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Trade, Investment and the Environment
During the financial year 1998–9 the Energy and Environmental
Programme was supported by generous contributions of finance and
technical advice from the following organizations:

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British Nuclear Fuels
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ENI
Enron
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ment’ was received from:

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Trade, Investment and the Environment
Proceedings of the Royal Institute of
International Affairs conference
Chatham House, London, October 1998

Edited by Halina Ward

and Duncan Brack

Energy and Environmental Programme

First published in the UK in 2000 by
Royal Institute of International Affairs, 10 St James’s Square, London, SW1Y 4LE
(Charity Registration No 208 223)
and
Earthscan

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Contents

Preface and acknowledgments ........................................................ vii

Contributors ..................................................................................... x
Abbreviations and glossary ............................................................. xii
Editors’ overview .............................................................................. xvii

Part I A strategic overview of the debate and the key issues for
the future
Renato Ruggiero............................................................................... 3
Brian Wilson ..................................................................................... 11
Gary P. Sampson .............................................................................. 20
David Wakeford ................................................................................ 24
Tom Burke......................................................................................... 27
John Gummer ................................................................................... 36

Part II Towards win–win solutions?

Poverty and sustainability (David Batt) .......................................... 49
Building sustainable markets (Nick Robins) ................................... 56
‘Green consumerism’ and trade: a Ghanaian forestry
perspective (Moses Adigbli) ............................................................. 73
‘Green consumerism’ and labelling: a retailer’s perspective
(David Wheeler) ............................................................................... 83

Part III Resolving key WTO issues

Overview .......................................................................................... 91
A lawyer’s view (Damien Geradin) .......................................... 91
A view from the South (Magda Shahin) ................................... 102

Multilateral environmental agreements ........................................... 122

An overview (Duncan Brack) ................................................... 122
An OECD perspective (Michel Potier) ...................................... 138
An industry perspective (Reinhard Quick) ............................... 142
vi Contents

Process and production methods ..................................................... 152

Sizing up the issues from the South (René Vossenaar) ............. 152
Reassessing ‘like products’ (Konrad von Moltke) .................... 176
The impact of the Shrimp/Turtle dispute
(Charles Arden-Clarke) ............................................................. 183

Conflict resolution in the World Trade Organization ...................... 187

Assessing the story so far: hope on the horizon?
(Thomas Cottier and Krista Nadakavukaren Schefer) ............. 187
The Shrimp/Turtle dispute and the future
(James Cameron) ....................................................................... 203

Part IV Environmental regulation and international investment

The role of foreign direct investment .............................................. 211
The case of India (Veena Jha) ................................................... 211
Liberalization, privatization and the water sector
(David Owen) ............................................................................. 230

Lessons from the Multilateral Agreement on Investment ............... 242

A view from the negotiating table (Jan Huner) ........................ 242
An industry view (Kristian Ehinger) ......................................... 252
A view from the South (Pradeep S. Mehta) .............................. 259
An NGO view (Nick Mabey) ..................................................... 269

Part V Summary of conference discussions

Halina Ward ...................................................................................... 279

Index ................................................................................................. 291

Preface and acknowledgments

The present volume of papers presents a snapshot of what may, with

hindsight, come to be viewed as a turning point in the ongoing debate
on the relationship between trade, investment and the environment.
It is a companion volume to a collection of papers edited by Duncan
Brack, entitled Trade and Environment: Conflict or Compatibility? (RIIA/
Earthscan, 1998), but it can also be read alone by newcomers to the
area or by policy-makers seeking an enjoyable and readable introduc-
tion to the main issues and their possible solutions.
Both volumes were based on RIIA conferences, but, in contrast to
the earlier volume, this book features a wider range of issues and a
greater depth of debate (largely because this second conference was
twice as long as the first). In particular, the topic of international invest-
ment, as well as trade, is covered here. Increasingly, and significantly,
the flow of economic activity across national frontiers includes the
movement of capital for investment as well as that of goods and ser-
vices for sale. The ever more fraught progress of the negotiations
around the OECD’s proposed Multilateral Agreement on Investment
(MAI) during 1998 made it clear that, although the trade–environment
and investment–environment debates are not the same, they are very
closely interlinked.
The Chatham House conference on which this book is based took
place in late October 1998, just a fortnight after two defining moments:
the final collapse of the MAI, and the World Trade Organization Appel-
late Body’s report on the Shrimp/Turtle dispute. These critical events
are reflected in some of the key questions that the authors return to
again and again in their papers. What are the implications of the Appel-
late Body report, in a dispute that focused on a trade embargo applied
in the name of the conservation of endangered species, for any future
reform of the World Trade Organization – is it evolutionary or poten-
tially revolutionary? What lessons does the failed MAI offer negotia-
tors of trade and investment liberalization in the future? Did the envi-
ronmental dimension feature adequately in each set of discussions?
viii Preface and acknowledgments

Many of the papers look forward too. How can options for addressing
the relationship between trade, environment and investment be designed
so as to move beyond stale adversarial discussions to offer genuinely
‘win–win’ solutions? The varied aspirations for a ‘High Level Meeting’
on trade and sustainable development make thought-provoking read-
ing in the light of the WTO Director General’s two symposia on trade
and environment and trade and development held in March 1999. At
the time of going to press, the 1999 Seattle Ministerial Conference of
the WTO and the beginning of the next ‘Millennium Round’ of trade
negotiations are drawing ever nearer. It is striking that the ideas put
forward in this book on ‘environment in the Millennium Round’ are
as fresh as they were at the time of the Chatham House conference a
year ago.
A number of the papers in this volume have been rearranged from
the order in which they originally appeared, to reflect the core themes
of the authors’ ideas and recommendations. Some have been edited,
revised or updated by their authors, and a small number of the confer-
ence presentations have been omitted from this book to avoid duplica-
tion of authors. Additionally, a conference presentation by Michael
Grubb on trade issues related to the Climate Change Convention, sub-
stantially based as it was on research at Chatham House led by Duncan
Brack, has been omitted; the results of that research are being pub-
lished by RIIA/Earthscan in parallel with this book (Duncan Brack,
with Craig Windram and Michael Grubb, International Trade and Cli-
mate Change Policies).
Part I contains six papers which present a strategic overview of the
key issues, the state of the debate and the big issues for the future.
They include the three keynote papers from the Chatham House con-
ference: by Renato Ruggiero, at the time the Director-General of the
WTO; Brian Wilson MP, then UK minister for trade; and John Gummer
MP, former UK secretary of state for the environment. Part II seeks to
explore some of the main ideas and positions in the rapidly evolving
debate on how to secure ‘win–win’ solutions: how can solutions be
devised that offer everyone, including the environment, more than tra-
ditional competitive bargaining? Part III contains a series of papers that
focus on how to resolve some of the more technical issues as they re-
Preface and acknowledgments ix

late to the rules of the multilateral trading system. After an overview of

the issues – one from a developing country perspective and one from a
lawyer – separate chapters consider the debates concerning multilat-
eral environmental agreements, process and production methods and
conflict resolution in the WTO. Part IV looks at the relationship be-
tween investment and sustainable development in two lights: the issues
relating to foreign direct investment itself; and lessons from the Multi-
lateral Agreement on Investment. Finally, Part V contains a short note
on the discussions at the conference. The audience included Chatham
House’s normal wide range of participants, drawn from national gov-
ernments and international organizations, industries, academia and
NGOs, from developed and developing countries; and the presenta-
tions and discussions reflect a rich variety of backgrounds and per-
spectives.
The Institute gratefully acknowledges the sponsorship and support
of the six conference sponsors: the Guardian; the UK Departments for
International Development (DFID) and Trade and Industry (DTI); ICI;
the International Centre for Trade and Sustainable Development; and
the World Wide Fund For Nature (WWF). Without their support, the
conference could not have included such a wide range of participants.
Our sincere thanks are also due to all those who have contributed
their time, energy and ideas, both to this book and to the October 1998
Chatham House conference; the speakers and authors themselves;
Charles Arden-Clarke, James Cameron, Steve Charnovitz, Caroline
Lequesne and Nick Robins for helpful comments on various draft
conference agendas; and to colleagues at Chatham House for their vital
work in making the conference and this book happen: Philippa Challen,
Julia Thomas and the Conference Unit; Nikki Kerrigan, Matt Thomas
and Laura Shiver in the Energy and Environmental Programme; and
Margaret May and her colleagues in the Publications Department.

September 1999 Halina Ward and Duncan Brack

Contributors

Moses Adigbli, Manager, Ghana Timber Export Development Board’s

London office; Director of Ghana Timber Supplies Ltd (now work-
ing for Gloimpex Ltd)
Charles Arden-Clarke, Head, Trade Policy Unit, World Wide Fund For
Nature (WWF) International
David Batt, Head, International Economic Policy Development, De-
partment for International Development (DFID) (now Acting Direc-
tor, International Division, DFID)
Duncan Brack, Head, Energy and Environmental Programme, Royal
Institute of International Affairs (RIIA)
Tom Burke MBE, Visiting Professor, Imperial College; Environmental
Policy Adviser, Rio Tinto plc
James Cameron, Director, Foundation for International Environmental
Law and Development (FIELD); Associate, Baker and McKenzie
Dr Thomas Cottier, Professor of European and International Economic
Law, University of Bern; Director, Institute of European and Interna-
tional Economic Law
Dr Kristian Ehinger, Deputy General Council of Foreign Holdings,
Volkswagen AG
Dr Damien Geradin, Associate Professor, University of Liège; Profes-
sor, College of Europe, Bruges
John Gummer MP, former Secretary of State for the Environment, UK
Jan Huner, Senior Policy Adviser, Trade and Investment Policy Direc-
torate, Ministry of Economic Affairs, The Netherlands
Dr Veena Jha, Consultant to UN Agencies (currently Project Coordi-
nator, Trade and Environment Projects, UNCTAD c/o UNDP, New
Delhi, India)
Nick Mabey, Head, Economics Policy, World Wide Fund For Nature
(WWF), UK
Contributors xi

Pradeep S. Mehta, Secretary General, Consumer Unity & Trust Society

(CUTS), India
Dr Konrad von Moltke, Visiting Professor of Environmental Studies,
Free University, Amsterdam
Dr David Owen, Head of Research, VTZ Delphi
Dr Michel Potier, Senior Economist and Head of Economics Division,
OECD Environment Directorate
Dr Reinhard Quick, Head, VCI Liaison Office, Brussels, Verband der
Chemischen Industrie eV; Chairman, UNICE Working Group on
Trade and Environment
Nick Robins, Coordinator, Sustainable Consumption and Trade Initia-
tive, International Institute for Environment and Development (IIED)
Renato Ruggiero, Director-General, World Trade Organization (now
Chair, ENI SpA)
Dr Gary P. Sampson, Director, World Trade Organization (currently
visiting academic, London School of Economics, London)
Krista Nadakavukaren Schefer, Research Fellow, University of Bern
Dr Magda Shahin, Deputy Assistant Minister of Foreign Affairs and
Head of Economics Department, Ministry of Foreign Affairs, Egypt
René Vossenaar, Chief, Trade and Environment Section, International
Trade Programme, United Nations Conference on Trade and Devel-
opment (UNCTAD)
Dr David Wakeford MBE, International Trade Manager, Group Public
Affairs, Imperial Chemical Industries plc (ICI)
Halina Ward, Senior Research Fellow, Energy and Environmental
Programme, RIIA
Professor David Wheeler, Head, Stakeholder Development, Body Shop
International (now Director of Sustainable Development, KPMG)
Brian Wilson MP, Minister of Trade, Department of Trade and Industry
(DTI), UK (now Minister of State, the Scottish Office)
Abbreviations and glossary

Agenda 21 The major non-binding policy document that

resulted from the UN Conference on Environment
and Development (the ‘Rio Summit’) in 1992. Its
implementation is overseen by the UN
Commission on Sustainable Development.
Amicus curiae Literally, a ‘friend of the court’; a bystander who
provides legal or factual information to an
adjudicator (e.g. WTO panels or the Appellate
Body) on points on which he or she is unclear or
mistaken
Appellate Body Appeal body within the WTO’s dispute settlement
system
Basel 1989 Basel Convention on the Control of
Convention Transboundary Movements of Hazardous Wastes
and their Disposal
Beef Hormones Dispute between the United States, Canada and the
dispute EC over EC regulations restricting sales of beef
from cattle treated with certain kinds of hormone
BIAC Business and Industry Advisory Committee to the
OECD. A similar committee, the Trade Union
Advisory Committee (TUAC), exists for trade
unions
BIT Bilateral Investment Treaties
CBD Convention on Biological Diversity
CFCs Chlorofluorocarbons
Chapeau Sometimes called a ‘headnote’; the introductory
part of Article XX of the GATT, which contains
requirements that must be met by measures falling
within any of its sub-paragraphs
CITES The 1973 Washington Convention on International
Trade in Endangered Species
Abbreviations and glossary xiii

Codex The ‘food code’: an international set of standards,

Alimentarius codes of practice, guidelines and recommendations
on protection of consumer health and fair practices
in the food trade compiled by the Codex
Alimentarius Commission of the World Health
Organization and the Food and Agriculture
Organization
CTE (WTO) Committee on Trade and the Environment
DANIDA Danish International Development Administration
DETR (UK) Department of the Environment, Transport
and the Regions
DFID (UK) Department for International Development
DSU WTO Understanding on Rules and Procedures
Governing the Settlement of Disputes
DTI (UK) Department for Trade and Industry
EMAS (EC) Eco-Management and Audit Scheme
EMS Environmental management system
EST Environmentally Sound Technology
FDI Foreign direct investment
FSC Forest Stewardship Council
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
GDP Gross domestic product
GEF Global Environment Facility
GMOs Genetically modified organisms
GSP Generalized System of Preferences
Havana Charter The draft Charter of a proposed International Trade
Organization (ITO), which was to have been
concluded in Havana in 1948, but fell because the
US Congress failed to approve it. The GATT was
initially intended to have operated under the
umbrella of the ITO.
ICC International Chamber of Commerce
ICJ International Court of Justice
ICM Integrated Crop Management
xiv Abbreviations and glossary

IFC International Finance Corporation, the private-

sector lending arm of the World Bank group of
institutions. The IFC finances and provides advice
for private-sector ventures and projects in
developing countries in partnership with private
investors.
IMF International Monetary Fund, one of the so-called
‘Bretton Woods Institutions’ alongside the World
Bank Group. The IMF exists to promote
international monetary cooperation.
IPRs Intellectual property rights
ISO International Organization for Standardization
ISO 14000 A series of ISO standards concerning
series environmental management, eco-labelling and
related issues
ITTO International Tropical Timber Organization
LCA Life cycle analysis
MAI Multilateral Agreement on Investment
MEA Multilateral environmental agreement
MFN Most favoured nation principle of the GATT, which
requires that there should be no discrimination
between different imported products on the basis
of their country of origin
Millennium New round of multilateral trade negotiations due to
Round begin in 1999
Montreal 1987 Montreal Protocol on Substances that Deplete
Protocol the Ozone Layer, a protocol to the 1985 Vienna
Convention for the Protection of the Ozone Layer.
The Protocol controls production and consumption
of, and trade in, ozone-depleting substances.
MTS Multilateral Trading System
NAFTA North American Free Trade Agreement
National Core GATT principle, which requires that there
treatment should be no discrimination between imported and
principle ‘like’ national products under national rules
NGO Non-governmental organization
Abbreviations and glossary xv

OECD Organization for Economic Cooperation and

Development
Panel Part of the WTO’s dispute settlement system:
dispute settlement panels hear cases and issue
reports in disputes between WTO Members. In the
WTO, panel reports can be rejected by a consensus
of WTO members acting as a ‘Dispute Settlement
Body’. Appeals from panel reports on issues of law
can be made to the Appellate Body.
PPMs Process and production methods
Shrimp/Turtle WTO dispute between the United States and a
dispute number of exporting countries, concerning US
restrictions on imports of shrimps from countries
not requiring the use of turtle excluder devices
SMEs Small and medium-sized enterprises
SPS Agreement Agreement on the Application of Sanitary and
Phytosanitary Measures
TBT Agreement Agreement on Technical Barriers to Trade
TED Turtle excluder device
TNC Transnational corporation
TRIPS Agreement on Trade-Related Aspects of
Agreement Intellectual Property Rights
Tuna/Dolphin Two disputes between the United States and a
disputes number of exporting countries, involving US
restrictions on imports of yellowfin tuna from
countries that did not have regulations similar to
those of the USA governing ‘incidental’ catches of
dolphins
UNCED United Nations Conference on Environment and
Development, which took place in Rio de Janeiro
in June 1992 and is sometimes known as the ‘Earth
Summit’ or the ‘Rio Earth Summit’
UNCSD United Nations Commission on Sustainable
Development, which was established following
UNCED
xvi Abbreviations and glossary

UNCTAD United Nations Conference on Trade and

Development
UNEP United Nations Environment Programme
UNICE Union of Industrial and Employers’ Confederations
of Europe
UNIDO United Nations Industrial Development
Organization
US CAFE US regulations on corporate average fuel
standards economy
WTO World Trade Organization
Editors’ overview
Halina Ward and Duncan Brack

Introduction
The politics of the relationship between trade liberalization, foreign
direct investment and environmental protection are as uneasy today as
at any time this decade. But the thinking and analytical work on the
means of ensuring just how trade, investment and environment can be
made mutually supportive have advanced substantially, and there is no
shortage of ideas for resolution of the problems. This book is a guide to
both the politics and the policies as they were when the conference on
Trade, Investment and Environment took place at Chatham House in
October 1998.
The 26 papers included in the book explore, from a variety of per-
spectives, many of the issues in the complex relationship between
trade, environment and investment. Our aim in this introduction is to
provide a summary of the papers themselves, and to make a few short
remarks on the debates surrounding the trade–investment–environ-
ment nexus one year on, as the Millennium Round approaches.
There are three basic focuses around which the extraordinarily com-
plex and interlinked issues addressed in these papers centre. First, there
is ‘protection versus protectionism’. Do powerful trading nations use
trade measures as a way of forcing developing countries to adopt es-
sentially their own world-view? Is the trade and environment debate a
form of ‘eco-colonialism’? From an economic, as well as an environ-
mental, perspective, when does it make sense to link environmental
protection objectives to trade policy?
Second is the relationship between foreign direct investment and the
environment. Do the activities of transnational corporations tend, on bal-
ance, to help or hinder environmental protection? How can transnational
corporations most effectively be regulated in order to maximize their
potential contribution to sustainable development? And what does this
mean for any potential multilateral investment framework?
xviii Editors’ overview

Third, there is a collection of institutional issues. How far can and

should the WTO go in incorporating environmental considerations
into its day-to-day thinking before overstepping its proper mandate?
Would ‘mainstreaming’ the environment throughout the WTO and the
agreements it oversees somehow challenge this? Would strengthening
the role of non-governmental actors in the system be a threat to sover-
eignty or a recognition of a new ‘international civil society’? And is
there a need for a new global environmental organization equal in au-
thority to the WTO to act as a counterweight to it, and to address some
of the problems that result from the fragmented nature of the existing
international environmental regime?
The much-misunderstood phenomenon of globalization overlies
each of these themes. What are the most appropriate policy interven-
tions in a globalized economy if environmental protection and social
welfare are to be maximized? What system of global governance is
needed? The practical challenges involved in defining new roles for
all of the actors in the face of the ‘globalization phenomenon’ come
across clearly in this book.
If these three issues lie at the heart of the subjects addressed in the
papers, four major events in the trade and environment and investment
and environment calendars also dominate: (1) the WTO Appellate Body
report in the Shrimp/Turtle case (published in October 1998); (2) the
collapse (in the same month) of the negotiations on the draft Multilat-
eral Agreement on Investment; (3) the proposed (as it was then) High
Level Meeting on trade and environment or trade and sustainable de-
velopment (which eventually took place, in a slightly different form,
in March 1999); and (4) the potential for the environment to figure as a
negotiating item in the Millennium Round of trade negotiations, sched-
uled to kick off at the Seattle WTO Ministerial in November/December
1999.

Part I A strategic overview of the debate and key issues for the
future
Part I is a collection of short papers that aim to set the scene for the re-
mainder of the book by identifying the key strands and strategic issues
Editors’ overview xix

in the trade–investment–environment debate and some options for the

future. The papers do not offer a complete guide to the issues – in par-
ticular, they do not incorporate a developing country critique – but
none the less, the different cultural starting points of the different pro-
tagonists analysing the relationship between liberalization and the en-
vironment are clearly apparent. And each of them underlines the need
to view globalization as the overarching context within which the
trade–investment–environment relationship is set, and to consider the
system of global governance that it calls for.
Renato Ruggiero (then WTO Director-General), in a speech origi-
nally titled ‘A Global System for the Next Fifty Years’, focuses on the
challenges of globalization. Does it force us to re-examine the global
architecture? How should the structure of global governance reflect
our increasing interdependence? He calls for a more collective leader-
ship in the international system, with a focus on new, post-Cold War
values of consensus and cooperation, to ensure that at the highest
political level developing countries and economies in transition are
effectively represented.
On the environment and global governance, Mr Ruggiero takes a
clear position. The WTO, he claims, is a strong institutional friend and
supporter of the environment. None the less, the task of strengthening
bridges between trade and environmental policies would be made im-
measurably easier if ‘we could also create a house for the environment
to help focus and coordinate our efforts’. Certainly, arguments about
the extent of the WTO’s competence on environmental issues, and how
far it can go in accommodating environmental concerns have ham-
pered progress in the trade–environment debate. But would the creation
of a global environment organization help to address this? Mr Ruggiero
points to the social clause debate, an area where there is a ‘house for
labour’ – the International Labour Organization. Here, he says, no
progress could have been made without a consensus on the ILO’s and
the WTO’s competence. But that debate is not over. Notwithstanding
the conclusion of an ILO Declaration on Fundamental Principles and
Rights at work in 1998, suggestions have been made that labour issues
should be addressed in the Millennium Round. The ‘competence’ de-
bate continues in discussions under the WTO’s Trade Policy Review
xx Editors’ overview

Mechanism and in the ILO itself. Similarly, it is not at all clear that the
establishment of a global environment organization would in fact re-
solve trade–environment clashes unless WTO rules were themselves
modified.
Mr Ruggiero’s themes are reflected to some extent in Brian Wilson’s
paper. The then UK Minister for Trade expresses the classical eco-
nomic perspective that trade liberalization helps to ensure that re-
sources are used efficiently, thereby generating the wealth necessary
for development and environmental improvement. It also encourages
the spread of clean technology worldwide. He places a strong empha-
sis on the values of consensus, cooperation and dialogue. He applies
this to the WTO itself, with his reassurance that ‘there is no way of set-
ting aside the WTO rights of member countries against their will …
Nothing will – or can – change without consensus’. But he also stresses
the need for the WTO to shed its reputation for secrecy if dialogue at all
levels is to be fully effective.
Gary Sampson addresses the key opportunities and challenges of the
12 months leading up to the Seattle ministerial conference. The key
challenge, for him, is to find a way of dealing with civil society criti-
cisms of the WTO without damaging its credibility as the body respon-
sible for the rules of the non-discriminatory trading system and the
progressive liberalization of trade in goods and services. He identifies
three types of possible initiatives for the 12 months ahead, according
to the degree of governmental involvement necessary. First, there are
those that can be achieved if there is sufficient informal support for the
Director-General or the Secretariat to undertake them; second, there
are initiatives that require the collective approval of WTO Members,
but not formal rule changes; and finally, there are objectives that can
be achieved only through changes in rules.
Like Mr Wilson, David Wakeford also asserts in his paper that liber-
alization of trade and investment creates wealth that leads to higher en-
vironmental standards and a move towards sustainability. Since trade
and investment liberalization and environmental sustainability are al-
ready mutually supportive, this leaves only the questions of the rate at
which progress is achieved, and the degree of improvement of envi-
ronmental performance. For Dr Wakeford, the source of the belief that
Editors’ overview xxi

the WTO will solve environmental problems is the failure to address

environmental issues coherently at an international level. Paradoxi-
cally, perhaps, he sees the WTO Millennium Round itself as an oppor-
tunity to achieve a consensus on the establishment of a World Organi-
zation for the Environment. Without this, ‘we are like startled rabbits in
the light of the WTO’.
Tom Burke also focuses on the ‘globalization’ theme: ‘globalization
of responsibility must follow globalization of opportunity’. He as-
sesses the key distinctions between the two ‘cultures’ of trade and of
environment. If the rules associated with each – and, more than that,
their modes and habits of operation – are to merge, then looking to
WTO case law alone will not be enough: a much better shared basis for
policy-making in both areas is needed. But WTO dispute settlement
procedures will also need to be reformed, in particular to create a more
transparent system and to enhance non-governmental access to dis-
pute processes.
What of the role of companies themselves? Here Burke makes an
important distinction between different kinds of activities carried out
by multinational corporations and their impacts: portfolio investment
involves a very different kind of commitment to a host country than an
investment that involves ‘sinking several billion dollars into a hole in
the ground that cannot be moved’. Each calls for a distinct analytical
approach.
John Gummer takes up the global governance theme, associating it
with the notion that rights and responsibilities should be more closely
linked in the multilateral trading system: commercial freedom at the
international level should be accompanied by the kinds of protective
measures that exist at the national level to protect the vulnerable and
the credulous. Yet at the international level, he notes that the environ-
mental bodies and institutions that might provide that kind of protec-
tion do not have the same credibility as the WTO. Contrary to Mr
Gummer’s suggestion, many would see this international mismatch
reflected in a lack of proper integration between trade and environ-
ment at the national level. Indeed, Mr Ruggiero suggested, in discus-
sion at the Chatham House conference, that the proposed WTO High
Level Meeting could be viewed in part precisely as an opportunity to
xxii Editors’ overview

‘ease the relationship’ between trade and environment at the national

level.
Mr Gummer highlights the dilemma that surrounds much interna-
tional environmental policy-making, in which, while it is in every
country’s interest to cooperate in tackling challenges such as climate
change, it is difficult for individual countries to see the benefits of tak-
ing action unless such cooperation is guaranteed. He goes on to argue
that ‘fairness’ has to come to be understood as a matter of practical
necessity. Only by understanding what interdependence really means
can a system be developed that properly represents a global solution to
a global problem.

Part II Towards win–win solutions?

Part II contains a series of papers that contribute to the emerging ‘win–
win ’ debate, the idea that, in addressing trade, environment and invest-
ment issues, solutions that bring some benefits to all the players should
be favoured. The aspiration has to be a valuable one, not to say politi-
cally attractive. But can ‘win–win ’ in a small number of hand-picked
areas resolve much bigger issues of equity in the multilateral trading
system? Is there not a need for more wholesale reform, reflected in
action both within and outside the WTO; in enhanced technical and fi-
nancial assistance; in a more inclusive international leadership, of the
sort that Mr Ruggiero’s paper calls for? The papers in this part of the
book illustrate both the potential and the limitations of the ‘win–win’
approach.
David Batt highlights the British Department for International De-
velopment’s commitment to integrating a development perspective into
trade and environment policy-making, as reflected in the UK Govern-
ment’s 1997 White Paper on Development. (This ‘integration’ theme is
also reflected in the May 1999 UK Sustainable Development Strategy,
which devotes a section of the chapter on ‘International Cooperation
and Development’ to a consideration of trade and the environment, and
sets out guiding principles on trade and the environment.)
Mr Batt’s paper highlights a number of practical initiatives being
undertaken by the DFID under three themes: ensuring fair trade rules;
Editors’ overview xxiii

increasing sustainable trade and raising environmental standards in

developing countries. Finally, he focuses on a fourth area of activity,
namely the ‘win–win ’ approach, an area that is not drawn out explic-
itly in the White Paper. The terminology is, he suggests, beguilingly
simple, but the reality is that policy changes do not always have simple
effects; some changes could produce a mixture of environmental ef-
fects, some positive and some negative. In short, there may be a mix-
ture of winners and losers even where the aim is ‘win–win’. Mr Batt
identifies a need for more research to build up a list of positive ‘win–
win’ examples, so as to begin to pin down the areas that present the
strongest possibilities for further ‘win–win’ options.
Nick Robins does just that. He presents a series of case studies on
‘sustainable trade’, based on the experiences of producers who have
been able to turn new demands in their export markets to their advan-
tage. Effective partnerships along the supply chain, along with product
quality, emerge as critical success factors. Conversely, a lack of trust
over the motivations and impacts of rising social and environmental
demands presents a real barrier to responding positively to those de-
mands.
Supply chain management and the role of procurement policy are
attracting increasing policy interest. Mr Robins suggests that corporate
supply chain management, driven as it is by a mix of risk management
and market creation concerns, can often take place ahead of consumer
demand. And, in a conference focusing on the environmental aspects
of sustainable development, it is interesting that Mr Robins stresses an
apparent convergence of previously parallel initiatives to strengthen
the social and environmental dimensions of trade – perhaps signalling
a move towards a more integrated consideration of the two aspects.
Moses Adigbli outlines some of the negative impacts of environmen-
tal concerns over tropical forest products as they affect the Ghanaian
timber sector. His paper demonstrates just how hard it will be to fash-
ion ‘win–win’ solutions that foster market access and sustainable pro-
duction unless the huge resource constraints of developing countries
are addressed. Tariff concessions alone will not do the job.
Mr Adigbli makes his remarks in a personal capacity. In his view,
environmental campaigning can misinform buyers, deliberately gener-
xxiv Editors’ overview

ating discrimination against the use of tropical timber. Environmental

groups should rely less on boycotts than on assisting the process of
change towards better forest management. Their demands, he says, are
often insufficiently sensitive to the political and economic constraints
that exist in developing countries. One result is a perceptible shift in
tropical wood exports away from sensitive markets to less sensitive
ones, but another result may also be an ‘investment chill’: Mr Adigbli
notes that capital and skills from investment sources in Britain are
‘markedly absent’ from the development of Ghana’s forest products
industry. He concludes by expressing the classic development-versus-
environment dilemma: ‘If the developed world wants a high level of
environmental protection in the developing world, then it should be
prepared to pay for it.’
Finally, David Wheeler offers a rather different perspective on green
consumerism, from the perspective of The Body Shop. His starting
point is the limits of voluntary labelling schemes from a retailer’s per-
spective. With a few exceptions, he says, voluntary labels are ‘at best
much ado about nothing, at worst a misleading and potentially highly
confusing market intervention’. He also raises an equity consideration
that reflects Mr Adigbli’s concerns: why should a small producer of
wooden handicraft items in India bear the costs of environmental certi-
fication and labelling for marginal, if any, economic benefit, when its
competitors based in China manufacturing in plastics need add no
environmental or social qualifications whatsoever to their products? Dr
Wheeler proposes a radically different approach. Governments should
draw up a set of mandatory labelling requirements at least at EU level
to reflect a kind of ‘matrix’ of where most benefit for environmental or
sustainability investment lies. These should be reflected in correspond-
ing public-sector procurement specifications and in practical and fi-
nancial support for developing country producers to meet the manda-
tory requirements.
Editors’ overview xxv

Part III Resolving key WTO issues

Overview
Part III addresses some of the most controversial issues in the trade–
environment debate as they relate to WTO rules: the relationship be-
tween the multilateral trading system and multilateral environmental
agreements (MEAs) whose implementation may require measures with
trade effects, ‘process and production methods’ (PPMs) issues, and the
WTO’s dispute settlement system.
There has long been a debate about the potential for conflict between
the rules of the multilateral trading system and trade provisions, or
measures with trade effects, implemented by WTO members in order
to meet their obligations under MEAs. Many commentators view reso-
lution of those potential conflicts as the key priority on environment in
the Millennium Round.
As to PPMs, in many respects it is this issue that lies at the heart of the
North-South divide that has hindered progress in the trade and envi-
ronment debate. It is generally considered that the GATT prohibits
regulatory distinctions drawn between products on the basis of the
overseas environmental impacts of their process or production meth-
ods. This is based principally on a GATT dispute panel’s interpretation
of the term ‘like products’ under Article III of the GATT in the contro-
versial 1991 Tuna/Dolphin case (and similar interpretations in a num-
ber of later disputes) and an institutional distaste for trade-related
unilateralism in the WTO. It is here that the environmental protection-
versus-eco-protectionism aspect of the debate is at its clearest. Key is-
sues include the transboundary competitiveness impacts of different
environmental PPM regulations (where there is little concrete evidence
but much speculation); unilateral trade measures based on ‘non-
product-related’ PPMs (i.e. PPMs that do not have an impact on the
environmental impacts or performance of the product itself); PPM-
related trade measures in MEAs; and the use of PPM-based require-
ments in procurement or labelling.
On the WTO dispute settlement system, a perceived lack of sensitiv-
ity to environmental policy considerations is now possibly giving way,
with the Appellate Body’s report in the Shrimp/Turtle case, to a softer
xxvi Editors’ overview

critique on the part of environmentalists, with developing countries

voicing increasing concerns that protectionist measures may be let in
by the back door in the name of environmental protection. The fact that
the Appellate Body considered a non-governmental submission, an-
nexed to the US arguments, is also adding fuel to longstanding discus-
sions over the proper role of non-governmental representation in the
dispute settlement process.
Part III opens with two ‘overview’ papers on some of these key is-
sues. Damien Geradin sketches out the main issues associated with the
interface between trade, investment and environmental regulation. For
these purposes, he puts forward an analytical framework for the pur-
poses of considering the issues within the WTO. He draws a princi-
pal distinction between unilateral environmental measures and those
adopted pursuant to the provisions of various MEAs. For unilateral
measures, he draws a further distinction between direct restrictions on
trade, product standards and process standards. Dr Geradin also exam-
ines the ‘pollution haven’ hypothesis, i.e. that industries or companies
located in countries with high standards of environmental regulation
may relocate to low-standard countries in order to preserve their com-
petitive position. The economic evidence, he concludes, is unconvinc-
ing, with the policy implication that it makes little sense to adopt trade
measures in an attempt to equalize production costs across jurisdic-
tions.
What of the possible solutions to the issues? Dr Geradin notes that
trade disputes about product standards are particularly difficult to re-
solve, predicting that the focus of legal analysis in future WTO dis-
putes may shift to the role of scientific evidence under the WTO’s
Agreement on the Application of Sanitary and Phytosanitary Mea-
sures (SPS Agreement). The Beef Hormones case, over EC restrictions
on marketing of beef products from cattle treated with growth hor-
mones, is a case in point, not to mention the real possibility of a trade
dispute over genetically modified organisms. The most difficult issues,
says Dr Geradin, relate to environmental process standards. Process-
related trade restrictions are GATT-illegal, and here, he says, the best
approach may be to encourage a greater degree of regulatory conver-
gence across nations. The tension between WTO rules and MEAs con-
Editors’ overview xxvii

taining trade provisions is, he says, probably the least difficult area of
potential dispute to resolve in the WTO.
Magda Shahin’s paper presents an overview of trade and environ-
ment discussions in the WTO from a developing-country perspective.
She questions whether the debate is yet sufficiently mature to allow
negotiations with a view to setting new rules and regulations in the
WTO. Her view on MEAs casts doubt on the idea that this is one of the
least difficult areas for the WTO: even if it is perfectly possible to de-
vise technical solutions to the issues, the political issues none the less
remain highly complex. She emphasizes the importance of ‘positive
measures’ (such as technical and financial assistance), as distinct from
trade measures, in MEAs, and suggests that changes to the rules would
offer an unbalanced approach without a parallel commitment to first
use and enforce such positive measures.
Turning to the Shrimp/Turtle dispute, Dr Shahin notes with approval
the panel report’s condemnation of unilaterally imposed trade-related
environment measures that carry a risk of ‘jeopardizing the multilateral
trading system’. This, she says, reflects a political consensus among
WTO members, with the sole exception of the United States, that uni-
lateral measures should be abandoned. A WTO system based on con-
sensus and cooperation cannot be allowed to ‘adapt to … all kinds of
interests’ by allowing trade policy solutions to be applied unilaterally
in line with what individual WTO members see to be environmental
concerns. Dr Shahin is concerned that the subsequent Appellate Body
report in the Shrimp/Turtle case may have opened up the risk of dam-
aging the multilateral trading system through a too-liberal interpreta-
tion of Article XX(g) of the GATT.
Dr Shahin, like Dr Geradin, discounts the ‘pollution haven’ hypoth-
esis, though she emphasizes that stringent environmental regulations can
have a negative impact on developing-country exports. Echoing Nick
Robins’s paper, she points out that the resources and expertise required
to adapt to new regulations in export markets are frequently not avail-
able to developing-country producers. The related issues of technology
transfer and intellectual property rights are likely to feature high on the
future trade and environment agenda, an agenda that must preserve a
balanced approach, so that the development aspect is not overlooked.
xxviii Editors’ overview

Multilateral environmental agreements (MEAs)

The three papers in the section of this book on multilateral environ-
mental agreements highlight some of the complexities of that debate.
Duncan Brack sketches the key controversies and potential conflicts
with WTO rules. Even if a WTO challenge to a trade measure under an
MEA is politically unlikely, the legal uncertainty can none the less re-
sult in a ‘political chill’ over the negotiation of new MEAs; and the
perception that the WTO threatens environmental sustainability does
not assist the growth of the multilateral trading system. In practice,
Brack concludes, the existing hierarchy of international law favours
the multilateral trading system over MEAs. In short, the existing situa-
tion calls for changes in the rules of the multilateral trading system.
Brack’s paper highlights a number of criteria for consideration in any
lasting resolution of the potential conflict, assessing the pros and cons
of various options for amendment to the rules. His preferred route is to
seek to negotiate a new ‘WTO Agreement on MEAs with Trade Provi-
sions’ during the Millennium Round – an option that could prove po-
litically more feasible than the alternative of amendments to existing
rules.
Michel Potier of the OECD makes a challenging suggestion: that dis-
cussion on amendments to Article XX has not been as fruitful as it
could be, and that perhaps the focus needs to shift away from the idea
that amendments to WTO rules are needed, and towards seeking to
make functional cooperative arrangements between the WTO and
individual MEAs.
Reinhard Quick takes a different view, addressing the issues from an
industry perspective. The view of European industry, as represented
by UNICE, is that the relationship should be resolved at the High Level
Meeting. UNICE’s preferred route is to amend Article XX(b) of the
GATT, coupling it with an Understanding on the relationship between
trade measures taken pursuant to MEAs and WTO rules which would
include a number of criteria that MEAs would have to meet, including
a test of ‘necessity’ of the trade measures. Controversy surrounding the
Basel Convention’s proposed ban on exports of dangerous waste des-
tined for recycling to non-OECD countries illustrates the difference
between his approach and that in Duncan Brack’s paper – namely, the
Editors’ overview xxix

extent to which it should be permissible for the WTO to review trade

measures under MEAs. ‘Environmental negotiators cannot expect the
international trading system to be silent on a specific trade issue if they
are not able to solve the environmental issue at stake in a coherent and
sustainable manner’, he maintains.

Process and production methods (PPMs)

The next series of papers focuses on the controversy surrounding
PPMs. Long one of the most contentious of all the issues in the trade–
environment debate, there are now signs that, for some actors at least,
the notion of addressing PPM issues in the Millennium Round by dis-
aggregating them into their constituent elements is becoming politi-
cally feasible. Not all – particularly not all developing countries –
would agree.
René Vossenaar considers both the key issues and some of the tradi-
tional policy responses to the use of PPMs in the context of interna-
tional trade. His focus is the impact of process and production-based
environmental regulation on developing countries. It is often sug-
gested (as in Dr Geradin’s paper) that harmonization of PPMs could be
a vehicle for responding to competitiveness concerns. But this can go
against the grain of the idea that responses to intrinsically domestic
environmental problems should be tailored to the needs of individual
countries. Mr Vossenaar suggests that incentives and supporting mea-
sures, such as efforts to build environmental infrastructure in develop-
ing countries, may be useful in facilitating greater convergence of stan-
dards. In other cases, minimum standards could be helpful in reducing
trade frictions.
In the final section of his paper, Mr Vossenaar takes up the ‘win–win’
theme in the context of PPMs issues. He examines a number of options
for increasing market access and generating environmental and devel-
opmental gains simultaneously. Suggestions include developing mecha-
nisms for facilitating the transfer of environmentally sound technologies;
identifying areas where removing trade restrictions and distortions can
have a positive environmental effect; focusing on the potential role of
transnational corporations in disseminating best environmental man-
xxx Editors’ overview

agement practice to firms in developing countries; and facilitating cer-

tification under the ISO 14000 series of standards.
Konrad von Moltke concentrates on the issue of interpretation of the
term ‘like products’ in the GATT, challenging the established dogma
on a key conceptual ground, i.e. the basic principles of WTO rules on
intellectual property rights. The WTO TRIPS Agreement distinguishes
between products in trade on the basis of whether or not the rights of
the holders of intellectual property have been respected; in short, it
distinguishes between products on the basis of whether certain rules
associated with their production processes have been respected. The
appropriate starting point for debate about PPMs should therefore be
to ask whether they are needed, and, if they are needed, what rules
should apply. Mr von Moltke proposes a new ‘PPMs Agreement’, to be
developed by those whose primary concern is the environment, before
inserting it into the rule-based structure of the trading system.
Charles Arden-Clarke assesses the implications of the Shrimp/Turtle
Appellate Body report through a ‘PPMs’ lens. Although the Shrimp/
Turtle case did not focus on interpretation of the term ‘like products’, it
can none the less be understood as a case about how the WTO treats
trade discrimination on the basis of process and production methods.
Notwithstanding its result (i.e. that the US restrictions on imports of
shrimps from countries that did not require the use of turtle excluder
devices were not compatible with WTO rules), Mr Arden-Clarke sees
Shrimp/Turtle as ‘irrefutable proof’ that the multilateral trading system
is beginning to come to terms with the issues surrounding PPMs. The
fact that the Appellate Body found that the US measure could in prin-
ciple qualify for the exception under Article XX(g) suggests that in
principle discrimination on the basis of PPMs is compatible with WTO
rules. This is precisely the point at which Magda Shahin’s paper raises
concerns about the implications of the Appellate Body ruling. For Mr
Arden-Clarke though, renegotiation of WTO rules is still likely to be
necessary. Addressing PPMs within the Millennium Round calls for an
integrated approach in which PPMs and, more broadly, environmental
issues, are ‘mainstreamed’ throughout the Round.
Editors’ overview xxxi

Conflict resolution in the World Trade Organization

Finally, in Part III two papers consider issues around one of the key
institutional aspects of the debate: the future of WTO dispute settle-
ment on environment-related issues, and the associated issues of trans-
parency and non-governmental involvement in dispute settlement.
In their paper, Thomas Cottier and Krista Nadakavukaren Schefer
give an overview of environment-related WTO dispute settlement and
basic legal principles in four categories: import prohibitions; regula-
tions on process and production methods; environmental subsidies;
and disputes, such as the well-known Beef Hormones case, raising
issues of risk assessment and perceptions and values associated with
risk. Their conclusion is an optimistic one: that the trend towards a
more environment-friendly WTO, evidenced by trends in dispute
settlement, has not yet reached its apex.
James Cameron considers the implications of the Shrimp/Turtle dis-
pute for the future of WTO dispute settlement. He sees the Appellate
Body’s ruling as a positive sign of the WTO dispute settlement system’s
receptiveness to non-governmental submissions – so far, ones that are
attached physically to a government submission. But his paper goes on
to consider the future of conflict resolution in the WTO. Mr Cameron
calls for a more formal system for allowing non-governmental submis-
sions to be put forward, and for the creation of a position of ‘Counsel
to the Panel’; a lawyer who would put forward non-binding opinions to
guide WTO dispute panellists and help to promote consistency in inter-
pretation of the rules.

Part IV Environmental regulation and international investment

The role of foreign direct investment (FDI)
Part IV focuses on the relationship between investment and environ-
ment, beginning with two papers that offer practical case studies of
the relationship between foreign direct investment and environmental
regulation and protection.
Veena Jha’s paper is a case study of experience in India, which tends
to show that generalizations about the relationship between transnational
xxxii Editors’ overview

corporations and environmental protection are difficult to verify em-

pirically, and that there is a need for more research, particularly in
those sectors that are considered a high priority for foreign direct in-
vestment by the Indian government. Dr Jha stresses the importance of
realizing the goal of ensuring that increased foreign direct investment
and better environmental performance are mutually reinforcing.
The experience of the Bhopal disaster offers the most prominent ex-
ample of environmental concerns being voiced about the operations of
transnational corporations in India. But there are other examples too,
for example in cases where companies have sought to use outdated
machinery or have applied less than ‘best practice’ standards to deal-
ing with the waste that they generate. There is also a large number of
examples of transnational corporations making positive contributions
to the environment, including through a ‘ratcheting-up’ effect. Dr Jha
highlights the Indian car industry, where foreign investment has led to
pressures to increase the fuel efficiency of vehicles in domestic pro-
duction.
Veena Jha stresses that there are political differences among Indian
states on the environmental problems associated with foreign direct
investment. Against this background, she underlines that a multilateral
investment regime that allows developing countries little flexibility in
balancing competing environmental, economic and social concerns
may find little support in India. Case-by-case obligations or codes of
good business practice may better meet India’s concerns.
In a second paper, David Owen highlights the public-versus-private-
sector investment dimension of the investment–environment debate,
with a focus on the water sector. He stresses the valuable role that the
private sector can play in addressing the rapidly increasing need for
potable water and sanitation in towns and cities in developing coun-
tries as urbanization progresses apace. The link between environmen-
tal regulation and investment in the water sector is a strong one; Dr
Owen notes that, in Europe in particular, it is environmental legislation
that has been a central driver of private-sector funding and operation.
But if private-sector investment is to bring the maximum benefits, he
cautions that there is a need for independent regulation and regulators
to safeguard environment, public health and consumer interests.
Editors’ overview xxxiii

Lessons from the Multilateral Agreement on Investment (MAI)

The investment aspect of the trade–investment–environment debate is
likely to raise its profile, as the prospect of investment issues being dis-
cussed in the Millennium Round draws nearer. The four papers in this
section of the book consider the lessons that can be learned from the
failed OECD Multilateral Agreement on Investment (MAI). There is
considerable reluctance to repeat the experience of the MAI negotia-
tions: few these days are prepared to express unequivocal support for
the MAI process, and the papers reflect this strongly. In a globalized
economy, however, there is a strong case to be made for the WTO to
provide the institutional home for any future multilateral liberalization
of investment. But ‘exclusivity’, and lack of sensitivity to environment
and labour considerations, are accusations that dog the WTO just as
they dogged the MAI. Some even doubt whether there is a need for
multilaterally directed liberalization, particularly given the fears that it
would serve the interests of Northern multinational corporations, or
that any efforts to redirect the notion of liberalization to the desirable
goal of sustainable development would likely be thwarted.
Jan Huner tells the story of environment issues in the MAI, tracing
the impact of NGO pressure in capitals on the negotiations themselves
and the emergence of the so-called ‘three-anchor’ approach to envi-
ronment in the MAI: (1) a reference to relevant multilateral agree-
ments and the principles of the Rio Declaration in the preamble; (2) a
provision stating that standards should not be lowered in order to at-
tract investment (a provision closely related to the ‘pollution haven’
hypothesis); and (3) a provision annexing the OECD Guidelines for
Multinational Enterprises to the text of the MAI. Mr Huner’s account of
the reluctance within the Negotiating Group to meet with NGOs is
memorable. None the less, ultimately, it was the French decision that
the MAI posed a ‘threat to artistic and literary freedom and cultural di-
versity in France’ that led to the ‘French torpedo’ causing the capsizing
of the ‘leaky MAI boat’, rather than the opposition on environment and
labour grounds.
Kristian Ehinger, who was involved in the MAI negotiations through
the Business and Industry Advisory Committee to the OECD (BIAC),
sets out a business perspective on the issues. He stresses that the origi-
xxxiv Editors’ overview

nal aims of the MAI were to develop a framework based on the prin-
ciples of non-discrimination, national treatment and liberalization of
foreign investment. For business, says Dr Ehinger, the main objective
was to raise investor confidence. He acknowledges that a failure to
include NGOs and parliamentarians in the negotiations resulted in
some misunderstandings, but in substance he does not view the MAI
as a failure. The OECD Secretariat’s work remained in line with the
main objectives of the Agreement and the ‘three-anchor’ approach was
an appropriate and effective means of addressing key environmental
aspects of the agreement. As to whether WTO negotiations would be
better, Dr Ehinger stresses that the siting of the MAI in the OECD was
the result of compromise in a debate about whether it was better to
have broader geographical coverage or higher standards. At all times,
the incorporation of an MAI in the WTO remained the ultimate goal.
Pradeep Mehta of the Consumer Unity and Trust Society in India
assesses the relationship between foreign direct investment and the
environment, and the lessons of the MAI negotiations, from a develop-
ing-country NGO perspective. He begins by examining whether the
‘no lowering standards in the area of environment and labour’ anchor
of the MAI’s three-anchor approach was appropriate and adequate. Do
lower standards in developing countries pull in more polluting invest-
ment, or, on the contrary, is it high standards in developed countries
that ‘push’ investors to developing countries? In fact, Mr Mehta be-
lieves that, where the relationship between foreign direct investment
and environment is a negative one, at least some blame needs to be
placed at the door of multinational corporations themselves, not gov-
ernments. He gives a number of examples of situations where multina-
tional corporations have double standards in their operations, applying
different environmental management standards in developing coun-
tries from those that they would have applied at home. The solution, he
says, should lie with the notion that businesses must respect the widely
recognized principle of environmental protection, including the prin-
ciple of maintaining the same standards in their operations worldwide.
A central theme of Mr Mehta’s arguments is the fundamental in-
equity at the heart of the MAI. While its primary target was the resources
and consumer markets of the developing countries, those countries
Editors’ overview xxxv

were never a part of the negotiations, which took place within the
closed club of the OECD. Second, there was no consideration in the
negotiations of the need to ensure a proper balance of the rights of, and
the obligations upon, the investors. Mehta’s conclusion is that it is
questionable whether a multilateral investment framework and new in-
ternational rules are needed at all, given the pace at which foreign di-
rect investment is currently increasing in the absence of such rules.
Nick Mabey of WWF characterizes the opposition to the MAI as a
clash of world views: the economic and the sustainable. He sees the
MAI as a threat to efforts to address the world’s environmental prob-
lems through action at the national or sub-national levels. For him, and
for many others among those opposing the MAI, it would have in-
creased the power of incoming investors, reducing the ability of host
countries to negotiate the best deal. For the future, Mr Mabey believes
that the objective of investment agreements needs to be sustainable
development. There should be more emphasis on positive initiatives
such as the promotion of ethical business through preferential access
to guaranteed loans and trade promotion. In short, if the investment
agenda is to be passed to the WTO, it needs to be fundamentally re-
thought.
It remains to be seen whether negotiators of any genuinely multilat-
eral investment regime are able to move beyond the established con-
cepts offered by the hundreds of bilateral investment agreements al-
ready in place, or to draw a line under the unhappy experience of the
MAI and start afresh. The opening stages of the Millennium Round
will be critical in setting the agenda.
Finally, Part V contains Halina Ward’s summary of the discussion
sections of the Chatham House conference that formed the basis of this
book.

