increasing trend of recognizing the impact on wildlife, animal welfare, and other such elements under recently agreed free trade agreements indicating that these trade negotiations are not happening in a vacuum devoid of environmental concerns. They highlight the Do-minican Republic – Central America – United States Free Trade Agreement,29 the
21 WTO Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Pro-ducts, WT/DS58/AB/R, adopted 12 October 1998.
22 Peter Singer, ‘Anti-environmental Ways of Working of the World Trade Organisation and Their Justifi-cation’ (ecoglobe), available at <http://www.ecoglobe.ch/motivation/e/wto5412.htm> (visited 25 April 2018).
23 “United States – Import Prohibition of Certain Shrimp and Shrimp Products, WTO Case Nos. 58 (and 61). Ruling Adopted on 6 November 1998.
24 R.V. Anuradha, ‘WTO to the TPP: Evolution of Environmental Provisions in Trade Agreements’ in Julien Chaisse, Henry Gao and Chang fa Lo (eds), Paradigm Shift in International Economic Law Ru-le-Making (Springer, 2017) 241-253.
25 Ibid
26 Ibid.
27 Andrew Lurie and Maria Kalinina, ‘Protecting Animals in International Trade: A Study of Recent Suc-cesses at the WTO and in Free Trade Agreements’, 30(3) American University International Law Review (2015) 431-487.
28 Ibid. at 436.
29 Free Trade Agreement between the Dominican Republic, Central America and the United States, Washington, 5 August 2004, available at <http://www.wipo.int/edocs/lexdocs/treaties/en/cafta-do/trt_
cafta_do.pdf> (visited 25 June 2018).
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Understanding the Trade and Environment Nexus: Legal Interactions and the Case of Wildlife Trade
U.S. – Peru Trade Promotion Agreement,30 and two global agreements: Trans-Pacific Partnership31 and the Transatlantic Trade and Investment Partnership,32 as promis-ing in terms of wildlife protection.33
The Trans Pacific Partnership, in particular, has been praised as an agreement which sets a ‘higher bar for combatting wildlife trafficking and ensuring legal and sus-tainable trade,’34 putting a greater enforceable obligation to deliver on their CITES directives. Though such agreements have emerged outside of the WTO, they may be emblematic of the kinds of priorities, terms, and conditions emerging among states and trade blocs.
2.3 WTO and MEAs: a blurry space
There is no clear hierarchy or framework that defines how international environ-mental law and international trade law interact with each other in the international system. It is also not clear – that in the event of a conflict between the two domains – what the way forward would be. So far, there has been no evidence of a WTO dispute directly challenging a CITES trade measure, but that is not to say there may not be one in the future.
Cognizant of the growing and complex interactions taking place between these two domains, WTO’s Doha Round of negotiations, which commenced in 2001, has been the first time that environmental issues have been explicitly featured in the context of multilateral trade negotiations. This is not only indicative that perhaps environmental issues are moving in from the periphery on trade issues but also an acknowledgement that there can be a mutual supportiveness of trade and environ-ment.
This is evident as one of the agendas on the table is the inter-institutional level sup-port to enhance exchange and cooperation between the WTO and the MEA Secre-tariats. This issue was first brought to the forefront through the WTO Committee on Trade and Environment (CTE) which has played a key role in the dialogue. So far, efforts for cooperation are limited to ongoing interaction between WTO and climate change bodies. The United Nations Framework Convention on Climate Change routinely participates in meetings of the WTO Committee on Trade and Environment (CTE) and, as an ad hoc observer to the Committee overseeing the
30 The United States Peru Trade Promotion Agreement, Washington, 12 April 2006, in force 1 Februa-ry 2009, <https://ustr.gov/trade-agreements/free-trade-agreements/peru-tpa/final-text> (visited 25 June 2018).
31 Trans-Pacific Partnership, Auckland, 4 February 2016, <https://ustr.gov/trade-agreements/free-tra-de-agreements/trans-pacific-partnership/tpp-full-text> (visited 25 June 2018).
32 Transatlantic Trade and Investment Partnership, between the European Union and the United State, still under negotiation.
33 Ibid.
34 CITES, ‘CITES and Trade’, supra note 7.
61 Anjana Varma specific trade and environment negotiations and, conversely, the WTO Secretariat routinely attends the UNFCCC Conference of Parties meetings.35
Negotiating an answer as to how the WTO and MEAs fit with each other in the institutional space would have great implications and would essentially, ‘affect the ability of nations to impose all manner of trade-related measures, from bans on trade in endangered species and hazardous waste to restrictions on genetically modified products and chemicals implicated in climate change.’36