The agenda one year on

The High Level Meeting
In October 1998, when the papers in this collection were written, there
was considerable discussion of the idea of a High Level Ministerial
Meeting, on either trade and environment, or trade and sustainable de-
xxxvi Editors’ overview

velopment (depending on the proponent). The WTO and GATT Secre-

tariats had held previous symposia on the relationship between trade
and environment in 1994 and 1998, partly in response to allegations of
secrecy levelled at their organizations, but this was the first time that
such a degree of high-level political impetus had been given to the
idea, including from President Clinton and Sir Leon Brittan.
From all sides, support for a High Level Meeting was born largely of
frustration at a lack of progress in resolving the complex relationship
between trade liberalization and environmental protection, particularly
in the WTO Committee on Trade and Environment, the forum that was
originally seen as the best location for a resolution of the issues. But
what should the High Level Meeting be? A significant step towards
preparing the ground for the Millennium Round, or simply an opportu-
nity to bring together different viewpoints? The varying perspectives
on the potential role of the High Level Meeting can be clearly seen in
many of the papers in this book.
With the benefit of hindsight, there are probably few who would
claim that the High Level Symposia on trade and environment and
trade and development (as they eventually became), held at the WTO’s
headquarters in Geneva on 15–18 March 1999, represented a real mile-
stone in the trade–sustainable development debate. Trade and environ-
ment and trade and development were split between separate sympo-
sia. This effectively frustrated NGO calls for a meeting to consider
‘trade and sustainable development’, particularly since only a rela-
tively small number of people attended both meetings. More impor-
tantly, there was no ministerial participation, meaning that the events
simply took the form of speeches followed by position statements from
the floor, with no effort to negotiate any agreed conclusion. Thus, in
practice, the High Level Symposia were little different from previous
symposia and meetings organized on conformity assessment, interna-
tional trade and competition policy, trade facilitation, information tech-
nology and least developed countries.
However, one idea put forward by Sir Leon Brittan at the High Level
Symposium on trade and environment is rapidly gathering pace: the
notion that liberalization of trade should be accompanied by an envi-
ronmental or ‘sustainability’ assessment of its potential impacts, or
Editors’ overview xxxvii

even a backward-looking assessment of its impacts to date. Several

WTO members and NGOs are working in this direction; but the real
policy implications of such assessments, or how they might concretely
feed into the Millennium Round negotiations, remain unclear for the
present.

Environment in the Millennium Round: the real challenges of

‘win–win’
At the time of writing, there is still a great deal of uncertainty about
how environmental issues will be addressed in the Millennium Round.
Some WTO members have already put forward environmental priori-
ties for the Round, with the European Union, for example, focusing on
MEAs, eco-labelling and the precautionary principle, and promoting a
sustainability review of the Round. A discussion is also beginning on
what place to give to the principle or goal of sustainable development
in the Ministerial Declaration that will set the scene and scope of the
negotiations. What does seem certain is that, one way or another, envi-
ronmental issues will figure in the Round. But what is far from clear is
whether they will be allocated their own negotiating mandate, or sim-
ply be dealt with on an agreement-by-agreement or sector-by-sector
basis.
A number of issues have come to dominate the Northern agenda that
were not previously so politically charged, not least among them the
controversy surrounding the relationship between the regulation of
genetically modified organisms and trade, and the February 1999 col-
lapse of negotiations towards a Biosafety Protocol to the Convention
on Biological Diversity. The area of environmental services liberaliza-
tion under the built-in negotiating agenda of the General Agreement on
Trade in Services (GATS) is receiving increasing attention on account
of its potential to promote the win–win theme at home in WTO mem-
ber countries with strong environmental service industries. The roll-
back of agriculture subsidies under the built-in agenda of the Agricul-
ture Agreement is also coming in for environmental scrutiny, as is the
reduction and possible elimination of subsidies in other areas, such as
fisheries – both areas with win–win potential. Whether the controver-
xxxviii Editors’ overview

sial topic of investment liberalization will be included in the Round is

still, however, uncertain.
Among developing countries, there is considerable concern at the
idea of incorporating any environmental agenda items into the Round,
notwithstanding the increased attention being devoted to the idea of
win–win options. This leads to some critical questions. What does
win–win mean when it is no longer a call to action but a guiding prin-
ciple for tough negotiations? The detail of how win–win options might
relate to a trade negotiation framework in which cross-sectoral trade-
offs are a key to progress remains to be explored; though the idea of a
genuinely win–win option being traded off against anything is intu-
itively difficult to grasp. Can a consensus on trade and environment in
the Millennium Round ever amount only to an ‘absence of sustained
opposition’ (to borrow a phrase from the international standards com-
munity)?
Even more difficult, in many areas it is clear that what is sought by
developing countries is positive measures outside the Millennium
Round, for example to facilitate compliance with multilateral environ-
mental agreements, or to assist in the development of domestic envi-
ronmental certification capacities (just two of the suggestions put
forward in the papers that follow). Responding to such calls in the
context of a trade-related negotiation, and making the necessary link-
ages to bodies and initiatives outside the Millennium Round so that the
results have an impact on negotiating positions, presents a huge chal-
lenge. Whether the developed-country negotiators of the Millennium
Round will be able to rise to that challenge and put financial and tech-
nical assistance on the table remains to be seen.
If the creation of a World Trade Organization was the biggest sur-
prise and innovation from the limited Punta Del Este Declaration that
formed the basic negotiating mandate for the Uruguay Round, then it
is genuine institutional and policy integration of this kind and scale
that should be the focus for aspirations for innovation in the forthcom-
ing Millennium Round. Only then will it be possible to claim that the
WTO has become properly integrated into a system of global gover-
nance fit for the new millennium.
 Part I
A strategic overview of the debate
and the key issues for the future
Renato Ruggiero

Fifty years of the multilateral trading system

This year marked the 50th anniversary of the multilateral trading sys-
tem – a system that, together with the United Nations and the Bretton
Woods institutions, emerged out of the tragedies of the Great Depres-
sion and the Second World War. Certainly our world today is in many
ways still unacceptable. Poverty and hunger remain with us. The prom-
ise of development has yet to be redeemed for much of the emerging
world. Civil war and ethnic strife mar the global peace. And in contrast
to the dark history of the first half of this century, the second half has
shone immeasurably brighter – in no small part because of the vision
and contribution of the postwar international system.
Now, on the threshold of a new century and a new era, we ask what
the next 50 years will bring. Will it be a time of conflict or cooperation?
Stagnation or progress? Another dark age, or one filled with light? Today
I want to comment on the realities of this new globalized age – and
what these realities mean for the evolution of the international system
in the time ahead.
The current financial crisis marks an important turning point in the
process of globalization – but not in the way that its critics now predict.
As difficult and destabilizing as the past 16 months have been, the cri-
sis has reinforced, not weakened, the reality of globalization. It has
underlined in a stark and powerful way just how interconnected we
have become financially, socially, politically, as well as economically.
It has further blurred the distinction between domestic and foreign is-
sues, fatally undermining the notion that a country’s internal policies
or practices are the concern of no one else. And it has created new
pressures for more – not less – international cooperation, across a
much broader policy front.
This is because globalization is about much more than trade and
capital flows. Technology is linking us together to an unprecedented
degree – through communications, information and ideas, as well as
4 Renato Ruggiero

services and investment, shrinking distances and time. And this pro-
cess, in turn, is creating an awareness of interdependence on a plan-
etary scale. Television, fax machines, mobile phones and the Internet
are erasing barriers not only between economies, but between people,
allowing us to see and understand how interconnected we are. There is
a globalization of our consciousness, as well as of our economies. And
this dimension of globalization, more than any other, will prove impos-
sible to slow down or reverse.
The financial crisis has dominated our discussions over the past year,
with its moments of pessimism and moments of renewed hope. It is
clear that this is first and foremost a financial crisis, and the solutions
must be found from within the financial and monetary systems. But it
is now equally clear that continued financial and exchange rate insta-
bility can – and will – have a negative effect on world trade, investment
and development. Declining commodity prices, weakening imports in
the affected countries, excessive export competition in the advanced
markets and the threat of further devaluations – all of these forces are
introducing new uncertainties, new risks and new protectionist pres-
sures into the global economy.
The reality is that the questions raised by the financial crisis go to the
heart of the major challenge of our time: the challenge of global gover-
nance in this complex and interdependent era. Can we maintain a stable
and increasingly borderless global economy, with rising trade, employ-
ment and growth, without a stable global financial and monetary sys-
tem? Will the integration of our economies require a more coordinated
approach to fiscal, monetary, development and environmental poli-
cies, as well as trade policy? Does the logic of globalization force us to
re-examine the global architecture?
A new international consensus will have to develop for improving
the management of the global economy if we are to continue to liberal-
ize markets, and if globalization is to fulfil its promise.
First, we need to open up the international system to wider participa-
tion at the highest level of the decision-making process. This implies
that we must move from a predominantly unilateral leadership to a
more collective leadership – and one with a more balanced share of
responsibility. This does not mean that US leadership is any less impor-
A strategic overview of the debate 5

tant. What it means is that Europe, Japan, the transition regimes and
the developing countries that make up a growing share of the world
economy must be prepared to play their part. The recent G-22 meet-
ings are good initial steps in this direction.
And this in turn means that the nature of international leadership
must change. During the Cold War, leadership was about solidarity,
discipline, the possibility of force in the common defence of our val-
ues. By contrast, leadership in an interdependent world is the art of
cooperation and consensus. It is about recognizing that our national
interests are increasingly global interests, and that our national security
increasingly hinges on the security of others. I do not suggest that the
voice of internationalism is an easy one in the present climate – only
that it is essential in our globally interdependent world.
Second, we need to broaden the scope of the issues that are part of
the international agenda and at the highest level of the system. We can
no longer afford to view issues through a sectoral lens. We need to
look at the challenges we face from a broader perspective, and as
pieces of a larger, interconnected puzzle. Globalization has given rise
to a lengthening list of issues that now cross borders, from environ-
mental standards and development concerns to the distribution of re-
sources, labour standards, health issues, human rights, education,
technological empowerment – even foreign security. More and more,
we are dependent on each other’s financial stability, economic devel-
opment, environmental security and political reform. More and more,
there is pressure to widen the scope of international coordination, and
to define institutions that can bridge the gap between an economic and
technological system that is increasingly global, and a political system
that is still predominantly national.

The environmental dimension

In this widening of the international agenda, the environment will oc-
cupy a very important part. Environmental challenges such as acid
rain, deforestation, global warming or the protection of endangered
species clearly demand approaches that are global rather than national
in scope.
6 Renato Ruggiero

The recent Shrimp/Turtle appeal in the WTO is the clearest sign yet
that the trading system is fully supportive of policies to protect endan-
gered species or the environment – but that it is up to the environmental
community itself to provide this policy framework, or to implement
the policies without discrimination. It strongly reinforces the grow-
ing need to negotiate global environmental rules and standards – and
to reach a global consensus about environmental issues. And it under-
lines the need to strengthen existing bridges between trade and envi-
ronmental policies, a task that would be made immeasurably easier if
we could also create a house for the environment to help focus and
coordinate our efforts.
This Shrimp/Turtle appeal is extremely important because it clarifies
one essential issue in the debate between the trade community and the
environmental community: that there are no political, economic or le-
gal obstacles to the harmonious development of both environmental
objectives and free trade objectives. And here it is important to put on
the record the conclusions of the Appellate Body in this case:

We wish to underscore what we have not decided in this case. We have not decided
that the protection and preservation of the environment is of no significance to
Members of the WFO. Clearly it is. We have not decided that the sovereign nations
that are Members of the WTO cannot adopt effective measures to protect endan-
gered species, such as sea turtles. Clearly, they can and should. And we have not
decided that sovereign states should not act together bilaterally, plurilaterally or
multilaterally, either within the WTO or other international fora, to protect endan-
gered species or to otherwise protect the environment. Clearly, they should and do.1

This appeal makes it even more impossible to say that trade policy
does not consider environmental issues. It is clear not only that the
trade system takes environmental concerns into account, but – if they
are implemented without discrimination – that these concerns prevail
over free trade objectives.
This is of fundamental importance, because if we want to succeed in
defining our objectives – both the trade community and the environ-

1
United States – Import Prohibition of Certain Shrimp and Shrimp Products, para. 185,
WT/DS58/AB/R (12 October 1998).
A strategic overview of the debate 7

mental community – we have to define the real challenges we face,

and not create false obstacles. To pretend that environmental concerns
stand in the way of free trade is to create a false obstacle. To pretend
that free trade stands in the way of environmental concerns is also to
create a false obstacle. And if we focus our attention on these false
obstacles instead of the real problems that we face, we are only losing
time and resources without coming any closer to reaching our shared
goals.
One message must come out loud and clear. The WTO is a strong
institutional friend and supporter of the environment. And we must
proceed, the trade and environmental communities hand in hand, to
improve and strengthen this alliance. This is also the message that
must be sent from the High Level Dialogue proposed by both Presi-
dent Clinton and Sir Leon Brittan, and strongly endorsed from the
outset by me. We are making substantial progress in the preparations
of this dialogue and we are not far from launching this initiative –
probably together with another High Level Dialogue on Trade and
Development at the beginning of next spring. There is still a lot we
must do together to improve and clarify the relationship between trade
and environment. But this task will be much easier if we move forward
as friends, not as opponents.
To characterize the WTO (as we have read recently) as an organiza-
tion that ‘refuses to reveal its deliberations to the public, or be held re-
sponsible for the social, political and environmental costs of its deci-
sions’2 is a false representation. No one can claim this. Certainly, there
is more that we can, and must, do to improve transparency and our al-
liance with environmental, social and development policies. But those
who follow the activities of the WTO know that we are strongly com-
mitted to that course, and that we are already moving towards these
objectives within the rules that have been adopted by consensus by all
our members and ratified by each of our parliaments.

2
Newsweek, 12 October, 1998, p. 24C.
8 Renato Ruggiero

The social dimension

A second important issue is the social dimension of globalization. At
the WTO’s first Ministerial Conference in Singapore, we emerged from
a difficult debate with a clear and strong consensus on the issues of
labour standards – a consensus, first, that members were committed to
the observance of core labour standards; second, that the ILO was the
relevant body to address these issues; third, that standards are best pro-
moted by growth and development, fostered by trade liberalization;
and fourth, that labour standards should in no way be used for protec-
tionist purposes or to put into question the comparative advantage of
countries. It is this consensus that has opened the door for the Interna-
tional Labour Organization and its Declaration3 to make real progress
on the issue of the social clause. Perhaps not everyone is fully satis-
fied with this progress. But the reality is that we would have made no
progress at all if we had still been fighting over the issue of the ILO’s
or the WTO’s competence.

Least developed country needs

The third step was the WTO initiative last year to provide assistance, in
collaboration with UNCTAD, UNDP, the World Bank and others, to
address the needs of least developed countries. The proposed High
Level Dialogue on Trade and Development has to give priority to this
urgent problem. One objective is to give least developed countries
better access for their exports in advanced markets, and here I have
strongly advocated that we provide bound duty-free access – a call
that has now also been taken up by many world leaders, and that must
be answered during the next multilateral negotiations in 1999. In addi-
tion, we must continue to work towards a more integrated approach to
capacity-building in these countries. And we must build upon our ef-
forts to link the least developed countries via the Internet to all the re-
sources and expertise of the WTO – a powerful symbol of the new kind
of dialogue that is needed in our global electronic village.
3
Editors’ note: In June 1998, the International Labour Conference adopted the ‘ILO
Declaration on fundamental principles and rights at work.’
A strategic overview of the debate 9

Towards a vision for a world of deeper integration

We need to define a vision for the post-Cold War era. For four decades,
the strategic imperatives of the Cold War created a degree of cohesion
and singlemindedness of purpose that helped sustain the international
system. But we have lost the ‘cement’ of the Cold War. And no one has
yet articulated a clear vision of what the post-Cold War order should
be. Instead of one common enemy, we face thousands of complex
problems. We need to define a new global vision to match the realities
of a new global age – a technology-driven age which is shrinking time
and space.
To sum up, if we consider the present financial turmoil, it seems that
an answer cannot be found unless we keep our markets open. At the
same time, it will be increasingly difficult to resist protectionist pres-
sure unless stability is restored to the financial and exchange rates sys-
tems. If we look beyond the financial crisis, we can see that there is a
new global reality emerging – and even a new global economy –
which is much more complex than trade or capital flows. What we need
is an architecture that will take into account, at the highest political
level, a number of players that goes beyond a few industrialized coun-
tries, and includes developing countries and economies in transition.
And, just as we have to increase the number of players in the highest
international decision-making process, so too must we increase the
number of issues that have to be taken into account in this globalized
world, to develop a more balanced and global vision to accommodate
our more complex and technology-driven global system.
If the challenge of the past 50 years was to manage a divided
world, the challenge of the future will be to manage a world of deeper
integration. It is a challenge that will in many ways be much more dif-
ficult and more complex. We find ourselves in a new world today, and
in a new economy, whose characteristics are not fully understood even
by its most prominent actors. And yet the choices we face are enduring
ones – between moving into the next century on the basis of shared
global rules or on the basis of power, between stability or uncertainty,
consensus or conflict. How we manage these challenges in the months
and years ahead will depend on the choices we make today, not on glo-
balization.
10 Renato Ruggiero

Globalization has enormous potential to generate growth, to spread

the benefits of technology, and to weave a more stable planet. But it
also challenges the status quo. It demands that we adapt. This is not the
moment to retreat from the future and to turn back to the past – a past
that has shown us with such stark clarity how building barriers to one
another can only make our economies poorer and our world less se-
cure.
Brian Wilson

Introduction
We are faced by global problems and we need to find global solutions.
We will only achieve this by greater cooperation and dialogue between
the people from all interested groups. We have all begun to understand
better the links between our interests in trade, investment, environ-
ment, development and wider issues.
The UK government is strongly committed to the creation of open
markets around the world, supported by effective multilateral rules.
Free trade benefits developing countries by providing access to over-
seas markets. It brings better quality, more choice and lower prices to
consumers. It stimulates the efficiency and innovation of business.
And, by giving them access to competitively priced components and
services, it allows businesses to profit and grow. Throughout the last
50 years, growth in world trade has constantly outstripped the growth
of GDP. It has been estimated that the Uruguay Round of negotiations
alone when fully implemented will add US$500 billion each year to
world income. We are all more prosperous as a result.
But clearly, there remains much more to be done. There are genuine
benefits, for economic growth, improved living standards and new job
creation across the world, to be gained from further liberalization. Ob-
viously these are difficult times for the world economy. The temptation
is to take the easy populist approach – to try to close domestic markets.
But protectionist measures will get none of us anywhere in the medium
term and must be resisted.
There are other threats to the liberalization agenda, and one of the
most important of these is the belief that free trade must be bad for
the environment. So in the longer term our objectives are to pursue
open markets in a way that recognizes that there are genuine con-
cerns about sustaining the environment and therefore that we should
pursue our objectives in a way that is compatible with these con-
cerns.
12 Brian Wilson

There are two strands of questions outstanding in the trade–invest-

ment–environment debate: what are the issues we are currently facing,
and how can we take these issues forward?

The issues
We need to look at the development of both trade policy and environ-
mental protection rules. We are currently working with our EU partners
to build support for a comprehensive approach to a new round of
trade negotiations. We are also actively pursuing the development of
key existing and future international conventions tackling global en-
vironmental problems such as climate change and ozone layer deple-
tion.
Protecting the environment and maintaining an open, and equitable
non-discriminatory multilateral trading system are both essential to the
achievement of our objective of sustainable development. There are
many effective internationally recognized measures which aim to
protect our environment. There is more to be done, although signifi-
cant progress has been made in the last 20 years or so with a number
of multilateral environmental agreements (MEAs). Liberalizing trade
helps to ensure that resources are used efficiently, it helps generate the
wealth necessary for development and environmental improvement,
and it encourages the spread of clean technology.
It is clear that these two systems – trade and environment – must ac-
commodate each other in order to be fully effective. It has been argued
that the WTO Agreements could frustrate the aims of some environ-
mental protection measures. Some have pointed to the report of the
WTO dispute settlement panel in the Shrimp/Turtle case as evidence of
this. But the Appellate Body has now reversed some of the panel’s
judgments.
Although the Appellate Body ruled against the US measure in that
case because of the application of the measure, it acknowledged that
the measure was legitimate in principle – a very significant decision.
The report certainly promoted the need to interpret WTO rules so that
they do not undermine environmental protection measures: ‘We have
not decided that the protection and preservation of the environment is
A strategic overview of the debate 13

of no significance to the Members of the WTO. Clearly, it is.’1 The

report of the Appellate Body could be interpreted as evidence of the
complementarity between the two systems. We must all reassess the
position.
The roles of the world trade system and the framework for environ-
mental protection should be complementary. To consider the need for
action, I intend to highlight briefly three of the subjects we are currently
considering: the interface between MEAs and the WTO rules; the rel-
evance of process and production methods; and the issue of labelling.

The MEA–WTO interface

On this first subject, we are all aware of the growing number of MEAs
and international conventions aimed at protecting the environment.
The majority of these have little or no trade implications. However,
some conventions have the specific purpose of imposing controls on
the free movement of goods, for example of hazardous substances or
species requiring protection, and some MEAs include trade restrictions
as part of an integrated policy package agreed by the parties to achieve
broader objectives on the production and consumption of substances
harmful to the environment. Under the right conditions, and in the ab-
sence of better alternatives, trade measures in MEAs can be useful in-
struments.
There has been much discussion in recent years in the WTO and in
other international fora about the relationship between MEAs and the
multilateral trading system. No consensus has yet emerged among
WTO members on whether or not the status quo is acceptable. I be-
lieve that there is a need to clarify the interface between MEAs and the
GATT. But I do not think it is yet obvious how this relationship should
best be clarified.
To some, amending the text of GATT may seem an attractive option.
But it is not a readily available short-term option. Amending GATT
legal texts is a difficult task because WTO members are not likely to

1
United States – Import Prohibition of Certain Shrimp and Shrimp Products, para. 185,
WT/DS58/AB/R (12 October 1998).
14 Brian Wilson

relinquish well-established legal rights and obligations without advan-

tage. And because many among the developing countries fear that any
amendments would be aimed squarely at them, they are the least able
to respond, and are unlikely to support that approach.
We should also be clear of the context. We must be sure of the conse-
quences of any changes. It is not possible to hold this debate in isola-
tion, as case law is continuing to clarify the meaning of the WTO
Agreements.
There may be other approaches. If a group of countries agree to ap-
ply trade restraints to each other, perhaps relinquishing their rights un-
der WTO Agreements, then why should anyone object? However, if
the proposal is to apply trade restraints to unwilling trade partners, then
the issue becomes more complex. My view is that there is no way of
setting aside the WTO rights of member countries against their will.
That is why no country, developing or otherwise, need fear wider dis-
cussion. Nothing will – or can – change without consensus.

Process and production methods (PPMs)

Closely linked to the case of applying trade measures to unwilling part-
ners is the debate surrounding process and production methods (PPMs).
Environmental policies are increasingly concerned with avoiding envi-
ronmental degradation at all stages in the life cycle of products.
Controlling the processes of production is an increasingly important
element in strategies for environmental protection. The logic of the life
cycle approach in environmental policy is sound. We must ensure that
the international community does all it can – once more, by agree-
ment – to develop measures to ensure adequate environmental stan-
dards in production methods.
But I would be deeply concerned at any attempt to reinterpret WTO
rules to permit trade restraints to coerce trading partners to adopt the
domestic policies of others. And I think it is worth stressing that dis-
criminatory or arbitrary application of legitimate measures is unlikely
to lead us towards the development of effective global policies. We
have to be aware that measures may need to be tailored to local condi-
tions to meet a common objective. For example, globally we may be
A strategic overview of the debate 15

concerned about water usage in production, but the means of achiev-

ing our common objective may require different actions around the
world.
In discussing PPMs, it has been argued that the solution could be the
amendment of GATT rules to allow discrimination between like prod-
ucts. At the moment, such a solution looks rather theoretical. The pros-
pects of consensus in the WTO are low on this kind of proposition. We
should work to build consensus in this subject, and not only in the
WTO. The WTO alone cannot be used to reach a consensus on how to
deliver all environmental policy objectives. It is not a body for making
regulations on the environment. We should certainly be pushing for
improved standards, but we should consider which approach will lead
us most effectively to that objective.

Labelling
On labelling, we know that consumer demands in this area are increas-
ing. We are, for example, committed to ensuring better labelling of
genetically modified foods. Consumers are looking for information on
the environmental effects of a product’s production and disposal. This
desire has led to greater use of suitable labelling by producers and re-
tailers. Voluntary initiatives of this kind in the marketplace should be
welcomed, especially if they open markets for sustainably produced
goods from developing countries.
Labelling schemes should be simple, non-discriminatory, transparent
and capable of independent verification. The process of verification
for such schemes should be achievable and affordable by smaller com-
panies and by those in the developing world. At the level of broad prin-
ciple, schemes that meet these criteria should be a useful complement
to a liberalizing trade policy.
Consumers should be able to purchase goods on a properly informed
basis. This is another area where the development of international stan-
dards can help establish the right degree of transparency both for gov-
ernment schemes and independent single-issue certification schemes.
There are clearly many more issues that we should address when
formulating policy, but there is simply no time to cover each one here.
16 Brian Wilson

The way forward

Let me be clear. The UK government is very serious about its obliga-
tion to protect the global environment. But part of this obligation will be
delivered by ensuring the effectiveness of the world trade system. We
need a strong world trade system which delivers real opportunities for
economic growth, not least to those developing countries that desper-
ately need more access to our markets in order to grow out of poverty.
The Appellate Body in the Shrimp/Turtle case reiterated that our
agreements under the WTO already recognize that the multilateral
trading system must accommodate the framework of laws needed to
protect our environment. I accept that it is not altogether clear where
the line between the two systems is drawn. That is an area where we
have to look very closely at the Appellate Body report and seek clarifi-
cation on it.
In the context of applying the general exceptions in GATT Article
XX, the Appellate Body said that the location of the line ‘is not fixed
and unchanging; the line moves as the kind and the shape of the mea-
sures at stake vary and as the facts making up specific cases differ’.2
This willingness to address the issues on a case-by-case basis should
be viewed positively, especially as the Appellate Body also recognized
that elements of the WTO agreements must be read in light of contem-
porary concerns. We should consider carefully the balance between
our need for certainty and the value of flexibility.

Investment
So far, I have been talking mainly about the interaction between trade
liberalization and environmental protection. An equally important is-
sue for the future will be the relationship between environmental issues
and the liberalization of international investment.
The investment issue has been given a higher public profile by the
negotiation of the Multilateral Agreement on Investment, or MAI. It
now looks most unlikely that we will conclude the MAI in the near
2
United States – Import Prohibition of Certain Shrimp and Shrimp Products, para. 159,
WT/DS58/AB/R (12 October 1998).
A strategic overview of the debate 17

future. But the issues that came up in the MAI context are still rel-
evant.
I am optimistic that these issues can be addressed in a way that every-
one can find satisfactory. In principle, there should be no conflict be-
tween the fair treatment of investors and the protection of the environ-
ment. Our aim is to make sure that these two goals are not allowed to
undermine each other in practice. The UK government – at least since
May 1997 – took a leading role in forcing this issue up the agenda in the
MAI negotiations and will continue to give it a high priority.

The priorities
So how should we be channelling our energies now? I think we should
concentrate on two areas.
First, we must recognize the value of international consensus on en-
vironmental protection. And we must continue to work to expand the
scope and the reach of the consensus. The United Kingdom will con-
tinue to play its full part in the development of key existing and future
international conventions tackling global environmental problems
such as climate change and ozone layer depletion. And we will work
to build consensus and develop mutual recognition of standards, and,
where desirable, to harmonize standards while ensuring that trade rules
are not used to impose unfair standards on developing countries.
Second, we must ensure that there is a better understanding between
the global trade and environment communities. It may be that a solu-
tion to some of our concerns will be found in a clarification of the inter-
face between the systems rather than in the alteration of established
principles. This will become apparent only with improved dialogue.
We need a continuing dialogue within government, between govern-
ment, business and civil society organizations, and on an intergovern-
mental level. For this dialogue to be fully effective, we will also have to
push for greater transparency in international organizations, and in
particular in the WTO, so that it can shed its image of a secret body and
deflect unwarranted criticisms about its deliberations.
Cooperation within and between governments will underpin the
compatibility of both sets of policies and their coherent development.
18 Brian Wilson

I think that the trade and environment frameworks are less in conflict
than some might claim. That does not mean that I dismiss the possibil-
ity of any conflicts. Governments themselves have a duty to balance
the objectives of both protecting the environment and upholding the
multilateral trading system, whether they are negotiating in a trade fo-
rum or an environment forum. It is therefore for parties to both existing
and new agreements to ensure individually and collectively that they
do not sign up to conflicting requirements.

A High Level Meeting and towards a new round

We need a strategy for taking all of these ideas forward. Central to our
strategy should be a dialogue between all parties. Earlier this year, Sir
Leon Brittan called for a High Level Meeting on trade and environment
to add impetus to the debate. We are working to build support for this
idea within the WTO. I would like such a meeting to explore the inter-
face between trade and environment policies: to consider what the po-
tential conflicts between the two might be and to examine possible so-
lutions. The meeting might also look forward to the new trade round,
and provide the opportunity to exchange views on what might be
achieved there.

Conclusion
Trade, investment and the environment are all increasingly global is-
sues. The international community has made great inroads into dealing
with these concerns at a global level. What we do not have is a frame-
work for how each of these systems overlap with or complement the
others. This is the area that we must explore and resolve. Solutions to
global problems will be found only through that consensus.
As a nation, we should not shy away from a leadership role and we
should be seeking opportunities for progress. But progress will come
only from an improved dialogue between all interested parties. We
cannot hide from the fact that environmental concerns can be used as a
smoke-screen for protectionist measures – with very immediate im-
pacts on people’s welfare in other parts of the world. So I want to see
A strategic overview of the debate 19

solutions that will lead us down the path of sustainable development.

We need to get the balance right, both on policy and on timing.
Gary P. Sampson

It can be stated with some objectivity that the General Agreement on

Tariffs and Trade (GATT) and now the World Trade Organization (WTO)
have been successful over the past half-century at doing what they
have been clearly mandated to do. The WTO has two primary objec-
tives: first, to progressively remove those trade restrictions and distor-
tions that protect uncompetitive producers and deny consumers the
possibility of purchasing goods and services at the most competitive
international prices; second, to maintain the open, liberal and non-
discriminatory rules-based multilateral trading system as a means to
ensure predictability and stability in world trade. The reduction of
barriers to trade in the postwar period has been dramatic, and the con-
cepts, principles and rules on the basis of which legally binding rights
and obligations are negotiated apply to thousands of billions of dollars’
worth of goods and services trade between 132 countries at all levels
of development. What this means in practical terms is that there will be
strong resistance to change an organization that is considered by many
to be working well with respect to what it is supposed to do.
Notwithstanding this success, the WTO is strongly criticized by
many groups of environmentalists. While the WTO does not have as its
primary objective the protection of the environment, the importance of
this policy goal is clearly acknowledged in its Preamble and in various
Agreements. The WTO places no constraints on governments pursu-
ing within their borders whatever legitimate policy options they wish
with respect to the environment. Nevertheless, the view widely held by
many representatives of civil society is that WTO rules constrain their
democratically elected governments from acting as they should to
protect the environment. This dissatisfaction relates to, among other
things, a lack of flexibility at the national level to use trade discrimina-
tion as a means of extending domestic environmental standards beyond
national borders, or to discriminate against imports that are seen to
undermine environmental standards that are established to reflect
domestic societal preferences.
A strategic overview of the debate 21

A point that is sometimes overlooked in directing these criticisms at

the WTO is that the meaning ascribed to the World Trade Organization
depends very much on the context in which it is used. The WTO can be
taken to mean at least four things. First, it is a set of Agreements which
create legally binding rights and obligations for all 132 members. Un-
like many other multilateral agreements, these rights and obligations
are enforced through a disputes settlement mechanism that provides
for both compensation and retaliation in cases of non-compliance.
WTO procedures do not, however, foreclose the options of govern-
ments agreeing to forgo their rights by joining other Agreements that
provide for measures that would otherwise violate WTO rules.1 Second,
the WTO is a forum for reviewing the trade policies of its members and
discussing other recent developments in the multilateral trading system.
Third, the WTO is a relatively small secretariat with no enforcement
powers or role in the interpretation of the legal rights and obligations of
members.
Finally, and most importantly for present purposes, it is sometimes
forgotten that the WTO consists of 132 governments that have agreed
to act in a certain manner – in particular, not to discriminate against
each other in international trade unless they have agreed to do so in
some other context, such as a multilateral environment agreement, or
in the event of exceptional circumstances. In this context, the WTO is a
collectivity of governments acting on behalf of their own constituen-
cies in accordance with multilaterally agreed principles that have been
adopted by consensus.
There is a realization in a number of quarters that there is a need to
build support for the process of trade liberalization in the WTO, and in
fact for the WTO itself. Thus, a call has come from a variety of groups
to convene a meeting to address the concerns relating to trade and the
environment.2 This, in turn, has led to a consensus among WTO mem-
bers to hold the High Level Meeting in March of 1999.

1
Examples include CITES, the Montreal Protocol and the Basel Convention.
2
The proposal to hold a High Level Meeting is reflected in the Quad Ministerial
Communiqué of 29–30 April 1998, the Report of the European Parliament adopted on 30
April 1998, various initiatives of the European Commission (e.g. the speech of Sir Leon
Brittan to the Bellerive Foundation on 23 March 1998), and, most recently, the call by
22 Gary P. Sampson

In large measure, the challenge facing the member governments of

the WTO is to find a way of dealing with the criticisms of civil society
without severely damaging the credibility and usefulness of the WTO
as a body responsible for the rules of the non-discriminatory trading
system and the progressive liberalization of trade in both goods and
services. Conducting international trade according to rules rather than
commercial or political power is accepted by all WTO members to be
one of its most important characteristics.
It could be reasoned that there is a now a window of opportunity to
address the concerns of the trade community and representatives of
civil society. First, the negotiations leading to the formulation of the
agenda for the WTO Ministerial Meeting in December 1999 will pro-
vide the opportunity for serious consideration of the issues to be ad-
dressed in whatever form the multilateral negotiations take in the year
2000. Second, much groundwork has been done in the WTO to intro-
duce change if this is thought necessary; comprehensive proposals on
most of the major issues have been discussed at length. Third, a great
deal of work is already under way in the regular bodies of the WTO,
including the General Council, addressing ways to improve the trans-
parency of the WTO and to accelerate the derestriction of an increasing
range of documents. Fourth, there is a political awareness that something
needs to be done, expressed most recently in the call for the High Level
Meeting itself. For this opportunity to be realized, there must be an ap-
propriate level of ambition on the part of all interested parties. While it is
important to be ambitious, it is equally important to be realistic with re-
gard to what can be done in the WTO within particular time frames.
Various stages determined by forthcoming events need to be taken
into account in ascertaining what issues are to be addressed and when.
The first is the preparatory stage for the High Level Meeting. Second,
there is the High Level Meeting itself and what could be the outcome

2
(cont)
President Clinton for a joint Ministerial Conference of Trade and Environment Ministers.
President Clinton asked that ‘a high-level meeting be convened, to bring together trade and
environmental ministers, to provide strong direction and new energy to the WTO’s
environmental efforts in the years to come, as has been suggested by the European
Commission’.
A strategic overview of the debate 23

of this meeting. Third, there is the preparatory stage for the WTO Min-
isterial Meeting taking place at the end of 1999 in the United States,
and the negotiations surrounding the formulation of the agenda for this
meeting. Fourth, there is the Ministerial Meeting itself and perhaps the
launching of a new round of negotiations.
Given the manner in which the WTO proceeds, it would seem reason-
able to divide the issues to be addressed, and the possible outcomes,
into categories, depending on the degree of government involvement
or negotiation in each case. Given the consensus-based nature of the
WTO, the need for members to take decisions requires collective deci-
sion-taking, probably intensive negotiation, and certainly not a rapid
outcome. On this basis, it is possible to envisage three sets of objectives
and outcomes. First, there are those that can be achieved if there is
enough informal support for the Director-General or the Secretariat to
undertake initiatives without formal discussion and decision-taking on
the part of the members. In such cases, consultation is important but
negotiation is not. Second, there are initiatives that require the collective
approval of members, but not necessarily changes in rules, rights or
obligations. Each WTO member has joined the organization because
the existing balance of rights and obligations is seen to be satisfactory.
Upsetting this balance may require negotiation in areas quite outside
those under discussion. There are, however, numerous examples where
members can operate expeditiously within the existing framework of
rules to achieve objectives that are considered important. Finally, there
are those objectives that can be achieved only through a change in
rules. The procedures for changing rules in the WTO are complex. In
practical terms, rule changes can be achieved only in comprehensive
rounds of trade negotiations where cross-sectoral trade-offs are possible.
The coming twelve months could be important for the trade and en-
vironment debate in the World Trade Organization. To take advantage
of the window of opportunity that exists at the present time, however,
will require careful consideration of the content of the proposals pre-
sented and the timing and nature of forthcoming important meetings.
David Wakeford

Reconciling trade and investment liberalization and environmental

sustainability
In the developed world, concern about the environment is here to stay.
We have broadly reached an acceptable standard of living and we are
now looking for more than just the material benefits and comfort that
the industrial revolution, technological advancement and trade have
created. We can now afford to be more critical about the environment
and the impact that our production processes, products and lifestyles
have on the environment. There is also a general recognition that we
cannot continue to extract natural resources, produce, consume, create
waste and pollute our surroundings in the way we have done in the
past; this is simply not sustainable.
The link between a high standard of living and improved environ-
mental standards is clearly evident. The link between the progressive
liberalization of trade, investment and wealth creation has also been
clearly proven by the GATT and WTO over the past 50 years. It can
therefore be deduced that more liberalized trade and investment cre-
ates wealth that leads to higher environmental standards and improved
sustainability. Conversely, without wealth creation environmental stan-
dards would not be improved and environmental sustainability would
have a far lower priority.
Trade and investment liberalization and environmental sustainability
are thereby mutually supportive. It is only the rate at which we progress
and the degree of improvement of environmental performance and
sustainability that needs to be reconciled.
It is also essential for developing countries to create wealth and
thereby to adopt very much higher environmental standards.
A s trategic overview of the debate 25

What challenges will the next few years pose?

In the next few years one of the main problems will be avoiding global
economic decline. Without wealth creation in developing countries, en-
vironmental standards will remain unsatisfactory and sustainability will
be sacrificed for short-term wealth creation. A reversion to protectionism
will also prevent global solutions to global environmental problems.
Environmental issues are currently addressed by a farrago of interna-
tional organizations. There is no coherent or prioritized approach, and
activity is driven to some extent by fashion and political motivation.
Failure to address environmental issues coherently and effectively
leads to greater expectations being placed on the WTO to solve the
problem. We are like startled rabbits in the light of the WTO.
A more coherent and prioritized approach to environment issues
through a single powerful, dynamic and respected international agency
is absolutely crucial. If this is not possible, then there should at least be
an organization to coordinate the individual organizations’ or agen-
cies’ activities. This would focus resources on internationally agreed
priorities, and reduce duplication and the inefficient use of limited re-
source to address environmental concerns.
Another major challenge for the future is to modify the culture of in-
dividuals towards the environment. Individuals in their own lifestyles
cause more pollution and create more waste than companies which,
through a combination of regulation and voluntary action, are in my
opinion extremely good citizens in the main, committed to good envi-
ronmental management.
Failure to create the right culture and individual approach to the en-
vironment will encourage an onerous regulatory approach which ulti-
mately will become self-defeating as companies become buried in
regulatory burdens and authorities are no longer able to monitor com-
pliance with all the regulations. In the case of regulations covering
trade, there is a whole range of border controls all of which are ex-
tremely important in their own right and most of which are growing in
their own requirements.
We already have the Montreal Protocol, the Basel Convention and the
Convention on the Prior Informed Consent procedure, each of which is
enforced through a different process. While the controls are manageable
26 David Wakeford

at present, if more different types of trade control are introduced and

the current ones become more widely applicable, they will become
extremely difficult, if not impossible, to manage. Effective enforcement
must be considered carefully in all future conventions and agreements
related to trade controls.

Environment in the Millennium Round?

If the Millennium Round goes ahead at the end of 1999, one of the
major tasks will be to defend and strengthen the agreements achieved
in the Uruguay Round.
Second, agriculture and textile trade need to be further liberalized to
enable developing countries to benefit from increased trade with de-
veloped countries in these products.
Third, it is my view that the Millennium Round should also be used
as an opportunity to get a consensus on the need for the establishment
of a World Organization for the Environment.
Finally, I hope that the future will not be a reflection of the past in the
way that this issue is handled. There has been a distinct ‘us-and-them’
approach. We need trade policy specialists, environmentalists, indus-
trialists and authorities working together to achieve a workable and
necessary environmental improvement.
Tom Burke

The dangers of trade and the environment

Trade and the environment is an area with enormous dangers. My most
intimate acquaintance with the kind of dangers that this set of issues
can produce occurred when I was deeply involved in the leghold traps
dispute that took place during 1996-7.1 During the course of that dis-
pute, I watched Sir Leon Brittan – who believes in democracy, is very
much in favour of trade liberalization and is a strong pro-European –
get himself bent completely out of shape as he sought to reconcile the
conflicts between trade and environment. He became someone acting in
an extraordinarily undemocratic fashion in order to thwart the demo-
cratic will of all 15 environment ministers of Europe who wished to pro-
tect animals by prohibiting the use of leghold traps. In doing so, he
deeply undermined both the case for trade liberalization and the case
for strengthening Europe. None of these were things he intended to do:
they were things that the deep logic of the trade–environment conflict
produced.
One of the other dangers in this field is that we focus enormously on
wonderfully intricate policy with deeply difficult technical corners to
get locked into, and we ignore the politics. The politics is at least as
important as the policy in this issue – indeed, perhaps more important.
We need to understand that there are political risks as well as policy
risks and that they are sometimes in conflict with each other. There is a
clear policy risk (and it is easily understandable) that environmental

1
Editors’ note: The EC ‘Leghold Traps Regulation’ (Council Regulation 3254/91 of 4
November 1991) was concluded in 1991. It provided for imports of pelts of specified
species to be banned with effect from 1 January 1996 unless the Commission had
determined that the country from which they originated had taken adequate steps to prohibit
the use of the leghold trap, or that the trapping methods used for those species in that
country met internationally agreed humane trapping standards (which were the subject of
ongoing negotiations between the EU, Canada, Russia and the USA). In late 1995, Leon
Brittan decided to delay the introduction of the ban following complaints from the USA and
Canada that its introduction would be a breach of WTO rules.
28 Tom Burke

measures might be used to act as a cover for trade protection. An example

of this can be found in the way in which the US CAFE standards were
constructed.2
There is an equally clear political risk that the strict application of the
policy will collapse public and political support for it, and it is that risk
that is bubbling away in such matters as the Tuna/Dolphin and Shrimp/
Turtle issues. However, if we think these issues were troublesome, wait
until we get into GMOs in the next 12 months. And particularly wait
until we get to GMOs in the light of the recent emergence of a Red–
Green alliance in Germany as one of the dominant political actors on
the world stage. It is important, therefore, to balance the notion of
policy risk with the notion of political risk.

Setting the debate in the context of globalization

The debate needs also to be set in the context of globalization. Global-
ization of opportunity will, and must, be accompanied by globalization
of responsibility, just as nationalization of opportunity was accompa-
nied by nationalization of responsibility.
It is easy to forget that national markets are a relatively recent cre-
ation in economic history. They may have begun in the 1750s, but na-
tional markets did not really start to be a dominant feature until the
1850s. It was not until we had created national markets that we began
to create national standards: standards on child labour, standards on
environment, standards on public health. The process in which we are
now engaged is a replication on a global scale of the process that went
on in the nineteenth century of responsibility following opportunity.
How do we create the means of responsibility to accompany the
means of opportunity? One thing is certain: to offer the notion that
there can be globalization of opportunity without globalization of re-
sponsibility is to offer a very false prospect indeed.
2
Editors’ note: The US ‘corporate average fuel efficiency (CAFE) payment was the subject
of a GATT dispute between the United States and the European Community. The European
Community argued that the payment had the effect of discriminating against the EC car
industry. The GATT dispute settlement panel upheld the complaint (United States –
Restrictions on Imports of Tuna, DS29/R, June 1994).
A strategic overview of the debate 29

The two rule systems for global responsibility in the second half of
the twentieth century, the trade rule system and the environment rule
system, are among the most significant political accomplishments of
this period. And the development of both is an essential part of making
the transition to sustainable development. Without both sets of rules,
both commanding public confidence and both working efficiently,
there is no prospect of making a transition to sustainable develop-
ment. Therefore, the need to avoid collision between the two rule sys-
tems is the paramount policy and the political goal of this debate. It is
therefore alarming to look at the extent to which there are structural
factors that are promoting that collision. In other words, it is not a ques-
tion of people’s aspirations, the strengths or weaknesses of individuals
(or indeed of individual institutions), but, much more, the depth to
which some of the structural factors are embedded.
There is the prospect of the World Trade Organization adding 30
new members and having rigorously to insist, as it tries to absorb these
30 new members (including China, which is the biggest and most im-
portant of all), on maintaining its standards in the perfectly natural fear
that they may be dissolved in the extension of the club. There is a very
strong sense, particularly now, that economic turbulence will act as an
excuse for relaxing some of the disciplines of the trade system. There
is fear of an increased backsliding on these hard established rules, the
sort of fear that led a former assistant trade secretary in the United
States, writing in the International Herald Tribune, to talk about the
‘protectionist juggernaut’ that he saw developing.
At the same time as that structural dynamic is working, insisting on a
more rigorous application of trade policy, environmental degradation
is occurring at a very strong and accelerating pace. People look around
and they see the deterioration in environmental quality, whether at lo-
cal, regional or global level, increasing ever more quickly. At the same
time, there are powerful policy messages coming from a number of
quarters that, in order to deal with these issues in an economically effi-
cient way, the policy response must be pushed further and further up
the production chain, so that we are designing out solutions rather than
fixing them at the end. That whole agenda – eco-efficiency, life cycle
assessment, eco-labelling, environmental management systems and
30 Tom Burke

much else – is driven structurally. And incidentally, it is driven in part

by the OECD, the same body that promotes trade liberalization policies
as essential ways to address environmental problems efficiently.

The role of companies

As the whole momentum of adapting consumption and production
cycles gathers pace, and as we move out increasingly further into the idea
of the consumer’s responsibility in all this – so that it is no longer just
companies and governments having to resolve these questions – it seems
to me that the structural momentum to ensure that consumers are given
clear signals about the environmental impacts of their purchases, not just
what is made but also how it was made, can only grow, enhancing that
potential for conflict between the environment rules and the trade rules. It
is here that companies find themselves trying to work out where they
should position themselves inside this enormous potential for turbulence.
We tend to talk about multinational companies as if they were all the
same. There are in fact different kinds of multinational companies. Not
all of them have the same interest in the trade–environment debate and
not all of them have the same behaviour or impact on either trade or the
environment. The companies that are engaged in the flows of capital
around the world, and the people who market capital – money – around
the world, have very different sorts of behaviour, time scale, view and
perspective from the companies that are purchasing goods and com-
modities, whether they are Nike in the famous case,3 or other compa-
nies in a similar role who are sourcing goods for trade from different
parts of the world. And both types have a different interest from those
companies that are putting direct investment into the extractive indus-
tries or into large capital equipment, chemical plants, and vehicle manu-
facturing plants. Not all multinational companies behave in the same
way, and it is important to keep that distinction in mind.
3
Editors’ note: Nike is one of a number of sportswear manufacturers whose labour
practices – particularly in developing countries – have been targeted by NGOs. In 1997,
Nike hired an external expert to report on the company’s global sportswear operations. The
resulting report was questioned by NGOs, triggering debate about the role of monitoring
and verification.
A strategic overview of the debate 31

Sinking several billion dollars into a hole in the ground that cannot
be moved and being able to push a button and get half a billion dollars’
worth of capital out of the country in literally a split second create very
different views of how you want the world to be. The former gives a
much greater interest in stability, be it global or local stability, and a
much greater interest in a rounded perspective of what constitutes de-
velopment. Such companies operate inside a single information space
where, increasingly, the standards to which they have to operate on the
environment are global standards – and are also the standards that op-
erate in their home country.
For Shell, Rio Tinto, BP or any of the major companies, there is very
little choice but to operate to the same standards abroad as those at
home, because if they do not somebody will point out the difference
and they will find themselves in deep reputational trouble. Therefore, to
a very considerable extent, this makes that sort of company very differ-
ent from the procurers and the capital merchants. It makes them a very
powerful mechanism for the transfer of standards, because it is ex-
tremely important for them to ensure that the standards to which they
operate abroad are in some very real way compatible with the standards
to which they operate at home, not just for competitive reasons but also
so that they can make sure that their assurance chain works and that their
suppliers and contractors are operating in ways that they can live with.
It is that sort of company in particular that has an overwhelming in-
terest in ensuring that there is not some inadvertent collision between
the two rule systems, environment and trade. Therefore, to put the
point more positively, we need to work hard to achieve some sort of
successful merging of the rule systems, and we need to do that sooner
rather than later. Therefore it is important to have a grasp of what the
differences are, both in the theory and the culture. And the differences
are far more important than the similarities.

The cultures of trade and environment

The trade culture is a culture of deal-making. It calls itself law, and
since the creation of the WTO it has more of the appearance of law, but
in practice it has consistently been a process whereby people arrive at
32 Tom Burke

deals with all the incoherence and inconsistency that deal-making

involves. That has been the accepted culture for trade rule-making.
Environmental rule-making has had the appearance of law, but the
appearance is often all it has had. It has not been law in the sense of
being binding in outcomes, but it has had the appearance of law, with
all the requirements for consistency that law has. This meets its most
difficult and interesting challenge when you look at the Basel Con-
vention, where all of the conflicts and difficulties come about because
it is extremely difficult to come up with a legally consistent notion of
what constitutes waste.4
The trade culture, for reasons that are all to do with the necessity of
deal-making, is a deeply secretive culture. What matters is the out-
come, not the process by which the outcome was arrived at, because
the process is inevitably going to be somewhat incoherent and incon-
sistent. The environment rule-making culture is entirely one of trans-
parency, with everything open. Anybody who sat through something
like the Kyoto Protocol negotiations will know just how transparent the
system is. The basis of trade rules is that you do not make discriminations
between people. The basis of global environment rules is precisely
that you do make discriminations between people; you differentiate
responsibilities because you recognize that there are different cir-
cumstances.
The trade rules, both in practice and in intent, have been exclusive in
their processes. They have excluded people who did not have a direct
and immediate interest in the discussions. The environment rules,
partly because of the pressures that have led to them, have been enor-
mously inclusive and participative in both intent and in culture.
The trade rules have real bite; there really are some sanctions that
you can impose and they act powerfully to enforce the disciplines.
There are no sanctions in the environment rules. The environment rules

4
Editors’ note: A key problem faced by the Basel Convention is that the definition of
‘hazardous waste’– the object of its regulation – is contested. The Basel Convention
includes as wastes hazardous materials that are intended for recycling, whereas the recycling
industry often regards those same materials as ‘products’ or ‘secondary raw materials’ and
argues that they should not be subject to ‘waste’ regulation. See Jonathan Krueger,
International Trade and the Basel Convention (RIIA/Earthscan, 1999), pp. 99 et seq.
A strategic overview of the debate 33

are obeyed globally only to the extent to which countries agree to obey
them, and there is nothing anyone can do if someone does not want to
obey them. This is why, when most countries fail to achieve their frame-
work climate convention target – and most of the industrialized coun-
tries will do that some time around the year 2000 – nobody will say or
do anything, because there won’t be anything that can be said or done.
The trade rules are frequently opposed by the public – all sorts of
different publics with all sorts of different interests – but, by and large,
the environment rules are supported by the public.
These are important differences in culture. They are particularly im-
portant differences as we look at the prospects for merging the two sets
of rules. This is not just a question of merging two sets of language on
two pieces of paper: it is about merging two different cultures, different
institutions, trying to bring together two different political contexts. It
is a very complex and elaborate task and one of which the full scale
needs to be understood if there is to be any prospect of success.

Merging the cultures

Let me conclude by making two points on what I believe are essential
components for success in that task. I do not agree that it can be done
only by case law and that a change in the theory is too difficult to ac-
complish. In practice, that will not be adequate. It will be necessary to
look for some way of achieving a much better shared analytical base
for policy-making in both areas. That cannot be done by the WTO and
its Committee on Trade and the Environment. It needs to be based on
the OECD model of getting the relevant policy-makers together in a
sustained and focused way. This is not, however, to suggest a job here
for the OECD itself – particularly given the poor job it has made on the
Multilateral Agreement on Investment.
This said, there is a real need to revisit the key theoretical concepts in
both aspects of the debate – ‘like products’, ‘trade restrictive’, ‘precau-
tionary principle’ – and we need to reconcile some of these conflicts at
a theoretical or analytical level, and to create a forum in which to do
that. If a high-level panel meets and achieves some success, one of the
key elements in that success will be the creation of a political impetus
34 Tom Burke

for some of this policy resolution to take place outside of the negotia-
tions.
The key aspect of the OECD model is that people accept that they are
not negotiating: they are simply analysing and sharing their analysis.
That has often provided a very sound basis of future policy develop-
ment through negotiation. I do not see how a resolution of the con-
flicts, real and potential, between trade and environment rules can be
accomplished without some sort of forum like that to take on that task.
However, the WTO will not be halted in its tracks while this task is be-
ing carried out, and therefore, in some very real sense, many of these
issues will continue to be resolved through case law.
If we do not create the sort of forum we are talking about, and if we
leave it to case law alone, we will simply be overwhelmed by events,
and not in a way that any of us would like very much. As Winston
Churchill once remarked, ‘if something be not done, it will do itself
and in a manner pleasing to no one’.
If we are going to do things by case law, the one area where we
could make significant progress relatively rapidly is in enhancing
public confidence in the disputes process. The WTO disputes process
currently commands no public confidence, and the only reason why it
is not a source of greater outrage than it now is in some communities is
simply because most people do not have any idea of what it is doing.
The confines of the existing debate will not be adequate.
First, we need to create a transparent disputes process in which all of
the steps are open and visible, quickly and rapidly, so that people can
see not just the outcome but also the process and how the process is
working. Second, we need to create access to that disputes system by
right, not by permission. It should not be considered progress when
you are allowed to submit amicus briefs. It should by right be the case
that those people who have an interest in the outcome of a trade dis-
pute should be able to submit whatever they think in the way of input
to the process of a dispute. Third, the selection of dispute and appellate
panels needs to be very much more open and clear, and people need to
know who is taking these decisions on their behalf, how they came to
be selected, what their qualifications for selection were and what their
background, antecedence and interests are. We are not dealing with
A strategic overview of the debate 35

judges inside a framework in which the authority of judges is unques-

tioned. In some sense, you certainly do not want the WTO determining
environmental policy for you; but if it is going to do so by default, you
had better make sure that it has on its Appellate Body expert assessors
who know what they are doing.
These seem to me to be three elements that are essential for creating
more public confidence. There are probably many more that we need
to get right in the disputes process in order to create some space for a
more sustained and off-line examination of how to resolve the analyti-
cal conflicts, so that we are able to achieve a successful merging of the
trade and environment rules.
John Gummer 1

Matching national and international actions

I wonder how it is that we have managed to get ourselves into a posi-
tion in which we do internationally what we would not dream of doing
nationally. It has usually been the other way around. Usually we have
demanded from international agreements standards and values which
not all the participants could honourably sign up to at home. We ask
for democracy in the United Nations, although at times less than half
the members are democratic at home; the nations that have signed up
to the anti-slavery concordat are not all, in the strict sense of the matter,
carrying that out at home. But for some curious reason, we have al-
lowed the World Trade Organization to operate in circumstances in
which we would not accept any such protection of free trade to operate
at home.
In the UK for example, where we have a long tradition of free trade
internally, we have only seen it as possible to have that kind of com-
mercial freedom because we have had first of all the rule of law; sec-
ond, a series of protections for the vulnerable; and, third, a series of
protections for the credulous. In other words, we protect people who
cannot protect themselves, and we are protecting people who are stu-
pid enough not to try to protect themselves. That is the basis upon
which we operate trade within our society.
Of course, the argument is not that we should not do this: the only ar-
gument is how far we should go. Nobody in the UK, not even the most
extreme of free market thinkers, seriously suggests that all of these pro-
tections should be swept away. The difference between political parties
here is either about the way in which you protect or about the degree to
which you protect – but not about the principle in the first place.
It is a very curious structure that we have invented internationally;
one which prima facie demands an apology – an apology that is not so
1
Editors’ note: This is an edited version of Mr Gummer’s paper presented at the
conference.
A strategic overview of the debate 37

far forthcoming. It is also a matter of significance that in many ways

this is the only international arrangement that appears to have suffi-
cient teeth to make it work. If you look at almost everything else we are
talking about, not just at the margins but fairly centrally, we do not
quite get there globally.
Let me take one of those arrangements which is seen to be an enor-
mous success – the Montreal Protocol. Let us just look at two things
there which perhaps detract from its success. First of all, we have never
been able to get anybody seriously to face up to, and certainly not se-
riously to sign up to, the kind of reductions in methyl bromide that are
necessary. I myself spent hours of fruitless negotiations late into the
night debating with the Africans, particularly the Kenyans, the ques-
tion of changing over from methyl bromide, whereas they were in-
creasing their use of methyl bromide. I even offered to pay for it – and
that is very hard for a British minister. And it is still the case that the use
of methyl bromide, a potent destroyer of the ozone layer, is increasing
in the world rather than decreasing.
As a second example, we tried to get the Americans to sign up to an
understanding that deals with substitutes for CFCs. They have done a
deal with their industry. They know that the manufacturing process of
CFC substitutes itself contributes to the ozone layer’s depletion, but
they have decided to stick to the deal they did. We can’t get that to
change. So there is the most successful of the international arrange-
ments that we have, and I am not at all sure that there are not some very
large holes even in that.
But watch what happens to any advanced nation, and to most less
advanced nations, if you threaten them with the WTO. That is taken
seriously, as seriously as almost any kind of internal threat, because it
is a legal system which appears to be recognized as something that is
absolutely effective. Where the law is concerned, what matters most is
whether you think it will be enforced. If you think it will be enforced,
you are pretty likely to obey it.
So we ought to be thinking seriously in dealing with the issues of
trade and the environment about the fact that here we have an interna-
tional operation which does not have the restrictions that we have in
similar operations in our own nations, and which also seems to have a
38 John Gummer

degree of credibility that is unparalleled in other international agree-

ments.
If you then take the word ‘environment’ and say to yourself, ‘Faced
with the sort of issues that we now have environmentally, will we be
able to solve them without having international agreements of a simi-
larly solid kind?’, the answer is ‘no’.

Cooperating in the common interest

Whatever you may think about what will happen at the climate change
talks in Buenos Aires later this year (1998), all of us who are going
there will be saying that the issue we are facing – the change in our
climate – is still subject to all kinds of arguments. But any sensible
politician will have to accept that it is something that cannot be ignored
and that must be dealt with – unless you intend to make a special ex-
ception and say ‘it is so nasty I prefer not to think about it’, which is the
US Republican Party’s policy.
The truth is that this is an issue which is going to affect policies
throughout the world, because politicians throughout the world – out-
side the United States – have now accepted that if they apply their nor-
mal judgment this is not something they can avoid. They also know
that if they want to do anything about it – and an increasingly large
number of them do – they have to get out of a position in which their
population can say, as the British population could so easily say, ‘We
account for only 3 per cent of the world’s emissions; whatever we do in
the next ten years will be counteracted by what China does, and there-
fore why don’t we say we won’t do anything until China does some-
thing.’
The problem is that this is a very powerful argument; and it becomes
more powerful the smaller the nation is and the more advanced it is,
because if that 3 per cent can be pulled down to 2 per cent and 1½ per
cent and the cost of changing anything is significant, then two argu-
ments begin to evolve: one, that it does not make enough difference to
matter; and the other, that the cost of doing it in Sweden is so much
more than the cost of doing it in Bangladesh that we really have to wait
until we can do it in Bangladesh because you get so much more for
A strategic overview of the debate 39

your money. Of course you do if you spend it; but what they really
mean is that you would get so much more for your money, and you
will get even more if you don’t spend the money! That is the difficulty
with that argument, so it is one that we have to watch very carefully,
because it is a very powerful argument.
One has to say very clearly that here is an area where governments,
politicians, are clearly going to act, where most of us think they ought to
act, but where they know perfectly well that they cannot act in the long
run unless there is some kind of global agreement. Although we can get
people to do it now – and I can usually shame an audience into accepting
that it is our fault so we have to do our bit first – there comes the moment
at which that argument ceases to have quite the impetus. It started in
America, and we will have to get over that in some way; and somewhere
in the early years of the next century we will find it quite impossible to
continue unless there is a clear connection between what we are doing
and what the developing countries, as they grow, are doing.
Of course, if there is to be such a connection it has to be one that in-
volves justice. There is no point in discussing this issue with develop-
ing countries unless you are prepared to accept that, if there is a global
problem that involves reducing emissions globally, then that reduction
cannot be on the basis of historical use: it has to be on some kind of
basis that has some connection with justice.
Historical use of course has to come into it. You cannot ask people to
change from having four per cent of the world’s population and 25 per
cent of the world’s emissions to having four per cent of the world’s
emissions overnight. Not only would it not be possible for them politi-
cally, but it would be extremely bad for the world economy. However,
at some point along this trajectory there is a hugely important element
of justice, which has to be seen not just by the poorer countries but also
by the richer countries. It is only by understanding what interdepen-
dence really means that they can begin to evolve a system that prop-
erly represents a global solution to a global problem.
40 John Gummer

Tackling ‘economic imperialism’

A word about interdependence. The trouble with all of us is that we
are fundamentally imperialist; everybody is imperialist unless you
are right at the bottom of the heap where there is nobody to be imperi-
alist about! It reminds me about the story of the Baptist minister who
once made a speech, building to huge crescendo as he said ‘Catholics
have persecuted people. The Church of England has persecuted people.
Lutherans have persecuted people. The Calvinists have persecuted
people. Only we Baptists have never persecuted anyone, and that is
because we have never had the chance!’ To some degree, that ought to
be thought of in terms of imperialism.
People are imperialist about other people, and they are imperialist in
whatever is the fashionable area. This used to be overrunning people
and taking over, and then it was something rather less elegant than that,
and now it is a different kind of imperialism. It is about helping other
people because you know best, and that is the sort of imperialism
which is very well illustrated in a speech I often hear when I am in the
United States, which goes like this.
The United States is the engine of world trade. Without the United
States, world trade would be very, very much less powerful and would
contribute very much less to the well-being of the world, and we are in
it in order to contribute to the well-being of the world. (Sometimes that
is not put in but it is thought of.) Therefore you cannot complain if we
do all this emitting because it is the price not just of our riches but of
such riches as Bangladesh has.
You will see the mistake in this economic argument, but very often
the most powerful economic arguments are fundamentally faulty. After
all, Marx conned the world for a hundred-and-a-bit years on a totally
false economic argument, without any practical expression – totally
wrong, known to be wrong every time it was expressed, but he got
away with it because it was always not quite right there: ‘This isn’t re-
ally Marxism; Marxism is really different’ – and we go back to the real
theory of it. That is not just on the left: it is on the right and everywhere
else. There is always a reason why your theory does not fit the facts. It
is not the theory’s fault: it is the fact’s fault, always!
A strategic overview of the debate 41

This is the difficulty for those who put the argument forward that
somehow or other you must not stop the engine of world trade, and that
therefore there is a kind of inherent fairness about it because everybody
benefits. Of course it will not stand up; but it is very deeply ingrained. If
we want to talk about fairness, we have to do so in circumstances where
people understand that it does not matter what they think about it: it is the
practical price you pay for what you need. In other words, we should
stop talking about fairness in the sense of it being a moral responsibil-
ity – although I happen to hold that this is so – indeed, to stop talking
about it even as a religious responsibility (although I happen to hold that
too). What we have to say is that it is just a practical necessity. It doesn’t
matter what your argument is about it: either you find a way that is seen
to be fair enough for others to join in, or others won’t join in.
This is no longer a matter of theology or ideology, it is now a matter
of practical necessity. So if you want to solve this environmental prob-
lem and, I suspect increasingly, others – for example the environmen-
tal problems related to the oceans – then it can only be done if you cre-
ate a context of fairness. I define ‘fairness’ simply by the matter of
saying that it is a context which those who sign up to it think is fair, or
better still fair enough. That is, after all, the basis of most international
agreements. It is not that you actually agree with it, but that it is the best
you can get and it is reasonable enough for you to sell. That is the sort
of situation in which we have to work.
Now let us bring that back to the context of the WTO. In the WTO we
have a tough, effective, almost universally accepted system. It is one
that people take seriously, and yet one that has none of the restrictions,
none of the value judgments, that we have in our own countries. We
are faced with environmental problems which, if we are to solve, will
demand answers that will not be strictly amenable to the sort of mea-
surements the WTO has used up to now. These two things run abso-
lutely counter to each other. It is not just a matter of making sure that
the WTO is more environmentally friendly and thinks a bit more about
this, that and the other, and does not actually fall out with the Conven-
tion on International Trade in Endangered Species; it is something
much more fundamental than that.
42 John Gummer

Accommodating different values

It is here that I want to bring in the last point. For one moment, think not
about the environment or the WTO but about the question of genetically
modified organisms – GMOs. One of the problems of discussing GMOs
is that many of those who want to exult in them are fascinated by the
primacy of science. They are science-based to a degree that blinds
them to the fact that most people are culture-based. One of the diffi-
culties between the United States and the rest of the world is that the
United States is much more science-based and science-friendly than
the rest of the world and, curiously enough, is much less culture-
based and much less culture-friendly in that sense than the rest of the
world.
These two attitudes very often come into very deep contrast. If you
listen to people talking about ‘why the French think this’ or ‘the Ger-
mans think that’ or ‘the British think this’ or ‘Europeans think like this’,
very often behind the question, if they are Americans, is a sort of feel-
ing that they ought not to think differently, that rational people should
not come to different conclusions, because scientifically rational people
can come to only one conclusion, whereas we all know that the world is
not like that.
The reason we know it is that we have to move in that world – and
anybody who has negotiated around the table with the European Union
moves in it all the time. Indeed, you have to learn that what you think is
science-based is not so at all: it is also very deeply culture-based, so
that your reaction to many things is different because you are different,
and you are different because you are not as simple as is made out if
you take the very simplistic rational approach.
Apply that for a moment to the issue of the environment and trade.
Because it is more complicated for most people, you cannot have the
simplistic answer that forms the basis of the WTO. You have to find
something that is able to take into account people’s wider interests.
That is, after all, what we do with our own countries. Why is it that we
protect the vulnerable? Why is it that we protect the credulous? Why is
it that we have the rule of law? It is overwhelmingly because we do not
think that trade is absolutely the only good, that free trade is the only
thing that matters. Even if you can be an enthusiast for free trade and
A strategic overview of the debate 43

the free market, as I am, I do not believe it is the most important thing
in life.
I very rarely make a party-political comment, and this is not a party-politi-
cal comment but just a quote from Quintin Hogg which I use because it is a
parallel. In defining Conservatives, he said that ‘Conservatives never think
that politics is the most important thing in life. Intelligent Conservatives think
that religion is more important; rather less intelligent Conservatives think that
hunting is more important’, and he said ‘Some Conservatives think that both
are more important’.
It is a good parallel with what we are talking about. What Hogg is
saying is that people who are committed to a certain political party,
who think it is an important thing, who work for it, spend a lot of their
time on it, still do not think it is the most important thing in life. That
seems to me to be the way we ought to look at trade. I think that trade
is very important. Free trade is vital. It is the only thing that will change
the future for people. The only way in which we will get the sort of
raising of standards of living in areas that so desperately need it is via
the trading mechanism. But I do not think it is the most important thing
in life. I certainly don’t think it is the only thing in life.
In a sense, what we are battling with here is a curious absolutism in
world decision-making, which is entirely absent in national decision-
making. I come at the end to where I started. If we are going to discuss
trade, investment and the environment, we need to do so bearing in
mind our own experience of how we have dealt with trade, investment
and the environment in our own countries. We have dealt with them in
a non-absolutist sense. We have said you have to make them work and
mesh together; that you cannot ignore any one of them; that you must
have environmental protection; that if you are going to have invest-
ment there must be protection for the investor, but there must also be
protection for those whom his investment affects.
When you deal with trade, you accept that you want a business-
friendly society. We now have no disagreement with that at all. Every-
body thinks it is good to have a business-friendly society, but every-
body also thinks that a business-friendly society does not mean that
you have a free-for-all, a system that is uninterested in the ability of all
members of that society to pay for the basics of life.
44 John Gummer

Bringing home the issues

My personal key to this very fraught discussion is to bring people back
all the time to what they would accept at home, and then ask how is it
that what they propose abroad should be different? How can they pro-
pose that something they would not for one moment accept in their
own nations should be the pattern of world affairs?
Second, I would ask them how they expect us to deal with the great
issues which can only be dealt with globally unless we recognize that
what has to be done has to be seen to be fair enough? And fairness
does demand a much broader vision than the mere concentration upon
trading issues.
Third, because I do not think they ought to be allowed to get away
with it, I would have to say to them that nobody is prepared now to
have a commercial programme, a commercial system, a nation with
parameters within which business operates, unless it recognizes envi-
ronmental concerns for trading reasons; because nationally we recog-
nize that, if we are totally unable to take the environment into account,
we will not have those business opportunities in the future because we
are so rapidly reducing the range of resources and the ability that we
have to utilize them. We are saying all the time that the productivity of
resources must grow. We are saying it not just because it is right, but
because it is necessary. And if we say that at home, we have to say that
abroad.
Lastly, I want to say something even more challenging to them than
that. It is simply this: what decent person wants to live in a world in
which the only good is free trade? In Samuel Butler’s wonderful book
Erewhon, everything is transformed, and he has people going on a
Sunday to the bank with their purses in their hands as against going to
the church with their prayerbooks in their hands. He is making a joke,
of course, about the ostentatious performance of religious duties, but it
is the sort of world that we are increasingly pretending is the one we
want. Of course it is a liturgical form of it, but the truth is that we are
suggesting by our aggrandizement of the WTO over and above every-
thing else that we really believe that, at the most solemn moments
when we remember what we most care about, we should be carrying
our purse.
A strategic overview of the debate 45

Previous generations have admitted that many people do think like

that, and many people – if not most people – act like that. Politicians
increasingly say that is why people vote, that in any case it is like that.
But if we give in to this argument internationally, we will be the first
generation that actually says publicly, liturgically, in a sense morally,
that this is the sort of world we want. I think that particularly those of us
who care about the environment should say to the world, ‘It is not the
kind of family we want; it is not the kind of local community we want;
it is not the kind of region we want; it is not the kind of nation we want,
and therefore it will not be the kind of world we want.’
 Part II
Towards win–win solutions?
Poverty and sustainability
David Batt

Introduction
It is perhaps worth starting with the underlying question: What is the
relevance of trade, investment and environment policy linkages for
developing countries? Trade and investment lead to growth, which in
turn creates the resources for poorer countries to tackle the problems
they face including those of an environmental nature. The linkages
between trade, investment, environment and development can, how-
ever, be more complex. Certain patterns of growth and development
can themselves cause environmental degradation, particularly in the
case of countries whose environmental policies are weak or unen-
forced. Also, there is no guarantee that resources provided by trade
will be used on environmental improvements, though the evidence
suggests that, as a country’s income rises beyond a certain level, the
negative effects of growth tend to lessen.
Moreover, developing countries themselves are concerned that envi-
ronmental policies may restrict their market access, or could be used as
a protectionist tool. More progress clearly needs to be made at the
multilateral level to reconcile different interests.
Addressing the concerns of developing countries on these issues
is therefore an important part of the resolution of conflict at the inter-
national level on trade, investment and environment. And the UK is
committed to ensuring that developing countries are fully integrated
into the multilateral trading system. The timing is critical. We need to
be prepared to negotiate about the concerns of developing countries
in the Millennium Round, where the environment will be one of the
important issues on the agenda. Unlocking the debate on trade and
environment will help make progress on a range of other trade issues.
This paper outlines broadly the range of activities that the UK De-
partment for International Development (DFID) has initiated to take
50 David Batt

this work forward, particularly those activities that stem from the re-
cent White Paper on International Development.1

DFID and White Paper commitments

DFID’s primary objective in this area is to ensure that UK and EU
policy reflects our commitment to eradicate poverty and to promote
sustainable development, and to take into account the concerns of de-
veloping countries.
Against this background, we in the UK have recognized the value of
strong links between trade, environment and development ministries.
They are vital to allow us to pursue a consistent line in international fo-
rums. DFID is working closely with colleagues in Whitehall, particu-
larly the DTI and DETR. We need to encourage others to develop and
maintain these links.
Reflecting this close coordination between different departments,
the Government’s White Paper on International Development identi-
fied three main strategies for integrating a development perspective
into trade and environment policy-making:

• work to ensure that trade rules do not impose unfair standards on

developing countries or discriminate unfairly against their goods –
a point emphasized by the Prime Minister speaking at the WTO
Ministerial Conference in May;
• work with producers and importers to increase trade in sustainably
produced products and services from developing countries;
• work with developing countries to support their efforts to raise their
domestic environment standards and to help them tackle global en-
vironmental problems.

Ensuring fair trade rules

In this first area – ensuring that trade rules do not impose unfair stan-
dards or discriminate unfairly – our work covers the following key areas:

1
Eliminating World Poverty: A Challenge for the 21st Century, DFID, November 1997.
Poverty and sustainability 51

• commissioning research to identity the most serious issues faced by

developing countries, so we can focus energies on addressing the
right problems;
• working to help increase the capacity of developing countries them-
selves to identify their interests and to play a full and active part in
negotiations. We are delighted to be funding a project in this area
which builds on ideas put forward by the Foundation for Interna-
tional Environmental Law and Development, and which has been
developed in close consultation with UNCTAD. The model that has
emerged here, of close collaboration between a multilateral agency
and a leading NGO, is I think an innovative and exciting one;
• working ourselves closely with Whitehall colleagues and EU part-
ners to identify any real problems and determine appropriate solu-
tions.

Increasing sustainable trade

Moving to the second strategy, that of increasing trade in sustainably
produced products and services, the following initiatives are under
way:

• building the capacity of producers to benefit from changing con-

sumer demands; for example, the Kenya Flower Association has
asked us for help with the independent validation of the criteria in the
ethical and environmental code that the Association has adopted;
• funding research by the International Institute for Environment and
Development (IIED) to identify the positive opportunities for devel-
oping-country exporters which arise from changes in consumer de-
mand in the North; examining which preconditions need to be in
place to stimulate sustainable trade;
• supporting further analysis of who benefits from sustainable trade –
are the poorest people, the smallest enterprises, actually able to take
advantage of these new opportunities, and if not how can we ad-
dress this issue?
• supporting use of trade policy instruments to promote better envi-
ronmental performance, for example the EU’s GSP (Generalized
52 David Batt

System of Preferences) scheme. On the environment side, this offers

improved market access in return for satisfactory implementation
of International Tropical Timber Organization (ITTO) standards.
On the labour side, the criteria are the adoption of core labour
standards. We have successfully pressed not only for this incentive
structure, but also for financial and technical assistance to help
developed countries meet these standards;
• looking at how support for voluntary initiatives on the one hand,
and increased regulation on the other, can work together; we have
asked the New Economics Foundation to undertake research into
this.

Raising environmental standards in developing countries

The third main White Paper strategy area is that of helping developing
countries raise domestic environmental standards to meet commit-
ments under multilateral environment agreements (MEAs). In this area,
we are:

• working to improve environmental performance rather than focus-

ing solely on the amendment of regulations – enabling developing
countries to implement standards is as important, if not more so, as
the standard setting process itself;
• providing support to partner countries on a range of both domestic
environmental issues, such as soil degradation and urban water, and
global environmental issues, such as air quality, oceans and green-
house gas emissions;
• providing support for the transfer, development and adaptation of
environmentally sound technology;
• helping partner countries to develop and implement environmen-
tally sound policy, and in particular supporting partner-country
efforts to develop national strategies for sustainable development,
which integrate environmental issues into socioeconomic plans and
programmes at regional and sectoral levels, as well as at the national
level, and in line with international targets. These targets require
such strategies to be in place by 2005 so as to ensure that current
Poverty and sustainability 53

trends in the loss of environmental resources are effectively reversed

at both global and national levels by 2015;
• looking into the area of environmental management systems, par-
ticularly the ISO 14000 series. Companies may require developing-
country suppliers and producers to follow these systems. We are
therefore considering the need for technical assistance to raise
awareness of the ISO 14000 standards in developing countries and
to help suppliers and producers meet these. The Pakistan Chamber
of Commerce has already asked DFID for assistance in this area.

In relation to MEA commitments, DFID recognizes the importance of

assisting developing countries to tackle global environmental issues.
As the White Paper said, the impact of developing countries on the glo-
bal environment is growing rapidly; and so too is their vulnerability to
adverse changes. The UK sees the MEAs as an important means of
coordinating global actions. We have a major voice in MEA negotia-
tions and are major contributors to them. For example:

• The UK is the fifth largest contributor (over £215 million) to the Glo-
bal Environment Facility, which is the major multilateral channel for
assisting developing countries meet their obligations under MEAs.
• DFID spent over £23 million on biodiversity projects in 1996–7.
• On climate change DFID is funding work on climate-friendly tech-
nologies and policies through its Energy Efficiency programme.
• DFID has committed £69 million to the Montreal Protocol’s Multi-
lateral Fund which meets the cost to developing countries of phas-
ing out ozone depleting substances.

Win–win approaches
Finally, there is a fourth area which was not drawn out explicitly in
last year’s development White Paper. This is the ‘win–win’ approach.
In brief, this means identifying areas where the removal of trade re-
strictions and distortions has the potential to yield both direct eco-
nomic benefits for developing countries and positive environmental
results.
54 David Batt

As a principle, this has been signed up to by developed and develop-

ing countries alike. It has been widely discussed within the Committee
on Trade and Environment (CTE) at the WTO. A certain amount of
work has been undertaken, looking most recently at how to apply this
principle at a sectoral level. And looking ahead, there are clearly a
number of opportunities to take this work forward as we move towards
the next WTO Ministerial Conference, including next February’s meet-
ing of the CTE and the possible High Level Meeting on Trade and En-
vironment.
It is clearly an attractive approach. Indeed, it sounds almost too good
to be true. But is it? And what do we need to do to move this work for-
ward?
First, I think we need to pin the terminology down a little. The term
‘positive environmental effects’ is a beguilingly simple one, but of
course policy changes do not always have simple effects. It is possible
to imagine changes that would produce a mixture of environmental
effects, some positive and some negative, with maybe a positive, neu-
tral or negative balance sheet overall. And the economic effects will
not always be clear-cut either. There may be a mixture of ‘winners’
and ‘losers’. We need a clear analytical framework for dealing with
this issue.
Second, we need to start pinning down the sort of areas where we
think there are likely to be the strongest balance of ‘win–wins’, and
where we should therefore focus research. One broad area would
clearly be where there are barriers (tariff or non-tariff) to the entry of
products that are sustainably produced and can be sustainably con-
sumed, and that have the potential to replace, if barriers are lowered,
products that are either not sustainably produced or not sustainably
consumed, or both. A second broad area would be where we can see
that subsidies in developed countries, whether domestic or export sub-
sidies or both, are leading to unsustainable patterns of production,
unsustainable exploitation of resources or increased environmental
damage at the point of consumption, and at the same time are restricting
economic opportunities for developing countries.
Third, we need to start building up our list of examples in this area.
Some countries in the CTE have already begun to suggest areas. For
Poverty and sustainability 55

example, the United States and New Zealand have identified fisheries
as a sector where subsidies have led to over-capacity in developed
countries’ fishing fleets and depletion in certain varieties of world fish
stocks. The argument runs that the reduction or removal of these subsi-
dies would provide both a developmental ‘win’ (because it would pro-
vide increased market opportunities for developing-country exporters,
who would no longer need to compete on a playing field tilted against
them through subsidies to the fishing fleets of developed countries)
and an environmental ‘win’ (because it would slow down depletion of
stocks).
Fourth, in order to develop this list of examples, we need to under-
take more research. Two points about this. First, I do not think this re-
search need involve going out and collecting extensive primary data.
Our assessment is that a lot of the basic data needed are already avail-
able, for instance in UNCTAD and elsewhere, but that what has not yet
been done is to use the data to try to answer the sort of questions I have
been touching on. Second, this is the sort of work that DFID is now
supporting. This is not research for the sake of research: it is research
specifically linked to policy challenges. It is the sort of policy-based
research that DFID wants to undertake more and more of, in partner-
ship with others, not just on this crucial part of any forthcoming multi-
lateral round, but on others too.
Finally, important as this research is, I do not think that the questions
are capable of being answered fully by a process of analysis on its
own – by my asking someone, or a group of people, no matter how
expert, to go off into a room on their own with a pile of papers and a
pot of hot coffee. We need the ideas, the intuition, the experience, of a
larger group of people.
Building sustainable markets
Nick Robins

The challenge
It is now clear that achieving sustainable patterns of production and
consumption will involve long-term structural change in the world
economy. In the post-industrial economies of the OECD, improve-
ments in environmental performance of a factor of ten could be re-
quired over the next half century. Increasing global interdependence
means that this transformation will inevitably have trade implications.
The issue facing the world trade system is to work out how it can con-
tribute to this transition, and thereby generate sustainable flows of
trade.
In essence, sustainable trade is deceptively simple.1 Sustainable
trade takes place when the international exchange of goods and ser-
vices meets the four core criteria of sustainable development:

1. it generates economic value;

2. it reduces poverty and inequality;
3. it regenerates the environmental resource base;
4. it is carried out within an open and accountable system of gover-
nance.

Making sustainable trade the norm is a different matter and will require
a long-term transformation of global markets, involving fundamental
changes in the policy and institutional architecture, in corporate prac-
tices and patterns of consumption. For developing countries, the chal-
lenge of sustainable trade is to ensure that they realize positive benefits
from this shift in terms of strengthened trade performance, improved
1
The International Institute for Environment and Development (IIED) has launched a
three-year project, ‘Stimulating Sustainable Trade’, aimed at providing practical guidance on
the mechanics of encouraging trade in sustainable goods and services, from the developing
world to the European Union.
Building sustainable markets 57

environmental quality and, importantly, reductions in poverty. Critical

to this will be managing these impacts so that the principles of open
trade are respected and the trading relationship provides additional
incentives for local action to improve social and environmental perfor-
mance rather than imposing ‘further burdens’, in the words of President
Mandela.
Achieving sustainable trade requires two complementary strategies.
First, we need to squeeze the trade in unsustainable goods and services
out of the world economy through international law and national regu-
lation. Slow progress has been achieved on the international front for
endangered species, hazardous wastes, ozone depleting substances
and toxic chemicals. This has been supplemented by national restric-
tions on imports containing materials that could damage consumer
health, such as bans on the use of certain dyes and controls on pesti-
cide residues. But fierce disputes continue to rage over the legality,
feasibility and equity of measures to extend this approach – notably, to
allow importing countries to specify social and environmental perfor-
mance requirements of production methods – through reforms to exist-
ing trade law and institutions.
Second, we need to stimulate the trade in sustainable goods and ser-
vices through market incentives, extended corporate responsibility
and new forms of consumer demand and citizen action. This is now
perhaps the most promising area for immediate action, given the diffi-
culty of achieving consensus for the restructuring of the international
legal architecture and the growing evidence of a range of initiatives
leading to significant financial, social and environmental benefits –
particularly for developing countries, where opening up new trade op-
portunities is so central for development. But these initiatives are still
new, and many barriers remain to be tackled through concerted action.
Describing the experience and prospects for this second strategy is
the subject of this paper. What is particularly noticeable at the moment
is the growing convergence of previously parallel initiatives to streng-
then the social and environmental dimensions of trade. For example, a
recent study conducted by UNIDO in the textile industry showed that
‘improvements in environmental protection can be achieved faster and
would be more sustainable if accompanied by improvements in the
58 Nick Robins

social aspects of the production process’.2 This integrated approach to

sustainable trade holds out the promise of important synergies between
environmental improvement, better working conditions and enhanced
competitiveness.

The global market for sustainable goods and services

In the past, sustainable goods and services have been viewed as a
‘green’ niche within a largely unchanged economic structure. Thus, in
the early 1990s, estimates of environmental market suggested an an-
nual turnover of over US$200 billion rising to nearly US$600 billion
by 2010. However, these figures dealt mostly with pollution control
and resource management technologies. Now, change in core sectors
of the economy – such as agriculture, energy, manufacturing, transport
and tourism – is opening up the prospect of a more substantial and
mainstream demand for sustainable goods and services.
Unfortunately, it is difficult, if not impossible, to give an accurate
picture of the scale of this demand. Statistics are not collected, and in
most cases there is no consensus on what constitutes sustainable goods
and services. For example, there are no data on the sales of eco-labelled
products worldwide. Nevertheless, some rough indicators of growth
can be given.

Agriculture Health and environmental concerns among consumers

are driving the world market for organic produce. This now stands at
about US$11 billion and is growing at about 20–30 per cent per year.
Because of the imbalance between supply and demand, organic prod-
ucts command premium prices, and for developing countries this pre-
mium alone could be worth US$500 million a year. In the next ten
years, the world market could grow to over US$100 billion. Beyond
organic products, there are also increasing requirements for social and
environmental conditions (such as integrated crop management) for a
range of crops, from flowers to fruit and vegetables.

2
See R. Kumar et al., Responding to Global Standards: Case Study of the Textile Industry
in India, Indonesia and Zimbabwe, UNIDO, Vienna, 1998.
Building sustainable markets 59

Forestry Led by the Forest Stewardship Council (FSC), demand is

growing among retailers and other institutional purchasers for certified
timber products. Since November 1996, the area of forest certified as
under sustainable management has more than doubled to 6.3 million
hectares in 20 countries, and it was expected that ten million hectares
would be certified by the end of 1998; within the next five years, this
could quadruple to 40 million hectares. Purchasers of paper products are
also specifying recycled content and restrictions on chlorine bleaching.

Textiles After a short-lived fashion for ‘green textiles’ in the early

1990s, there is now a more sustained demand for clothing products
that can demonstrate compliance with high health, environmental and
social standards. One indicator of this is the expansion in the use of the
Eco-Tex 100 certificate 3 from none in 1992 to almost 6,000 now, mid-
way through 1999, with an annual rate of growth of 20–30 per cent per
year. Some standards, such as the organic certification agency SKAL’s
criteria for sustainable textile production, integrate social and environ-
mental norms from farm to factory.

Manufacturing Although the ISO 14001 environmental management

system does not specify norms for sustainable production or product
design, its rapid uptake is a sign of business-to-business demand for
increased assurance that environmental responsibilities are being man-
aged effectively. By the end of 1997, about 5,000 certificates had been
awarded worldwide, with Japan, the UK and Germany dominating so
far; growing numbers of companies in Asia, including China, India,
Malaysia and Thailand, are also getting certified. Leading the way are
the electronics, automobile and chemical industries. The value of
goods and services from these companies is not known, however.

Tourism The tourism sector is now the world’s largest industry, and
social and environmental concerns are of increasing importance in de-
ciding the choice of destination. As part of this there is a growing eco-

3
The Eco-Tex label is an independent labelling system that tests textile products for the
presence of harmful chemicals.
60 Nick Robins

tourism movement; although precise statistics are difficult to come by,

some estimates put the eco-tourism market at about US$200 billion per
annum.

Fair trade Beyond these largely environmentally driven initiatives is

a growing market for fairly traded and ethically sourced products from
developing countries. Fair trade has been promoted by development
organizations as a way of benefiting disadvantaged producers through
the provision of stable and premium prices and assistance with market
access. The value of fairly traded products is now around US$500 mil-
lion, and successful brands such as Café Direct have captured about
three per cent of the UK coffee market. Environmental considerations
such as organic production methods are rising in importance, as exempli-
fied by the new criteria for fair traded bananas and the International
Banana Charter.
These examples merely give indications of the upward trends in the
demand for sustainable goods and services. Although the long-term
implications are uncertain, for developing-country producers that can
adapt to these rising expectations and start moving to anticipate trends,
new trade opportunities are emerging and bringing a range of ben-
efits, such as premium prices, increased sales and new markets, as
well as job creation, environmental improvement and better client re-
lations.

Driving forces for sustainable trade

For developing-country producers, these changing market conditions
are translated into a series of often powerful driving forces that affect
their export prospects.

Consumer demand Although the ‘green consumer’ movement has

waned since the late 1980s, there is evidence that in some areas active
demand from consumers is driving trade flows, notably for organic
produce and more recently for fair trade coffee, tea and bananas. For
example, three-quarters of EU consumers say that they would buy a
‘fair trade’ banana if it were available in the shops, and a third would
Building sustainable markets 61

pay a premium of ten per cent. In response, alternative and mainstream

retailers and processors are providing new product ranges to meet this
demand. However, in most markets active consumers who seek out
sustainable goods and services are unlikely to represent more than a
tenth of sales.

Citizen campaigns A more potent force has been citizen campaigns to

improve the social and environmental performance of trade. A promi-
nent tool has been the organization of consumer boycotts of allegedly
damaging goods and companies – tropical timber being a notable ex-
ample – and pressure on European and North American corporations
to integrate social and environmental criteria into their trading prac-
tices. A prime example is the Clean Clothes Campaign, which has been
pressing for the adoption of social codes of conduct in the garment in-
dustry with third-party verification in order to eliminate sweat shop
conditions.

Corporate supply chain management These campaigning pressures

have fused with an extended sense of corporate responsibility among
leading corporations for the wider impacts of their trading operations.
A growing number of companies in Europe and North America are
now incorporating social and environmental requirements into their
purchase requirements, extending the scope of quality management
to include risks to corporate reputation. Rather than just developing
green, ethical or sustainable niche products, the purpose of supply
chain management is to provide assurance that all goods and services
meet certain standards.
While companies are clearly seeking market advantage from these
initiatives, they often take place ahead of consumer demand, driven by
a combination of market creation and precautionary concerns. Notable
examples include Levi Strauss, Timberland and Patagonia in the USA
and Otto Versand, B&Q and Coop Suisse (see Box 1). In addition to
individual corporate codes of conduct, there are a growing number of
sectoral or national supply chain initiatives, such as Eurocommerce’s
social sourcing guidelines, and the specification of evidence of an en-
vironmental management system in purchasing contracts. Leading
62 Nick Robins

companies such as IBM and Daimler-Benz are already asking their

suppliers to seek ISO 14001 certification.

Box 1: Examples of international supply chain management

• The Body Shop The Body Shop, a leading cosmetics company, has over 1,500 branches in
47 countries, and has long been a pioneer of ethical business practice. At the end of the
1980s it launched its ‘Trade not Aid’ programme, which aimed to use trade as a mecha-
nism to bring income, employment and social benefits to communities in need. Today, 30
organizations are involved in the renamed Community Trade Programme. The propor-
tion of The Body Shop’s overall sales generated by the Community Trade has fluctuated
and in 1996–7 stood at seven per cent. Products include nut oil and bracelets from Brazil,
cocoa from Ghana, jute and cotton from Bangladesh, sisal from Mexico and honey and
beeswax from Zambia. The Body Shop is working to improve communication and fore-
casting with suppliers and to help them to diversify their product and customer base.
Overall, the Community Trade programme is held to have brought significant environ-
mental and social gains to its partners.
• C&A A Dutch-based family firm with more 2,000 clothing stores worldwide, C&A con-
tracts out most of its production, sourcing 25 per cent of its merchandise from the Far
East and ten per cent from other non-European countries. As part of its environmental
policy issued in 1996, the company’s General Delivery Instructions to suppliers contain
information about products that must not be used and the maximum permitted quanti-
ties of potentially harmful substances. A small but increasing proportion of merchandise
carries the Eco-Tex label, including C&A’s own brand of jeans, Jinglers. Environmental
issues are also part of C&A’s broader Code of Conduct for the Supply of Merchandise.
This covers legal requirements, employment conditions forbidding the use of child labour
or forced labour, environmental aspects and freedom of association. All suppliers are
required to sign a compliance form. To monitor implementation, C&A set up the Service
Organization for Compliance Audit Management (SOCAM), which makes unannounced
inspection visits to around 1,000 production units a year. Its first report was issued in
May 1998, and as a result of its work, by the end of March 1998, C&A had suspended
contracts with 80 suppliers, mostly because of evidence of child labour or intolerable
working conditions; 30 were reinstated after a corrective plan was put in place.
• Sainsbury’s One of the largest UK supermarket chains, Sainsbury’s has taken a number of
steps to improve the social and environmental performance of key parts of its supply
chain. For its food products, the company has worked with its UK suppliers to reduce
the use of pesticides through the use of Integrated Crop Management (ICM). In 1997,
six years after the launch of the initiative, 88 per cent of all UK produce is grown accord-
ing to ICM standards. Less progress has been achieved with overseas suppliers. Sainsbury’s
also supports the use of FSC certified timber, and in 1997 the company transferred
£8 million worth of business to suppliers meeting FSC requirements, and exceeded its
target of stocking 150 producers using FSC timber. The company has also issued guide-
lines to its suppliers on the sourcing from the wild of plant and animal material for prod-
ucts in order to meet legal requirements – for example within the Convention on Inter-
national Trade in Endangered Species (CITES) – and consumer concerns. Examples
include shells, moss, crocodile meat, plant bulbs and seafood.
Building sustainable markets 63

Donor initiatives Environment and development agencies, both from

the public and from NGO sectors, have also been a powerful driving
force for change, investing in a variety of initiatives to smoothe the
transition process for developing-country producers. Priority areas
have included information and training on new market demands (e.g.
the Dutch GreenBuss database), investments to boost the supply of
sustainably produced goods (e.g. UK funding for certified timber in
Mexico) and joint policy initiatives to build common positions (such as
the Indo-German Export Promotion Project). Alongside this, the non-
governmental environment and development sector has been at the
cutting edge of support to community-based producers, enabling them
to access international markets through fair trade and eco-trade schemes.

Creative partnerships One of the more innovative driving forces is

the establishment of creative partnerships between governments, the
private sector and citizens’ organizations to promote more sustainable
trade. In Germany, for example, the Federal Environmental Ministry is
supporting a Network of Eco- and Fair Trade Initiatives to increase the
profile of sustainably produced and socially sound products from de-
veloping countries. In Britain, the Department for International Devel-
opment (DFID) has established the Ethical Trading Initiative (ETI),
bringing together companies, non-governmental organizations and
trade unions to work together to improve the quality of life of workers
involved in international supply chains of companies importing into
the UK. Although the ETI does not deal with the environmental dimen-
sion as yet, DFID has committed itself to supporting an increased trade
in sustainably produced products and services from developing coun-
tries.

Innovative producers Last, but not least, sustainable trade is also be-
ing driven by innovative producers in developing countries who see
opportunities for community and commercial development from tap-
ping these emerging export markets – some of whom are profiled in
the next section.
64 Nick Robins

Sustainable trade: case studies

In spite of often unfavourable conditions, a number of producers in
developing countries are starting to take advantage of these driving
forces. In its 1997 report, Unlocking Trade Opportunities, the Interna-
tional Institute for Environment and Development (IIED) profiled ten
producers who had turned new demands to their advantage.4 The fol-
lowing examples highlight the main types of producers that have so far
been able to respond positively to the challenge.

(a) Large-scale private sector: Century Textiles, India

Century Textiles is a major player in India’s textile industry: it operates
the country’s biggest mill and is the largest exporter of cotton textiles,
with export earnings growing a hundred-fold since 1975, reaching
US$81 million in 1996–7. Century is accredited to the ISO 9002 qual-
ity series and has won awards for its energy conservation and clean
production efforts. From the beginning of the 1990s, the company be-
came increasingly aware of new environmental standards in its export
markets. In 1994, the German government introduced measures to
prohibit the import of textiles containing potentially harmful azo dyes.
Half of India’s textile industry exports to Germany, and so the regula-
tion had direct implications.
For Century, the need to phase out azo dyes was indicated by Otto
Aversano, one of the company’s major German clients. Six months of
investigation led to the phasing out of azo dyes and the award of an
independent Eco-Tex certificate. Although the new dyes are more ex-
pensive than their substitutes, Eco-Tex certification has resulted both
in premium prices, which were still being maintained in 1998, and new
market opportunities in the USA and UK. Century is now aiming for
ISO 14001 certification.
Century’s entrenched commitment to quality, responsiveness to cus-
tomer requirements and rising environmental awareness lies behind its
successful switch to azo-free dyes. Even for a corporation the size of
Century, close relations with its client in Germany were crucial for

4
Nick Robins and Sarah Roberts, Unlocking Trade Opportunities, IIED, London, 1997.
Building sustainable markets 65

making the transition. Yet, the small-scale sector that makes up the
bulk of India’s textile industry often lacks the skills, information and
resources to make the transition cost-effectively.

(b) Fair trade cooperative: Coocafe, Costa Rica

Coocafe is a consortium of eight coffee producers with 3,500 mem-
bers, set up in 1988 in response to a financial crisis in the sector. It pro-
duces about 3 per cent of Costa Rica’s coffee output, most of which is
exported. As part of its overall strategy of marketing, economic and
social support for its members, Coocafe has formed close links with
‘fair trade’ organizations in Europe, such as Twin Trading in the UK.
To get listed on the International Fair Trade Coffee Register, Coocafe
had to meet a number of criteria, such as being independent and demo-
cratically controlled by its members and committed to improving the
quality of the coffee, and supporting social development and promot-
ing sustainable production techniques that minimize the use of chemi-
cal inputs. In return, those buying from Coocafe pay a price premium
(more for organic production), establish secure contractual arrange-
ments and are subject to external review. Initially, Coocafe received
start-up funding and technical assistance from the Friedrich Ebert
Stiftung in Germany.
Coocafe’s fair trade sales almost doubled between 1991 and 1996,
gaining a fair trade premium of over US$250,000 in 1996, which was
spent on education and women’s development projects. In the UK,
Coocafe beans are marketed under the Café Direct brand – blended
with coffee from 13 other producer organizations in seven countries –
which now has a 3 per cent market share for ground coffee, despite be-
ing 10 per cent more expensive than conventional competitors. Apart
from the financial benefits, the fair trade relationships have also pro-
vided the stability to enable Coocafe to begin the transition to organic
production. Coocafe has begun converting to organic production with
the aim that their entire production will be organic by 2002. The deci-
sion was taken as part of a long-term economic and marketing strategy
and was based on financial as well as environmental considerations
since, organic certification will give them an extra premium.
66 Nick Robins

(c) Donor supported cooperative: Lango Cooperatives Union, Uganda

The Lango Cooperatives Union in Uganda is made up of 5,500 cotton
growers, and was selected by the Swedish International Development
Agency (SIDA) in 1995 as a pilot for its new ‘EPOPA’ programme,
which aims to promote exports of organic produce from Africa to help
fill the increasing gap between supply and demand in Europe.
SIDA has provided US$45,000 to Lango, which has been used for
research, farmer support, inspection, certification and marketing. In
1996 the cooperative exported 400 tonnes of organic cotton, about 2
per cent of Uganda’s cotton harvest; one of the companies that has
bought cotton from Uganda is Patagonia, whose cotton clothing range
is now entirely organic. Lango producers receive on average a 20 per
cent better farmgate price. The contractual relations are also more se-
cure as the Dutch-based African Fair Trade Association helps to pro-
vide crop finance, often a major barrier for small producers. The Swed-
ish organic certification agency KRAV is also training local inspectors
to bring down the cost of third-party inspection.
Support from SIDA has helped to ease the difficulties in becoming
certified, a process that can be both laborious and costly, currently
adding nearly 2 per cent to the price of the cotton in Europe. Lango
has implemented an internal quality control system, and by going for
group rather than individual certification has helped to reduce the bur-
den on individual farmers.
The organic sector has high potential for developing countries, as
there are few technical constraints since farmers already practice low-
impact agriculture. The main stumbling blocks are getting certified and
identifying export opportunities, and international partnerships can be
critical for overcoming these.

(d) Fair trade partnership: Solomon Western Islands Fair Trade

(SWIFT)
SWIFT has helped small producers in the Solomon Islands to gain a
reasonable livelihood from the sale of sustainably produced timber
to high-value European markets. SWIFT is supported by the Dutch
church aid development agency ICCO, which has helped provide ac-
Building sustainable markets 67

cess to European markets: over 90 per cent of the timber produced is

exported, the majority to The Netherlands. This has enabled communi-
ties to resist pressure to sell their logging rights to foreign companies,
most of whom are only interested in one-off logging. SWIFT provides
forestry support and distribution and marketing services to 300 pro-
ducer groups covering 50,000 hectares of forest. In 1997, 1,200 cubic
metres of five different species of timber was exported, of which 500
cubic metres was FSC-certified, to a range of companies, including
some of the major DIY retailers in The Netherlands, where it fetched
price premiums of as much as 20 per cent. Revenues from the trade are
distributed within the community according to agreements drawn up
by the groups, which vary according to the make-up and priorities of
the particular community.
But developing the market for SWIFT timber has been a consider-
able struggle. The first major barrier was that few of the common spe-
cies in the Solomon Island forests were well known in Europe and
SWIFT had to put considerable time and money into understanding
Dutch buyers’ specifications, testing the species, gaining the Dutch
quality certificate KOMO and raising awareness of the properties and
availability of the lesser-known species.
The five-year history of SWIFT demonstrates clearly the costs and
benefits of certification. FSC certification has brought 20 per cent pre-
miums and has been crucial in developing markets. But the organiza-
tion has found the certification process to be costly and bureaucratic
and a particular burden for small-scale producers with low literacy in a
country where tenure arrangements may not be formally documented.
Initially, SWIFT had some of its producers individually certified by the
European agency Société Générale de Surveillance (SGS), but it found
this far too expensive.
The development of a ‘Green Umbrella’ group certification has
made the process easier, and SWIFT is now in the process of design-
ing a simplified Kopu Huda (‘hold onto your trees’) scheme, which it
hopes will satisfy the sustainable forest management principles and
its overseas customers. SWIFT has also investigated the prospect of
Fairtrade certification as a means of maintaining at least its premium.
But in the long term, questions have been raised about the sustainability
68 Nick Robins

of long-distance timber trade and the possibility of opening up regional

markets for their output.

(e) Environmentally driven enterprise: Tagua Initiative, Ecuador

The Tagua Initiative was set up in 1990 by Conservation International
(CI), a US-based environment group, and CIDESA, an Ecuadorean
NGO working on environmental training and development. The aim
was to find ways of conserving the rich biological diversity of the
Cotacachi Cayapas Reserve through socioeconomic development of
the local population, which suffers from extreme poverty. The solution
was found in reviving the use of the tagua nut for making buttons, a
traditional material recently overtaken by plastic substitutes.
The Initiative is run as a business, with the local producers paying
for the services they receive from the NGOs. Conservation Interna-
tional and CIDESA have helped local people to process the nuts and
then link them to local and international markets. Although tagua is
more expensive as a raw material, lower processing costs and econo-
mies of scale have meant that they are now only slightly more expen-
sive than plastic.
About US$5 million worth of buttons have now been sold, sustain-
ing over 2,800 jobs. CI has captured a 5 per cent premium from the
button sales which is invested in community development and conser-
vation. Tagua buttons are now used by 60 major manufacturers, in-
cluding GAP, Banana Republic and DKNY. In many cases companies
are unaware of the social and environmental benefits of the buttons,
and choose them purely on style and quality grounds. The project
demonstrates that social and economic development is a critical foun-
dation for conservation, and that providing quality goods is essential to
achieve long-term market success.

Lessons and challenges for the future

These case studies present snapshots of producers that have been able
to ride the wave of changing market conditions. They are by no means
perfect or represent an ideal of sustainable trade; in most cases, only a
Building sustainable markets 69

limited number of the life cycle social and environmental aspects of

production, trade and consumption have been dealt with. All represent
work in progress and give a sense of the possible.
Reviewing the cases, it is clear that two factors have been critical for
success.

1. Partnership Effective partnerships along the supply chain are

vital to speed the flow of information, skills and resources necessary
to make the change. Even in the case of Century Textiles, the largest
mill in India, a close working relationship with its clients in Germany
was central for its rapid transition to higher standards. In the fair trade
cases, forging new marketing channels for small and often disadvan-
taged producers was an essential part of the overall strategy.

2. Quality Product quality is a basic precondition for success. No

longer can sustainable products hope to succeed on the basis of ethical
criteria alone. Indeed, social and environmental requirements have to
be seen as part of an overall drive to improve productivity. This need
not mean excessive prices for consumers, and as supply expands
economies of scale could help to bring sustainable products from de-
veloping countries within reach. Independent verification of social
and environmental claims is also critical to maintain consumer trust
and provide recognition for producers.
But showing that a small and growing number of producers are gaining
new opportunities from sustainable trade does not mean that these are
open to all. There are many real barriers that have to be overcome to en-
sure that rising social and environmental expectations do not become ‘fur-
ther burdens’ for developing countries. Not just at the political level, but
also within markets themselves, there is often a lack of trust about both the
motivations and the impacts of rising social and environmental demands.
This lack of trust is rooted in real problems over decision-making, institu-
tional capacity, distributional issues, governance, the prospects for smaller
producers, and continuing policy distortions and trade barriers.

Decision-making Developing country producers often lack access

and influence in the decision-making processes that determine new re-
70 Nick Robins

quirements, such as criteria for environmental management systems,

certification and eco-labelling. One route out of this is through mutual
recognition, an option currently being explored between Indonesia
and the FSC for forest certification. This problem is compounded by
the array of public, semi-public, corporate and private bodies now set-
ting standards in this area, resulting in a blizzard of norms, particularly
in Europe.

Institutional capacity Beyond these problems related to decision-

making, developing country producers can be disadvantaged by an
absence of the institutional capacity to respond. A key problem is the
lack of local standards and certification bodies that are recognized and
respected by corporations in the North. This can lead to what organic
producers in Latin America refer to as ‘bio-colonialism’ – the imposi-
tion of international consultants and certifiers, bringing higher costs,
often without in-depth understanding of local conditions.

Costs and benefits Where special fair trade conditions have been es-
tablished, or where demand outstrips supply, producers can gain a
price premium. But this can be temporary phenomenon and can dis-
solve, as has already been the case for certified timber products. As a
result, social and environmental criteria simply become a basic re-
quirement for doing business, with producers facing the full costs of
investment and certification without offsetting price or market share
advantages.

Governance The issue of who benefits is central to the broader issue

of governance along the supply chain.5 Inequalities in market power
between retailers, traders and producers means that the standards can
be imposed on suppliers and the burden of change shifted onto the
weakest member in the chain.

Scale All these problems weigh most heavily on small and medium-
sized firms, which often lack the skills, information or resources to
5
See Konrad von Moltke et al., Global Product Chains, UNEP, Geneva, 1998, for a
detailed analysis of market power in commodity chains.
Building sustainable markets 71

grapple with new market requirements. Collective solutions, such as

group certification, the formation of producer cooperatives and taking
a cluster approach to problem solving, can help to overcome the issue
of scale.

Policy distortions and trade barriers Beyond these market failures,

the potential for sustainable trade is often considerably constrained by
continuing policy distortions in importing countries. These range from
protectionist barriers (especially for agricultural and textile imports),
to often unnecessarily bureaucratic regulations which effectively dis-
criminate against foreign producers. In addition, many government
programmes in both North and South continue to subsidize unsustain-
able production practices, and social and environmental regulations
that do exist are often not effectively enforced. As a result, while op-
portunities are emerging for sustainable trade, widening access to
these opportunities cannot be left to micro-solutions in the market-
place. Strategic interventions will often be required to tackle these ob-
stacles through a package of policy reform, public investments and
new partnerships.
Over the next three years, IIED will be working to provide practical
guidance on how to overcome some of these barriers. There are a num-
ber of key priority areas:

1. Better understanding is required of the actual experiences, hopes

and fears of producers and traders in the South trying to improve
the social and environmental of the goods they export to Europe
and North America – as a prelude to a targeted reform of the bar-
riers that exist in today’s policy frameworks and market prac-
tices.
2. More work is required to develop effective models for partnerships
along the supply chain, models that produce more open and ac-
countable systems of governance.
3. Options need to be explored for more regional trade to tackle issues
surrounding international freight.
4. Joint design and mutual recognition of standards and norms need to
be encouraged.
72 Nick Robins

5. There is a need for practical tools to be designed to enable produc-

ers – particularly smaller firms – to generate productivity improve-
ments from social and environmental standards.
6. Investment in the necessary institutional and productive capacities
is required to help make the transition to higher standards.
7. A strategic policy dialogue and support programmes between im-
porting and exporting countries must be established to enable pro-
ducers to understand and anticipate trends and to provide additional
incentives to local action groups to improve performance.
‘Green consumerism’ and trade: a Ghanaian forestry
perspective
Moses Adigbli 1

Introduction
I am employed by Ghana’s Timber Export Development Board and I
am based in London. The Timber Export Development Board has the
task of promoting Ghana’s tropical wood and wood products in inter-
national markets. It is a government organization responsible to the
Ministry of Lands and Forestry, and is financed by levies on industry.
This paper outlines the trade and environment problems of the tropical
timber sector, focusing on the issues as they affect Ghana.
For some years there has been a selective environmental focus on
loss of tropical forest arising from the impacts of human activity. In
some countries there has been aggressive campaigning against the use
of tropical wood with an impact on market access and market success.
I aim to address these specific issues and to try to draw some conclu-
sions with wider relevance to the debate on the relationship between
trade, environment and investment.

Ghana’s forests
Geographically, Ghana extends to the north into drier savannah and
semi-desert which accounts for two-thirds of the land area, but the
south includes the wetter regions. The tropical forest covers about 7
per cent of the land area, and a large proportion of it is in the form of
legally constituted forest reserves.
Ghana is not a rich country. Its 14 million inhabitants include a large
number of low-income earners and land-reliant families. The country’s
export trade depends on a handful of products, gold, cocoa and timber
being the principal components. All three of these have environmental
1
This contribution is made in a personal capacity.
74 Moses Adigbli

impacts on the forest. Ghanaians also look to the forest for other goods
and services, using huge amounts of wood for fuel and charcoal, and
relying on the forest to supply meat and other non-timber products.
There was a time, as in Britain three hundred years ago, when the
productivity and existence of the forest could be taken for granted.
This is no longer the case. Britain has used up most of its own forests
and now relies on imports to supply more than 80 per cent of its wood
and wood fibre needs. Ghana is not yet in that position, but we are
aware that there are finite limits to our forests. The ever increasing de-
mands on it have to be regulated and supplemented if we are to have a
permanent forest resource capable of enabling a sustainable flow of
products to meet the needs of our own people and have a surplus for
export. There is now a widespread realization that urgent and strong
measures are needed to ensure the continuation of material, environ-
mental, cultural and communal benefits.
Our forest lands are owned by communities, and although signifi-
cant areas have legally and democratically been put under the care of
the government as forest reserves, outside these areas the forest is still
subject to the old ways. Rights of access and utilization are embedded
in the traditional and sometimes complex rights exercised through chiefs
and elders and recognized by government. Environmental groups are
often fiercely supportive of the rights of local communities, and such
rights are strongly in evidence in Ghana. But one cannot presume that
this automatically protects the forest. The rights for timber extraction
are matters of exclusive concessions or contracts involving the private
sector, government and community. These three sectors of society all
have to be involved in, and support, the ways in which forests are used
if there is to be successful commitment to sustainability. Each group
has rights and each group has responsibilities.

Environmental concerns in Ghana

Ghana is classified as a ‘developing nation’. People in developing na-
tions all round the world have anxieties about their environment. They
do not wish to live in unhealthy air, with impure water, or to exist in
poverty, in poor housing, with poor protection against disease and
‘Green consumerism’ and trade 75

famine. Such environmental considerations have in my opinion a high

priority. Concern may become less egocentric when people in such
countries become a little more affluent, a little more secure and have
more regular income. Then they may be more able to worry about wild-
life, conservation, ecosystems, biodiversity and global warming.
The residual natural forests of Britain may be seen in terms of public
access and leisure pursuits, such as picnics, rambling, and enjoying the
visual impact of conifers and broad-leaved trees. Ghanaian forests are
working forests. They are sources of meat, wood for fuel, shade for
cocoa production, land for farming. The environmental priorities are
different, but environmental campaigners, in their fund-raising enthusi-
asm, appear not to acknowledge the real conditions of under-resourced
developing countries, or to want to use any of their money to actually
help such countries improve standards.
Instead, their campaigning often misinforms buyers and customers and
sets out deliberately to create discrimination against the use of tropical
wood. For me, this is a trade barrier, a vindictive and totally negative ap-
proach to a real problem: that of putting better forest management in
place. Trade is a positive element. Forest royalties from logging finance
better forestry; export duties help in the evolution of sustainable eco-
nomic and social development. It is time that environmental groups relied
less on threats of boycotts and more on assisting the process of change.
Governments of importing countries should, in the spirit of trade liberal-
ization, find ways to actively discourage discrimination, particularly in
areas of guidance for national government departments and subnational
governments. If there can be any bridges between the more extreme envi-
ronmentalists and tropical forested countries, then they will have to be
constructed on more helpful attitudes on the part of our critics.

Encouraging sustainable use

Ghana’s Timber Export Development Board exists in a world of supply
and demand, where price, quality, delivery, competition, exchange
rates, finance and corporate reputation are all important. The Board
also works to see that concepts of corporate reputation embrace good
environmental practice. Corporate responsibility in relation to society
76 Moses Adigbli

is in reality infinitely variable. Around the world, in every sphere of

activity, there are ‘crooks’ and ‘good guys’. Illegal activities are, sadly,
common in all walks of life. There are those who operate just on the
right side of the law, those who flout it, and those who do more than is
mandatory in order to be seen to be good citizens. Our environmental
worries are not about the good guys but about the others. It is in our
own national interest to formulate laws and regulations to ensure good
behaviour. For this to be successful, it is not really enough just to apply
a heavy punitive hand. People have to see that the laws make sense,
and are necessary and in the longer term beneficial to them. In environ-
mental affairs, it may take time for local communities to understand
and support environmental measures, especially when it means mov-
ing away from practices that have been used for generations.
In Ghana the government has worked hard to create the right laws,
policies, regulations and effective institutions to ensure the perpetua-
tion of forests and their proper economic, environmental and social
use. For example, it has laid down and implemented clear practical re-
quirements for timber companies working in the forest reserves. The
task is more complex in community-owned lands outside the reserves,
where land is allocated by elders to members of the tribal group and
specific traditional responsibilities and tribute requirements rest on in-
dividuals. Changes in traditional ways take longer.
The key point is that every effort is being made to meet the environ-
mental expectations of the international community, but progress is of
necessity slow. It is therefore unfair that environmental groups work to
inhibit our international wood trade.

Adding value to Ghana’s forest products

Our Forestry Department has calculated that industry should not take
more than 1 million cubic metres of logs from the natural mixed-
species forest each year. This is the level the forest can sustain year
after year. It allows bigger trees of particular species to be harvested on
the basis of minimum fellable diameters. It allows a cycle of time for
the younger smaller trees to grow to harvestable size. We also have a
conservation rating for commercial species which is firmly in place.
‘Green consumerism’ and trade 77

Because we have this limit to forest harvests, we cannot increase in-

come by stepping up the gross volume taken from the forest. We have
to find other ways. These avenues of opportunity direct us towards
processing wood to a higher degree before export, thus providing a
higher value per unit of volume. We are encouraging industry to de-
velop linkages and activities within Ghana that will lead to higher pro-
duction of wooden components, furniture parts and finished wood
goods. With the very welcome help of the World Bank, the Interna-
tional Tropical Timber Organization, the European Commission, the
UK Department for International Development, the Danish Interna-
tional Development Administration (DANIDA) and others, we are
strengthening our capabilities in this sector. We are endeavouring to
open up new markets. All of this means that we are attaching even more
importance to the perpetuation of forests – forests that will support more
jobs, more careers, more families, as well as contributing to government
revenues and building, through capital formation and profit, the founda-
tions for industrial evolution and the raising of living standards.
The export of value added products relies on market access, and on
the ability to compete on an equal footing. The trade liberalization suc-
cesses of the WTO help us compete in world markets, particularly in
markets where consumers have greater discretionary spending power.
The International Tropical Timber Organization (ITTO), an intergov-
ernmental body inspired by UNCTAD/GATT, is at present undertaking
a market access study. As a direct result of very strong anxieties ex-
pressed by its producer member countries, this study will focus more
on barriers to trade arising from environmentalism than on matters of
competition and protection. Some politicians in the tropical world even
harbour suspicions that environmentalism is a smokescreen designed
to give more opportunity to non-tropical and domestic wood produc-
ers in the developed world.
This is true of course, if only by accident; because, if a buyer is per-
suaded that there is something bad about tropical wood, then he will
have to find alternative materials. There is also a perceptible shift in
tropical wood exports to less sensitive markets.
Environmental exactitude is harming the process of world trade lib-
eralization for processed wood. This poisoning of opportunity exists,
78 Moses Adigbli

to take Britain as an example, through pressures exerted by environmen-

tal campaigners in the media, threats of demonstrations and pressures
applied to local government, retail groups, specifiers and importers. It
is a process embodying intolerance, almost a fundamentalism, and
demands pass-or-fail judgments against standards set by the environmen-
tal community itself. Unlike the underlying, and perhaps unspoken,
philosophy of the system of British Standards, which concentrates on
what industry itself thinks it can achieve in practical terms, environmen-
talists extend their demands beyond forest management into ethnic prob-
lems, wage levels and workers’ rights. Yet their demands carefully avoid
and fail to recognize the often extreme political and economic constraints
that may exist in some countries. The whole approach is grossly simpli-
fied, with blanket accusations levelled at the entire tropical world encap-
sulated by the assertion that logging destroys tropical forests.

Discouragement of investment
This deliberate souring of the purchasing climate seems to be ignored
by governments of importing countries discussing world trade in inter-
national forums. On the one hand, international agencies and sources
of bilateral aid are actually encouraging better forest management, but
on the other they are doing nothing to keep markets open. Govern-
ments of importing countries are seldom inclined even to give guid-
ance to their own departments or to subnational governments on the
unacceptability of discrimination.
The situation may be affecting the development of Ghana’s forest
products industry in other ways. International institutions continue to
provide valued help, but an injection of capital and skills from invest-
ment sources in Britain are markedly absent. Historically there have
been political reasons for this, but today one suspects that investors are
frightened that their reputations would immediately come under fire
from the environmental extremists. One suspects that this discourage-
ment applies particularly to investors who have a keen sense of respon-
sibility towards the environment.
My colleagues and I are well aware that there are many different
kinds of environmentally concerned groups and that many do under-
‘Green consumerism’ and trade 79

stand the problems and try to help, but the extreme groups do us dam-
age and we resent it. Discouragement of potential investors deprives
us of capital, management and production skills and market linkages.
This is a negative aspect of the relationship between environmental-
ism and investment.

Likelihood of environmental premium

Claims that financial rewards flow from higher environmental stan-
dards are expressions of wishful thinking, except perhaps for tiny
niche markets. In practice, any environmental surcharge at the retail
level is difficult to pass back through the distribution chain to finance
forest improvement or to those who might be identified as having in-
curred extra costs on environmental grounds. Some years ago the Brit-
ish timber importing trade tried to interest governments in an import
levy on timber that would go into a fund for forest management. There
were obvious problems and the endeavour failed, but at least it was an
attempt to be positive and helpful.
It is recognized that improved forest management has to be paid for.
In an ideal world, the timber industry and users of wood coming from
natural forests would pay the total notional value of the tree, encom-
passing not just the extraction process but also the cost borne by
Mother Nature in nurturing a tree to commercial maturity. Raising for-
est rents and royalties to such levels cannot be done at the expense of
commercial competition, or beyond the ability of industry to pay. In
industry no company can act in ways that render it uncompetitive
through higher costs, nor can it overstep the limits of affordability. In-
dustry should not be expected to carry the costs of national parks and
totally protected areas, or for open-ended environmental research or
social work for indigenous forest groups who are outside the market
economy. It is better that the forested country itself impose forest
charges and that it does so as close to the forest as possible in order to
ensure that money raised is actually used for forest improvements. If
the developed world wants a high level of environmental protection in
the developing world, then it should be prepared to pay for it. Coun-
tries like mine do have a desire to see improvements in the way the
80 Moses Adigbli

human race reacts with the world’s lands, seas and air, but we are less
able to indulge them because we don’t have the money.

The role of wood products certification

Even though reliable statistics on how much demand there actually is
for certified timber products are difficult to come by, there is neverthe-
less an awareness in Ghana that the introduction of forest certification
will further strengthen the positive forestry management currently in
existence. Ghana has made some progress towards evolving a certifi-
cation scheme; it is not sponsored by the Forest Stewardship Council
(FSC)2 but is based on international principles and criteria supported
by the numerous international agencies and intergovernmental fo-
rums. Draft standards were to be debated before the end of 1998. Pilot
tests on the forests are to be carried out by the middle of 1999, and it is
hoped that forest certification will commence towards the end of that
year.

The international debate

There is no shortage of environmental theorizing, and no shortage of
international fora where the search for global principles and global so-
lutions is discussed. Much of the world’s concerns about the environ-
ment were identified at the Earth Summit meetings of the UN Confer-
ence on Environment and Development (UNCED) in Rio de Janeiro in
1992. For those of us in the forestry sector, a whole set of forest prin-
ciples and Agenda 21 together covered the subject extremely well – so
much so that the subsequent work of the UN Commission on Sustain-
able Development (UNCSD), through the International Panel on For-
ests and more recently the Intergovernmental Forum on Forests, had
comparatively little to add except in the important areas of avoiding
duplication of effort by international agencies, consideration of imple-

2
The FSC is an international non-governmental body that is involved in the certification of
forests and the labelling of forest products according to principles, standards and criteria
laid down by its governing council.
‘Green consumerism’ and trade 81

mentation of desirable aims and activities, and whether there should be

a Forest Convention. The focus had always to shift, sooner or later,
from broad principles to encouraging and assisting individual nations
to achieve global desires for the Earth’s environment.
Under existing conventions, the tropical forested nations are already
having to digest commitments on endangered species, biodiversity
and climate. At this time it is difficult to see how a Forest Convention
could be shaped, other than as a lowest common denominator to allow
what is achievable in practice with current resources. Were such a con-
vention to exist, it might be taken as a point of reference in interna-
tional trade negotiations.
At present there is an extraordinary wave of environmental aware-
ness from myriad sources and affecting all levels of society. It would
be very surprising if there are any governments or industries that re-
main ignorant of the need to improve environmental standards and
practices. Closer examination of developing countries that appear not
to be acting positively may uncover specific reasons – civil unrest,
political indifference, more pressing social problems or a lack of re-
sources. Within these wider determinants, industry itself needs an en-
abling investment climate which would include, among many things, a
clear picture of the environmental rules and the industry’s ability in
commercial terms to absorb them and contribute to sustainable, envi-
ronmentally healthy development. The environmental measures of a
country may be above or below those of other countries with which it
trades. There is a great deal of difference between what can be achieved
on the ground within a particular set of circumstances and the continual
search for global truths, which often invoke emotional or academic
logic which effortlessly slides away from practicalities.
World trade policies and agreements cannot ignore the environmen-
tal dimension. The policies of intergovernmental bodies usually rule
out specific criticism of individual member countries. It may rebound.
Neither can there be suggestions of sanctions. There can be encour-
agement towards international standards, and mutual recognition of
national processes. There can be recognition of the individual respon-
sibilities of international organizations in health, labour, industrial de-
velopment, agriculture and forestry.
82 Moses Adigbli

There can also be factual reporting on progress towards environmen-

tal goals. In the tropical forestry sector, this is how the ITTO keeps up
to date with the progress of its member countries towards its Objective
Year 2000.3 For example, some tropical countries, including Ghana,
Indonesia and Malaysia, are well advanced towards authenticated na-
tional certification of good forest practice.
This paper has focused on the tropical forest problems in relation to
world trade. Anything that places specific environmental duties and
costs on internationally traded tropical wood products must surely re-
quire equitable expectations of other products of metal, plastic or min-
eral base. This raises other problems. Criticism of the timber trade is
devoted to the issue of forest loss, yet the pluses and minuses of the
environmental equation embrace all stages of the life of a product, in-
cluding energy uptake in processing, air pollution from such process-
ing and biodegradability on disposal.
In conclusion, I believe that an international trade organization can-
not avoid having stated policies on environmental matters, and that it
has to recognize national, regional and international environmental ini-
tiatives in ways that are essentially helpful and positive, discourage
discrimination, and do not disadvantage the developing world.

3
The International Tropical Timber Organization (ITTO) has set the year 2000 as the date
by which timber from all tropical forests will be judged as being sustainably harvested. This
means that by that date each member country’s forest operations are expected to meet the
requirements of principles, criteria and management standards that were approved in 1995.
‘Green consumerism’ and labelling:
a retailer’s perspective
David Wheeler1

Introduction
These comments are based on The Body Shop’s experience of retail
trading in 47 countries around the world and extensive experience of
both voluntary and certified approaches to the provision of consumer
information. There are few elements of the green consumer agenda
with which The Body Shop has not been involved on an international
scale over the years, whether environmental, social (including fair
trade) or animal welfare-related.
The Body Shop believes that the scope for voluntary environmental
labelling to promote significant environmental benefits is limited. We
have experience of numerous international and national schemes oper-
ating in the consumer field. There is not a single scheme in any country
on the planet that we could say has made a significant impact in the
cosmetics and toiletries marketplace from the perspective of consumer
behaviour. The more general conclusion that we would draw is that,
with a few honourable exceptions, voluntary labels are at best much
ado about nothing, at worst a misleading and potentially highly con-
fusing market intervention.
There have been some successes, for example in organic labelling,
where there is a very active producer movement and a direct link to
consumer human health and well-being; another is the Forest Steward-
ship Council (FSC), where the issue is quite specific and significant
effort has been devoted to consensus-building across producer, NGO
and retail sectors. However, recent experience with the EU eco-labelling

1
Editors’ note: This is an edited version of David Wheeler’s evidence to the House of
Commons Environment Select Committee Inquity into the Environmental Impact of
Consumer Products. See Reducing the Environmental Impact of Consumer Products,
House of Commons Environment Select Committee 11 Report, HC 149, Vol. II, July 1999.
84 David Wheeler

scheme2 leads to the conclusion that voluntary generic labelling is

highly likely to create the illusion of activity by manufacturers and re-
tailers while in reality simply adding to the plethora of competing
claims of variable validity.
Along with a number of other commentators, The Body Shop is now
highly sceptical that the current very technical practice of Life Cycle
Analysis (LCA) has much to contribute to resolving the fundamental
issues raised by the social and economic dimensions of sustainable
development with respect to environmental labelling. We have in-
cluded a streamlined version of LCA in our own product stewardship
programmes for several years. However, it must be recorded that, in
the context of the EU eco-label, the various expert groups and the
competent bodies signally failed to develop an LCA methodology that
would adequately reflect societal values in the process of developing
label criteria. The exclusion of ethical issues (for example animal wel-
fare from cosmetics or household product labels) or social issues (for
example human rights), from any product category exposed the funda-
mental inadequacy of a generic voluntary labelling scheme as ambi-
tious as the EU eco-label. We believe that this contributed significantly
to the scepticism of opinion-formers and a consequent failure to enrol
consumers.
Product stewardship and LCA are now becoming the province of
ISO processes designed to achieve common denominator systems of
management. However, ISO processes typically do not set normative
standards: they simply require management systems and processes to
be in place. Undoubtedly ISO has a role – indeed, The Body Shop uses
ISO standards for some of its own ethical management procedures.
However, they are fundamentally process-driven, not necessarily ame-
nable to implementation by SMEs or accessible to producers in the less
industrialized world. We do not see much long-term prospect for ISO
systems to underpin consumer labels or claims except as part of an in-
tegrated approach to environmental management subject to indepen-

2
Council Regulation (EEC) No. 880/92 of 23 March 1992 on a Community eco-label
award scheme, OJ L 099 11.04.92, p. 1.
‘Green consumerism’ and labelling 85

dent verification, for example within the context of the EU EMAS

Regulation.3
Finally, in public policy terms, it is difficult to justify why companies
that produce environmentally or socially less damaging goods and ser-
vices should be required to internalize costs for appropriate manage-
ment and certification systems (or, indeed, why consumers should pay
more for voluntarily labelled goods) when companies that do not take
such care escape their obligations and indeed are able to charge their
customers less without the requirement for any labelling at all. This is
a direct contradiction of the principle that consumers and companies
should be given incentives to do the right thing and economically pe-
nalized for excessive or environmentally inefficient consumption – a
principle, like the polluter-pays principle, that will become increas-
ingly important in public policy, e.g. eco-taxation. Why should a small
producer of wooden handicraft items in India bear the costs of environ-
mental certification and labelling (e.g. via the FSC scheme) for mar-
ginal, if any, economic benefit, when its competitors based in China
manufacturing in plastics need add no environmental or social qualifi-
cations whatsoever to their products?

A way forward
If we were starting from first principles, The Body Shop would advo-
cate completely downgrading the public policy importance of volun-
tary, generic labelling initiatives. They will always exist, and certainly
will need to be made more transparent and honest through codes of
practice or regulatory intervention. But with the planet facing such ur-
gent social and environmental challenges, such initiatives should not
be allowed to distract us from more serious opportunities for progress.
Hence the Body Shop believes that the British government, in concert
with its global trading partners, should:

3
Council Regulation (EEC) No. 1836/93 of 29 June 1993, allowing voluntary participation
by companies in the industrial sector in a Community eco-management and audit scheme,
OJ L 168 10.07.93, p. 1.
86 David Wheeler

1. agree the global priorities for action on sustainability, e.g. global

warming, human rights, forestry, etc.;
2. carry out a rapid audit of all consumer products and identify where
the significant sustainability impacts lie, for example:
• washing machines – water;
• refrigerators – electricity;
• textiles – labour standards;
3. draw up a matrix of where most benefit for ecological/sustainability
investment lie, for example:
• all washing machines could (and should) be 50 per cent more
water-efficient;
• all refrigerators could (and should) be 50 per cent more energy-
efficient;
• all textiles should be produced consistent with ILO criteria;
4. draw up a set of mandatory labelling requirements, at least at EU
level, to match the matrix, for example:
• all washing machines must be marked with a five star system on
water efficiency;
• all refrigerators must be marked with a five star system on en-
ergy efficiency;
• all textiles must be marked with a certificate of compliance on
labour standards;
5. back up the above with public-sector purchasing policy and specifi-
cations, for example:
• ‘The government will specify only three star and above washing
machines up to the year 2001 and only five star thereafter’;
• ‘The government will specify only refrigerators that are three-
star-rated and above up to the year 2001 and only five-star-rated
ones thereafter’;
• ‘The government will specify only textiles with a certificate of
compliance on labour standards by the year 2001’;
6. provide practical and financial support for developing-country pro-
ducers to meet mandatory labelling requirements and/or exempt
small producers altogether.
‘Green consumerism’ and labelling 87

Conclusion
The approach advocated here is unashamedly pragmatic, but I believe it
would generate significant market signals and would help cut through
the current confusion in the market-place. It would accelerate environ-
mental and social change and would be consistent with wider objec-
tives on sustainability and poverty alleviation in developing countries.
This sort of approach does not remove the opportunity for consumer
action; it merely shifts the main motive force in the market-place to stan-
dards for government procurement. And, being pragmatic and ‘single
issue’ based, it would not attempt to resolve every social/environmen-
tal and ethical issue within a relatively weak, consumer market-based
framework, or indeed via voluntary and generic labels which create
little real motivation either for producers or consumers.
Good initiatives like FSC and organic certification would fit well
within such a scheme. There is absolutely no reason why government
purchasing standards should not prioritize sustainable forestry and
healthy food. Moreover, the approach could be readily applied to so-
cial and ethical criteria as well. Why should not certified ‘child-labour-
free’ be the main social criterion for government textile purchasing?
 Part III
Resolving key WTO issues
Overview

A lawyer’s view
Damien Geradin

Introduction
The objective of this paper is to provide a short overview of the various
issues created by the interface between trade, investment and environ-
mental regulation. Most of the paper will concentrate on the links be-
tween trade and environmental protection, though investment aspects
will also be dealt with when relevant. Because of its introductory char-
acter, this paper will inevitably contain a number of simplifications.
More sophisticated analysis may, however, be found in my recent pub-
lications.1
As a starting point, it is essential to observe that the various inter-
linkages between trade, investment and environmental protection can
be properly identified only by making a number of basic distinctions.
Indeed, the impact of environmental regulations on trade and invest-
ment – and, conversely, the impact of trade and investment on environ-
mental regulations – may vary depending on the type of environmental
measure concerned.
A first distinction should be drawn between environmental measures
depending on whether they have been adopted unilaterally or pursuant
to multilateral environmental agreements (hereafter, MEAs). Each
category is considered in turn.

1
See, in particular, D. Geradin, ‘Trade and Environmental Protection in the Context of
World Trade Rules’, European Foreign Affairs Review, Vol. 2, Spring 1997, p. 33; D. Esty
and D. Geradin, ‘Market Access, Competitiveness and Harmonization: Environmental
Protection in Regional Trade Agreements’, Harvard Environmental Law Review, Vol. 21,
1997, p. 265.
92 Damien Geradin

Unilateral measures
A further distinction should be made here between three categories of
environmental measures: direct restrictions on trade; product stan-
dards; and process standards.2

Direct restrictions on trade

Direct restrictions on trade generally take the form of import or export
bans. Countries can, for example, restrict the imports of hazardous
substances or waste in their territory. They may also restrict the exports
of scarce ecological resources, such as endangered species of fauna
and flora.
Such restrictions are contrary to Article XI of the GATT which pre-
vents quantitative restrictions on trade. The question then becomes
whether such measures can be justified under Articles XX(b) or XX(g).
Those Articles permit members to adopt measures that would normally
be incompatible with GATT if they are ‘necessary to protect human,
animal or plant life or health’ (Article XX(b)) or if they ‘relate to the
conservation of exhaustible natural resources if ... made effective in
conjunction with restrictions on domestic production or consumption’
(Article XX(g)).3 Such measures can, however, be legitimized under
these exceptions only if ‘they are not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination where
the same conditions prevail, oir a disguised restriction on international
trade’.
So far, the Article XX exceptions have been interpreted relatively
strictly in the context of GATT disputes. In the two Tuna/Dolphin cases,
dispute settlement panels held that US import bans on certain catego-
ries of tuna products – tuna fished in a dolphin-harmful manner – did
not fall within the scope of the Article XX exception because they at-

2
For a discussion of these different categories of environmental measures see D. Geradin,
Trade and Environment: A Comparative Analysis of EC and US Law, Cambridge
University Press, 1997.
3
Generally on these exceptions see S. Charnovitz, ‘Explaining the Environmental
Exceptions in GATT Article XX’, Journal of World Trade, Vol. 25, 1991, p. 37.
Overview: a lawyer’s view 93

tempted to coerce foreign countries to modify their domestic regula-

tions.4 This type of ‘extrajurisdictional’ measure would therefore be
per se illegal.
In its recent Shrimp/Turtle decision,5 the Appellate Body seems to
reject this analysis, focusing on ‘categories’ of measures, and on the
‘specific circumstances’ of each case.6 Nevertheless, it considered that
Section 609 of US Public Law 101-162 pursuant to which the US gov-
ernment had adopted a controversial import ban on shrimps from cer-
tain countries could not be justified under Article XX because this
provision had been applied in a manner constituting ‘arbitrary and
unjustifiable discrimination between countries where the same condi-
tions prevail’. Among the flaws identified by the Appellate Body in the
application of Section 609 were the fact that the US government re-
quired all exporting Members to apply the same policy as the one
adopted by the United States; that it did not ensure that its policies
were appropriate for the specific local and regional conditions prevail-
ing in other countries; and that it did not seriously attempt to reach a
multilateral solution to the turtle problem through negotiation.
Though this decision was perceived by environmental NGOs as an
additional illustration of the lack of consideration given by the WTO
dispute settlement machinery to ecological questions, it was welcomed
by some legal commentators as a balanced decision setting forth ‘clear
guidelines as to how the US might both comply with GATT require-
ments and still implement legislation designed to protect a shared, but
endangered world resource, the migrating sea turtles’.7

4
See US: Restrictions on the Imports of Tuna, 16 August 1991, reprinted in International
Legal Materials (‘Tuna/Dolphin I’), Vol. 30, 1991; and US: Restrictions on the Imports of
Tuna, 20 May 1994, reprinted in International Legal Materials, Vol. 33, 1994.
5
See US: Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R
(12 October 1998).
6
See G. Shaffer, ‘The U.S. Shrimp Turtle Appellate Body Report: Setting Guidelines
toward Moderating the Trade-Environment Conflict’, Bridges Between Trade and
Sustainable Development, Vol. 2, No. 7, October 1998, p. 9.
7
Ibid.
94 Damien Geradin

Product standards
Product standards regulate the (environmental) characteristics of prod-
ucts. They include, for instance, packaging rules, sanitary require-
ments, vehicle exhaust emission standards, etc. Although such rules do
not impose direct restrictions on international trade, they may never-
theless have a trade restrictive effect on such trade in two categories of
circumstances.
First, product standards may be used as an instrument of protection-
ism when they discriminate on their face or in their effects against im-
ported products. This is, for instance, the case when a standard ex-
pressly imposes heavier requirements on imported products (formal
discrimination) or imposes similar obligations on domestic and im-
ported products, but in practice it has the effect of protecting the do-
mestic products to which it applies or other categories of domestic
products (material discrimination). As illustrated in the Reformulated
Gasoline dispute,8 such discriminatory standards are incompatible
with the national treatment principle contained in Article III. Unless
they can be justified under one of the exceptions contained in Article
XX, they will therefore be contrary to GATT.
Second, even when they do not discriminate on their face or in their
effects against imports, product standards may nevertheless have the
effect of making such imports more difficult. This may, for example,
be the case when countries require the use of certain types of labelling
or packaging. Such regulations impose an extra burden on manufac-
turers located in other countries since they will have to meet both the
standards of their own country and those of the country of sale, or per-
haps of several countries of sale. Despite the potentially restrictive ef-
fects on trade of such standards, they are not contrary to Article III of
GATT, whose national treatment principle only prevents discrimina-
tion.

8
See US: Standards for Reformulated and Conventional Gasoline, WT/DS2, (29 January
1996), where a dispute settlement panel found that a US EPA regulation treating imported
gasoline less favourably than domestic gasoline was not compatible with GATT Article III.
This panel decision was subsequently confirmed by the WTO Appellate Body, WT/DS/AB/
R, (29 April 1996).
Overview: a lawyer’s view 95

There might, however, be some opportunity to challenge such stan-

dards under the Technical Barriers to Trade (TBT) and the Sanitary
and Phytosanitary Measures (SPS) Agreements. For instance, the TBT
Agreement requires its members to ‘ensure that technical regulations
are not prepared, adopted or applied with a view or with effect of creat-
ing unecessary obstacles to international trade’. It might be inferred from
this provision that non-discriminatory regulations that would be valid
under GATT Article III’s national treatment principle might be chal-
lenged under the TBT Agreement as unnecessary obstacles to trade.
Similarly, the SPS Agreement requires members to ensure that ‘any
sanitary or phytosanitary measure is applied only to the extent neces-
sary to protect human, animal or plant life or health, is based on scien-
tific principles and is not maintained without scientific evidence’. This
agreement also requires that in the assessment of risks members take
into account, inter alia, ‘available scientific evidence’. As illustrated
by the Beef Hormone Appellate Body decision, 9 this language may
provide an effective instrument for countries seeking to challenge
equally applicable, but none the less trade-restrictive, sanitary regu-
lations.

Process standards
Unlike product standards, process standards regulate not the character-
istics of products, but the production methods by which they are made.
As such, process standards do not restrict trade and there is nothing in
the GATT that prevents its members from regulating domestic produc-
ers that engage in polluting activities.
Difficulties may, however, arise when WTO Members attempt to use
trade measures in order to control the production processes used by
foreign producers. In order to achieve such control, Members can, for
instance, deny market access to products that have been produced pur-
suant to inadequate process standards, or impose a duty on such prod-
ucts (hereafter, ‘process-related trade restrictions’).

9
EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/
DS48/AB/R.
96 Damien Geradin

Before assessing the compatibility of such process-related trade re-

strictions with the GATT, the question must be asked in what circum-
stances members may be tempted to resort to such restrictions. There
are two main sets of reasons.
The first is ecological. The enforcement of lax environmental pro-
cess standards by some countries may put pressure on the local, regional
or even global environment.10 For instance, the burning of environ-
mentally unsound high sulphur coal in China may have adverse effects
on the local population, produce transboundary air pollution and con-
tribute to the global warming process. This is why some nations may
decide to use trade restrictions as a weapon to force low-standard na-
tions to improve their environmental practices.
The second set of reasons is economic. Variations in the stringency of
process standards may affect the conditions of competition.11 Other
things being equal, companies operating in jurisdictions with lax pro-
cess standards will face lower compliance costs and hence will be able to
bring their goods to market at lower costs than those operating in high-
standard jurisdictions. It is also often argued that variations in the strin-
gency of process standards may induce those located in high-standard
jurisdictions to relocate to low-standard jurisdictions in order to preserve
their competitive position. This industrial migration to ‘pollution havens’
would result in lost jobs and in reduced and downward pressure on
wages in high-standard nations. As a result of these perceptions, high-
standard nations’ governments are often under pressure from industry or
labour groups to adopt trade measures to correct such distortions.12
The research that Dan Esty and I carried out last year casts some
serious doubts on the validity of the second set of reasons.13 Most eco-

10
See J. Trachtmann, ‘Internationalization, Regulatory Competition, Externalization and
Jurisdiction’, Harvard Journal of International Law, Vol. 34, 1993, p. 47, 57.
11
See R. Carbaugh and D. Wassink, Environmental Standards and International
Competitiveness, World Competition,Vol. 16, p. 81.
12
See, e.g. ‘Gephart Bill to Allow Sanctions for Not Enforcing Environmental Laws’,
International Trade Reporter, Vol. 11, 30 March 1994, p. 500 (reporting Congressman
Gephart’s intention to propose legislation treating any failure to adopt proper environmental
standards as an unfair trade practice actionable under Section 301 of the Trade Act 1974).
13
D. Esty and D. Geradin, ‘Environmental Protection and International Competitiveness: A
Conceptual Framework’, Journal of World Trade, Vol. 32, 1998, p. 5.
Overview: a lawyer’s view 97

nomic studies we read tend to suggest that there is no specific link be-
tween the level of environmental regulation adopted by a country and
its economic performance in terms of the competitiveness of its indus-
tries on domestic and international markets, or its levels of investment.
Differences in environmental standards do not necessarily penalize
high-standard nations. Hence it seems to make little sense to adopt
trade measures such as bans or eco-duties in an attempt to equalize
production costs across jurisdictions.
A more difficult question is whether WTO Members should be al-
lowed to adopt trade measures to force low-standard nations to in-
crease their process standards in order to achieve specific environmen-
tal objectives. From a legal standpoint, process-related trade restrictions
violate GATT Articles I and III, and, for reasons discussed above, it is
unlikely that they are justifiable under Article XX. Moreover, from a
policy standpoint, there is general hostility among most WTO Mem-
bers for this type of restriction.
This hostility is motivated by two main objections. First, there is the
concern that one or several nations could use their superior commer-
cial power to impose their environmental standards on other nations
without their consent or participation in the development of such stan-
dards (the ‘eco-imperialism’ objection). Second, to use John Jackson’s
words, there is the concern that, ‘if a nation is allowed to use the pro-
cess characteristics as the basis for trade restrictive measures, then the
result would be to open large loopholes in the GATT’.14 The use of
environmental process characteristics as a basis for discrimination be-
tween products could trigger similar claims in other areas of social
policies, such as human and labour rights (the ‘slippery slope’ objec-
tion).
Thus, it appears that, from both law and policy standpoints, a multi-
lateral approach though which high-standard nations attempt to en-
courage low-standard nations to improve their environmental practices
by using incentive regimes will generally be more acceptable than any
form of unilateral restriction.

14
J. Jackson, ‘World Trade Rules and Environmental Policies: Congruence or Conflict?’,
Washington and Lee Law Review, Vol. 49, 1992, pp. 1127, 1243.
98 Damien Geradin

Multilateral measures
As we have seen, countries frequently resort to unilateral trade restric-
tions to advance environmental objectives. However, countries may
also adopt trade restrictions in order to implement trade provisions that
are contained in MEAs. Examples of MEAs containing trade provi-
sions are the Washington Convention on International Trade in Endan-
gered Species of Wild Flora and Fauna (CITES), the Montreal Protocol
on Substances that Deplete the Ozone Layer, and the Basel Convention
on the Control of Transboundary Movement of Hazardous Wastes and
their Disposal.
In agreements such as CITES and the Basel Convention, the ratio-
nale for trade restrictions between parties is clear. Trade must be re-
duced or eliminated because it represents the vehicle through which
the environmental damage occurs. Trade restrictions applying to non-
parties may be based on similar reasons. As illustrated by the Montreal
Protocol, such restrictions may also be designed to ensure that, by
staying out of the agreement, non-parties are unable to take a free ride,
i.e. to benefit from the environmental efforts brought about by the
agreement without bearing any of the costs it entails. On the contrary,
these trade provisions will generally place non-parties in a disadvanta-
geous position, thereby giving them an incentive to join.
Domestic measures adopted to implement these trade provisions
may, however, conflict with GATT in a number of ways. First, mea-
sures discriminating between parties and non-parties may violate
Article I’s most favoured nation (MFN) obligation; an example is the
adoption of an import or export ban on CFCs and CFC-containing
products and technologies against a WTO Member that is not a party
to the Montreal Protocol. Second, measures subjecting imported pro-
ducts to more stringent obligations than like domestic products may vio-
late the national treatment provision contained in Article III; an example
is the adoption by a party to the Basel Convention of a total ban on
foreign waste. Finally, import or export prohibitions, such as those
contained in CITES, may amount to quantitative restrictions contrary
to Article XI. In addition, the exceptions contained in GATT Articles
XX(b) or (g) may not be available to justify such restrictions. As in the
case of unilateral measures, a number of restrictions adopted pursuant
Overview: a lawyer’s view 99

to multilateral environmental agreements may therefore be found to be

inconsistent with the GATT.
It seems, however, that there are good reasons for distinguishing be-
tween unilateral trade measures and trade measures adopted pursuant
to multilateral environmental agreements. First, multilaterally adopted
standards present less risk of being motivated by protectionist con-
cerns than unilaterally adopted ones. More generally, as acknowl-
edged by the Shrimp/Turtle Appellate Body report, negotiation of
MEAs is to be preferred over unilateral actions as a way of addressing
environmental problems. However, because of the collective nature
of the goods protected and the constant economic struggle between
countries, it may be difficult to negotiate such agreements success-
fully without having recourse to some form of trade restriction. Would
it not therefore be somewhat inconsistent for GATT to, on the one
hand, call for increased multinational cooperation but, on the other
hand, deprive the international community of one essential instrument
for generating the consensus necessary for collective action?
So far, there has not been any case of a GATT member challenging
trade restrictions adopted by another member to implement the trade
provisions contained in a MEA. However, to the extent that this type of
challenge is possible, the situation should be clarified. In this regard,
several approaches have been suggested for how MEAs might be rec-
onciled with the GATT. One option would be the adoption of a waiver
allowing the functioning of trade restrictions in a limited number of
agreements. Another option would be the development of a new Ar-
ticle XX exception modelled on the exception that already applies to
international commodity agreements. Finally, building on the example
provided by the North American Free Trade Agreement (NAFTA), it
might be envisaged incorporating directly into the GATT a list of
MEAs whose obligations would prevail over GATT obligations in the
event of inconsistency.

Conclusions
The above discussion illustrates that the interface between trade, in-
vestment and environmental regulation raises a set of complex issues
100 Damien Geradin

that have created a considerable degree of tension among WTO mem-

bers. Things are, however, evolving, and it seems that some of these
issues could find a happy solution.
Among the issues raised above, it seems that the tension between
MEAs containing trade provisions and the WTO is probably the least
difficult to solve. First, there is a high degree of consensus that MEAs
are the best approach to dealing with environmental issues. Moreover,
as discussed above, this tension could be suppressed through rela-
tively modest amendments to the existing rules.
The use of unilateral trade restrictions to coerce foreign countries to
modify their domestic regulations has been rejected by GATT dispute
settlement panels. However, as observed above, in its Shrimp/Turtle
decision, the WTO Appellate Body rejected the view that trade restric-
tions adopted by WTO members to protect resources outside their
jurisdiction are per se contradictory to the GATT. In this regard, this
decision seems to suggest the conditions under which such restrictions
could be compatible with the GATT.
Trade disputes involving product standards may be particularly diffi-
cult to solve, especially when they involve tricky sanitary issues. As
illustrated by the Beef Hormone case, the role of scientific evidence in
trade cases will be one of the most important issues in the years to
come. From a general standpoint, the best way to prevent trade dis-
putes over product standards from arising is to encourage a greater
degree of regulatory convergence across nations, for instance through
harmonization or mutual recognition. In this regard, ensuring more
regulatory convergence between the European Union and the United
States is one of the essential objectives of the so-called transatlantic
agenda.
The most difficult issues relate to environmental process standards.
Process-related trade restrictions are GATT-illegal and, in any event,
appear as a second-best option from a policy standpoint. Here again,
the best approach is to encourage a greater degree of regulatory conver-
gence across nations. Convergence is, however, less easy to achieve in
the case of process standards than in the case of product standards be-
cause of the existence of differences in geographic circumstances and
levels of development. In a recent article that I co-authored with Dan
Overview: a lawyer’s view 101

Esty, we nevertheless explore various possible options to encourage

some degree of process standards harmonization.15
In this paper, I have not said much about institutional issues, but this
does not mean that these are not important. The existence of a proper
institutional framework is essential to the good functioning of any or-
ganization, and the WTO is no exception. From the point of view of
environmental protection, the creation of a Committee on Trade and
Environment (CTE) is a good first step, though so far this body has not
produced a great deal of results. The setting up of an Appellate Body is
also welcome. Although it is too early to say what its impact on the
trade and environment debate will be, I believe that stronger and more
independent courts make more balanced judgments. An example is the
European Court of Justice, which, despite the key importance of the
creation of a single market in the European Union, has not hesitated in
some cases to give precedence to environmental values over trade con-
siderations.16
One aspect that is often ignored in the international economic sphere
is the role of NGOs.17 The recent collapse of the proposed Multilateral
Agreement on Investment (MAI) illustrates, however, that NGOs rep-
resent an increasingly powerful voice. One of the reasons why this
agreement collapsed – apart from the fact that it contained some objec-
tionable provisions – is that it was negotiated behind closed doors. In
the future, it will be increasingly important to take the views of NGOs
into account.

15
See Esty and Geradin, supra n. 1.
16
See D. Geradin, ‘Free Trade and Environmental Protection in an Integrated Market: A
Survey of the Case-Law of the United States Supreme Court and the European Court of
Justice’, Journal of Transnational Law and Policy, Vol. 2, 1993, p. 141.
17
See generally, D. Esty, ‘Non-Governmental Organizations at the World Trade
Organization: Cooperation, Competition, or Exclusion’, Journal of International Economic
Law, Vol. 1, No 1, 1998, p. 123.
A view from the South
Magda Shahin

Introduction
Addressing the relationship between trade and environment has become
an integral part of any strategy for promoting exports of developing
and developed countries in order to enable them to compete in the
world market. To that end, countries are striving to understand better
this relationship with a view to pursuing their interests and advancing
their economies in a sustainable manner. It is noteworthy to recall here
how Rubens Ricupero, the Secretary General of UNCTAD, perceives
this complex and cumbersome relationship as a relationship between
two poles in a dialectical thesis, where the resulting synthesis should
conciliate the two ends. In contrast to many who would like to conceive
of the trade and the environment aspects as two sides of the same coin,
Ricupero stresses that linking trade to environment does not come as
something natural. It necessitates tremendous and enormous sacrifices
to reconcile these two ends. One should seek to integrate environment
into decision-making processes from the very beginning rather than
attempting to rectify a wrong-doing at the end by having recourse to
sanctions and trade embargoes. Technology, financing, market access,
knowledge and expertise are essential for the preservation and protec-
tion of the environment.
So far, such considerations have been given little attention in the
ongoing debate in the WTO. Some would argue that the WTO is nei-
ther a development forum nor a financing institution; others believe
that the debate has not yet been exhausted, and that some of these con-
siderations could find their way into future negotiations. If we today
would like to assess the prospects for the future of the trade–invest-
ment–environment debate, we cannot shy away from addressing this
complex relationship in its entirety. In fact, it is now beyond any doubt
that one of the prime reasons behind the collapse of the negotiations on
the MAI in the OECD was the failure to integrate environment consid-
Overview: a view from the South 103

erations into the negotiations from the outset. Any future negotiations
on trade/investment/the environment will have to answer first the ba-
sic question: are we ready to make recommendations on whether any
modifications of the provisions of the multilateral trading system are
required? Has the debate been exhausted? Are we prepared to set rules
and regulations?

Basic elements
Having said this, let me stress that the relationship between trade liber-
alization and environmental benefits is not a direct one. It is an indirect
relationship which passes through different production and consump-
tion patterns, levels of development, standards of living and the extent
of poverty in the society.
Let me also reiterate that the debate in the WTO to date has been set
within certain parameters and following a clear consensual mandate
which clarifies the extent to which such a debate is viable and legiti-
mate. In this context, I would like to base my assessment of how work
may continue on the trade–environment debate on three basic realities.
First, with regard to the Preamble of the ‘Marrakesh Agreement Es-
tablishing the World Trade Organization’,1 no one denies the impor-
tance assigned to the protection and preservation of the environment in
the Preamble. But it is equally true that the Preamble emphasized that
this be done ‘in a manner consistent with the countries’ needs and con-
cerns at different levels of economic development’. What is of signifi-
cance here is that the importance given to environment is not set in
absolute terms, but linked to the needs and concerns of the countries
and their levels of development. I could even argue further that priority
is attributed to development, as the protection and preservation of the
environment can be undertaken only to the extent consistent with the
level of development.
Second, the Marrakesh Ministerial Decision on Trade and Environ-
ment was clear in setting the terms of reference for WTO work on trade

1
The text of the Agreements can be found in WTO Secretariat, The Results of the Uruguay
Round of Multilateral Trade Negotiations: Legal Texts, Geneva, 1995.
104 Magda Shahin

and environment. It stipulates, in its fourth preambular paragraph, that

attempts to coordinate the policies in the field of trade and environment
should be carried out without exceeding the competence of the multi-
lateral trading system. It then goes on to explain that the ‘competence
of the multilateral trading system’ is limited to trade policies and those
trade-related aspects of environmental policies that may result in sig-
nificant trade effects for its members. Of utmost significance here is the
framework the negotiators have agreed upon within which the envi-
ronment could be dealt with in the WTO. They were adamant in mak-
ing clear that it should not exceed the competence of the multilateral
trading system, whose policies are confined to trade and/or trade-related
aspects of environmental policies.
Third, for the purpose of discharging any possible fears of a new
‘green’ conditionality attached to market access opportunities, thus
nullifying the benefits accruing from trade liberalization within the con-
text of the Uruguay Round, the Singapore Ministerial Report (1996) on
Trade and Environment2 stressed the following points:

• The WTO is not an environmental protection agency and the WTO

itself does not provide an answer to environmental problems.
• Environmental problems require environmental solutions, not trade
solutions.
• There should be no blank cheque for the use of trade measures for
environmental purposes.
• Trade liberalization is not the primary cause of environmental deg-
radation, nor are trade instruments the first-best policy for address-
ing environmental problems.
• GATT/WTO Agreements already provide significant scope for na-
tional environmental protection policies, provided that they are
non-discriminatory.
• Secure market access opportunities are essential to help developing
countries work towards sustainable development.
• Increased national coordination as well as multilateral cooperation is
necessary to adequately address trade-related environmental concerns.

2
Report of the Committee on Trade and Environment, WT/CTE/W/40, 7 November 1996.
Overview: a view from the South 105

The state of play

In order to assess the possible trends and directions of the future debate
on trade, investment and environment, we need first to take a quick
look at where we stand today. I will refrain from going into each of the
ten items that form the work agenda of the Committee on Trade and
Environment. But I will certainly base much of my assessment on the
Singapore Ministerial Report, which I believe was comprehensive,
educational and extremely useful in clarifying many misunderstand-
ings and which will help set a sound basis for any further negotiations.
The results that were reflected in the Singapore report satisfied many,
but not all. This is because the results were confined to the various
positions and views of countries and stopped short of coming up with
any agreed conclusion. This lack of clear-cut solutions is attributable
not to the weakness of the negotiators, but rather to the complexities of
the issues at hand. It is hard to believe that these are solvable in the
near future. However, this does not and should not preclude us from
discussing further and in greater depth the issues at hand, although I
believe that the trade–investment–environment debate has not yet ma-
tured to the stage where negotiations with a view to setting rules and
regulations in this complex relationship can be established. Views on
this subject were wide apart, which only indicates the difficulties of
defining the relationship between multilateral environmental agree-
ments (MEAs) and the WTO.
The issue of the relationship between the WTO and MEAs has raised
numerous controversies, ranging from the hierarchy and compatibil-
ity between the two entities to the proper scope of a comprehensive
framework within MEAs to deal with negative environmental exter-
nalities that necessitate the more frequent use of positive measures. In
the framework of MEA negotiations, positive measures such as improved
market access, capacity-building, additional finance and access to and
transfer of technology were considered effective instruments to assist
developing countries to meet multilaterally agreed environmental tar-
gets. This was in drastic contrast to the much-disputed effectiveness of
trade measures applied as sanctions in the purview of the WTO. And
lastly, the issue of the scope for trade measures pursuant to MEAs
under WTO provisions, and their unilateral application to environmen-
106 Magda Shahin

tal problems that lie outside a country’s national jurisdiction, raised

wide disagreements and was sternly contested.
Trade measures are one of the options in the package of instru-
ments that can be used to achieve MEA objectives. Singling out trade
measures ‘pursuant to MEAs’ for some kind of WTO ‘accommoda-
tion’ would mean determining whether those trade measures are nec-
essary or effective. This would require holistic consideration of all
other measures, including positive measures, taken within the frame-
work of an MEA, a task that is clearly outside the WTO’s scope. Posi-
tive measures are more efficient and effective. Therefore, changes in
WTO rules to accommodate MEA trade measures that are inconsis-
tent with WTO rules offer an unbalanced and isolated approach as
long as there is no parallel commitment to first use and enforce posi-
tive measures.
In fact, this item remains one of the problem areas. The European
Commission continues to press for the introduction of new rules or an
‘Understanding’ that would prioritize the environment or make it an
exception, through what they would like to perceive as an ‘environ-
mental window’, which would basically mean legitimizing inconsis-
tent trade measures in the WTO.
The debate has clearly shown that there is no quarrel with depicting
the WTO as an environment-friendly organization. As a matter of fact,
the GATT allows for any action to be taken at the national level to pro-
tect the environment, provided that it is in compliance with its basic
rules and regulations. Article XX of the GATT,3 the Agreement on
Technical Barriers to Trade (TBT Agreement),4 and the Agreement on
the Application of Sanitary and Phytosanitary measures (SPS Agree-

3
Article XX, entitled ‘General Exeptions’, gives ample opportunity to use measures to
protect (a) public morals and (b) human, animal or plant life or health, etc., provided that, as
the chapeau of the article stipulates, they are not applied in a manner that would constitute a
means of arbitrary or unjustifiable discrimination between countries where the same
conditions prevail, or a disguised restriction on international trade...
4
The TBT Agreement deals basically with technical regulations and international standards,
including packaging, marking and labelling requirements, and procedures for assessment of
conformity, and makes sure that they do not constitute a means of arbitrary or unjustifiable
discrimination between countries where the same conditions prevail, or a disguised
restriction on international trade.
Overview: a view from the South 107

ment)5 are all cases in point, giving each WTO member the right to
set the level of protection that it deems appropriate for the environ-
ment, provided that it does not act against the basic principles of the
WTO as stipulated in Articles I and III of the GATT.6 If, however, a
state imposes stricter regulations on imported products than on those
domestically produced for environmental purposes, it is in violation
of GATT Article III. Once a substantive GATT requirement has been
violated, analysis shifts to Article XX, which incorporates a number
of General Exceptions, though this Article remains a cause of the
greatest uncertainty and continues to be a subject of controversial
interpretation.

The Shrimp/Turtle dispute

The latest developments regarding this specific issue were double-
edged. I will look briefly at the main panel and Appellate Body find-
ings and conclusions from this dispute as they are key and decisive for
the future debate on the relationship between the WTO and MEAs.

The Panel report

To many, the famous Shrimp/Turtle case between the United States on
one side and Malaysia, Indonesia, India, Pakistan and Thailand on the
other has exterminated all the remaining doubts about the interpreta-
tion of Article XX as authorizing unilateral measures for the sake of
protecting and preserving environment. To others, the results of the
panel findings have only intensified their belief in the need for a drastic
change in the prevailing WTO rules, under the pretext that they do not
serve the environment well.

5
The SPS Agreement, which forms an integral part of the Agreement on Agriculture,
reaffirms in its preamble that no Member should be prevented from adopting or enforcing
measures necessary to protect human, animal or plant life or health, subject to the
requirement that these measures are not applied in a manner that would constitute a means
of arbitrary or unjustifiable discrimination between members where the same conditions
prevail, or a disguised restriction on international trade.
6
GATT Article I: Most Favoured Nation Treatment; GATT Article III: National Treatment.
108 Magda Shahin

It is worth noting that the Shrimp/Turtle case is the first conflict that
has arisen between the WTO and a MEA, in this case the Convention
on International Trade in Endangered Species (CITES). The report is
precedent-setting after the two Tuna/Dolphin reports, which were not
adopted because the United States blocked adoption. The Shrimp/
Turtle ruling is the first adopted WTO ruling concerning a trade em-
bargo based solely on domestic environmental legislation. The United
States is the only country that interprets Article XX so broadly as to
allow for extra-territorial measures to protect the environment beyond
its territories.
For the United States the case focused on the right of WTO members
to take measures under Article XX of GATT 1994 to conserve and pro-
tect natural resources, as reaffirmed and reinforced by the preamble to
the WTO Agreement. For the complainant, it was a case about the im-
position of unilateral trade measures designed to coerce other mem-
bers to adopt environmental policies that mirrored those in the United
States. The United States based its entire defence on Article XX, which
allows countries to take measures contrary to GATT obligations when
such measures are necessary to protect human, animal or plant life or
health. In this case the United States argued that the trade measure was
necessary because sea turtles were threatened with extinction and the
use of turtle excluder devices on shrimp nets was the only way to pro-
tect them effectively from drowning in shrimp nets. Overall, the panel
stressed the WTO’s preference for multilaterally negotiated solutions.7
Furthermore, the panel focused its analysis on the headnote or cha-
peau of Article XX, which requires legitimate trade restrictions to be
applied ‘in a manner which would not constitute a means of arbitrary
or unjustifiable discrimination between countries where the same con-
ditions prevail or a disguised restriction on international trade’. The
panel found that interpreting the chapeau in a way that would allow
importing countries to restrict market access according to exporters’
adoption of ‘certain policies, including conservation policies’ would
mean that ‘GATT 1994 and the WTO Agreement could no longer serve

7
United States – Import Prohibition of Certain Shrimp and Shrimp Products, Report of
the Panel, WT/DS58/R, 15 May 1998, pp. 278–300.
Overview: a view from the South 109

as a multilateral framework for trade among Members’. Such an inter-

pretation, the panel felt, could lead to ‘conflicting policy requirements’
since exporting countries would need to conform with different do-
mestic policies in importing countries, thus threatening the ‘security
and predictability of trade relations’ under WTO Agreements. It there-
fore drew the conclusion that ‘certain unilateral measures, insofar as
they could jeopardise the multilateral trading system, could not be cov-
ered by Article XX’.
Based on the above arguments, the panel ruled that the US measure
did not fall within the scope of the measures permitted under the cha-
peau of Article XX.8 The panel also observed that WTO Members
could adopt GATT-inconsistent measures (falling under the ‘General
Exceptions’ clause of GATT Article XX) for the protection of the envi-
ronment or the conservation of exhaustible natural resources. It is not
clearly spelled out in the Agreement that the resources being protected
could fall outside the jurisdiction of the party adopting the environ-
mental controls. The United States argued that there is nothing in the
text of Article XX that indicates that it applies only to policies to protect
animal or plant resources or conserve natural resources within the ter-
ritory of the country invoking the provision. Thus, the United States
insisted that Article XX allows a country to take any measure for the
purpose of protecting environmental resources even if those environ-
mental resources lie outside its jurisdiction.
The issue of process and production methods (PPMs) was also one
of the top matters addressed by the panel. The panel said that, on the
basis of information provided by scientific experts, it considered turtle
excluder devices (TEDs) to be ‘one of the recommended means of pro-
tection within an integrated conservation strategy’. The panel does not
seem to have been convinced that TEDs are the only, or even a key,
component of marine turtle protection.
Against this background, one can hardly find any reason to revise
Article XX, when the panel ruling was so straightforward and without
any room for doubt. On the other hand, at the time of negotiating the
Singapore report, all countries except the United States wanted an ex-

8
Ibid.
110 Magda Shahin

plicit commitment by WTO members to avoid using trade measures

unilaterally for the purpose of protecting environmental resources out-
side the jurisdiction of one’s own country. The Singapore Report came
out with only a vague reference. Many would say that this is reason
enough to go for negotiations in which an environmental window
would be traded against an explicit denial of the use of unilateral mea-
sure. Fair enough. But the US Congress clearly rejected the idea that any
such recommendations should be explicitly included in the Singapore
Report, as they would have touched on US sovereignty. Are we to con-
sider that the future US position will alter in this respect? To those like
the United States who still hold out some hope for the permissibility of
unilateral measures, let me simply underline that the entire Uruguay
Round was started, negotiated and concluded on the basis of a premiss
that unilateral measures were to be abandoned.

The Appellate Body report

The Appellate Body report in the Shrimp/Turtle case did not reverse the
panel report in its main findings and conclusions,9 but it has none the
less left the door open to reinterpret Article XX(g) in a way that goes
beyond its conventional interpretation. Many would tend to see risks
emanating from the fact that the Appellate Body interpreted Article
XX(g) so as to suggest that it was a priori GATT-consistent to protect
the sea turtle as an endangered species. The Appellate Body has thus
bypassed GATT tests of necessity and effectiveness for the measure it-
self.
In fact, many would perceive that the openings within the system
that the Appellate Body provided with its reports in the two cases of
Reformulated Gasoline and Shrimp/Turtle carry inherent risks of dam-
aging the multilateral trading system – the system we have so long
fought for, developing and developed countries alike, and which in a
relatively short time has gained in seriousness and credibility.

9
United States – Import Prohibition of Certain Shrimp and Shrimp Products, AB-1998-4,
WT/DS58/AB/R, 12 October 1998.
Overview: a view from the South 111

The risks of going beyond trade

The WTO is a trade organization. No one can refute that. If WTO mem-
bers have recourse to the WTO to settle their disputes, it is to settle
problems of ‘trade’ concerns – not finance, not technology, not ex-
change rates and not the environment per se. That does not mean, as
some would have it, that trade concerns ‘in the world’ must prevail
over all other concerns, but trade concerns prevail in the GATT trading
system and are the only concerns that GATT rules address or are en-
titled to look at. That we today want to look at the GATT rules in a
broader manner, addressing trade concerns from different perspec-
tives, with the excuse that the WTO does not function in a vacuum, is
a risk and a danger to the system. That today we want to have a larger
environmental perspective, tomorrow a social perspective, the day after
tomorrow a good governance perspective – without knowing where it
all will end – carries the seeds of damage to the whole trading system.
We cannot allow this system to adapt to or safeguard all kinds of differ-
ent interests. That would then rightly become, as the Shrimp/Turtle
Panel put it, ‘a real threat to the multilateral trading system’, in the
sense that, in order to defend different interests, WTO members would
then feel free to pursue their own trade policy solutions unilaterally in
line with what they perceive today to be environmental concerns. This
would certainly amount to an abuse of the GATT Article XX excep-
tions, and thus would be a threat to the preservation of a multilateral
trade system based on consensus and multilateral cooperation.
However, I should emphasize here that the Appellate Body con-
cluded in the Shrimp/Turtle case that the United States measure was
also ‘unjustifiably discriminatory’. The unjustifiable nature of the dis-
crimination was attributed to the failure of the United States to pursue
negotiations for consensual means of protection and conservation of
sea turtles, resulting in ‘unilateral’ application of the relevant United
States legislation. The Appellate Body further agreed that the United
States had applied the measure in an ‘arbitrarily discriminatory’ man-
ner between countries where the same conditions prevailed, contrary
to the requirements of the chapeau of Article XX.
The Appellate Body then stressed (in paragraph 185 of its report),
that it had not decided that the sovereign nations that are members of
112 Magda Shahin

the WTO cannot adopt effective measures to protect endangered spe-

cies, such as sea turtles. As they put it, ‘Clearly, they can and should.’
This I can interpret as underlining what the Singapore Ministerial also
referred to: namely, that GATT/WTO Agreements provide significant
scope for national environmental protection policies, provided that
they are non-discriminatory. This is in my view the jurisprudence that
the Appellate Body reference should have set. This is how the CTE
should assess the Appellate Body findings and conclusions, rather than
in a way that overturns the consensus reached in the CTE after pro-
tracted and difficult debate.

The call for a High Level Meeting

The relationship between MEAs and the WTO remains one of the most
controversial issues of the trade and environment agenda. The call of
the European Commission for a High Level Meeting between trade
negotiators and environmentalists finds its roots in this controversy, as
the European Commission was unhappy with the results of the debate
in the WTO CTE. This dissatisfaction, however, can be attributed to the
following reasons.
First, the report of the CTE to the Singapore Ministerial, and its main
paragraphs attempting to set straight the relationship between MEAs
and the WTO, are open to different interpretations. Developing coun-
tries had stood solid against any attempt to inject language that might
indicate that WTO provisions ‘accommodate the use of trade measures
for environmental objectives’. This notion was accepted only when put
into perspective, namely by clearly linking any such accommodation
with the relevant criteria of the general exceptions provisions of GATT
Article XX, which provide a clear safeguard for developing countries
in a way that is consistent with the WTO rules and regulations.
Second, the hierarchy between the two was deliberately left vague.
Sending out the message that there is recourse to a WTO dispute
settlement mechanism as a last resort was not accepted by developing
countries. On the other hand, developed countries were in favour of
extensive use of compliance mechanisms available under the MEAs
before having recourse to the WTO. The resulting language on this
Overview: a view from the South 113

issue could be subject to different interpretations, as it encouraged

countries to make use of the mechanisms available under MEAs; at the
same time, it did not forestall the rights of the WTO members to have
recourse to its dispute settlement mechanism. A case in point is the
Shrimp/Turtle panel, in which developing countries raised the matter
directly before the WTO’s dispute settlement processes.
Third, developing countries had insisted at the time of its conclusion
that the Singapore report is not legally binding, i.e. that it does not cre-
ate legal obligations or alter the rights and obligations of any WTO
member under the WTO Agreements. Thus the point was stressed that
the outcome is not a negotiated text of contractual obligations. It was
agreed, however, that the report represents a political statement is-
sued largely to appease the concerns of the environmental commu-
nity.

Eco-labelling
That the Singapore report failed to reach any agreed conclusions on
eco-labelling or any resolution of the ‘non product-related PPMs’ issue
was due to the fact that views remained wide apart during the whole
debate. The two issues continue to be difficult to resolve and necessi-
tate further work before final conclusions can be negotiated. The ques-
tion remains open: are we ready and willing to legitimize environmental
‘policies’ and ‘values’ in the WTO, which is a rule-setting body? How
can we translate environmental preferences into strict rules? Many con-
tinue to argue in favour of disciplining eco-labelling schemes on the ba-
sis of the concepts of ‘equivalence’ and ‘mutual recognition,’10 where
each country sets its standards according to its own values as stipulated
by Agenda 21. Aiming to harmonize or internationalize non-product-
related PPMs on the basis of any set of multilateral guidelines means

10
Editors’ note: ‘Mutual recognition’ could involve e.g. recognizing another country’s eco-
labelling scheme as equivalent to your own so that products awarded under one label would
automatically qualify under the other. The notion of ‘equivalence’ is closely related and
could mean e.g. that individual criteria under different schemes were recognized as
‘equivalent’, or that an individual product could meet different but ‘equivalent’ criteria to
those set by a particular scheme and still be recognized as falling within it.
114 Magda Shahin

contradicting what the international community agreed upon unani-

mously in Agenda 21.
One should attempt to answer the question of whether eco-labelling
was an end in itself, or whether the whole debate was targeting a much
more serious matter, aimed at involving the WTO in domestic policies.
Making the WTO a forum to address the non-product-related process
and methods of production carries the inherent risk of over-stretching
the concept in the future and making it a precedent for incorporation of
other non-trade-related goals, such as labour standards, human rights,
democratization and good governance. Is eco-labelling as a cover for
altering the basis of the entire multilateral trading system? Future debate
on eco-labelling should easily be solved on the basis of equivalencies
and mutual recognition. We should not attempt to legitimize environ-
mental non-product-related domestic policies and preferences in the
WTO.

Market access and competitiveness concerns

The debate on this issue was set from the very start in a North–South
context. Developing countries contested the effects of environmental
measures and regulations on the competitiveness of domestic produc-
ers, in particular with regard to small and medium-size enterprises
(SMEs). In contrast, developed countries, especially the EC, insisted
on parallel reference to the inappropriateness of relaxing environmen-
tal standards in order to attract investment. The EC felt that these two
notions represented two sides of the same coin. This has caused more
harm than good to the debate.
We continue to encounter false allegations, by firms in countries
with high environmental standards and costs of compliance, that they
are often undercut by competition from companies based in countries
with less strict regulation and lower costs. In theory, this could lead to
entire industries departing for countries with lower standards – the so-
called ‘pollution havens’. So far, however, no evidence has provided
the empirical basis for such a theory. Nor has the reverse been experi-
enced on a large scale, i.e. that high environmental standards are a fac-
tor in location decisions or lead to relocation of industry.
Overview: a view from the South 115

It has been even noted that, in order to be successful, a firm needs to

be seen as being ‘green’, i.e. that it has to seen to be environmentally
responsible and not to alter its standards when settling abroad. The
evidence has shown that the TNCs rarely take advantage of lax envi-
ronmental standards, but use the same production processes as at
home, for the following reasons:

1. Theirs is usually the most efficient technology.

2. TNCs find it only normal to anticipate that standards will rise sooner
or later in the developing countries, along with the increased rate of
growth and higher standards of living.
3. TNCs see public demand at home as requiring this behaviour.

Consequently one cannot conclude that developing countries encour-

age lax environmental standards to attract foreign direct investment.
On the other hand, case studies have justified the developing coun-
tries’ arguments on the negative effects of stringent environmental
regulations on their competitiveness in the world market. These ef-
fects were particularly pronounced in sectors such as textiles and
clothing, leather, footwear, furniture, plastics, etc. Furthermore, these
effects are often evident where industry and large transnational cor-
porations are able to shift the costs associated with environmental
protection and pollution control onto the suppliers of the raw materi-
als, causing a significant change in the distribution of returns to
trade. A case in point is the Malaysian experience with environmental
regulation in the palm oil industry.11 The distributional effects of en-
vironmental measures and regulations and their implications inter-
nationally should be studied in depth to provide input into any future
agenda on the relationship between investment and environment and
its implications on the competitiveness of developing countries in the
world market.

11
UNCTAD Secretariat, ‘Effects of Environmental Policies, Standards and Regulations on
Market Access and Competitiveness, with Special Reference to Developing Countries,
Including with Least Developed Among Them, and in the Light of UNCTAD Empirical
Studies’, Environmental Policies,Trade and Competitiveness: Conceptual and Empirical
Issues, UNCTAD, TD/B/WG.6/6, 28 March 1995.
116 Magda Shahin

The point stressed by developing countries was that substantial financial

and technological resources as well as technical and administrative ex-
pertise were required to adapt to new regulations and standards in export
markets, and that these were frequently not available to developing-
country producers or were usually at high cost and with significant
trade effects.
With regard to competitiveness issues, it is worth noting that atten-
tion was drawn in the conclusions of the Singapore report to the con-
cern that environmental measures and requirements could adversely
affect the competitiveness and market access opportunities of small
and medium-sized enterprises, especially in developing countries.
It is certainly to be expected that transfer of technology through in-
vestment will figure high on future agendas. It is well known that it is
private firms in developed countries that develop the new technolo-
gies, including the environmentally friendly technologies. These new
technologies are normally protected by private intellectual property
rights, and can replace technologies that were previously in the pub-
lic domain. If the new technologies are subsequently imposed uni-
laterally through PPM standards by developed countries – or even
through a multilaterally agreed standard – but without taking such
aspects as the financing needs into account, the net result will on bal-
ance be unfavourable to developing countries. Developing countries
lack the financing, the expertise and the training to acquire and adapt
to such new technologies, and this by definition works against pro-
tection and preservation of the environment in the developing coun-
tries.
There is certainly an urgent need for future work in this domain to
develop a common interpretation of the relationship of the relevant
provisions of the Agreement on Trade-Related Aspects of Intellectual
Property Rights to the protection of the environment. Any investment
agreement, whether bilateral, regional or even multilateral, should in-
corporate environment considerations and requirements with a view to
easing transfer of technology as a necessary condition to protect and
preserve the environment.
UNCTAD has clearly stressed that the problems of adjustment to
new technology based on environmental considerations are higher for
Overview: a view from the South 117

SMEs.12 These enterprises, however, are important players in the ex-

port promotion strategy of many developing countries, especially for
sectors such as textiles and footwear. Thus, it becomes all the more rel-
evant in future work to examine the possible congruences and con-
flicts between the export promotion strategies of developing countries,
the need to comply with environmental requirements, and their effects
on competitiveness.
Furthermore, empirical and case studies conducted at the request of
UNCTAD in a series of developing countries13 have shown that envi-
ronmental policies and regulations in the various sectors of export
interest to developing countries have had a significant effect on the
competitiveness of the developing countries. A number of reasons
have been put forward, including the following:

1. the possibility of compensating losses of competitiveness in some

sectors by gains in others is greater in diversified and dynamic
economies, whereas diversity and dynamism do not necessarily
form the main characteristics of developing-country economies;
2. developing-country exporters are normally ‘price-takers’, as they
compete on price rather than on the basis of non-price factors,
such as technology and ideas. Consequently, any environmental
requirement resulting in cost increases reduces export competi-
tiveness. It nevertheless may vary from one industry to another,
as well as among different developing countries with different
stages of development and capabilities to integrate innovative
approaches;
3. the variable cost component of complying with environmental stan-
dards is higher in some sectors than others. Again, evidence has
shown that it is higher in sectors of interest to developing countries,
especially the leather and footwear, textiles and garment sectors.
For example, in the leather tanning industry, the costs of chemicals
required to meet international standards were approximately three
times the costs of conventional chemicals.

12
Ibid.
13
Ibid.
118 Magda Shahin

I will refrain from going into the internalization of environmental costs

and the effects on competitiveness, as this would raise the question of
who would decide what and when to internalize. This remains a highly
contentious area and one with a bearing on competitiveness, notably
that of developing countries. The question of the proper basis for deci-
sion-making on internalization of environmental externalities remains
very complex; nevertheless it continues to be relevant to many. Most
recognize the difficulties in quantifying the benefits of environmental
measures, as well as the difficulties and expenses in conducting risk
assessments prior to implementing environmental measures. This is
also why we encounter on a large scale the precautionary principle re-
placing risk assessments and scientific evidences to undertake bans or
impose stringent environmental regulations, many of which remain
unjustified. While protection of the environment is essential for both
environmental and long-term economic reasons, such protection does
not have infinite value. Therefore, environmental policies should be
submitted, like other policies, to a rigorous cost–benefit analysis.
In fact, GATT does not so far endorse the concept of internalizing
environmental costs. The concept of internalization remains contested,
on the ground that it interferes with the efficiency of the principle of
comparative advantage, which is central to the free trading system. Fur-
thermore, environmental externalities are in principle not distinguishable
from other factors that contribute to the comparative advantage and
thus to the competitiveness edge of an economy, such as education,
infrastructure, social policy and so on. Are we to conclude that the
costs of all these factors are to be integrated into production processes
under the auspices of the multilateral trading system? The fact that
domestic producers internalize their environmental costs in no way
conflicts with GATT principles. However, when countries start imple-
menting trade policies on the basis of whether or not foreign producers
have internalized their environmental costs, this becomes problematic
under the GATT. The GATT is more concerned with the trade-distort-
ing or discriminatory effect of such a policy, its necessity and its
effectiveness than with its environmental objectives.
Another topic that will have to be debated extensively when the
market access and competitiveness issue is addressed in the future is
Overview: a view from the South 119

charges and taxes for environmental purposes and their relationship

with the multilateral trading system. In terms of economic instruments,
no one can deny the validity and effectiveness of imposing such taxes.
But what is here at play is the imposition of taxes on a phenomenon
that is not quantitative. Forcing producers to incorporate environmen-
tal externalities by imposing taxes on products made with pollution
processes is based on an assumption that the costs of the polluting firm
and the damage function of the polluted firm are known. This is on the
one hand. On the other hand, if this is true at the national level, it can
only be more complex and difficult if an importing country aims at
adjusting such a cost at its borders by imposing a border tax adjust-
ment on its ‘like’ imports. And the question of what would be the appro-
priate tax for pollution and would be accepted internationally should
also be addressed.
Border tax adjustments should pass tests of ‘necessity’ and ‘effec-
tiveness’ to identify how necessary, useful and pertinent they are to the
environment, before even beginning the debate on how to adjust them
at the border. The effectiveness of border tax adjustment is doubted
and goes against the fact – widely acknowledged by developing and
developed countries alike – that environmental problems should be
addressed at source. So how can a tax imposed on final products, such
as a border tax adjustment, be effective for problems that should be
dealt with as far upstream in the production process as possible? 14
UNCTAD has rightly suggested that it is in general better if the tax is
levied on the production and extraction process causing the environ-
mental problem, rather than on the resulting product. In other words, a
tax levied internally by the producing country would be more effective
in dealing with environmental problems at their source.
The GATT neither prohibits nor prevents any country from pursuing
a policy of taxation or regulation with regard to environmental protec-
tion as long as these policies apply to its domestic consumers and pro-
ducers. In fact, one can even go one step further. For a border tax on
imports to pass a test of compatibility with the GATT, it has to respond
to the following conditions:

14
Ibid.
120 Magda Shahin

1. The tax levied should be product-related.

2. The imported product should not have been taxed in the country of
origin (i.e. to avoid double taxation).
3. The imported product should have caused transboundary pollution
and the polluting input should not have been consumed domesti-
cally.

In the run-up to the Singapore Report, it was agreed in the light of the
width and depth of the existing gap between negotiators that further
analysis and examination was needed in the future before any con-
sensual decision could be taken. Developing countries had insisted
throughout the debate that there should be an explicit reference to ad-
dressing charges and taxes that relate only to product or product char-
acteristics that are covered by WTO provisions. Owing to resistance,
mainly from the United States and the European Community, refer-
ence was made to the need for WTO members to apply environmen-
tal charges and taxes in line with the ‘existing scope’ of WTO provi-
sions. The debate on this issue remains wide open to the results of
further study of the environmental effectiveness and potential trade ef-
fects of environmental taxes and charges, particularly their effects on
market access and competitiveness.

Conclusion
The future will carry with it an interesting and a multifaceted debate
on the interlinkages between trade, investment, the environment and
development. There is readiness as well as willingness on the part of
the majority of countries to enter into an open-ended negotiation, if
necessary, for applying WTO rules and regulations to promote envi-
ronmental protection, but also to discipline the use of trade mea-
sures for environmental purposes. The case, as we have seen, is far
from settled. Developmental concerns will have to be brought into the
debate through the front door and cannot be treated as a trickle-down
effect of investment or trade. How to ensure that developmental aspects
are part and parcel of the overall consideration of this complex rela-
tionship must not be overlooked. This should be carefully considered
Overview: a view from the South 121

in advance, especially in the light of the expected power struggle be-

tween international institutions dealing with trade, environment and
development issues – a struggle in which the WTO could become the
most powerful institution, to the detriment of development concerns.
In the light of the Panel and Appellate Body Reports in the Shrimp/
Turtle dispute, developing countries will have to stress new elements in
the future debate with a view to capitalizing on the achievements of the
Singapore Report. They should continue to ensure that a balanced ap-
proach to the issues is preserved. To this end, they should not shy
away from questioning Appellate Body findings and conclusions in
the Committee on Trade and Environment so as to clarify certain mat-
ters, questioning, if need be, the Appellate Body’s processes, and fi-
nally mainstreaming the environment debate in a balanced and fair
manner in all relevant WTO Agreements, if this is the objective. If en-
vironment is to be dealt with in the Agreement on Agriculture, it has
equally to be negotiated in the framework of the TRIPs Agreement, the
Agreement on Textiles and Clothing, and so on. And, last but not least,
it should also be exhaustive, in the sense of addressing equally all the
aspects of the environment, including market access, competitiveness
and technology.
Multilateral Environmental Agreements

An overview
Duncan Brack

Introduction
The aim of this paper is to explore the interrelationship between multi-
lateral environmental agreements (MEAs) and the multilateral trading
system (MTS), the complex of trade agreements centred around the
General Agreement on Tariffs and Trade (GATT) and overseen by the
World Trade Organization (WTO). The paper provides an outline pro-
posal for a way forward in the context of the forthcoming High Level
Meeting of trade and environment ministers and the subsequent Mil-
lennium Round of trade negotiations.
The paper starts from the assumption that the removal of barriers to
international trade, and the protection of the global environment, are
both desirable objectives. It is further assumed that in certain cases
these two objectives do, or are likely to, come into conflict, and that it
is desirable to derive a way to reach the optimal balance of trade liber-
alization and environmental protection in these instances.
Nearly 200 MEAs currently exist, with memberships varying from a
relatively small group to about 170 countries – which means, effec-
tively, the whole world. Over 20 of these incorporate trade measures,
i.e. restraints on the trade in particular substances or products, either
between parties to the treaty and/or between parties and non-parties.
Although this is a relatively small number, it includes some of the most
important, such as the 1973 Convention on International Trade in En-
dangered Species (CITES), the 1987 Montreal Protocol on Substances
that Deplete the Ozone Layer and the 1989 Basel Convention on the
Control of Transboundary Movements of Hazardous Waste. A series of
MEAs recently signed or currently under negotiation, including the
1997 Kyoto Protocol on Climate Change, the Rotterdam Convention
MEAs: an overview 123

on the Application of the Prior Informed Consent Procedure for Certain

Hazardous Chemicals and Pesticides in International Trade, the Conven-
tion on the Control of Persistent Organic Pollutants and the Biosafety
Protocol to the Convention on Biological Diversity, may in due course
come to contain trade measures.
Trade provisions in MEAs have been designed to realize four major
objectives:

1. to restrict markets for environmentally hazardous products or goods

produced unsustainably;
2. to increase the coverage of the Agreement’s provisions by encour-
aging governments to join and/or comply with the MEA;
3. to prevent free-riding (where non-participants enjoy the advantages
of the MEA without incurring its costs) by encouraging govern-
ments to join and/or comply with the MEA;
4. to ensure the MEA’s effectiveness by preventing ‘leakage’ – the
situation where non-participants increase their emissions, or other
unsustainable behaviour, as a result of the control measures taken
by signatories.

The experience of three of the major MEAs concerned – CITES, the

Montreal Protocol and the Basel Convention – shows the value of trade
measures. CITES and the Basel Convention are treaties aimed explic-
itly at controlling trade, which is identified as the source of the environ-
mental harm in question; trade measures are thus the entire point of the
treaties. In the case of CITES, no species listed in the appendices to the
treaty have become extinct since their listing, and a few – notably, the
African elephant – have moved further away from extinction. Since
the Basel Convention entered into force, the worst forms of hazardous
waste dumping on developing countries have largely ended. In the
case of the Montreal Protocol, trade measures were adopted as an en-
forcement mechanism, providing an incentive for non-parties to join
the MEA and ensuring that the production of ozone-depleting sub-
stances did not migrate to non-parties to evade the controls adopted by
parties. In either case, uncontrolled production would undermine the
implementation of the Protocol. There is direct evidence from some
124 Duncan Brack

countries that the trade provisions were indeed an important factor in

persuading them to accede to the treaty; and in general the Montreal
Protocol has proved to be a highly effective MEA, with its aim – the
recovery of the stratospheric ozone layer to its pre-industrial state –
likely to be achieved in the next century.
There are a limited number of routes by which countries can affect
the actions of other countries: political/diplomatic pressure; provision
of financial and technological assistance; trade sanctions; and military
force. While the first two of these are clearly preferable, they have ob-
vious limits. One can assume that use of the military option is unlikely
to be helpful. Trade measures are therefore likely to continue to play a
role as one component of effective environmental agreements, particu-
larly where trade itself is identified as the source of the environmental
harm, and/or where effective enforcement mechanisms are essential to
their success, for example by preventing industrial migration or en-
couraging universal participation. The growing scope and importance
of MEAs such as the Kyoto Protocol means that effective methods of
implementation have to be found – which in turn means that the inclu-
sion of trade measures at the very least has to be contemplated.
Can the use of trade measures in this way be regarded as an infringe-
ment of national sovereignty? The classical doctrines of sovereignty,
originating in the seventeenth century, have little of use to say about
relations between states, or of the ‘rights’ of states to expect other states
to engage in international trade with them. It is clear, however, that the
unrestrained output of pollution that is transboundary or global in scope
does constitute an infringement of sovereignty, in that it inflicts direct
physical harm on the populations and/or territories of other states. The
unrestrained depletion of the global commons, for example, or of non-
territorial species can, though more arguably, be regarded similarly.
The responsibility of individual nations for the protection of the global
environment and for the promotion of development that is environ-
mentally sustainable have of course been accepted in many interna-
tional agreements, most notably Agenda 21. Once again, the use of
trade measures in MEAs must be contemplated if the global environ-
ment is to be protected effectively.
MEAs: an overview 125

Interrelationship with the multilateral trading system

Disregarding these more general considerations, and accepting the
value of trade measures, the next question is whether the use of MEA
trade measures against WTO members can be regarded as an infringe-
ment of their rights under the MTS. It seems fairly clear that there is a
potential for conflict.
In the first place, GATT Articles I (‘Most Favoured Nation’ Treat-
ment) and III (National Treatment) outlaw discrimination in trade:
WTO Members are not permitted to discriminate between traded ‘like
products’ produced by other WTO members, or between domestic and
international ‘like products’. Yet all the three major MEAs referred to
above discriminate between countries on the basis of their environ-
mental performance, requiring parties to restrict trade to a greater extent
with non-parties than they do with parties; indeed, such discrimination
is one of the points of these MEAs, since they are aimed to promote sus-
tainable activities while punishing unsustainable behaviour.
Second, GATT Article XI (Elimination of Quantitative Restrictions)
forbids any restrictions other than duties, taxes or other charges on
imports from and exports to other WTO members; yet each of the three
MEAs requires precisely such quantitative restrictions.
Third, Article III requires imported and domestic ‘like products’ to
be treated identically. The meaning of the term ‘like product’ has be-
come one of the most difficult issues in the trade–environment arena.
Originally incorporated into the GATT in order to prevent discrimina-
tion on the grounds of national origin, GATT and WTO dispute panels
have interpreted the term more broadly to prevent discrimination in
cases where process methods, rather than product characteristics, have
been the distinguishing characteristic of the product and the justifica-
tion for trade measures – for example the US embargo on imports of
shrimp caught by methods that kill sea turtles. Yet the Montreal Proto-
col envisages restrictions on trade in products made with but not con-
taining ozone-depleting substances (originating from non-parties), while
domestic products produced in this way are not subject to such regula-
tion – although so far this provision has not been put into practice.
It is possible, however, that an MEA trade measure could be ‘saved’ by
the General Exceptions clause of the GATT, Article XX, which states that:
126 Duncan Brack

Subject to the requirement that such measures are not applied in a manner
which would constitute a means of arbitrary or unjustifiable discrimination
between countries where the same conditions prevail, or a disguised restric-
tion on international trade, nothing in this Agreement shall 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 do-
mestic production or consumption.

Unlike many MEAs, where terms tend to be defined in the treaty or in

subsequent decisions of conferences of the parties, interpretation of
the MTS usually proceeds through a case-law-type approach, relying
on the findings of dispute panels in particular cases. Since there has
never been a dispute case brought before a GATT or WTO panel in-
volving an MEA trade measure, it is impossible to say for certain
whether it would be found to be incompatible with the MTS.
It is possible, however, to extrapolate from the arguments and find-
ings in a series of trade–environment disputes that were brought before
panels – involving, in this case, unilaterally imposed trade measures.
In each of these cases, the panel found the environmental measures in
question not to be justifiable, because either:

• the measures were not ‘necessary’ (Article XX(b)) to the achieve-

ment of the environmental goal, because the panel believed that
there were less trade-restrictive or GATT-inconsistent measures also
available; or
• the measures did not ‘relate to the conservation of exhaustible natu-
ral resources’ (Article XX(g)), because the policies in question
were extra-jurisdictional: they attempted to modify the behaviour
of other WTO members and could not therefore be considered to
be primarily aimed at conserving the natural resources of the coun-
try applying the trade measures; or
• the measures represented ‘arbitrary or unjustifiable discrimination’
(Article XX headnote), in that there were less discriminatory meth-
ods available that could have been employed.
MEAs: an overview 127

It is of course dangerous to extrapolate from arguments used in cases

of trade measures imposed unilaterally to those involving the applica-
tion of trade measures mandated by or in pursuance of the require-
ments of multilateral agreements. In any case, it is difficult, even from
an environmental viewpoint, to defend most of the measures taken in
the relevant disputes. The way in which the United States applied its
embargo on shrimp imports from a number of South Asian and South-
east Asian countries, for instance, does appear to be ‘arbitrary and un-
justifiable discrimination’ when compared with the much more gradual
and participatory way in which it applied measures to protect sea turtles
in the Caribbean region.
Furthermore, WTO dispute panels, and the WTO Appellate Body, have
become steadily more sophisticated in their arguments, and more con-
scious of the environmental debate. The recent Appellate Body decision
in the Shrimp/Turtle dispute, for example, used the reference in the Pre-
amble to the Marrakesh Agreement establishing the WTO – ‘allowing for
the optimal use of the world’s resources in accordance with the objective
of sustainable development, seeking both to protect and preserve the en-
vironment and to enhance the means for doing so …’ – to dispose of the
argument that species protection was not a legitimate objective for trade
measures.1 It also stressed, as have several panels before it, the desirabil-
ity of multilateral agreements as opposed to unilateral measures.2
Unsurprisingly, however, neither panels nor the Appellate Body
have ever speculated as to the acceptability of trade measures taken
under such agreements under the MTS. It is therefore still not clear as
to how panels would rule. Even some of the arguments used in the
Shrimp/Turtle Appellate Body finding suggest that they might rule
against an MEA trade measure:

Perhaps the most conspicuous flaw in this measure’s application relates to

its intended and actual coercive effect on the specific policy decisions
made by foreign governments …3

1
United States – Import Prohibition of Certain Shrimp and Shrimp Products, paras. 131–4
WT/DS58/AB/R, 12 October 1998.
2
Ibid., paras. 166–72.
3
Ibid., para. 161.
128 Duncan Brack

However, it is not acceptable, in international trade relations, for one WTO

Member to use an economic embargo to require other Members to adopt
essentially the same comprehensive regulatory program, to achieve a cer-
tain policy goal, as that in force within that Member’s territory.4

Trade measures employed under the three main MEAs cited above
are now unlikely to be challenged in the WTO because of the wide
international acceptability they enjoy – though this is perhaps less
true of the Basel Convention, where the amendment banning trade in
waste between OECD and non-OECD countries (not yet in force) has
aroused hostility among some of the industries involved. The possible
MTS incompatibility of the amendment has been raised explicitly by
those opposed to the principle as an argument against adopting or
ratifying it.
This ‘political chill’ argument is also relevant to other MEAs. At-
tempts to include trade provisions in the International Convention for
the Conservation of Atlantic Tuna, and in agreements to control driftnet
fishing, were shelved because of a fear that they would be inconsistent
with GATT rules. The same issue was raised in last year’s negotiations
over the Kyoto Protocol and in discussions this year over the Rotterdam
Convention on Prior Informed Consent.
The continuation of this potential conflict between the MTS and
MEAs is undesirable for a number of reasons including the following:

• the fact that is not known for certain how a dispute panel would
rule on an MEA trade measure creates an unstable and uncertain
situation. On the face of it, it does appear absurd that the operation
of an important element of international law should be subject to a
panel of three individuals deciding what they think ten lines of
printed text (the relevant sections of GATT Article XX) written fifty
years ago could mean in a vastly changed international environ-
ment;
• it creates the spectre of a potential challenge to an existing MEA,
bringing the two international regimes of trade liberalization and
environmental protection directly into conflict;
4
Ibid., para. 165.
MEAs: an overview 129

• it increases the likelihood of conflict over the negotiation of future

MEAs with trade measures, potentially weakening their effective-
ness – the ‘political chill’ argument;
• finally, the perception that the WTO threatens environmental su-
stainability, already widespread in some quarters, assists neither the
growth of the MTS nor the further spread of trade liberalization,
even where this would have environmental benefit.

Resolution of the problem is therefore required.

Resolving the conflict

When two systems of law come into conflict, actually or potentially,
there are three potential methods of dealing with the situation:

1. create some superior balancing mechanism;

2. determine that one legal system is superior to another, either wholly
or in part;
3. modify either or both legal systems to bring them into harmony.

The first option, the creation of a balancing mechanism, would be the

most desirable solution in a perfect world. This is effectively the sys-
tem that operates inside the European Union, where trade liberaliza-
tion and environmental protection are both objectives of the Treaty of
Rome. Any conflict between the two objectives can be resolved by the
European Court of Justice, which has the power to rule on the appro-
priate balance between trade and environmental measures in any par-
ticular case. In the well-known Danish bottles dispute of 1986, for
example, the Court upheld the core of the Danish law requiring a collec-
tion system for returnable drinks containers while striking down some
of the details of the regulations as unnecessarily trade-restrictive, given
the environmental objective in question.
The creation of an equivalent system at a global level would require
substantial reform of the entire system of international institutions, how-
ever, and is not a realistic prospect in the short term. Having said that,
there have been calls for such a reform, perhaps using the International
130 Duncan Brack

Court of Justice as the superior body. Proposals for a new World Envi-
ronmental Organization (for instance by Chancellor Kohl at the UN
General Assembly Special Session, ‘Earth Summit 2’, in June 1997)
have had at least partly in mind the objective of creating a balancing
institution to the WTO, though the interrelationship between such a
WEO and the WTO was not, and has not been, explored in any detail.
It is interesting to note that the 1948 Charter for the International Trade
Organization (ITO) (the intended third leg of the Bretton Woods tripod,
never in fact adopted because of US opposition) did provide that a
member prejudiced by an ITO decision could seek an advisory opin-
ion from the ICJ, whose opinion would then bind the ITO. If Thomas
Cottier’s analysis of the WTO as increasingly assuming ‘constitutional
functions in a globalising economy’ (WTO Symposium, 17–18 March
1998) is accurate, then this argument may need to be addressed sooner
rather than later.
The second option, determining that one legal system is superior to
the other, is de facto, even if not de jure, the position as it stands at
present. As noted above, the validity of trade measures in MEAs could
be challenged under the WTO, and a WTO dispute panel would then
rule on their compatibility with the MTS. Although panels have be-
come steadily more aware of and more open to environmental argu-
ments (the decision of the Appellate Body in the Shrimp/Turtle case to
accept ‘non-requested information from non-governmental sources’5
is a useful step forward), they are nevertheless composed of interna-
tional trade experts who reach decisions in accordance with a body of
international trade law – indeed, they cannot do otherwise, since this is
the function of the WTO. The MTS has been constructed by trade ne-
gotiators with relatively little awareness of environmental requirements
and policies, and, despite a number of references to environmental
objectives in some of the WTO agreements, it is not well attuned to
environmental imperatives even though it cannot avoid interacting
with policies for environmental protection.
Equally, of course, it could be argued that MEAs are constructed by
environmental negotiators with little awareness of trade law and the

5
Ibid, paras. 104–10.
MEAs: an overview 131

desirability of liberalized trade. But that would be unfair. Many delega-

tions to MEA negotiations routinely include trade department repre-
sentatives, and in a number of instances (including the Montreal Proto-
col and Basel Convention) negotiators have sought advice from the
GATT/WTO Secretariat in designing particular features of their trea-
ties. Some MEAs, including the UN Framework Convention on Cli-
mate Change, contain text drawn more or less straight from the GATT.
More generally, trade departments tend to wield greater political
clout within national governments than do environmental departments
and agencies; environmental policy objectives are not well integrated
into policy across the board; and at the international level the MTS and
the WTO (and in particular its dispute settlement system) are consider-
ably more powerful and influential than are MEAs and the various en-
vironmental institutions such as the UN Environment Programme and
the UN Commission on Sustainable Development. The trade implica-
tions of particular MEA requirements can in theory be subject to scru-
tiny by the institutions of the MTS, but there is no provision anywhere
for the environmental implications of the MTS – or, for example, of the
agreements likely to be reached in the forthcoming Millennium Round
of trade negotiations – to be subjected to scrutiny by environmental
institutions.
The existing hierarchy of international law therefore favours, in
practice even if not in theory, the MTS over MEAs. For the reasons
described above, this is an undesirable situation if one accepts that the
two objectives of trade liberalization and environmental protection are
of equal validity. The conclusion reached, therefore, is that the third
option – modification of one of both of the existing systems of interna-
tional law, for which priority should be given to the modification of the
MTS – is required.

Resolution through the Millennium Round

The approach of the Millennium Round, due to begin at the end of
1999, and the proposed High Level Meeting between trade and envi-
ronment ministers, provisionally scheduled for spring or early summer
1999, lends urgency to this analysis. And out of the very wide range of
132 Duncan Brack

issues that could be considered under the ‘trade–environment’ head-

ing, resolution of the MEAs–MTS conflict has always been regarded as
one of the most pressing – as evidenced by the attention given to it by
the WTO Committee on Trade and Environment (CTE) during the
preparation of its first report, to the Singapore WTO Ministerial Meet-
ing in December 1996.
It is important, however, to avoid a repeat of that sterile and long
drawn-out debate. Although it was kicked off mainly by the EU’s pro-
posal for an amendment to GATT Article XX, proposals put forward by
other WTO members became successively more and more restrictive.
Increasingly, they aimed to limit the scope for trade measures in exist-
ing and future MEAs, by adding extra requirements to the trade mea-
sures under scrutiny. Any or all of ‘necessity’, ‘effectiveness’, ‘least
trade-restrictiveness’, ‘proportionality’ or ‘sound scientific basis’ were
suggested as criteria that trade measures would have to fulfil, and
which WTO panels would judge whether they satisfied. In practice,
this would have reinforced the existing international hierarchy, render-
ing MEAs even more subject to WTO scrutiny, and tilting the balance
even further towards the MTS and away from MEAs.
Any solution to the conflict needs to satisfy the following criteria:

• There must be certainty about the MTS-compatibility of trade mea-

sures under existing MEAs, both those specifically mandated by the
MEA in question (‘specific measures’) and those not specifically
required by the MEA but taken in pursuance of its aims (‘non-
specific measures’). (The Montreal Protocol, for example, leads to
both: the bans on trade with non-parties are specific measures man-
dated by the treaty, whereas parties have introduced a range of con-
trols on trade with other parties in order to meet the requirements of
the control measures (‘non-specific measures’).)
• There must be certainty over the MTS-compatibility of trade mea-
sures that might be incorporated in future MEAs or those currently
under negotiation.
• There must be flexibility for MEA negotiators to incorporate trade
measures in future MEAs where they consider them necessary to
the fulfilment of their objectives.
MEAs: an overview 133

• If trade measures are required by MEA negotiators, they must be

applied in as non-discriminatory a way as possible; i.e., they should
employ only such discrimination as is required to fulfil the aims of
the MEA, and should not provide an opportunity for trade protec-
tionism which is unrelated to environmental objectives.
• If disputes arise, it must be clear in which forum they can be re-
solved.

There are four main possible routes to resolving the issue:

1. a waiver from the obligations of the existing MTS;

2. modification of the MTS to create an ‘agreement-specific’ exemp-
tion from MTS provisions;
3. & 4. modification of the MTS to create a ‘criteria-specific’ exemp-
tion from MTS provisions; this could be achieved either via amend-
ment of the GATT itself and/or through a new WTO Agreement on
MEAs.

The use of waivers has been referred to as the ex post approach. Article
XXV of the GATT provides for the granting of a waiver from other
GATT obligations ‘in exceptional circumstances’; Article IX of the
WTO Agreement extends this to the MTS as a whole. Such waivers,
however, are usually time-limited, can be considered only on a case-
by-case basis, and require a three-quarters majority of WTO members
to vote for them. Once again, they reinforce the existing hierarchy,
firmly placing the WTO in judgment over MEAs; they cannot contrib-
ute to certainty about the relationship between MEAs and the MTS;
and they do not fulfil any of the criteria set out above.
In contrast, the so-called ex ante approach implies modification of
the MTS in some way. One possible method is a ‘listing’ of those par-
ticular MEAs whose provisions are deemed to be compatible with the
MTS. This is similar to the approach taken by the North American Free
Trade Agreement (NAFTA), which provides that, in the event of con-
flict between itself and CITES, the Montreal Protocol or the Basel Con-
vention (or other MEAs where all NAFTA parties agree), the provi-
sions of the MEA should take precedence over the MTS – though it
134 Duncan Brack

also adds that parties must use the means least inconsistent with the
NAFTA in implementing the MEAs. While more attractive than the
waiver approach, this nevertheless involves the WTO in reaching a
decision over which MEAs it considers acceptable and which it does
not; it still does not create any certainty over the relationship with
MEAs in general.
A broader solution is preferred, dealing with MEAs as a category
rather than one by one. This implies a ‘criteria-specific’ modification
of the MTS. The clearest political message would be to achieve this via
amendment of the GATT. The EU proposal in the CTE, for example,
was for a new sub-paragraph of Article XX, covering measures ‘taken
pursuant to specific provisions of an MEA complying with the “Un-
derstanding on the relationship between measures taken pursuant to
MEAs and the WTO rules”’.6 The proposed Understanding included
a simple definition of an MEA and stated that measures taken pursuant
to the specific provisions of the MEA should be presumed to be ‘nec-
essary’ for the achievement of its environmental objectives, though they
still remained subject to the requirements of the chapeau to Article XX.
This particular approach now looks a little dated; since the EU pro-
posal was put together, a number of WTO panels have found trade
measures in unilateral trade–environment cases to be justified under
either paragraphs (b) or (g) of Article XX, but then failed them under
the chapeau. (Earlier panels had failed them under (b) and (g), and
never reached the chapeau.) If it is accepted that MEA trade measures
would be likely to be treated similarly, then there is little point in add-
ing a new paragraph: what would be required is amendment of the
headnote itself. Since this would have implications for every category
of exceptions to the GATT, and for unilateral as well as multilateral
trade measures, it would be exceptionally difficult – to put it mildly –
to negotiate. Finally, the procedures for amendment of the GATT are
themselves quite stringent and time-consuming.

6
WTO CTE, Non-paper by the European Community, 19 February 1996.
MEAs: an overview 135

A new WTO Agreement on MEAs

The alternative route for ‘criteria-specific’ modification of the MTS is
through a new WTO Agreement, similar in status to other WTO Agree-
ments such as those on Subsidies and Countervailing Measures, on
Technical Barriers to Trade or on Agriculture. The advantages of this
approach are that it avoids attempting to amend existing rules, with
probable implications for a wide range of topics; it creates a very clear
set of rules which apply only to MEAs (i.e. which would not encourage
further unilateral actions); and it is probably easier to negotiate.
What would the new Agreement need to cover? An outline of topics
is provided here; further work would of course be necessary to de-
velop detailed proposals.

• The definition of an ‘MEA’, including criteria for its subject matter

(possibilities include the promotion of sustainable development, the
conservation of natural resources, the avoidance of transboundary
pollution and/or the protection of human, animal plant life or health)
and for its openness to participation by all parties affected and con-
cerned.
• The definition of trade measures, and treatment of different categories
of measures. It would seem logical that specific measures – for ex-
ample the bans on trade with non-parties mandated by the Montreal
Protocol, or the import and export licences required by CITES –
should fall within the scope of the Agreement and thereby be ex-
empted completely from the other requirements of the MTS.
• Non-specific measures, on the other hand, such as the controls on
trade with parties implemented by Montreal Protocol parties (in-
cluding measures such as taxation, labelling requirements, and total
or partial import bans), could be covered by the chapeau to Article
XX, as there seems little reason to think that they would need to be
discriminatory to achieve their objectives. If discriminatory mea-
sures are required, it seems reasonable to insist that they should be
specific, i.e. included in the text of the MEA. What is decided here
therefore would have implications for the design of future MEAs.
• Linkage of burdens and offsets. Developing countries have tended,
as a whole, to be most vociferously opposed to any modification of
136 Duncan Brack

the MTS for environmental purposes, including in the context of the

MEAs debate. Given the record of Western protectionism against
developing country exports, still enshrined in parts of the MTS
(such as the Agreement on Textiles and Clothing), one can hardly
blame them. It is important that trade measures are not used to force
countries into implementing an agreement that unfairly retards their
development – bearing in mind, of course, that in many cases the
environmental harm at which the MEA is aimed may well retard
their development anyway if it proceeds unchecked. The presence
of trade measures as one component of a range of implementing
measures in a particular MEA (including, for example, provisions
for finance and technology transfer) is therefore an important fea-
ture of MEA design. To what extent this should be specified in a
WTO Agreement is questionable, however; one would wish to
avoid a situation in which a WTO panel found against the use of
trade measures because the MEA’s financial provisions were not
working well.
• Dispute settlement. Finally, the Agreement would need to be clear
about where disputes over the application of MEA trade measures
should be resolved. In line with earlier CTE discussions, it seems
logical for disputes between MEA parties to be resolved by the
MEA, and for disputes between an MEA party and a non-party that
is a WTO member to be resolved by the WTO. (This in turn has
implications for WTO dispute settlement procedures and their abil-
ity to consider adequately environmental issues.) There also needs
to be some agreed procedure for cases where it is not completely
clear whether a trade measure is MEA-related or not; the US actions
in the Shrimp/Turtle case, for example, could arguably be consid-
ered to be justified by a range of MEAs, including CITES, the
Biodiversity Convention and the Bonn Convention on the Conser-
vation of Migratory Species of Wild Animals.

Conclusion
The Millennium Round offers an excellent opportunity for the resolu-
tion of the potential conflict between the MTS and MEAs with trade
MEAs: an overview 137

provisions. It creates the wider political and negotiating environment,

notably lacking within the CTE discussions, within which trade-offs
can be reached, and all participants in the debate end up with per-
ceived gains to offset perceived losses. It is the conclusion of this pa-
per that the opportunity should be taken to open negotiations on a new
WTO Agreement on MEAs with Trade Provisions. The High Level
Meeting of trade and environment ministers provides an initial forum
in which this idea can be tested and refined.
The biggest danger in this debate is that no political impetus will be
given to it and nothing will in the end be resolved. It is entirely possible
to argue, for example, that most MEAs do not contain trade provisions,
that there has never been a WTO dispute involving an MEA, and that
recent panel and Appellate Body findings have shown that the WTO is
sensitive to the environmental imperative; therefore, no action is re-
quired. This would be a profound mistake. MEAs are growing in num-
ber, in scope and in importance, matching the growing evidence of
global environmental degradation. In some cases they will need to im-
pact international trade if they are to be implemented effectively. There
have already been instances of MTS incompatibility arguments being
used as weapons in MEA negotiations.
Trade liberalization and environmental protection are both desirable
objectives. But the legal regimes that govern them are developing
largely in isolation. A failure to resolve the potential conflict between
them can only lead to actual conflict, undermining both. The time to
act is now.
An OECD perspective
Michel Potier

We have been debating in the OECD about the relationship between

MEAs and trade for the last six or seven years. Although there has been
a perception that progress has been very slow, there have been some
clear signals about this relationship on both the trade and environment
sides. The WTO report of the Singapore ministerial meeting in Decem-
ber 1996 emphasized the importance of multilateral approaches to
shared environmental problems, as well as the preference for WTO
members in a particular MEA dispute to seek recourse within the dis-
pute settlement provision of that MEA. In the recent Shrimp/Turtle
Appellate Body report, there was a strong reiteration of the preference
within the trade community for multilateral approaches.
Although there has been less systematic analysis within the MEAs
themselves about their relationship to the WTO, there are also signs
that this is changing; for example, at the last conference of the parties
to the Convention on Biological Diversity (CBD), governments under-
lined the importance of assessing the links between biodiversity issues
and trade liberalization. They also instructed the Secretariat of the CBD
to follow closely the work of the WTO.
All the evidence points to the fact that knowledge among trade offi-
cials about MEAs and vice versa has improved a lot. The question now
is, where do we go from here?
A first key issue relates to the importance of trade restrictions in
MEAs. The work we have been carrying out in the OECD in relation to
CITES, the Montreal Protocol and the Basel Convention shows that
the trade measures included in MEAs cover a variety of tools which
are applied for different and fairly specific reasons. One very impor-
tant role for trade measures in MEAs is that of increasing the compre-
hensiveness of a set of policy responses to very complex environmental
problems: preventing trans-shipment through non-participating coun-
tries, encouraging participation by increasing the cost of staying out-
MEAs: an OECD perspective 139

side the regulatory regime, discouraging industrial relocation and

discouraging free-riders, closing the loop on domestic production
and consumption by monitoring trade – these are all policies that
move towards making MEAs more comprehensive and more effec-
tive.
In summer 1998 the G7 Ministers’ Summit identified illegal trade
connected with the environment as a criminal area of growing concern.
In September of that year the Solicitor-General of Canada released a
study showing that the value of illegal trade in hazardous waste, en-
dangered species and ozone-depleting substances ranked second only
to the international drug trade. Therefore a key question is that of the
overall environmental effectiveness of MEAs.
A second key issue is how negative impacts on developing countries
can be avoided. There has generally been a perception that trade
measures in MEAs have consistently been to the disadvantage of de-
veloping countries. My experience in dealing with MEAs is that such
generalizations are not particularly helpful. The question of potential
economic and environmental policy distortion has been raised, espe-
cially in the context of the export ban under the Basel Convention; and
yet, as noted earlier, trade measures from one part of the package of
measures relate to to MEAs, while there are other measures, including
additional finance or technical assistance, that would benefit develop-
ing countries. It is generally a lack of technical and financial resources
that makes the implementation of MEAs particularly difficult for de-
veloping countries. Our work at the OECD has clearly stressed that a
key factor contributing to the success of MEAs lies with the funding in
developing countries of ways to establish the technical and scientific
capacity to implement MEAs’ obligations.
A third issue deals with the compatibility of MEAs with the multi-
lateral trading system. In the past few years discussions have focused
on theoretical situations revolving around WTO law compatibility is-
sues. Many are focused on a single question: what would happen if a
WTO member that was not a party to an MEA brought to the WTO a
formal dispute regarding discriminatory trade measures between par-
ties and non-parties? There have been various possible solutions to this
question, and I am sure we will hear more.
140 Michel Potier

There has never been a formal dispute, or even informal discussion

potentially leading to a dispute, between a MEA and the WTO. How-
ever, that does not mean that none will arise in the future. Also, mem-
bership in high-profile MEAs is generally larger than it is for the WTO.
However, the question of legal amendments generates potentially thorny
questions about universal coverage. For example, as the Montreal
Protocol has evolved through amendments, there are fewer countries
signing up to these amendments than signed up to the original 1987
Protocol. Are they considered to be non-parties in this case?
As I already mentioned, the real question in looking at trade mea-
sures in MEAs is less about their WTO compatibility than about their
actual working. Are there ways to strengthen these agreements and
ensure they work well, either by using existing approaches or by ex-
amining new approaches? How can the trade system contribute to
that?
A fourth question concerns the interrelationship between the Kyoto
Protocol on climate change and the multilateral trading system. This is
an important issue given that, while much of the trade–environment
debate has looked at the use of trade measures, considerably less atten-
tion has been focused on the trade effects more generally that can arise
for MEAs.
If we turn to the Kyoto Protocol, we can see that implementation of
the Kyoto commitments could have profound economic effects. Cer-
tainly many key economic sectors, including energy, transport, agri-
culture and tourism, will be affected. In all likelihood, new markets
will emerge in such areas as international emission trading and the ex-
tended use of activities implemented jointly.
In addition to the economic and trade implications arising from these
measures, questions arising under WTO rules will need to be proved.
For instance, will emission trading fall under WTO disciplines includ-
ing the General Agreement on Trade in Services (GATS)? Will imple-
mentation of the Kyoto Protocol mean in practice the adoption of energy
efficiency and also climate-related standards? And will these standards
be verified through the expanded use of labelling and certification
schemes? How will the WTO deal with climate-related policies that dif-
ferentiate energy-related activity based on production standards?
MEAs: an OECD perspective 141

In conclusion, I would ask if we should not look for new approaches

when reviewing the relationship between MEAs and trade. Put another
way, has the debate over the last seven years made for more effective
MEAs, and if so, why? Has the debate made for more stable and trans-
parent expectations in the multilateral trading system, and if so, why?
There is now a sense that, since we are all convinced about how to
make better policies, the MEA and trade question might need to be
shifted. There has been an endless series of proposals regarding po-
tential amendments to GATT Article XX to accommodate MEAs as a
general exception. Are there other options that should be explored?
Recently the suggestion has been made for a kind of cooperative ar-
rangement on a functional basis to be struck between the WTO and
individual MEAs.
The UN Environment Programme (UNEP) in a recent study also sug-
gested that the WTO should engage in a formal agreement with other
institutions, such as the World Bank or the International Monetary
Fund (IMF), in pursuit of better policies. Is this an option for MEAs?
Along these lines, both the WTO Director-General and UNEP’s Execu-
tive Director have acknowledged the need for a framework to work out
the initial relationship between MEAs and the WTO. This behaviour
seems to be gaining momentum in Geneva, particularly against the
backdrop of the proposed High Level Meeting on trade, environment
and sustainable development. I think this signals that the old ap-
proaches to MEA trade rules issues have not been as fruitful as pos-
sible, and that new approaches may need to be explored.
An industry perspective
Reinhard Quick1

Overview
European industry considers that the relationship between trade mea-
sures contained in multilateral environmental agreements (MEAs)
and the WTO should be resolved at the 1999 WTO High Level Meet-
ing on trade and the environment. The WTO needs to make a clear
statement in support of multilateral solutions to global environmental
problems.
European industry considers that trade measures taken pursuant to
MEAs should be accommodated by the WTO. The accommodation of
these trade measures could be achieved by introducing into GATT Ar-
ticle XX(b) the words ‘and the environment’ and by adding to this
amendment an Understanding on the relationship between trade mea-
sures taken pursuant to MEAs and the WTO rules.
The Understanding needs to set out certain basic criteria that MEAs
have to meet in order to benefit from the WTO accommodation, in par-
ticular a test as to whether the trade measure is necessary to achieve the
environmental objective of the MEA. If the MEA meets the criteria, the
trade measures will be presumed to be necessary within the meaning of
GATT Article XX(b). A challenge remains possible, but the challenger
needs to rebut the presumption of necessity. Thus, European industry
favours an ex ante approach combined with the possibility of very lim-
ited ex post WTO review of the trade measure.

1
Editors’ note: This paper is an annotated and updated version of the UNICE Position
Paper, ‘UNICE Position on the Relationship between the Provisions of the Multilateral
Trading System and Trade Measures for Environmental Purposes, including those Pursuant
to Multilateral Environmental Agreements’, dated 22 July 1996.
MEAs: an industry perspective 143

Introduction
The key issue is whether the WTO should judge trade measures taken
pursuant to MEAs more leniently than trade measures taken unilater-
ally – in other words, whether GATT Article XX should be less rigor-
ously applied in trade disputes involving trade provisions taken pursuant
to an MEA than it is normally applied.
The main problem with trade measures allowed by MEAs is discrimi-
nation. Some MEAs allow trade measures to be taken against non-par-
ties. These measures are allegedly considered necessary to achieve the
environmental aims of the MEAs concerned. But one of the pillars of the
WTO, and its predecessor the GATT, is most favoured nation treatment
and the associated principle of non-discrimination. Trade measures
against non-parties to an MEA that are members of the WTO can be
accepted only if they meet the conditions of GATT Article XX.
MEAs and the WTO are international agreements which bind their
members. The WTO does not take priority over MEAs and MEAs do
not take priority over the WTO: the WTO and MEAs exist in parallel.
The WTO is the multilateral agreement dealing with trade issues and is
therefore, and rightly so, the ultimate forum for deciding on trade is-
sues. MEAs rule on international environmental issues. If a WTO
member attacks a trade measure taken by a party to an MEA, the WTO
dispute settlement system could rule that the measure was inconsistent
with WTO rules. Such a ruling could put into question the objectives of
the MEA and could subject the WTO to criticism in so far as the WTO
should not second-guess the decisions taken by the members of an
MEA. While for the time being no trade measure taken pursuant to an
MEA has been attacked in the WTO, the issue of the relationship be-
tween the WTO and MEAs needs to be resolved.
Should Article XX, therefore, be changed in order to accommodate
trade measures taken pursuant to MEAs? Industry’s short answer to
this question is a conditional ‘yes’.
European industry considers that the WTO is not the right body to
deal with environmental issues. Some environmental issues could,
however, become important in case of a WTO dispute, such as the
question of whether it is necessary to achieve the environmental aim of
the agreement or whether the trade measure is the least trade-restric-
144 Reinhard Quick

tive. Many problems would not have to be addressed if environmental

negotiators had a clear answer to the environmental problem. So if the
environmental foundations of the MEA are doubtful, one cannot at-
tack the WTO for second-guessing the trade measures contained in
an MEA, but one has to live with the consequences of the outcome of
a WTO dispute settlement.
The Basel Convention is a case in point. The European employers’
union UNICE holds that the Basel Convention’s ban on exports of dan-
gerous waste to non-OECD countries for recycling is neither ecologi-
cally nor economically sustainable. The Basel ban does not address the
issue of whether a country or a company is capable, in an ecological
sense, of recycling the dangerous waste: it just discriminates between
OECD and non-OECD members. One cannot expect the WTO to handle
a trade dispute arising from a trade measure taken pursuant to an MEA
if the MEA in question disregards both the ecological necessity of the
trade measure and the basic concepts of the international trading sys-
tem. Article 4A in conjunction with Annex VII of the Basel Conven-
tion cannot be justified in WTO terms. The distinction between OECD
and non-OECD members constitutes arbitrary and unjustifiable dis-
crimination. Environmental negotiators cannot expect the interna-
tional trading system to be silent on a specific trade issue if they are
not able to solve the environmental issue at stake in a coherent and
sustainable manner.

Industry’s basic position

UNICE supports the United Nations Conference on Environment and
Development (UNCED) position that multilateral solutions to global or
cross-border environmental problems are more effective and more du-
rable than unilateral actions. Given the fact that the effectiveness of
trade measures needs to be carefully analysed, UNICE is of the view
that trade measures of MEAs that are considered necessary to achieve
the environmental aim of the agreement should be accommodated by
the WTO.
Of all the suggestions that have been put forward so far, UNICE
prefers the so-called ex ante approach, i.e. whereby the WTO devel-
MEAs: an industry perspective 145

ops a set of criteria that MEAs containing trade measures have to re-
spect, coupled with a very limited ex post review of the trade measure
in question.
UNICE favours an amendment of GATT Article XX(b) together
with an Understanding on the relationship between trade measures
taken pursuant to MEAs and the WTO rules. The Understanding would
set out the basic criteria that the MEA has to meet and would spell out
that trade measures taken pursuant to an MEA meeting the criteria
would be presumed to be necessary within the meaning of GATT
Article XX(b).
In the Understanding, the WTO should elaborate on the following
criteria:

• the necessity test of Article XX(b), namely an analysis as to whether

the trade measure is indeed necessary to achieve the non-trade aim
of the MEA, including proportionality, and the concept of least
trade restrictive measure;
• the chapeau of Article XX, including arbitrary and unjustifiable dis-
crimination or disguised restrictions of international trade;
• the fact that the environmental objective of the MEA needs to be
justified scientifically;
• the need for the agreement to be truly global and to address a global
environmental problem;
• the necessity for WTO dispute settlement to apply not only in dis-
putes between signatories and non-signatories but, as a last resort,
also in a dispute between signatories of the MEA.

The position of the European Union and the question of necessity

The European Union has presented a position in Geneva on how to
accommodate trade measures taken pursuant to MEAs in the WTO.
The European Union suggested (a) an amendment of GATT Article XX
and (b), in addition to the amended Article XX, the adoption of an ‘Un-
derstanding on the relationship between trade measures taken pursuant
to MEAs and the WTO rules’ which would lay down certain criteria
that would have to be respected by MEAs.
146 Reinhard Quick

According to the European Commission, in case of a dispute arising

from a trade measure of a MEA, the WTO panel would have a limited
review, checking whether:

• the measure is taken pursuant to specific provisions of an MEA;

• the MEA meets the parameters of the Understanding and is there-
fore taken for the achievement of a legitimate environmental objec-
tive;
• the measure has been complied with in conformity with the require-
ments of the headnote to Article XX.

The panel would check whether:

• the measure was necessary to achieve the environmental objective

of the MEA, including proportionality;
• the measure was the least trade-restrictive;
• the environmental objective of the agreement was based on sound
science;
• the MEA was global and dealt with a global environmental prob-
lem.

According to the European Commission, the WTO should accept the

views embodied in the MEA and should check only the three above-
mentioned criteria. The Commission argues that, if the agreement is
global and addresses a global environmental problem, the WTO should
accept the environmental wisdom of the signatories of the MEA.
Originally European industry was rather critial of this position, as can
be seen from the following passages in the 1996 UNICE position paper:

UNICE and other business organisations have repeatedly stated that the
issue of scientific evidence, the necessity test, the least-trade-restrictive test
are indispensable requirements which also have to be respected by the ne-
gotiators of an MEA.
The concept of necessity is viewed as fundamental in the interpretation of
GATT Article XX. GATT has been an agreement on trade which provided
for its Contracting Parties to take measures for non-trade purposes which
were inconsistent with the GATT obligations only if the measures were nec-
essary to achieve the stated non-trade objective. This approach is contin-
MEAs: an industry perspective 147

ued in the WTO and is reflected not only in Article XX but also in the WTO
Agreement on Technical Barriers to Trade (TBT) and the Agreement on the
Application of Sanitary and Phytosanitary Measures (SPS).
UNICE is concerned that the Commission’s proposal gives environmental
negotiators a carte blanche to deviate from the most fundamental principles
of the WTO. The scope of WTO review of trade measures taken pursuant to
an MEA cannot be limited in such a drastic way as proposed by the Com-
mission.
At stake is the issue of how the WTO should handle disputes brought by
non-signatories of the MEA against trade measures decided by the signato-
ries of an MEA, in other words, the issue of most-favoured-nation treatment
and the principle of non-discrimination. In such a situation, the fundamen-
tal WTO principles cannot be given up without strong evidence that the
measure is really necessary to protect the environment.
The Commission itself has stated in its Communication on Trade and Envi-
ronment that ‘the use of trade restrictions within MEAs should not go be-
yond what is necessary to ensure the effectiveness of such agreements and
the achievement of their environmental objectives’. UNICE is somewhat
puzzled that this statement has not been introduced by the Commission as
a prerequisite for the Understanding as well.
UNICE therefore suggests that trade measures taken pursuant to MEAs
should only be accommodated by WTO if the Understanding contains at
least the necessity criterion. The application of the Commission’s concept
without this safeguard would leave WTO members defenceless against
trade measures provided for in an MEA whose purpose is not guided by
environmental, but by socio-economic, political, or moral considerations.
It would be an open invitation for protectionism if signatories of an MEA
could take trade measures against non-signatories without having to justify
the necessity of the trade measure. Such a far-reaching deviation from tradi-
tional WTO principles has to be resisted.

The adoption of the report of the WTO Appellate Body in the Refor-
mulated Gasoline case brought both the industry’s and the European
Community’s positions closer together in respect of the necessity ar-
gument. The Community had suggested that trade measures contained
in MEAs should be checked only in relation to the chapeau of GATT
Article XX and not with respect to the other tests contained in Article
XX. However, at that time the chapeau had never been interpreted by
a panel.
148 Reinhard Quick

In the Reformulated Gasoline case, the Appellate Body interpreted

the chapeau of GATT Article XX in a way that was remarkably similar
to the necessity requirements of earlier GATT dispute settlement cases.
Industry’s concerns with respect to ‘necessity’ have thus been taken
into account by the Appellate Body’s ruling on the chapeau of Article
XX. On the basis of the Appellate Body’s reasoning, the Community’s
position that a panel should check the headnote of GATT Article XX
only in a WTO case concerning a trade measure contained in an MEA
has become acceptable to industry.
Industry furthermore welcomes the much closer coordination of
trade and environmental policies at national level, which it sees as a
positive consequence of the WTO’s discussion on trade and environ-
ment. As a result of this coordination, industry is confident that issues
such as sound science, global participation, proportionality and least
trade restrictiveness will be satisfactorily addressed by the negotiators
of an MEA. Therefore it will not be for the WTO to decide on these is-
sues, but the negotiators of the MEA.
Further issues that should be addressed in an Understanding on the
relationship between trade measures taken pursuant to MEAs and the
WTO rules, include the following:

• Sound science The rationale for the MEA should be based on sound
science. This issue, as such, has no relation to trade. The necessity
of a trade measure can, however, be demonstrated only with scien-
tific evidence. The specific provisions of the WTO SPS and the TBT
Agreements can serve as a reference for MEA negotiators.
• Global participation The MEA should be global and should deal
with a global environmental problem. MEAs should be negotiated
in a transparent way. They should encourage participation by all
interested and potentially affected parties. Global participation
should be defined as participation by countries that account for a
substantial proportion of the activity giving rise to the agreement.
• Regional agreements Industry is reluctant to give trade measures
taken pursuant to regional environmental agreements the same
WTO accommodation as trade measures taken pursuant to a true
MEA. The reason for this position is simple: a minority of countries
MEAs: an industry perspective 149

should not be able to impose on a majority of countries a deviation

from the WTO rules without giving the majority the possibility to
challenge the trade measure taken by the minority.
• Dispute settlement Dispute settlement will occur mainly in the case
of a trade measure taken by a WTO member and signatory of a
MEA against a WTO member, that is a non-signatory of the MEA.
The WTO dispute settlement mechanism could probably also apply,
as a last resort, between members of the MEA once they have ex-
hausted the dispute settlement possibilities of the MEA. (The latter
case will rarely occur.) One could furthermore argue that recourse
to the WTO dispute settlement in case of a dispute between two
members of the WTO should not be possible. The member attack-
ing the MEA trade measure has accepted the MEA in question, and
thus also the trade measure of the MEA. An attack could be consid-
ered as a violation of the general principle ‘pacta sunt servanda’. Ar-
ticle 26 of the Vienna Convention of the Law of Treaties states: ‘Every
treaty in force is binding upon the parties to it and must be performed
by them in good faith.’ A WTO attack against an MEA trade measure
could be considered a violation of the good faith obligation.

Practical suggestions for amending Article XX

European industry suggests the following amendment to Article XX(b):

Subject to the requirement that such measures are not applied in a manner
which would constitute a means of arbitrary and unjustifiable discrimina-
tion between countries where the same conditions prevail, or a disguised
restriction on international trade, nothing in this agreement shall be con-
strued to prevent the adoption or enforcement by any contracting party of
measures:
(b) necessary to protect human, animal, plant life or health or the environ-
ment…

The addition of the word ‘environment’ into Article XX(b) should not
cause any difficulties for WTO members. The WTO preamble refers to
the protection and preservation of the environment. It is therefore a
logical consequence to introduce into the exceptions contained in Ar-
150 Reinhard Quick

ticle XX the notion that the protection and preservation of the environ-
ment can be used to justify measures that would otherwise be inconsis-
tent with the WTO.
Addition of the word ‘environment’ is not sufficient to address the
relationship between WTO and MEAs. Therefore industry follows the
Commission’s concept of an Understanding on the relationship be-
tween trade measures taken pursuant to MEAs and the WTO rules.
The WTO’s accommodation of trade measures taken pursuant to an
MEA which meet the criteria of the Understanding would be effected
by means of a rebuttable presumption. These trade measures would be
presumed necessary in the meaning of Article XX(b). In other words, if
the prerequisites of the Understanding are met, the trade measure taken
pursuant to the MEA would be accorded the benefit of the doubt. A
WTO challenge would remain possible, but the challenger would have
to overcome a higher procedural threshold than if a unilateral measure
were being challenged. Given the notions of sustainable development
and the protection and preservation of the environment in the preamble
to the Agreement establishing the WTO, industry considers that a chal-
lenger of the trade measure would not be able to rebut the presumption
unless it could demonstrate that the negotiators of the MEA had not
met the criteria laid down in the Understanding.
Finally, there are some practical suggestions concerning the imple-
mentation of this approach:

• the WTO needs to establish the criteria to be incorporated into the

Understanding;
• negotiators of an MEA need to coordinate their policies with trade
negotiators at a national level. They need to have completed an en-
vironmental analysis from both a scientific and a result-based per-
spective before envisaging the use of trade measures;
• negotiators of an MEA that contains trade measures should, upon
conclusion of the negotiations, send a written statement to the WTO
with an explanation that the criteria mentioned in the Understand-
ing have been met. They could also consult with the WTO during
the negotiations of the MEA. Given the fact that the WTO Secre-
tariat cannot make an authoritative statement on the compatibility
MEAs: an industry perspective 151

of a certain trade measure with the WTO, the WTO should, upon
request of the negotiators of an MEA, ask a member of the WTO
Appellate Body to advise the MEA negotiators.
Process and Production Methods

Sizing up the issues from the South

René Vossenaar

Introduction
The impact of environmental standards on market access and the pos-
sibility that they could become non-tariff barriers to trade has been an
issue of special concern for developing countries. 1 At the same time,
there has been growing interest in new trading opportunities that may
arise for companies in both developed and developing countries that
are moving towards higher environmental performance in terms of
both products and production processes.
Traditionally attention has focused on product standards. More re-
cently, however, increased attention has been paid to standards relating
to process and production methods (known as PPMs).2 One reason is
1
This paper updates an earlier paper by René Vossenaar and Veena Jha, ‘Environmentally
Based Process and Production: Some Implications for Developing Countries’, in Veena Jha,
Grant Hewison and Maree Underhill (eds), Trade, Environment and Sustainable
Development: A South Asian Perspective, 1997. It also draws from UNCTAD, Integrating
Trade, Environment and Development, Recent Progress and Outstanding Issues, TD/B/
COM.1/3, December 1996.
2
This paper focuses on measures targeting non-product-related PPMs, which do not
address a product’s final characteristics, but are intended only to control environmental
effects caused during production. It excludes PPMs that are related to the product. When
PPMs are related to the product, the use of PPM standards may have practical advantages
over product standards. In certain cases it may be more efficient and more economic to
control the process rather than the product itself to ensure product quality. Sometimes it may
be technically difficult or even impossible to control product characteristics by inspecting
the product. For example, the ISO 9000 quality system uses the term ‘special processes’ to
describe processes that cannot be fully verified by subsequent testing of the product, and
where process deficiencies may become apparent only after the product is in use. An
example can be founded in plastic moulding; the ability of a moulded product to withstand
stress may depend on the uniformity of dispersion of additives, moulding temperature and
other factors in the production process.
PPMs: sizing up the issues from the South 153

that environmental problems are more often associated with the pro-
duction process, than with the product itself. PPM-related standards are
becoming more stringent and comprehensive, particularly in devel-
oped countries, in response to improved understanding of environ-
mental risk and public preference for tighter environmental protection.
The use of PPM-based standards, which is essential for environmen-
tal purposes, should in most cases not result in conflicts with trade
rules. To the extent that environmental externalities are limited to the
exporting country, with their effects not being transmitted through the
product to the environment of the importing country, there is little jus-
tification for applying PPM-based standards to imported products. Fur-
thermore, current international trade rules do not restrict the right of
countries to set PPM standards appropriate to their own environment
and development. The international community generally recognizes
that global environmental problems caused by PPMs should be ad-
dressed on the basis of multilateral cooperation, preferably through
multilateral environmental agreements (MEAs).
Some issues have nevertheless been put forward. One is the com-
petitiveness issue. Although rigorous process standards generally have
positive effects on sustainable development, by requiring the internal-
ization of external environmental costs and by removing inefficiency,
concerns about maintaining competitiveness dissuade a country from
applying rigorous PPM standards. Concerns here include friction over
‘hidden’ environmental subsidies, ‘eco-dumping’, and pressures for
harmonization of PPM-based standards which may be inappropriate
for developing countries. It would appear, however, that progress has
been made on these issues and that some early pressures for trade mea-
sures, which some perceived as being necessary to ‘level the competi-
tive playing field’, have now largely been set aside.
An issue of major concern, in particular to developing countries, is
that PPM-based standards may result in the unilateral use of extra-terri-
torial trade restrictions. This issue has been at the centre of the trade–
environment debate, ever since the GATT panel in the first Tuna/
Dolphin case. In general, WTO rules do not permit the application of
non-product-related PPMs to imported products. The question is then
the extent to which conditioning market access on exporting countries’
154 René Vossenaar

compliance with environmental policies and measures unilaterally de-

scribed by the importing country could be justified under Article XX of
GATT 1994. This issue was also raised in the Shrimp/Turtle case, first
by the panel and subsequently by the Appellate Body. The need to
avoid unilateralism remains a priority issue in the trade–environment
agenda.
Another issue is that of the use of PPM-based criteria in the context
of voluntary mechanisms such as eco-labelling, and international stan-
dards for environmental management systems (EMS). In the case of
eco-labelling, there is a risk that criteria based solely on the priorities of
developed countries will discriminate against developing countries.
There is also concern that certification against international EMS stan-
dards, despite being a voluntary instrument, may become a de facto
condition for doing business, at least in some sectors, and a barrier to
trade to the extent that companies in developing countries may find it
difficult and costly to install an EMS and obtain certification. Some
progress has been made in the WTO and the International Organiza-
tion for Standardization (ISO), for example in terms of promoting
transparency; but the issue of how to deal with PPM-related criteria in
the context of international trade and the multilateral trading system
remains largely unresolved.
The treatment of PPM standards in the context of trade rules is an issue
that is very difficult to resolve in a generalized manner. The approach
of this paper is that trade restrictions are not the right way to promote
the use of more ‘environment-friendly’ PPMs in developing countries.
Instead, it examines how incentives and supportive measures can assist
developing countries to move towards more ‘environment-friendly’
PPMs and promote sustainable trade. It also considers how developing
countries themselves may design packages of measures, based on multi-
stakeholder approaches, to promote synergies between trade libera-
lization and sustainable development.3

3
UNEP, with the cooperation of UNCTAD, is undertaking work in this area. Discussions
in the WWF Expert Panel on Trade and Sustainable Development (EPTSD) are also
relevant in this context.
PPMs: sizing up the issues from the South 155

The concept of ‘like products’

The rules of the Multilateral Trading System incorporate a concept of
‘like products’. The WTO does not allow discrimination between ‘like
products’ imported from different countries or between imported and
‘like’ domestic products. The ‘like product’ issue has become rela-
tively important in the context of trade and the environment. Some
years ago, Austria announced a mandatory labelling programme for
tropical timber and tropical timber products. It was intended that all
commercial timber would bear a label displaying the inscription ‘made
from tropical timber’ or ‘contains tropical timber’. The ASEAN coun-
tries argued strongly that the label requirements were inconsistent with
the provisions of the GATT, as the regulations applied only to tropical
and not to other types of wood, which were ‘like products’.4
The issue may also arise in the context of genetically modified or-
ganisms (GMOs), which are genetically engineered and in this sense
are different from naturally grown organisms. There are a number of
issues that arise in the context of WTO rules with respect to such prod-
ucts. The first is whether naturally grown fruits and genetically engi-
neered fruits should be regarded as ‘like products’ in the context of
WTO rules. One argument advanced is that, as genetically engineered
products may not reproduce themselves at the end of their life span,
the final product characteristics are affected by the process and produc-
tion method (PPM); therefore they cannot be regarded as ‘like products’.
At the same time, however, as their end use may be the same as natu-
rally grown products, they could be regarded as ‘like products’.5

4
There is no definition of ‘like products’ in the GATT, and the practice has been for dispute
panels to determine what constitutes a ‘like product’ on a case-by-case basis, taking into
account the objective and purposes of the chided regulation or measure. Dispute panels have
generally taken the view that, while tariff classification could be one of the criteria, the final
determination should not be made solely on this basis. Other criteria, such as the nature of
the product, its intended use, its commercial value, price and substitutability, should also be
taken into account when determining what is or is not a ‘like’ product. See Vinod Rege,
GATT Law and Environment Related Issues Affecting Trade of Developing Countries,
1994.
5
A slightly different problem may arise in the case of transgenics and genetically
engineered species. An interesting case in point, which emerged in India, is that of
Monsanto, which tried to register a patent for a gene code-named ‘terminator’. The special
156 René Vossenaar

Another related issue that is particularly relevant in the context of the

Biosafety Protocol relates to the labelling of products using GMOs.
While some countries take the view that such labelling would be en-
tirely consistent with WTO rules on grounds of public health concerns,
other countries may argue that their exports may be affected by such
labelling, as this would allegedly increase handling, storage and trans-
port costs.

PPM standards in the context of international trade

The use of PPM standards in the context of international trade has
raised a number of issues. They include:

• issues related to the competitiveness effects of differences in envi-

ronmental stringency across countries;
• the use of trade measures to influence environmental policies of
trading partners;
• the use of PPM-related requirements in business-to-business opera-
tions.

The competitiveness issue

The debate about the competitiveness effects of environmental regula-
tions has focused on the costs of compliance and the variations be-
tween environmental regulatory systems in different countries. Al-
though more stringent process standards and regulations may produce
economic benefits in terms of improved human health and efficient
use of resources, they may also adversely affect competitiveness at the
sectoral or enterprise level. While the compliance costs at this level
appear higher in a static analysis, a dynamic analysis shows lower
costs since incentives for innovation and the use of ‘clean technolo-

5
(cont)
... property of this gene is that it mutates at the end of its life span. Cross-pollination with
plants using this gene could have serious deleterious effects on the environment. Thus,
India, on grounds of public health and the environment, rejected Monsanto’s application to
patent this gene.
PPMs: sizing up the issues from the South 157

gies’ may result in cost savings over the long term. In addition, some
sectors will actually benefit if large markets exist for their particular
‘environmental goods and services’.
Studies have shown that on average environmental costs amount to
only one to two per cent of total production costs. However, they have
a more significant impact on capital costs, particularly in pollution-
intensive industries. In addition, most of these studies have considered
only part of the environmental protection costs, such as specific indus-
trial pollution control costs.6 Moreover, these studies have not picked
up micro impacts; for instance, in particular sectors or firms, differ-
ences in process standards and regulations may have more serious cost
impacts if environmental externalities are more fully internalized.
In expanding sectors, differences in environmental standards between
countries should not raise problems for competitiveness. However, in
sectors that are intensive in natural resources, and are heavily depen-
dent on price as a factor of competitiveness, even small differences
in standards may have a significant impact. This applies especially to
low value added products, which constitute the bulk of the exports
from developing countries. The ability of developing countries to
implement higher environmental standards will also be limited by
financial and technological constraints, and they may find it difficult
to subsidize the development of environmentally sound production
methods.

1. Do ‘dirty’ industries migrate? The issue of whether ‘dirty’ indus-

tries migrate in response to differences in PPM regulations raises two
concerns. First, the ‘push effect’ of stringent regulations can lead to an
exodus of polluting industries; and, second, the ‘pull effect’ of laxer
environmental policies can lead to a ‘pollution haven’ effect.
Studies do indicate that pollution-intensive industries are growing
faster in developing than in developed countries. Whether this can be

6
One shortcoming of many studies is that they focus almost exclusively on industrial
pollution control costs. For a summary of limitations of different studies, see Congress of
the United States, Office of Technology Assessment (OTA), Trade and Environment,
Conflicts and Opportunities, Appendix E. OTA-BP-ITE-94, US Government Printing
Office, Washington, DC, May 1992.
158 René Vossenaar

attributed, at least in part, to the migration of polluting industries be-

cause of differences in PPM standards remains inconclusive. In some
sectors, such as asbestos, heavy metals and leather tanning, some relo-
cation of dirty processes does seem to have occurred. Migrating indus-
tries, however, are generally those that are relatively less competitive,
and environmental regulations may be only one of many reasons why
they migrate. Arguments that differences in PPM-based standards lead
to production migration and employment loss in OECD countries have
not yet been confirmed, either.

2. Is eco-dumping an issue? What does seem clear, however, is that

developing countries are unlikely to use lower standards as part of
their ‘strategic policy’ to gain competitiveness.7 Maintaining lax envi-
ronmental standards and weak enforcement procedures may entail
greater costs in abatement, resource degradation and depletion in the
future. Lax domestic environmental regulations may also encourage
more inward-oriented and uncompetitive industries, which are eco-
nomically as well as environmentally inefficient. In addition, products
manufactured by these industries may not find markets in countries
with high environmental standards, and these migrating industries are
typically stagnant or declining.8

3. Do globalization and liberalization result in a race to the bottom?

One concern, particularly in the early trade and environment debate,
was that globalization and trade liberalization would lead to competi-
tive deregulation and a ‘race to the bottom’ in environmental stan-
dards. It has not been possible to find much evidence to substantiate
such fears. Some have refined this hypothesis by stating that, rather
than a ‘race to the bottom’, heightened competition for global markets
7
On the contrary, experience shows that developing-country firms that sell in external
markets where environmental requirements are stringent tend to make relatively larger
investments in environmental management than firms that operate predominantly in the
domestic market. Thus, firms tend to raise rather than lower environmental standards to
enter international markets.
8
Lyuba Zarsky, Trade-Environment Linkages and Sustainable Development, Report of the
Department of Arts, Sports, Environment, Tourism and Territories, Nautilus Pacific
Research, North Fitzroy, Australia, October 1991.
PPMs: sizing up the issues from the South 159

causes environmental policy to be ‘stuck in the mud’.9 Industries in

different countries, it is argued, are pulled towards environmental
policy convergence by market-driven and political pressures, prima-
rily to gain competitiveness. In the balance, and over time, the effect of
convergence pressures on the average level of national environmental
policy may be positive. Without effective international policy coordi-
nation, however, the terms of convergence will be ‘too low’ and ‘too
slow’ to point development towards sustainablility.
Another view, however, is that trade and investment links with markets
where environmental requirements are stringent results in a convergence
of standards. Convergence of environmental product standards, for ex-
ample, is driven by import requirements in large import markets. For
developing countries, the primary export markets are OECD countries.
Product standards are therefore pulled towards the OECD average.
In a recent study, Lyuba Zarsky notes that, while this may be true for
product standards, environmental standards for PPMs and resource man-
agement are less likely to be subject to policy transmissions than product
standards are. She argues that in the short run PPM standards are likely
to converge not to towards the OECD, but towards some kind of
benchmark set by the relatively more advanced developing countries.
However, Zarsky herself qualifies this statement. To some extent, envi-
ronmental performance in the context of globalization, in both OECD
and developing countries, is nevertheless propelled upward by other
forces, including consumer trends, industry self-regulation and the ad-
vocacy efforts of citizen groups (both internal and external). In addi-
tion, transnational corporations (TNCs) often apply the corporate or
home-country standards in their affiliates or joint ventures in develop-
ing countries (see further below).
In the long run, as the environmental management capacities of de-
veloping-countries improve, or as market forces themselves bring new
norms, developing-country environmental production standards may
increasingly be pulled towards OECD average.10
9
Lyuba Zarksy, Nautilus Institute for Security and Sustainable Development, Berkely,
California, ‘Stuck in the Mud? Nation-States, Globalisation, and Environment’, in
Globalisation and Environment, Preliminary Perspectives, OECD, Paris, 1997.
10
Zarksy, Globalisation and Environment.
160 René Vossenaar

4. Conclusions with regard to trade rules. In UNCTAD, the OECD and

the WTO, governments have strongly rejected WTO inconsistent or pro-
tectionist trade restrictions (such as ‘green’ countervailing duties) to off-
set any real or perceived adverse competitiveness effect of applying en-
vironmental policies. At the same time, it has been widely recognized
that it would be inappropriate to relax existing environmental standards
or their enforcement to promote trade and investment.11

Unilateral measures
A major concern in the area of PPMs is that making access to the do-
mestic market of the importing country subject to compliance with
unilaterally determined PPM standards can easily result in protection-
ism and could undermine the WTO multilateral trading system.12 As
mentioned above, so long as there are no transboundary environmen-
tal effects, the environment of the importing country will not be af-
fected by PPMs used in the exporting country. In these cases, protec-
tion of the importing country’s domestic environment does not require
that products imported into that country meet its own product-related
PPM standards.
In some cases, unilateral measures are used to deal with issues of
global environmental concern. However, the United Nations Confer-

11
See, e.g., Commission on Sustainable Development, fourth session, Decision 4/1 on
Trade, Environment and Sustainable Development, para. 4.c: Commission on Sustainable
Development, Report on the Fourth Session, E/1996/28 and E/CN.17/1996/38.
12
The Business and Industry Advisory Committee of the OECD (BIAC) has observed that
‘Unilateral trade measures imposed on the basis of the process or production method used
to make a product are unacceptable. Such measures assume that importing countries have
the right to pass judgements on the domestic policies of their trading partners, and to impose
their judgements through trade instruments. There is no limit to the extent to which such
unilateral measures could be used because no two countries have (nor should they
necessarily be expected to have) equivalent environmental policies and standards in all
areas. The use of trade measures in such circumstances would tend to lead to their
imposition for any difference between national environmental policies and standards (not to
mention policies in the areas of labour, tax competition law, etc.) and to rapid decline in
international law.’ Business and Industry Advisory Committee of the OECD, BIAC
Statement to the Special Session of the OECD Environmental Policy Committee, Paris, 7–8
December 1993, p. 3.
PPMs: sizing up the issues from the South 161

ence on Environment and Development (UNCED), through Principle

12 of the Rio Declaration, states that ‘Environmental measures ad-
dressing transboundary and global environmental measures should as
far as possible be based on international consensus.’ Thus, unilateral
measures are again difficult to justify.
The WTO Panel in the Shrimp/Turtle case found that conditioning ac-
cess to a WTO member’s domestic market on the adoption by exporting
countries of certain conservation measures unilaterally prescribed by the
importing country cannot be justified under the chapeau of Article XX.
The Appellate Body reversed this finding by concluding that the US
measure in question qualified for provisional justification under Ar-
ticle XX(g). However, it found that it had been applied in a manner
constituting both unjustifiable and arbitrary discrimination between
countries where the same conditions prevail.13 Therefore, the measure
failed to meet the requirements of the chapeau of Article XX.
The intention of this paper is not to go into a legal analysis. However,
some lessons may be drawn from the findings of the Panel and the
Appellate Body which could be taken into account in the use of PPM-
related measures, including those of a voluntary nature:

• Countries should engage in serious, across-the-board negotiations

with the objective of concluding bilateral or multilateral agreements
to address environmental issues of mutual interest. In other words,
countries should not impose unilaterally determined conservation
measures through restrictions on trade, but should work coopera-
tively with other countries to identify internationally shared con-
cerns and consider ways to address them.
• Account should be taken of the fact that exporting countries may
use policies that are appropriate for their circumstances, yet differ-
ent from those of importing countries, even though they yield com-

13
With regard to unilateral measures, in its report the Appellate Body mentioned some
issues that it had not been required to address. First, it did not address the question whether
there is an implied jurisdictional limitation in Article XX(g), and, if so, the nature or extent
of that limitation. Second, it did not address the question whether the importing country
would have been entitled to adopt unilateral measures in case efforts to achieve international
cooperation were not successful.
162 René Vossenaar

parable results.14 Thus, there would be a need to examine the ap-

propriateness of the importing country’s regulatory framework
measures for the conditions prevailing in the exporting country.
According to the Appellate Body, it is not acceptable, in interna-
tional trade relations, for one WTO Member to use an economic
embargo to require other Members to adopt essentially the same
comprehensive regulatory program, to achieve a certain policy
goal, as that in force within that Member’s territory, without taking
into consideration different conditions which may occur in the terri-
tories of those other Members.15
• Discrimination may arise from the application of certain require-
ments to all exporters from a particular country. For example, ac-
cording to the Appellate Body, the United States did not permit im-
ports of shrimp harvested by certain commercial vessels, even
when they were using approved turtle excluder devices (TEDs),
solely because they had been caught in waters of countries that had
not been certified by the United States.

PPM-related trade measures in multilateral environmental

agreements
PPM-related measures have on occasion been considered for inclu-
sion within the framework of multilateral environmental agreements
(MEAs). But in these circumstances PPM-related trade measures may
in practice prove quite difficult to implement. For instance, in the case
of the Montreal Protocol, it has not been considered feasible to imple-
ment provisions on products that are made with, but do not contain,
CFCs. This was partly been due to the fact that there are problems with
inspection of PPMs that are not detectable in the traded product. The

14
In this context, Australia, in its submission to the Appellate Body, argued that the United
States had refused to certify Australia even though Australia’s sea turtle conservation regime
‘extends well beyond protecting turtles from shrimping nets and includes cooperative
programs with the shrimp industry to limit turtle bycatch’.
15
United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/
AB/R at 164, 12 October 1998.
PPMs: sizing up the issues from the South 163

accelerated phase-out of CFCs by the signatories to the Protocol also

meant that this trade measure did not become necessary.

Market forces
Apart from the question of trade rules, PPM-related standards may play
a role in overall consumer acceptance of a product. Both product and
process-related environmental ‘virtues’ of a product may become fac-
tors of competitiveness in environmentally conscious consumer mar-
kets.
Thus, producers may incur costs for environmental investments be-
cause of demands arising in export markets. For example, it is believed
that part of the investment costs incurred by Canadian and Swedish
pulp and paper industries are a result of consumer pressure in Europe,
particularly Germany, for chlorine-free paper, and are not solely a re-
sult of higher standards.16
Environmentally related consumer preferences in overseas markets
may have effects on processes and raw material usage in developing
countries. Retailers may give instructions to their suppliers on how a
product should be made or which raw materials should be used. For
example, a number of Turkish exporters reported that importing com-
panies require detailed information on the manufacturing process and/
or undertake plant inspections.17
More research is needed to analyse the true extent to which the
above mentioned factors affect market access and competitiveness.
Consumers in OECD countries may show a preference for specific
PPMs favouring domestic products over imported ones. For example,
if sustainable forest management is an important element in the choice
of wooden furniture in OECD countries, then temperate wood prod-
ucts may automatically be substituted for tropical wood products.

16
See OTA, Trade, Technology and the Environment, p. 199.
17
Celik Aruoba (Research on Trade and Environment Linkages in Turkey), ‘Report I:
Environment–Trade Link: Impact of Environmental Regulations and Standards in European
and North American Markets on Turkish Exports’, in V. Jha, A. Markandya and R.
Vossenaar (eds), Reconciling Trade and Environment, Edward Elgar, Cheltenham,
forthcoming.
164 René Vossenaar

Often consumer preferences for specific PPMs may be related to famil-

iarity and knowledge of the environmental characteristics of certain
domestic processes, thus forcing developing countries that use differ-
ent but equally environmentally friendly PPMs to obtain international
certification to testify that their products are environmentally friendly;
otherwise, they may be unable to capitalize on the environmental vir-
tues of their products.

Some traditional policy responses

This section examines advantages and disadvantages of some mea-
sures that have traditionally been proposed to deal with the use of
PPMs in the context of international trade.

Is harmonization of PPM standards desirable?

It is sometimes suggested that harmonization of PPMs could be a
mechanism for alleviating competitiveness concerns as well as being
beneficial to the environment. Environmentalists at times favour har-
monization of process standards as a guarantee against deregulation.
From an environmental point of view, harmonization guarantees a
commitment to specified environmental objectives.18 Some industry
groups and certain labour groups have also favoured harmonization as
a means of combating import competition and to avoid migration of
pollution-intensive industries. There are, however, several arguments
against harmonization, particularly because of the fact that assimilative
capacities and social preferences vary between countries.19
When dealing with intrinsically domestic environmental problems,
each country should be allowed to adopt standards that reflect its own
environment and development conditions. Developing countries must
build up an adequate framework of environmental rules and regula-
tions which can be effectively enforced in order to encourage the
18
See, e.g., Latin American Economic System (SELA), Trade, Environment and the
Developing Countries, SP/LC/XVIII.O/Di No. 2.
19
The ‘polluter pays’ principle, while encouraging harmonization, does not require it:
indeed, it recognizes that differences in standards may be justified by a variety of factors.
PPMs: sizing up the issues from the South 165

switch to environmentally more friendly processes and technologies

and the orientation of technology transfers towards more environmen-
tally sound technologies. The implementation of environmental stan-
dards may require careful adjustment, allowing for different levels of
technological and socioeconomic development and taking into ac-
count the uniqueness of countries.20
Upgrading standards is often intimately linked with a gradual and
long-term process of capacity building, involving the formation of
skills and the building of institutional and firm-level capacities. Thus, it
can be argued that any imposition of standards that does not take into
account the long-term nature of this process would penalize low levels
of technological development.
While strict harmonization of PPM standards across countries where
different conditions prevail may not be appropriate, incentives, sup-
portive measures and the building of environmental infrastructure may
be useful in moving towards greater convergence of standards, includ-
ing through international trade links.

Is there a case for minimum standards?

While harmonization of standards might be encouraged where the
same environmental and economic conditions prevail, minimum stan-
dards could be useful in other cases. They could, for instance, be a
possible means of avoiding trade friction arising from differences in
environmental standards.21 For example, there are minimum standards
relating to CFCs under the Montreal Protocol; there are also codes of
conduct, which represent accepted minimum standards for air pollu-
tion emissions.
Internationally agreed minimum standards might also be linked with
supportive measures, such as the transfer of finance, technology and
general environmental support. A case in point is the Montreal Protocol,
where special and differential treatment was accorded to developing
20
UNCTAD and the Government of Norway, Report of the Workshop on the Transfer and
Development of Environmentally Sound Technologies, Oslo, 13–15 October 1993, p. 22,
UNCTAD, Geneva, 1993.
21
Latin American Economic System (SELA), op. cit.
166 René Vossenaar

countries and a Multilateral Fund was established to meet their financial

and technological requirements in order to encourage them to meet
reduction targets.

Subsidies
Direct financial assistance provided by governments to producers in
order to assist them in complying with environmental regulations is
considered a subsidy by the GATT. However, under the Uruguay Round
Agreement on Subsidies and Countervailing Measures, some environ-
mental subsidies are exempted from the general rule that ‘specific’
subsidies are ‘actionable’. Assistance made available to firms for the
adaptation of their existing facilities to conform with new environmen-
tal regulations which results in a greater financial burden is ‘non-
actionable’, provided that certain other conditions are met.
Some subsidies eliminate external costs or capture environmental
benefits, and these should not be actionable, in principle, under the
GATT.22 Developing countries may have special needs in the field of
subsidies; for example, it may be worth exploring the needs of small
and medium-sized enterprises (SMEs) in developing countries. How-
ever, because of competing financial priorities, developing countries
often cannot provide compensating subsidies for environmental stan-
dards.

PPM-related measures with potential positive impacts on trade

A promising way forward on the PPM issue is to identify ‘win–win’
situations, where improved market access for developing country ex-
ports can be achieved simultaneously with environmental and devel-
opmental gains. Supportive mechanisms for addressing PPM-related
issues, such as technology transfer and financial and technical assis-
tance, could be sought through international cooperation. Well-designed

22
C.S. Pearson and R. Repetto, ‘Reconciling Trade and Environment: the Next Steps’,
paper prepared for the Trade and Environment Committee of the US Environmental
Protection Agency, 1992.
PPMs: sizing up the issues from the South 167

eco-labelling programmes and environmental certification pursued at

an international level may also help developing countries capture the
rents associated with environmental concerns in industrialized coun-
tries. At the same time, such measures might enable developing coun-
tries to upgrade their PPM-based standards. Proposals to move towards
more ‘environment-friendly’ PPMs can also be put forward.

Financial assistance and transfer of ESTs

The need for the international community to provide funds for the so-
called ‘incremental costs of technology switching’ to address global
environmental problems has already been recognized with the creation
of the Global Environment Facility and the Multilateral Fund under the
Montreal Protocol. However, there are no comparable international
mechanisms for facilitating the transfer of environmentally sound tech-
nologies (ESTs) that are appropriate for local environmental problems.
In issues such as poverty alleviation, where the concerns are simulta-
neously of an environmental and developmental nature, the transfer of
ESTs urgently calls for facilitating mechanisms.23
Measures that induce trade in environmental protection goods, ser-
vices and technology should also contribute to the upgrading of envi-
ronmental standards in developing countries, combining commercial
and foreign policy environmental objectives in a complementary way.24

Improved market access for exports from developing countries

As progress in providing developing countries with financial resources
and access to and transfer of technology has not as yet fulfilled the

23
UNCTAD and the Government of Norway, op. cit.
24
For example, in the United States the Overseas Private Investment Corporation has
proposed an environmental Investment Fund to stimulate environmental investment in
developing countries. The Energy Policy Act of 1992 directs the Secretary of Energy,
through AID, ‘to create a technology transfer program aimed at reducing the US trade
deficit through the export of innovative environmental technologies’. The Export
Enhancement Act of 1992 seeks to encourage exports of environmental goods and services.
See Pearson and Repetto, Reconciling Trade op. cit.
168 René Vossenaar

expectations of Agenda 21, trade liberalization and improved market

access have become even more necessary as a means of generating
sources of financing for sustainable development.
Win–win situations arise when the removal or reduction of trade re-
strictions (tariff peaks, tariff escalation and remaining non-tariff ob-
stacles to trade) and distortions have positive effects on both trade and
the environment. This issue is of key interest to developing countries,
for example in the context of the deliberations in the Committee on
Trade and Environment. A WTO report25 examines possible environ-
mental effects of removing trade restrictions and distortions in sectors
such as agriculture, energy, fisheries, forestry, non-ferrous metals, tex-
tiles and clothing and leather. Of course, the environmental benefits of
improved market access are not automatic: they depend on whether or
not sound environmental policies are in place. Therefore there is a
need to promote a process in which trade liberalization is comple-
mented by sound environmental policies.

Investment and sustainable development

Foreign direct investment (FDI) holds the promise of contributing to
sustainable development in so far as (a) it provides a source of long-
term finance to developing countries; and (b) the integration of econo-
mies encourages the transfer and greater convergence of environmen-
tally friendly technologies across borders.
Major emerging issues with respect to international investment and
the need for sustainable development therefore concern (a) the incor-
poration of countries and regions that have not benefited from the FDI
boom of the 1990s, (b) the potential positive role that TNCs could play
in conjunction with governments in achieving global goals on emis-
sion standards, and (c) the continued competition among developing
countries for foreign capital.
FDI has an important role to play in providing host countries, par-
ticularly developing countries, with easier access to ESTs. The early
debate on the relationship between FDI and the environment focused

25
WT/CTE/W/67.
PPMs: sizing up the issues from the South 169

largely on the issue of ‘dirty industry migration’ (see above). More re-
cently, discussions have focused on the issue of technologies and
management practices associated with FDI. A widely held view is
that TNCs tend to apply the environmental standards and manage-
ment practices of the corporation or the home country, which often go
beyond local legal requirements in the host country. According to an-
other hypothesis, however, trade liberalization and FDI can at times
result in the transfer (to developing countries) of technologies and
products that have become ‘obsolete’ as a result of increasingly strin-
gent environmental policies and regulations in developed countries.
An important question concerns the extent to which foreign investors
have contributed sufficient leadership with respect to fulfilling local
and global environmental targets.
In many respects, the answer to these questions depends on the ex-
tent to which TNCs have devised environmental management policies,
procedures and practices for their subsidiaries in developing countries
(labelled as ‘cross-border environmental management’). UNCTAD,
through its Division on Investment, Technology and Enterprise Devel-
opment (DITE), jointly with the Department of Intercultural Communi-
cation and Management (DICM) of the Copenhagen Business School
(CBS), is carrying out a project comprising a number of case studies on
cross-border environmental management of TNCs.26
Building on these activities, UNCTAD is initiating a new project
which focuses on the contribution that investment could make to
achieving the objectives of selected multilateral environmental agree-
ments, as well as the role that TNCs could play in disseminating high
environmental standards and environmental management systems to
local companies in developing countries. The emphasis is on technol-
ogy dissemination and spillovers on host countries. Building on the
findings of the DANIDA project, this project focuses on MEAs. The
government of Germany is providing funding to the project. The Ger-
man government is also funding a parallel project, executed by the In-
stitute for Environmental Management and Business Administration at
the European Business School in Germany.

26
This project is funded by the Danish International Development Administration (DANIDA).
170 René Vossenaar

‘Premiums’ for ‘environment-friendly’ PPMs

Under certain conditions, green consumerism in OECD countries
might also help developing countries upgrade their PPM standards.
Premiums could provide a means of recovering the higher costs of pro-
ducing a product in an environmentally friendly way, compared with
the older production technique.
Some developing countries have indeed expanded exports of sev-
eral products with environmental and health advantages and thus
have profited from changes in consumption patterns in developed
countries. The challenge now is to broaden the number of develop-
ing countries and their enterprises that can turn this potential into
practical financial, social and environmental gains. A range of policy,
market and technical obstacles need to be overcome, such as insuffi-
cient access to information, lack of technical capacity, continuing
trade barriers, an absence of supportive policies at home and abroad
and weak business partnerships. These obstacles are particularly acute
for small and medium-sized enterprises and the least developed coun-
tries.
UNCTAD’s activities in this area are commodity and country-focused
and aim to assist in developing a proactive strategy among exporting
firms in developing countries. The objectives are:

• to encourage company or (industry) association partnerships be-

tween eco-pioneers in developed and developing countries;
• to improve access to and the review of existing and emerging envi-
ronmental requirements in target markets;
• to encourage exporting firms in exploring the use of environmental
management systems, such as ISO 14001.

It is important to promote partnerships and proactive approaches be-

tween developing-country producers and their clients, retailers, envi-
ronment and development organizations and government agencies in
developed countries for promoting the export of environmentally
friendly products of developing countries. UNCTAD, under its tech-
nical cooperation programme, intends to hold a series of workshops
between the relevant partners, preferably on a bilateral basis, between
PPMs: sizing up the issues from the South 171

a source developing country and a target developed nation. Work-

shops will be confined to one or two sectors.

Environmental management standards

1. Eco-labelling Developing countries have expressed concern over
the use of PPMs in the context of eco-labelling and have questioned
the legitimacy of using a range of PPM-related criteria in product cat-
egories that are predominantly supplied by imports from developing
countries. PPM-related criteria that are based on environmental and
technological conditions and priorities of the OECD countries may be
difficult for developing countries to meet, or environmentally inappro-
priate. PPM-related criteria need to be used carefully. Focusing on a
few criteria in areas where developing countries can make meaningful
improvements may be preferable. Compatibility between eco-labelling
and the trade and sustainable development interests of developing coun-
tries could also be increased through concepts such as equivalence and
mutual recognition.

2. Environmental management systems International EMS standards

can bring important benefits for both companies and governments.
Although the implementation of the ISO 14001 standard27 is still rela-
tively recent and the full implications are not yet fully understood, it
may be a useful tool, at the company level, in promoting a move to-
wards the use of more environment-friendly PPMs. It is recognized,
however, that ISO 14001 may create obstacles to trade, to the extent
that companies in developing countries may find it difficult and/or ex-
pensive to implement and certify an EMS. More work is needed on the
trade implications of ISO 14001 and on national implementation issues
with an impact on trade.
27
With regard to the issue of PPMs in the context of international trade, ISO 14001 has the
advantage over other policy instruments, such as eco-labelling, of not having specific PPM-
related criteria or requirements set by the importing country, thus avoiding the issue of
extra-territoriality. The commitment to comply with applicable laws and regulations refers to
the regulatory requirements relevant to the site or country and the company’s environmental
policy and targets. On the other hand, it should be noted that the establishment and
operation of ISO 14001 does not, by itself, guarantee enhanced environmental performance.
172 René Vossenaar

Governments can play an important role in providing an ‘enabling’

environment for the implementation of ISO 14001, particularly in de-
veloping countries. For example, governments in the export-orientated
economies of Asia have taken significant steps to promote ISO 14001
standards by establishing infrastructure and providing incentives, as
well as comprehensive support programmes for SMEs and financial
assistance. Governments could also play an important role in promot-
ing awareness and capacity-building.
In addition, policies and measures at the bilateral and/or multilateral
levels, including cooperation in the area of technical assistance and
capacity-building, may assist developing-country companies and their
governments in setting up EMSs. The private sector, in particular TNCs,
can play an important role in promoting the implementation and im-
provement of EMS in developing countries, e.g. through cooperation
between companies in developed and developing countries. Of particu-
lar relevance is cooperation between companies in developed countries
and their suppliers in developing countries, and between subsidiaries
of TNCs and their local suppliers, in particular SMEs.

Certification of ‘environment-friendly’ PPMs

In assessing the potential of developing countries to take advantage of
trading opportunities for products made using ‘environment-friendly’
PPMs, certification is a key issue. It is important to ensure that certifica-
tion is objective, transparent and affordable. Building and strengthen-
ing capacities of developing-country certification bodies as well as
promoting mutual recognition is of key importance. International aid
agencies also have a role to play here.

Sustainable production of commodities

The introduction of sustainable practices for the production of interna-
tionally traded commodities may require innovative forms of coopera-
tion between producers and consumers. In fact, studies are already
under way regarding the possibility of facilitating the internalization of
environmental externalities in the production of commodities with the
PPMs: sizing up the issues from the South 173

help of International Commodity Related Environmental Agreements

(ICREAS). Various options are being analysed to determine how financial
transfers or environmental premiums might be provided and whether
or not they need to be combined with preferential market access.

Small and medium-sized enterprises

Discussions and analysis so far have recognized the special situation
of small and medium-sized enterprises (SMEs) in the trade–environ-
ment interface. At the same time, there is great potential for improving
environmental management and PPMs used in SMEs provided that
proper supporting infrastructure is set up. Many practices that are
cleaner than present methods of production are feasible for SMEs, but
one important obstacle is the lack of knowledge of available options.
UNCTAD studies have proposed several measures aimed at improving
the access of SMEs to information, ESTs and required input materials,
such as dyes and chemicals. This is certainly an area where win–win
situations can be created through appropriate measures at both na-
tional and international level.

Conclusions and recommendations

PPM-related measures can be essential instruments of environmental
policy. However, to the extent that environmental effects are intrinsi-
cally local, using the same standard across countries or regions, or
even within a country, may not be appropriate. Thus, using trade mea-
sures based on PPMs may not meet the environmental objectives for
which the PPMs are designed. Additionally, compliance with specific
non-product-related PPMs in the context of either eco-labelling or other
similar standards could require the use of specific technologies.28
From a trade point of view, there is concern that harmonization of
PPMs could undermine comparative advantage, which is the very ba-

28
Some have expressed the view that concerns about the possible discriminatory character
of PPM-based standards could be magnified, depending on the degree of patent protection
of specific technologies.
174 René Vossenaar

sis of welfare gains derived from international trade. Applying PPM-

based standards to imported products could also involve the extra-
territorial application of domestic environmental law. For these reasons,
making market access conditional on the use of particular PPMs is gen-
erally considered incompatible with existing trade rules.
It seems reasonable that, from a development perspective, PPM-
based standards should be commensurate with a country’s environ-
mental problems, environmental absorptive capacity, economic re-
sources and social preferences. In this context, it is also worth noting
that certain instruments that are used in developed countries to influ-
ence PPMs may be less effective in many developing countries. Poli-
cies and measures aimed directly at increasing the capacity of firms to
improve their environmental performance, such as building environ-
mental infrastructure for SMEs, may yield greater benefits in economic
and in environmental terms.
Consumer preferences may affect market access conditions and the
competitiveness of specific products based on the PPM used in their
production. These forces have the potential to work either as an obstacle
to trade or as a means to help improve PPMs through trade, by provid-
ing premiums to environmentally friendly products. Measures that
have a certain degree of government involvement, such as eco-labelling
systems, should be notified to the GATT. Wide adherence by local and
non-governmental bodies to the new Code of Good Practices for the
Preparation, Adoption and Application of Standards under the Agree-
ment on Technical Barriers to Trade also appears to be essential. Efforts
by developing-country exporters to obtain environmental premiums
for environmentally friendly products available in OECD markets
should be encouraged. This could best be achieved when initiatives
involving products of export interest to developing countries are
based on an international process with their fullest possible partici-
pation.
Experience from UNCTAD studies shows that trade and investment
links with countries where environmental requirements are relatively
stringent may have positive effects on environmental characteristics of
PPMs in the exporting country. Thus, trade and investment can play a
role in promoting environmentally preferable PPMs worldwide, pro-
PPMs: sizing up the issues from the South 175

vided that PPMs are also useful in the context of the environmental and
developmental conditions in the country of production.
Future work on PPMs could include analysis of the relationship be-
tween PPMs and trade, including consideration of trade principles
which could ensure that the application of PPM-based instruments
does not result in arbitrary discrimination or unjustified restrictions on
trade. A second issue is whether international standards developed for
instruments and measures that extend to PPMs, such as the ISO 14000
series, could provide sufficient guarantees to this effect. A third issue
that arises is this: if there is a consensus on the need to move towards
greater convergence of PPMs, what would be an appropriate mecha-
nism, and what would be the role of FDI, taking into account the inter-
ests of all parties with different environmental endowments and at dif-
ferent levels of development?
Reassessing ‘like products’
Konrad von Moltke

Introduction
The issue of process and production methods (PPMs) in the trade re-
gime has vexed the environmental community since the first Tuna/
Dolphin panel claimed that distinctions between products based on
their production methods were not permitted under the GATT. The reason
for its distress is straightforward: an open trading system, which does
not provide for distinctions between products produced sustainably
and those produced unsustainably, is unacceptable from an environ-
mental perspective.
Unless the issue of PPMs is resolved in a reasonable manner, the en-
vironmental community will ultimately oppose trade liberalization. It
is up to those interested in trade policy to decide whether they are will-
ing to pursue their goals against environmental opposition – in es-
sence, whether they can persuade voters in democratic societies that
the economic benefits they promise outweigh not only the inevitable
economic costs to those who do not enjoy comparative advantage, but
also the risks to the environment, and to communities.

‘Like products’ in WTO dispute settlement

Before addressing possible solutions to the issue of PPMs within the
trading system, it is necessary to dispose of the myth that no such dis-
tinctions are possible, either because this is contrary to fundamental
principles of the trading system or simply because the current text of
the GATT forbids it. Frequent repetition of this error, including repeti-
tion by those responsible for managing the trading system and by
many eminent commentators, makes it no more correct than it was to
begin with.
The issue of PPMs in the GATT/WTO revolves around the interpreta-
tion of the word ‘like’, as in ‘like products’. The concept of ‘like’ prod-
PPMs: reassessing ‘like products’ 177

ucts is in many ways the linchpin of the GATT/WTO system. Its two
central principles, most favoured nation treatment (MFN) and national
treatment, are critically dependent on this concept. The key passages
in the GATT read as follows:

any advantage, favour, privilege or immunity granted by any contracting

party to any product originating in or destined for any other country shall
be accorded immediately and unconditionally to the like product originat-
ing in or destined for the territories of all other contracting parties. (Article I.1)
The products of the territory of any contracting party imported into the ter-
ritory of any other contracting party shall not be subject, directly or indi-
rectly, to internal taxes or other internal charges of any kind in excess of those
applied, directly or indirectly, to the like domestic products. (Article III.2)

The English word ‘like’ has no perfect counterpart in French or Span-

ish. The French version of the GATT speaks of ‘equivalent’, which
actually expresses something different again, since it derives from
‘value’ rather than focusing, as the word ‘like’ does, on the inherent
characteristics of a product. Consequently ‘equivalent’ expresses more
clearly the valuation of products, and of distinctions between products,
by certain economic actors.
The drafters of the original GATT text (in practice, those drafting the
Havana Charter) were presumably well aware of the ambiguities of the
term ‘like’ and of the inherent dangers in using such an ambiguous
term in passages so critical to the text. They chose the word ‘like’ pre-
cisely because its ambiguities reflected a problem in the real world.
Some products are equivalent but not like (for example whiskey and
sake). Some products are like but not equivalent (for example wild
caught salmon and the ranched version). In the modern trading sys-
tem, some products are identical but not alike (for example genetic and
branded pharmaceuticals). In short, the term ‘like’ requires careful in-
terpretation to ensure that the GATT does not produce unacceptable
results.
Given its importance, it is reasonable to expect extensive analysis of
the concept of ‘like’ products in dispute settlement proceedings of the
GATT and in the general literature. In fact, there is not much to be
found, presumably because the significance of the ambiguity appeared
178 Konrad von Moltke

intuitively obvious and because, surprisingly, countries have rarely

attempted to use criteria viewed as spurious by other countries to distin-
guish between otherwise like products.
The most important dispute to date revolving around interpretation
of ‘like’ concerned liquor taxes in Japan. The dispute panel struggled
hard with the problem, not least because the equivalence of sake and
many liquors imported to Japan was intuitively obvious, the protec-
tionist intent of Japanese tax rules was hard to overlook, and still it was
difficult to develop an argument that was free from internal contradic-
tions and did not open the door to a Pandora’s box of other problems.
The Appellate Body, reviewing the panel report on appeal, was seduced
by the outlandish view that Article III.1 should be read as a chapeau to
the entire Article III, possibly because a more obvious distinction bet-
ween Articles III.1 and III.2 seemed unpalatable since it opened the
door wide to PPMs, including PPMs in other countries: that Article
III.1 deals with production while Article III.2 addresses products in
trade.
At the very least, it should be clear that the GATT contains no ex-
plicit prohibition on the use of PPMs in general. This view is the result of
a process of interpretation, which sometimes resembles the rule-making
committee of a club rather than that of an international body with glo-
bal responsibilities. There is, however, a more direct way in which to
approach the issue of PPMs in the trading system. To prove that PPMs
are possible within the GATT, it is sufficient to show that they are cur-
rently being utilized.

‘Like products’ and intellectual property rights

It may come as a surprise to some observers that there are several ar-
eas in which the GATT handles PPMs without apparent difficulty.
The most dramatic application of PPMs in the GATT/WTO to date is in
the field of intellectual property rights. The Agreement on Trade Re-
lated Aspects of Intellectual Property Rights (TRIPS Agreement) is, in
effect, an agreement on PPMs. It distinguishes between products in
trade not on the basis of their inherent characteristics, but on whether
certain rules have been observed in the production process – namely,
PPMs: reassessing ‘like products’ 179

whether the rights of the holders of intellectual property have been

respected.
A compact disk with a pirated version of music, a film or computer
software is indistinguishable from a disk with the same (not ‘like’!)
materials: otherwise, as often as not, it would not function properly. A
generic pharmaceutical product can be identical with its branded equiva-
lent; in some cases it is legally required to be identical so as not to en-
danger the health of users. Indeed, some generic pharmaceuticals are
manufactured on the same machines as their branded equivalents, yet
they are clearly distinguished in the trade regime. The difference be-
tween PPMs arising from intellectual property rights and those needed
for environmental purposes is that the former benefit the most power-
ful interests in the global economy while the latter appear to benefit
nobody in particular, merely ‘the environment’.
The economic effect of intellectual property rights (IPRs) is to assign
a temporary monopoly to the holder of these rights. Most of these mo-
nopolies are of course worthless because there is no market demand
for the vast majority of patents, manuscripts, recordings or software.
When such demand exists, however, the profits can be staggering, and
many major multinational corporations derive a significant proportion
of their income from IPRs, most dramatically companies like Microsoft,
Philips or Toyota.
It is interesting to note that only one environmental dispute has
arisen concerning the products of producers such as these: the dispute
over CAFE standards and the gas guzzler tax, which pitted Daimler-Benz
and BMW against the US automobile industry, one of the more un-
usual GATT disputes in terms of its outcome. The vast majority of en-
vironmental disputes in the GATT/WTO concern commodities, that is
products, that are produced and traded to a non-proprietary standard.
The environmental concern for PPMs focuses primarily on the need
to segment commodity markets in such a manner that the environmental
impact of the extraction process becomes transparent to subsequent
users, and the environmental costs can be successfully internalized:
tuna, shrimp, forest products, fish, gasoline, soya beans, beef. One
way to test the free trade fervour of those who deny the possibility of
introducing necessary environmental PPM distinctions is to suggest
180 Konrad von Moltke

that all products currently being traded with IPR protection should be
traded as commodities, i.e. to a single, universally accepted specifica-
tion.
This brief discussion is not the occasion to discuss the role of com-
modity markets in pricing the environment or in promoting (or ob-
structing) the internalization of environmental costs in products traded
on international markets. This is a matter requiring much more research
and public debate than it has received to date.

Taking the debate forwards

Since ‘like’ products are at the heart of the GATT/WTO system, chang-
ing the definition of what will be recognized as valid distinctions be-
tween otherwise ‘like’ products is a matter of great concern to those re-
sponsible for managing the trading system. In particular, it raises the
spectre of disguised forms of protectionism, precisely because it re-
lates to the central principles of the regime designed to keep protec-
tionists at bay. What worries many proponents of trade liberalization is
the prospect of disguised forms of protection, which are particularly
insidious when wedded to seemingly legitimate environmental goals,
such as protecting dolphins, improving air quality or strengthening
the ecological management of forests – alliances that David Vogel
has called baptist/bootlegger coalitions.
It is important for those concerned primarily with the environment to
recognize the legitimacy of such fears. Indeed, the Shrimp/Turtle dis-
pute is the only one where I am unaware of any significant commercial
interest allied with the surface environmental concern. On the other
hand, the existence of some protectionist effect of a measure must not
in and of itself invalidate it. Sometimes the environmental need clearly
outweighs the economic costs of protectionism.
It seems to me that it is in the interests of everyone concerned that we
move beyond the absurd debate about PPMs, as if they were some form
of original sin in the trade regime. We must seek a way to ensure that the
use of environmental PPMs occurs in a rule-based manner. That, after
all, is what the trading system is supposed to be about. So the correct
question in relation to environmental PPMs is not whether they are per-
PPMs: reassessing ‘like products’ 181

missible, but whether they are needed – and, if they are needed, what
rules should apply.
The importance of PPMs for the attainment of sustainability has not
yet been conclusively demonstrated. The significance of PPMs in this
context is highly intuitive; nevertheless it resides on a critical notion
related to the characteristics of commodity markets: namely that with-
out certain PPMs producers of commodities will be confronted with an
invidious choice: degrade the environment or lose market share.
This is a restatement of one of the most persistent of all ideas in the
environment–trade debate: namely, that rules are required to avoid the
creation of ‘pollution havens’. No clear evidence has yet been ad-
duced to show that pollution havens exist. In part, this is attributable to
the fact that researchers have been asking the wrong question: is there
any risk of a general move of production from ‘high-regulation’ to
‘low-regulation’ jurisdictions? Enterprises with significant profit mar-
gins, in particular those benefiting from IPRs, will not make location
decisions based on the cost of environmental protection. The reasons
are complex, ranging from the modest cost of environmental mea-
sures, relative to other factors of production, to the importance of prox-
imity to major markets to the need to protect a brand’s image. On the
other hand, there is some evidence that the production of commodities,
and to a lesser degree of certain commodity manufactures, has shifted
away from high-regulation jurisdictions to those with lower regulation.
The reasons are again complex, ranging from the availability of higher-
value uses of scarce environmental resources in locations close to the
value added centres of the world, to the resistance of highly urbanized
societies in Europe and Japan to further destruction of the landscape,
and to the availability of cheap labour for labour-intensive phases of
the product chain. With these few observations, we are again in the
relatively unexplored area of commodity production and the envi-
ronment, which also happens to be the prime domain for environ-
mental PPMs.
Interestingly, viewing the TRIPS Agreement for what it is – an agree-
ment on the application of certain PPMs – provides some guidelines
on how to address PPMs in the trading system. It is true that national
environmental protection measures are the first step towards any inter-
182 Konrad von Moltke

national structure. It is also so obvious as to be trite that national mea-

sures alone cannot suffice. Consequently the GATT/WTO needs an
agreement on how to develop and apply environmental PPMs at all
levels where they are needed: local, regional, national, international
and global.
This is not a task for the GATT/WTO. Just as the TRIPS Agreement
rests on a broad base of preparatory work undertaken by those whose
concern is the development of IPR, so an environmental PPMs Agree-
ment must originate with those whose primary concern is the environ-
ment. They must specify what is needed, and how they plan to go
about putting it in place. The role of the GATT is then to insert such an
agreement into the rule-based structure of the trading system in a man-
ner that respects the needs of both those concerned with the environ-
ment and those whose focus is trade liberalization.
It sounds simple. It is not. But it is straightforward, and may contrib-
ute to shortening a debate that seems to be going nowhere even while
the underlying issues become more urgent with every environmentally
related trade dispute.
The impact of the Shrimp/Turtle dispute
Charles Arden-Clarke

The Shrimp/Turtle dispute has changed the face of the issue of process
and production methods (PPMs) and trade. There are still problems
with the outcome. The final decision went the wrong way in the end for
the environmental community, and that will create political problems
in the United States for the Administration’s efforts to secure ‘fast
track’ negotiating authority, as well as for the WTO more generally in
other parts of the globe.
Shrimp/Turtle was also the irrefutable proof that the multilateral trad-
ing system has to, and is beginning to, come to terms with the issues
surrounding processing and production methods. The Appellate Body
found that the US measure requiring the fitting of turtle excluder de-
vices (TEDs) to shrimp nets did in principle qualify it for exception
under Article XX(g), which means that discrimination based on PPMs
is acceptable under WTO rules. The Appellate Body ruling also began
to come to terms with other civil society concerns about the WTO in
that it used a fairly liberal interpretation of WTO rules to accept unso-
licited amicus briefs from non-governmental organizations. Third, the
Appellate Body began to enact something that first appeared in the
Venezuela Gasoline Appellate Body report, in beginning to take ac-
count of other public international law; in particular, the Appellate
Body took account of multilateral environmental agreements (MEAs).
The World Wide Fund For Nature (WWF) was among the NGOs that
submitted amicus briefs to this panel, and we called for these three
things to be done. We also called for the measure to be upheld given
the endangered status of turtles and their protection under MEAs; but
the Appellate Body still struck the measure down on the grounds that it
was arbitrary and unjustifiable on seven separate counts.
That is a lot of hurdles to get over before a trade measure can be held
compatible with WTO rules. Some of the hurdles look like reasonable
ones, others may be construed as less reasonable. To take one ex-
184 Charles Arden-Clarke

ample, the Appellate Body in the Shrimp/Turtle case found that the
United States gave more technical assistance to some countries than to
others, and that amounted to unfair discrimination. It is important to be
careful in assessing the implications of this interpretation: presumably,
if the United States had given no technical assistance to anyone, it
would not have failed on that hurdle. There are other important ele-
ments too. The Appellate Body did not look at the question of whether
or not the US measure was a ‘disguised restriction on trade’; and it
pointed to the fact that the measure was ‘coercive in intent and effect’
without saying whether that might amount to a test that would have to
be met by any future measures.
The core of the problem with PPMs arises when they result in trans-
boundary and/or global effects. I would never advocate unilateral trade
measures as a tool of first resort, but Shrimp/Turtle came close to present-
ing a factual situation where they could and should be allowed as a last
resort – an endangered species being pushed much closer to extinction
by a clearly identified threat, which the technology required by the mea-
sure could reduce. Those points at least were recognized by the panel.
Better adherence to existing MEAs is also needed. One of the most
interesting points that came out of the Shrimp/Turtle case was a foot-
note which noted that the country with the worst record on signature
and ratification of MEAs out of the five countries involved in the dis-
pute was the United States. Some countries are setting themselves up
as environmental policemen, but that role is not necessarily reflected in
their signature of the multilateral legal instruments that exist for the
protection of the environment. This is something that governments,
NGOs and civil society as a whole must address.
The question now is, how can the WTO evolve further? There seem
to be two ways for it to evolve. One is through the dispute settlement
process. Dispute settlement in the WTO on trade and environment mat-
ters has improved fairly steadily since the first Tuna/Dolphin Panel
back in 1991, through the second Tuna/Dolphin Panel and the Auto-
mobile Tax dispute in 1994, and on to the Venezuela Gasoline Appel-
late Body ruling in 1996. Dispute settlement has been getting better
from an environmental perspective, and, while I hope that Shrimp/
Turtle is not the peak of that trend, it is the peak so far.
PPMs: the impact of the Shrimp/Turtle dispute 185

The second way for the WTO to evolve is through renegotiation and
reinterpretation of WTO rules, and this is still likely to be necessary. If
we settle these things purely through a dispute settlement process,
which is a very closed process, it is risky. These issues will need to be
settled, and they will need to be settled in the open. PPMs – the most
controversial subject, which has destroyed consensus in the WTO on a
regular basis – will have to be addressed as a central and systemic issue.
More than that, it will need to be mainstreamed into the WTO. It is not
just a question of dealing with it in the context of individual specific is-
sues: any deal on PPMs has to be part of a bigger trade deal. This may
sound like an argument for the Millennium Round. It is not: it is an argu-
ment for mainstreaming environment in the next Millennium Round.
This brings me to the proposed High Level Meeting on trade and
environment. This is a litmus test of government commitment: whether
or not that High Level Meeting takes place; whether it is about sub-
stance; and whether there is serious preparation beforehand. The High
Level Meeting should be preparation for mainstreaming the environ-
ment, including the PPM issue.
I agree that the environmental community will also have to articulate
better what we want on PPMs, and that the process of securing this will
have to be an open and inclusive one. We also need a real-life discus-
sion with real-life issues that involve both the World Trade Organiza-
tion and existing MEAs, because otherwise the discussion will become
very oblique and abstruse. Shrimp/Turtle was just that. We could do
worse than take the example offered by the Shrimp/Turtle case as a
starting point from which to begin building lasting solutions. It has all
the elements. It is about PPMs and it involves MEAs and the WTO. It
does not perhaps involve MEAs as much as it should have, but that is a
question of political will for governments, and also a job for NGOs.
But we have to do this outside the WTO; it has to be done in a forum
that encompasses trade, environment and development. We need to
escape the ‘WTO decides’ factor, and we also need to escape the na-
tional-level ‘chill factor’ that WTO rules apply to the development of
effective environmental policies.
Finally, we also need a multi-stakeholder approach. In the case of
shrimps and turtles, we do not want just the vociferous NGOs: we also
186 Charles Arden-Clarke

want the fishermen whose livelihoods are affected by the trade em-
bargo, and who depend on a healthy marine eco-system for those live-
lihoods. We need the appellants in the case and the respondents; we
need the United States and the four countries involved in the dispute.
We need anybody else who is interested as a third party. We need rep-
resentatives of the WTO and of the MEAs. We need the environment
and the development NGOs, and we need the independent experts
who often have a key role to play, because even NGOs can have
vested interests.
Conflict Resolution in the World Trade
Organization

Assessing the story so far: hope on the horizon?

Thomas Cottier and Krista Nadakavukaren Schefer

Introduction
The World Trade Organization is dedicated to improving the standard
of living of people in its member states by establishing legally binding
rules to liberalize international trade. WTO rules affect trade in goods,
services and the trade-related aspects of intellectual property rights.
The structures of liberalized trade, in turn, often impact on the environ-
ment. When they do, non-governmental organizations (NGOs) may
attempt to sway public opinion so as to limit the measure’s negative
impacts on the environment.
Environmental protection rules are dedicated to conserving resources
and maintaining the health of the natural environment and its inhabit-
ants. Environmental rules affect the use of resources, the consumption
of products and services, and the production of services. In addition,
however, environmental rules sometimes affect the trade of goods, ser-
vices and the trade-related aspects of intellectual property rights. When
they do, conflicts often arise, and, in the absence of other formal dis-
pute settlement forums, WTO Members often turn to the processes
contained within the WTO Understanding on the Rules and Procedures
Governing the Settlement of Disputes (DSU) to protect their rights un-
der the various WTO Agreements.
Conflict resolution and dispute settlement are becoming increasingly
important at this intersection of the trade and environment fields. In
part this is due to the public’s attention being captured on this problem
more than on any other topic relating to the WTO. In part it is because
the severity of environmental problems is becoming more pressing in
the developed as well as in the developing nations of the world, and
188 T. Cottier and K. N. Schefer

the WTO is perceived as standing in the way of achieving the in-

creased cooperation required to solve environmental problems. An-
other reason for the increasing importance of conflict resolution in the
trade and environment areas lies with the interests of the trade system
(or, more specifically, the WTO system) in proving its legitimacy as an
international rule-maker. Should global or national environmental con-
cerns be made subsidiary to the profit motives of private industries, the
authority of the WTO could be seriously damaged.
This paper addresses the trade–environment issue in relation to the
WTO dispute settlement system. First, it gives a brief overview of the
dispute settlement process itself. Next, it highlights the past cases
brought before the WTO implicating environmental concerns. Finally,
it makes some recommendations and speculates on what the future of
the trade–environment interface in the WTO may bring.

The WTO’s dispute settlement system

The dispute settlement mechanism of the WTO is one of the major
achievements of the Uruguay Round of negotiation, and it differs sub-
stantially from the diplomacy-oriented resolution of conflicts that char-
acterized the first forty years of the GATT system.
The WTO mechanism set out in the DSU, like GATT dispute settle-
ment practice, is still based on the principle of mutually acceptable
resolution of disputes. But now, after mandatory consultations be-
tween disputing Members have taken place, the disputing parties may
invoke formal procedures for deciding which Member’s interpretation
of the relevant agreement is legally correct. The formal procedure con-
sists of an exchange of evidence and legal arguments in a hearing, with
a resulting report issued by a three-person panel of decision-makers.
Each stage of this process occurs according to rules set out in the DSU
and its annexes. Adoption of the report is virtually automatic: the entire
membership of the Dispute Settlement Body (the Members of the WTO
acting as dispute settlement bodies), including the ‘winner’ of the case,
would have to reject the report in order for it not to be considered ac-
cepted. Prior to adoption, however, the disputing Members have the
right to appeal the legal findings of the panel’s opinion. The Appellate
Conflict resolution: assessing the story so far 189

Body, a seven-person standing body, is called upon to issue a final

opinion on the dispute, giving the authoritative interpretation of the
WTO Agreements.
Although the Dispute Settlement Understanding will be under recon-
sideration over the course of the next year, proposals for change thus
far have been mainly on technical aspects of the process. There have
been strong calls for increased transparency in the various dispute
settlement steps, but the authority to give the ultimate interpretation of
agreement provisions will most likely remain firmly with the Appellate
Body.

The trade and environment conflict

The main goals of the WTO system of rules are to improve market
access; to support non-discriminatory treatment of imports vis-à-vis
other imports and vis-à-vis domestic products; to reduce competition-
distorting non-tariff measures such as subsidies, and to increase the
transparency of domestic regulatory regimes. The main goals of envi-
ronmental protection are to maintain or improve our physical surround-
ings and to conserve a varied flora and fauna in order to improve the
health and happiness of the Earth’s inhabitants. Importantly, besides the
economic benefits of healthy populations and eco-systems, there is a
strong philosophical aspect to environmentalism which does not lend
itself readily to being monetized.
There is a difference of opinion among scholars and practitioners as
to whether or not there is actually an ultimate conflict between the
goals of the trading system and those of environmental protection.1

1
See Sanford E. Gaines, ‘Rethinking Environmental Protection, Competitiveness, and
International Trade’, U.Chic.Legal F. 231, 238–48 (1997) (presenting a short history of the
attitudinal changes as regards trade and environment), and especially 231 (‘With specific
reference to the environment and international trade, Agenda 21 contains the affirmation that
environment and trade policies should be mutually supportive’ [citing Agenda 2 1, UN Doc
A/CONF 151126 (1992)] but neither before nor after Rio have governments or analysts
been able to agree on how (or even whether) such a mutually supportive relationship can be
achieved’); David A. Wirth, ‘The Rio Declaration on Environment and Development: Two
Steps Forward and One Back, or Vice Versa’, 29 Ga.L.Rev. 599 (1995) (fearing that
economic development necessarily entails environmental damage).
190 T. Cottier and K. N. Schefer

The traditional idea that trade and environment were inevitably at odds
with one another gave way in the late 1980s to the teachings of those
who emphasized the compatibility of the two systems: trade, they said,
leads to increased growth, which in turn leads to wealth, which in turn
leads to an interest in environmental protection. Environmental rules,
moreover, need not collide with the principles of non-discrimination
and economic liberalization enshrined in the WTO (then GATT) Agree-
ments. A decade later, scholars began to question this new thinking.2
Today, while the trade community generally still adheres to the theory
of trade and environmental compatibility, many environmentalists are
rediscovering the potential for conflict: they emphasize that, although
it may indeed be true that the goals of trade and environmental protec-
tion do not generally conflict in practice, there is an inherent potential
for conflict between the two that needs to be addressed (in part at least
because of an inability to translate the value of a healthy environment
into quantifiable economic units).3
The WTO officially supports the idea that trade and environment
goals are mutually supportive. Whether or not this is a correct view at
the level of philosophical fundamentals of the two systems will not be
further analysed here. Practical experience would indicate that there is
a potential for certain of the rules of the two systems to conflict, but
that this conflict is not intrinsic to all of the rules.
What is important to the immediate issue of trade–environment con-
flict resolution is that almost every agreement within the WTO system
contains exceptions from the trade liberalization rules in order to pro-
vide for Members’ efforts to protect the environment, thus supposedly
lowering the likelihood of direct conflicts between trade rules and en-

2
See, e.g., Paul Brietzke, ‘Insurgents in the New International Law’, 13 Wis.Int’l L.J. 1
(1994) (discussing the different perspectives of ‘classical’ international law views and the
views of ‘insurgents’, ‘without lapsing into the polemics of the conflict models that rival
those of a consensus’); Jeffrey L. Dunoff, ‘Rethinking International Trade’, 19 U. Pa. J.
Int’l Econ. L. 347 (1998) (examining ‘linkage’ issues, such as trade and the environment,
and concluding that a new way of thinking about these issues must be developed).
3
To borrow a term from international trade expert John H. Jackson, this is the ‘clash of
cultures’ idea. See John H. Jackson, ‘Greening the GATT: Trade Rules and Environmental
Policy’ in James Cameron, Paul Demaret and Damien Geradin, eds., Trade & the
Environment: The Search for Balance, Chapter 2 (Cameron May, London, 1994).
Conflict resolution: assessing the story so far 191

vironmental rules. These various provisions include the Preamble to

the Marrakesh Agreement Establishing the World Trade Organization;
the General Agreement on Tariffs and Trade (GATT) Article XX; the
General Agreement on Trade in Services (GATS) Article XIV; the Trade-
Related Aspects of Intellectual Property (TRIPs) Agreement Article
27(2); the Agreement on the Application of Sanitary and Phytosanitary
Measures (SPS) Agreement Article 2; the Agreement on Technical Barri-
ers to Trade (TBT) Agreement Article2.2; and the Agreement on Subsi-
dies and Countervailing Measures (SCM Agreement) Article 8.2.4 In
terms of usage in dispute settlement, the most prominent among these
are the Preamble to the Marrakesh Agreement,5 GATT Article XX,6
and Article 2 of the SPS Agreement.7
Before beginning the categorization of trade and environment con-
flicts, four basic observations about trade and environment conflicts
should be noted.
4
The text of these Agreements can be found in WTO Secretariat, The Results of the
Uruguay Round of Multilateral Trade Negotiations: Legal Texts, WTO, Geneva, 1995.
5
The text of the Preamble states, in relevant part: ‘The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour should be
conducted with a view to ... 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, seeking both to protect and preserve the environment…[agree
to the provisions of the Agreement].’
6
The text of GATT Article XX states in relevant part: ‘Subject to the requirement that such
measures are not applied in a manner which would constitute a means of arbitrary or
unjustifiable discrimination between countries where the same conditions prevail, or a
disguised restriction on international trade, nothing in this Agreement shall 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 …’
7
The text of Article 2 SPS Agreement states in relevant part:
1. Members have the right to take sanitary and phytosanitary measures necessary for the
protection of human, animal or plant life or health, provided that such measures are not
inconsistent with the provisions of this Agreement.
2. Members shall ensure that any sanitary or phytosanitary measure is applied only to the
extent necessary to protect human, animal or plant life or health, is based on scientific
principles, and is not maintained without sufficient scientific evidence, except as provided
for in [the risk assessment provisions].
3. Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or
unjustifiably discriminate between Members where identical or similar conditions prevail...
192 T. Cottier and K. N. Schefer

First, the Preamble to the Agreement Establishing the WTO clearly

states that environmental concerns should not be ignored by the Orga-
nization and its member states, and a recent Appellate Body decision
has implicitly supported this language (and, in doing so, overruled a
contradictory panel opinion that had held that the Preamble requires
that the trade interests of the Members supersede environmental inter-
ests).8 While it often appeared that the priority of trade interests over
other interests had been assumed by the trade community, and while it
was certainly feared by the environmental community, the panel in the
Shrimp/Turtle case was the first to put it so bluntly. 9 The Appellate
Body’s expression of environment’s legitimacy is thus a refreshing sur-
prise and may signal the coming of a truly ‘greener’ WTO at some time
in the future.
Second, despite the professed commitment to environmental protec-
tion by panels and the Appellate Body10 as a whole, the dispute settle-
ment system seems to be trailing the public’s ideas (in industrial nations

7
(cont)
... Sanitary and phytosanitary measures shall not be applied in a manner which would
constitute a disguised restriction on international trade.
4. Sanitary or phytosanitary measures which conform to the relevant provisions of this
Agreement shall be presumed to be in accordance with the obligations of the Member… in
particular the provisions of Article XX(b) [GATT]’.
8
United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/
AB/R at para. 116 (12 October 1998) (‘Maintaining, rather than undermining, the
multilateral trading system is necessarily a fundamental and pervasive premise underlying
the WTO Agreement, but it is not a right or an obligation, nor is it an interpretive rule….’)
9
See United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/
DS58/AB/R para. 7.42 (15 May 1998) (‘While the Preamble confirms that environmental
considerations are important for the interpretation of the WTO Agreement, the central focus
of that agreement remains the promotion of economic development through trade; and the
provisions of the GATT are essentially turned toward liberalization of access to markets on
a nondiscriminatory basis.’)
10
See United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/
DS58/AB/R at para. 185 (12 October 1998) (‘We have not decided that the protection and
preservation of the environment is of no significance to the Members of the WTO. Clearly,
it is. We have not decided that the sovereign nations that are Members of the WTO cannot
adopt effective measures to protect endangered species.... Clearly, they can and should. And
we have not decided that sovereign states should not act together bilaterally, plurilaterally or
multilaterally, either within the WTO or in other international fora, to protect endangered
species or to otherwise protect the environment. Clearly, they should and do.’)
Conflict resolution: assessing the story so far 193

at least) on how to address the trade–environment interface. The WTO

has recently been yielding to increasing pressure from certain govern-
ments and many non-governmental organizations to open the deci-
sion-making and dispute resolution processes to outside participation
under the rubric of ‘transparency’.11 Yet a consistent refusal to allow
trade interests to be infringed upon by environmental interests in the
form of national legislation – no matter how compelling the environ-
mental interest – must cast a doubt on the seriousness with which the
WTO takes its non-trade commitments. Continued reliance on pure
and narrowly defined multilateralism, to the point of excluding mea-
sures that protect the environment more strongly than other Members
can politically accept, will perpetuate the WTO’s image of an anti-
environmental organization. The ‘constitutionalization’ of the WTO as
a result of the Organization’s ever more intrusive reach into domestic
regulations demands a more nuanced approach to a Member’s use of
unilateral measures to achieve non-trade goals: environmental protec-
tion should be able to be pursued legitimately by a Member, just as a
Member may unilaterally impose measures to protect its domestic in-
dustries from unexpected inflows of competitive imports (under GATT
Article XIX; the Agreement on Safeguards and the Agreement on Agri-
culture); or the health of its consumers (under the SPS Agreement). As
of today, however, what would be allowed as a unilateral measure to
protect a Member’s economic goals is not permitted when a Member’s
environmental interests are at stake.
Third, in addressing an environmental barrier to trade in goods, the
definition of ‘like product’ is of utmost importance: in order to estab-
lish that the barrier is a measure that disadvantages an imported product,
it must be shown that the ‘like’ (domestic or other imported) product is
not similarly disadvantaged. The current definition of ‘like product’ is
based on a narrow definition of ‘likeness’. The panels and Appellate
Body currently use a two-part analysis to determine whether products
are ‘like’ each other: whether there is a ‘commonality of end uses’ of

11
See, e.g., the new links installed by the WTO on its Internet home page (www.wto.org)
for the benefit of NGOs and the wider public, as well as various speeches by General
Director Renato Ruggiero on the issues of transparency and relations with civil society.
194 T. Cottier and K. N. Schefer

the two products, and whether the products have ‘essentially the same
physical characteristics’.12 This has two implications for trade and en-
vironment problems: first, the chemical or genetic composition of the
product at issue must differ from that of the domestic or other foreign
product in order for an environmental law to distinguish the treatment
given to the product at issue and remain WTO-compatible; and, sec-
ond, the environmental law may not distinguish between treatment of
‘like products’ based on the method of production of the product. The
WTO’s approach to the latter, the so-called process and production
methods or PPM problem, is to consider only the product itself as a
product, and to reject the use of trade barriers to protect a different
product. As we will see, however, the PPM issue has been downplayed
in the most recent Appellate Body decision in this area.
Finally, the structure of the commitments in the GATS makes the use
of environmental protection measures aimed at trade in services poten-
tially more valuable than does the exception in GATT for environmen-
tal barriers to trade in goods. Unlike in their goods sector obligations,
WTO Members may attach conditions to their liberalizing concessions
in the field of trade in services. These conditions, presumably, could
include requirements to meet environmental standards in the produc-
tion of the service as well as in the marketing or even in the consump-
tion of the service – whether in the Member’s territory or outside of it.

Categories of environmental barriers to trade and WTO dispute

settlement
There are several basic types of environmental law that might have an
impact on trade. Some have already been declared WTO-‘illegal’ by
the dispute settlement authorities at the WTO. These types of law are
considered further below. One should be aware however that the
trade–environment debate is both highly complex and under intense
12
Japan – Taxes on Alcoholic Beverages, WT/DS8/R, WT/DS10R, WT/DS11/R, para.
6.22 (14 February 1997). See also Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R at p. 23 (4 October 1996) (affirming the panel’s use of
end-use and physical characteristics in testing for ‘likeness’ analysis under Article III:2
GATT).
Conflict resolution: assessing the story so far 195

scrutiny. Therefore, these are certainly not the only possible WTO–
environment conflicts, and, as discussed above, there may be environ-
mentally friendly changes in the WTO’s attitude to such conflicts in the
not so distant future.

Import prohibitions
First, there are environmental laws that prohibit the importation of cer-
tain environmentally unfriendly goods or services in accordance with a
multilateral agreement regulating such trade. An example would be a
prohibition on the importation of a particular endangered species (or a
good produced from the parts of an endangered species) listed in An-
nex 1 of the Convention on International Trade in Endangered Species
(CITES). Although such a law would violate the GATT prohibition on
import restrictions,13 it would certainly be seen as a legitimate excep-
tion under the provisions of GATT Article XX. By virtue of the pres-
ence of the species on a multilaterally approved list such as the Annex
to CITES, the restriction would almost automatically be considered
‘necessary’ to protect human, animal or plant life or health’,14 or ‘relat-
ing to’ the conservation of an exhaustible natural resource.15 In addi-
tion, the chapeau of Article XX requiring that the measure not be a
discriminatory restriction or disguised protectionism would be similarly
fulfilled.
A modification of this example would be an environmental law that
restricts the importation of a product or service on the basis that that
product or service is environmentally unfriendly, but without regard to
a multilateral environmental agreement. Even if the Member also pro-
hibits the production of the product domestically, such a law is much
more likely to be found to violate a Member’s WTO obligations than
the first example. This is due to the emphasis given to the chapeau of
Article XX and the concept of multilateralism that has become domi-

13
See GATT Article XI.
14
GATT Article XX(b). Virtually the same exception is found in the General Agreement on
Trade in Services (GATS) Article XIV(b).
15
GATT Article XX(g). The GATS has no equivalent provision.
196 T. Cottier and K. N. Schefer

nant in the opinions of the panels and Appellate Body.16 In the absence
of formal multilateral agreements establishing near unanimity on what
constitutes an environmental problem, and on the ‘correct’ approach to
solving the problem, Members will face an uphill battle to get the WTO
to approve the implementation of its trade-restricting regulation.
If the law treats domestic producers and foreign producers differ-
ently, this is almost certain to be found to amount to a disguised restric-
tion on trade, and therefore to be incompatible with the Member’s WTO
obligations.17 Thus, a US Clean Air Act provision that omitted the pos-
sibility for foreign gas refiners to establish their own baselines was
found WTO-illegal despite the Appellate Body’s decision that the mea-
sure did relate to the conservation of a natural resource (clean air).18

16
The Appellate Body’s decision in the recent dispute regarding US regulations limiting
shrimp imports based on the injury to turtles from the fishing methods used finds the
measures an unexcused violation of US GATT obligations based on the chapeau of Article
XX. The Appellate Body found that the US unilateral imposition of a policy requiring the
use of particular fishing methods and the implementation of the law were arbitrary. United
States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, at
para. 184.
17
Although different treatment for like products may be permitted as long as conditions of
competition are not unequal, the difference in treatment raises the suspicion that it had the
aim of discriminating or disadvantaging one group of producers. See United States –
Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (20 May 1996),
at DD98A/20: ‘There is, or course, no textual basis for requiring identical treatment of
domestic and imported products, Indeed, where there is identity of treatment – constituting
real, not merely formal, equality of treatment – it is difficult to see how inconsistency with
Article 111:4 of GATT would have arisen in the first place. On the other hand, if no
restrictions on domestically produced like products are imposed at all, and all limitations are
placed upon imported products alone, the measure … would simply be naked discrimination
for protecting locally produced goods.’ See also EC Measures Concerning Meat and Meat
Products (Hormones), WT/DS26/AB/R, and WT/DS48/AB/R (16 January 1998), para.
240 (explaining that arbitrarily different sanitary and phytosanitary standards are violations
of the Agreement on the Application of Sanitary and Phytosanitary Measures if the
difference in fact discriminates between WTO Members or constitutes a disguised
restriction on trade).
18
United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/
R (20 May 1996).
Conflict resolution: assessing the story so far 197

Regulations on process and production methods

A second type of environmental law is one that targets products or ser-
vices that are categorized as environmentally unfriendly because they
are produced in such a way as to cause environmental damage. This is
the problem of process and production method (PPM) regulations. Here,
the WTO law seems to be softening from its absolute prohibition on such
regulations. The decision of the GATT panel in Mexico’s complaint
against the tuna import prohibition embodied the traditional rejection of
PPMs by the GATT.19 This case held that a regulation that prohibited
Mexican tuna imports on the basis that the Mexican fishermen’s meth-
ods for catching tuna simultaneously killed numerous members of an
endangered species of dolphins violated US GATT obligations.20 The
prohibited product (tuna), said the panel, was physically identical to
other allowed products; the only difference was in the production norms.
The measure at issue affected trade in tuna, not dolphins, so the excep-
tions found in GATT Article XX could not be legitimately invoked.
The PPM conflict arose again in the Shrimp/Turtle case.21 Again,
the complained-of regulation prohibited imports of the product (here,
shrimp) on the basis of the secondary effects of the production of the
product (killing of turtles).22 And again, the regulation was declared
illegal by a WTO panel. This panel’s emphasis, however, was on the
unilateral character of the action rather than on the separation of the
product and the process.23 The Appellate Body’s review of the panel’s
decision was similarly void of mention of the PPM problem, declaring
that, although the environmental protection law did relate to the con-
servation of an exhaustible natural resource, the application of the law
was unjustifiably and arbitrarily discriminatory.24
19
United States – Restrictions of Imports of Tuna, BISD 39th Supp., 155 (1992) (decision
of 16 August 1991).
20
Ibid.
21
See generally WT/DS58/R (fn. 12 above).
22
The regulation in dispute was US Public Law 101–162, section 609. See description of
the regulation in the Panel’s findings, WT/DS58/R at paras. 7.2–7.5.
23
WT/DS58/R, para. 7.40: ‘...[W]e do not suggest that import markets must exist as an
incentive for the destruction of natural resources. Rather, we address a particular situation
where a Member has taken unilateral measures which, by their nature, could put the
multilateral trading system at risk.’
24
WT/DS58/AB/R at para. 184.
198 T. Cottier and K. N. Schefer

It is not clear if the Shrimp/Turtle case signals a move towards ac-

knowledging the close link between environmental protection goals
and production standards, or if the PPM issue was simply avoided in
the context of this particular case.

Environmental subsidies
A third category of potential trade–environment conflict is that of a
WTO Member offering competitive advantages to environmentally
friendly products or services. Environmental subsidies – monies given
to a producer for using the presumably more expensive methods of
production in order to protect the environment – could theoretically
cause a distortion in the conditions of competition, as the products sub-
sidized are not physically different from non-subsidized products.25
Thus, a question arises as to whether the competitive advantage is war-
ranted. No such case has yet been addressed in the WTO, but if or
when one is, it will require renewed investigation into how to define a
‘like product’ (under the GATT) or a ‘like service supplier’ (under the
GATS) as well as an examination of whether the offsetting of the in-
creased costs of environmentally safe production methods through
subsidies is fair, recognizing that other producers to a very large ex-
tent are able to simply externalize their pollution costs.
Related to this issue, what if a Member used environmental stan-
dards – either positively or negatively – in its treatment of foreign in-
vestments or to prevent foreign service suppliers from establishing a
commercial presence in its territory? Although it would clearly go

25
There is a provision under the Subsidies Agreement that allows a Member State to offer
a one-time subsidy to an industry in order to assist the industry in complying with a new
environmental protection regulation. (Subsidy Agreement, Article 8.2(c)). The use of
subsidies, including environmental subsidies, under investigation is particularly important
for the service sectors. See GATS Article XV; Decision on Trade in Services and the
Environment, in WTO Secretariat, The Results of the Uruguay Round of Multilateral Trade
Negotiations: Legal Texts 457–458, Geneva, 1995. See also ‘WTO Completes Framework
for Environmental, Regional and R&D Subsidies’, WTO Focus, No. 32, p. 2 (July 1998)
(reporting that the WTO Committee for Subsidies and Countervailing Duties has
established rules to govern binding arbitration in the area of environmental, regional and
research and development subsidies).
Conflict resolution: assessing the story so far 199

against the ideas of the WTO for a Member to lower environmental

standards to attract investments, it is as yet unclear whether establish-
ment of a foreign firm could be made conditional (absent any reserva-
tions taken) on its abiding by particularly stringent environmental stan-
dards (even if the same standards have to be fulfilled by ‘like’ domestic
firms). The ability of a Member to make service-sector liberalizations
selectively and conditionally, however, would imply that such stan-
dards would be upheld as GATS-compatible.

Environmental safety standards

Finally, the category of conflicts that started with US and Canadian
complaints about the EC’s prohibition of imports of hormone-treated
beef deserves mention.26 This category is likely to increase as genetic
engineering becomes more common. Cases in this category are not all
purely ‘environmental’ (there are ethical and moral aspects in addition
to health concerns), but it does raise similar issues of how or whether to
acknowledge a Member’s right to impose higher standards than are
internationally accepted. Issues related to rules on biotechnology fall
into this category.
In this context, the US complaint against the EC’s prohibition on
imports of beef from cattle treated with growth hormones needs to be
mentioned, as it might signal a possible avenue for environmental pro-
tection within the WTO system. The Beef Hormones case was decided
not under the GATT, but instead under the rubric of the Agreement on
the Application of Sanitary and Phytosanitary Measures. The SPS
Agreement encourages harmonization of health standards worldwide
by providing preferential procedures to Members with a view to ensur-
ing that their domestic health regulations can withstand WTO scrutiny
even if they discriminate among products on the basis of their country
of origin. The Appellate Body’s approach to the SPS Agreement has
differed from its approach to the GATT. Although the European
Community’s restrictions on imports of hormone-treated beef were

EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R and

26

WT/DS48/AB/R (16 January 1998).

200 T. Cottier and K. N. Schefer

considered to violate their obligations,27 this was due to failures in the

risk assessment procedure that had been applied by the EC,28 rather
than to any violation of the conditions allowing a Member to impose
trade restrictions based on dangers to human, animal or plant health or
safety.29 Although the panel decision in Beef Hormones rested on the
principles of multilateral rules (as embodied in the Codex Alimentarius),
the Appellate Body gave much more deference to the Member’s deci-
sion to use trade restrictions in the area of sanitary and phytosanitary
measures than in ‘regular’ environmental areas. Overturning the panel’s
ruling that a Member’s regulation that establishes higher standards than
an existing international standard should be treated as an exception to
the general rules of the SPS Agreement, the Appellate Body held that
the establishment of [peculiar] levels of sanitary or phytosanitary pro-
tection is an autonomous right and not an ‘exception’ from a ‘general
obligation’ under Article 3.1.30 Such differences must be noted and
evaluated individually: one case cannot be the basis for talking about
jurisprudential trends, although it could be of future importance.31

27
Ibid. at para. 253 (l).
28
Ibid.
29
Ibid. at para. 253(h)
30
Ibid. at para. 172.
31
The Salmon case addressed a ‘typical’ use of sanitary measures rather than one relating
to biotechnology. See Australia – Measures Affecting Importation of Salmon, WT/DS18/R
(12 June 1998); WT/DS18/AB/R (20 October 1998). Here again, however, there seems to
be a more deferential attitude of the panel and Appellate Body to a Member’s use of trade
restrictions for health than there is under the GATT environmental exceptions. In Salmon,
the Appellate Body found that there was no risk assessment made by the Australian
government, as required by Article 5.1 of the SPS Agreement, and thus the import
prohibition on fresh, frozen or chilled salmon violated Article 5.1: WT/DS18/AB/R at para.
136. In analysing the compatibility of the import prohibition with Article 5.6 of the SPS
Agreement, the Appellate Body comes to no definite conclusions (owing to a lack of
sufficient fact-finding by the panel on this issue), but asserts that the Member itself may
determine the level of protection it desires. Consequently, the WTO review of the measures
used to achieve such a goal is limited to determining whether they are the least trade-
restrictive measures to achieve that level of protection: the level of protection itself is not to
be questioned. Even a zero-risk level is permissible. See WT/DS18/AB/R at paras. 193–213.
Conflict resolution: assessing the story so far 201

The future of trade and environment dispute settlement

In conclusion, the overall picture of where the WTO will stand one
year from now on the issue of environmental regulations that restrict
trade is still unclear, but the professed trend towards a more environ-
mentally friendly Organization has not – one hopes – yet neared its
apex.32 The Ministerial Declaration of 20 May 1998 committed Mem-
bers of the WTO to ‘continue to improve ... efforts towards the objec-
tives of sustained economic growth and sustainable development’.
However, until the dispute settlement system can internalize such com-
mitments, the words remain empty. This ‘internalization’ process must
begin with a deep conviction within the system of the need to balance
Members’ trade interests with non-trade interests. Recognizing the
legitimacy of environmental interests was a start, but simply voicing
this recognition is not enough: the next step should be to act on this
conviction by treating environmental interests as equal in the dispute
settlement system.
A balanced system also requires the WTO to release its adherence to
the principle of ‘pure multilateralism’. While one could well argue that
multilateral consensus on the need for a high level of environmental
protection (or an unwavering adherence to just wages and comfortable
working conditions) is an admirable goal, the reality is that the world is
far from achieving such an aim. Indeed, the WTO Members cannot
even agree on how to treat the much more quantifiable problem of
cartelization within an industry. Disallowing environmental protection
regulations merely on the basis of their being implemented unilaterally
quashes the ability of the most environmentally protective of WTO
Members to stimulate the addressing of a particular problem. Allowing
only those trade-hindering measures found in multilateral environmen-
tal agreements slows the movement towards the goal of a healthy eco-
system. It is entirely possible that the process of arriving at global con-
sensus could take decades – time enough for irreparable damage to

32
The future of the trade–environment discussion is evident through further WTO
instruments, namely the Decision on Trade and Environment and the Decision on Trade in
Services and the Environment. Formally organized discussions such as the one that took
place in mid-March 1998 also push the trade–environment agenda forward.
202 T. Cottier and K. N. Schefer

occur. The WTO needs to adopt a more differentiated stance in its

evaluation of unilateral trade barriers imposed to further environmental
goals.
Hope also lies in the more liberal attitude of the Appellate Body to
the Members’ use of the SPS Agreement and the potential for Members
to attach conditions to their liberalizations in trade in services. Never-
theless, attention to the workings of the WTO dispute settlement
process by those outside the WTO and pressure to force the dispute
settlement process to recognize non-trade interests as legitimate are
both necessary to the future of global environmental protection.
The Shrimp/Turtle dispute and the future
James Cameron

Introduction
This short paper addresses the ‘how’ of dispute settlement. What can
be done to change the way the dispute settlement system operates in
order better to accommodate environment and development issues? To
be even more precise, what kinds of environment and development
issues are currently not adequately accommodated in the dispute settle-
ment system?

The Shrimp/Turtle dispute

The substantive issues
First, some initial remarks about the substance of the Shrimp/Turtle dis-
pute. There are still questions to be resolved about the distinction be-
tween multilateral and unilateral measures, which the Shrimp/Turtle
case does not determine. The relationship between MEAs and the Mul-
tilateral Trading System is not settled, and we must put effort into that,
distinct from dispute resolution, before we make sense of precisely the
sort of constitutional issues that Professor Cottier’s paper raises. In-
deed, we have to put effort into that relationship before we can deal
with the proper integration of environmental policy into the various
international agreements we have on economic issues.
The Shrimp/Turtle case is, in my view, a significant step forward in
the debate on trade and environment. From a legal point of view, it is a
significant advance on previous jurisprudence and an enormous leap
in respect of the panel decision. It is still a bad decision for turtles.
However, as a matter of law it is more rational, more cogently argued,
and it is a sensible reference point for trade–environment disputes. The
Appellate Body went out of its way to say what it did not decide and
made a kind of plea for understanding. Much of that language will be
204 James Cameron

very useful for future cases. The way Article XX was interpreted is ac-
ceptable, although too much remains loaded onto the chapeau – and I
do not quite understand why the chapeau has anything particular to
say about MEAs.
The irony here is that for many years I have argued for a technical fix
in Article XX which would involve adding a reference to multilateral
environmental agreements in a sub-paragraph, possibly attached to an
Understanding which would explain why reference to the MEAs is rel-
evant and how it could be used to settle disputes – including, for ex-
ample, a definition of what a ‘multilateral environmental agreement’ is.
However, since WTO cases have loaded more responsibility onto the
chapeau of Article XX, we have now to pay attention to that line of
reasoning. It is not possible to solve the problem technically by adding
a new paragraph to Article XX which relates to MEAs. We need some-
thing that informs the interpretation of the chapeau as well. That might
argue for a separate set of negotiations related specifically to that ques-
tion. There is no simple way of curing the problem relating to MEAs by
an amendment of one of the sub-paragraphs of Article XX now that the
reasoning in Shrimp/Turtle is established.

The procedural issues

Another critical part of the Shrimp/Turtle decision is procedural, and it
relates to amicus curiae briefs.1 I do not want just to talk about amicus
briefs, but it is a very important step in a process for procedural reform
of WTO’s dispute settlement system. The Appellate Body has cleared
away opposition to a point that has been made for some years by
NGOs and independent experts about the opportunity for submitting
additional information to a panel process from outside non-govern-
mental sources. The Appellate Body has said that there is nothing in
the rules to prevent that. In their conclusions, they inverted a simple
sentence: there is nothing in the WTO’s Dispute Settlement Under-
1
Editors’ note: literally, ‘friend of the court’ briefs. These are briefs submitted by a
bystander, normally a lawyer, who informs an adjudicator on a point of law or fact on
which he or she is doubtful or mistaken (adapted from Mozley and Whiteley’s Law
Dictionary, Butterworths, London, 1977).
Conflict resolution: the Shrimp/Turtle dispute and the future 205

standing which prevents non-requested information from being put

into the process by non-governmental actors. In one sense, they have
simply stated the rules. Nothing very novel about that – but the way it
is put is very clear and encourages a positive response.
In this particular case, especially at the Appellate Body stage, the
additional information that was not requested by any government was
attached to the US arguments that were put into the Appellate Body. It
was physically attached, but not attached in terms of argument. The
United States did not say it adopted these views; it simply said, ‘We
think you ought to hear them.’ So the consequence is removal of an
impediment to putting in information, information that is in fact more
in the nature of a legal argument than simply factual information; then an
accepted route emerges for attaching that information to a government,
with that government being able to distance itself from the substance of
the arguments but to endorse the opportunity to put information into the
process. By the Appellate Body stage, the ‘information’ is really only
legal argument. So that is a route that people can use now, provided
they can get a government to do what the US government did in the
Shrimp/Turtle case. The US government has said that it will be open to
doing this in the future, but that it will of course maintain the discretion
not to do it if it does not want to, which is an important qualification.
Therefore, the UK government could do the same, or any other gov-
ernment could say, ‘All right, come and stick your amicus curiae brief
on the edge of our submissions, and we will make sure that the Appel-
late Body understands that it is not our argument but we think they
ought to hear it.’
A word of warning for the NGO community, especially for the envi-
ronment/development NGO community. I would not like to draft a rule
that says ‘only nice NGOs can put information in, and not wicked busi-
ness associations’. So this opens up a route for other non-state actors to
contribute their views independently of government, which the gov-
ernment can address in precisely the same way. If the government does
not like what is there or considers it irrelevant, it does not have to at-
tach it.
There are clearly risks here, because this puts a great deal of power
in the hands of the private sector, power that could be mobilized to
206 James Cameron

make sure that additional arguments could be put in which would be

persuasive and reflect private-sector interests. On the other hand, I be-
lieve there is some value in a distinction being made between what is an
avowedly private interest and the public policy expression of a govern-
ment. So there will be occasions when the government quite likes the
idea of being able to separate its view from that of the private sector. It
might give governments a little more space to balance other competing
public policy objectives, including those related to the environment.
That raises the question: what if what is in your ‘information’ (I keep
using that general phrase, because that is one that has been accepted
by the Appellate Body, but it is really something more precise than
that) is not what a government wants to hear and is really a counter-
argument? In the US situation, although the information contained dif-
ferent arguments, they were broadly arguments supportive of the US
position, connected to it in some other way and making other points
but certainly not on the other side of the case. The Appellate Body has
made no ruling on that, and it has not said that there is any other formal
route created which will enable submission of an amicus brief that is
not accepted by a government. However, neither has it been ruled out,
and the Appellate Body has certainly not taken away this option. The
way I interpret this is as an invitation to governments who are inter-
ested in, and want, reform to supply an additional procedure to say
‘OK, here is what we could accept’.

The future of conflict resolution in the WTO

What might an additional procedure look like? The first point is that
there are real and genuine fears about the process being overwhelmed
with lots of amicus curiae briefs flowing in. I believe those fears are
exaggerated. The whole world is not terribly interested in sending in
amicus curiae briefs, and the NGO community is perfectly capable of
organizing itself to submit fewer documents and deciding who is going
to do what – generally controlling the flow, in other words. However,
one must recognize these fears and be alive to them.
I would argue for rather strict rules for sending in these pieces of ‘in-
formation’. They need to be limited in length, for example. At panel
Conflict resolution: the Shrimp/Turtle dispute and the future 207

stage it is fair enough to put in facts that are of relevance, but at the
Appellate Body stage only legal arguments should be permitted. In
addition, there is a value in creating what in the UK we call ‘your day
in court’. People who are involved with disputes really want to say to
someone what it is that makes them angry. They want a platform to
say: ‘This is my view; you have to listen to it.’ I would be in favour of
creating within the panel process – and also within the Appellate Body
process, for an even shorter period of time – a ‘day in court’, an oppor-
tunity for NGOs or indeed business associations to come along and
present their arguments very briefly – if you cannot make your main
point in 15 minutes, you are not really worth listening to. The US Su-
preme Court has very tight time limits; the House of Lords in the UK
has very tight time limits. So you have an opportunity to come and
make your point, but it is a limited-time opportunity and you organize
your public relations and your media coverage around the debate and
get some publicity for it. The panel is informed, it comes to understand
this weird counter-view that it has never really been confronted with
face-to-face, but at a certain point that is it – your time is up; the pro-
ceedings continue.
There are some other changes that also need to be made in order to
make the process more open and accountable generally, but with par-
ticular benefit to environment and development organizations.
First, panel and Appellate Body reports are far too long. It is just not
sensible to be sending out 400-page reports to people around the world,
even if you can get them on the Internet – in itself a very significant in-
novation in opening up access to information, and one which the NGO
community pushed for and achieved. We have to stop governments
requiring that all of their arguments be repeated faithfully in the deci-
sions of both the panel and the Appellate Body. It is simply not neces-
sary. If governments want you to know what they have said, then they
should publish it, making their arguments public as documents as soon
as they feel it is appropriate, and allowing panels and the Appellate
Body to make summaries.
I would like to see the system evolve to a point where judgments are
really nice, crisp, and written in plain English, so that people can un-
derstand why a technical trade rule that has been applied, and that af-
208 James Cameron

fects a public policy issue, concerns them. That discipline is important

if accountability, acceptability, credibility – all these words we work
with – are to be the result. So, cut down the length, make the docu-
ments public, and allow panels to make succinct decisions and judg-
ments that are clear and can be summarized. Conclusions sections in
panel reports are very clear – but there can be 400 pages of unneces-
sary text leading up to them.
Second, it is important also that there is some way of narrowing the
gap between how the Appellate Body reasons and how panels reason.
Shrimp/Turtle is astonishing. How do you explain to an outsider that
the same institution can come to such widely different views about the
same rules?
In the European Community we have a function that we give to
someone called the ‘Advocate General’. The function is to maintain
consistency in legal reasoning case by case, and to provide a way
whereby panels of judges, which change over time, can receive a regu-
lar message about what the law is. It is an opinion that is published and
is therefore useful for scholarship, for research for future legal cases. It
does not bind the panel or the judge at all but it is relevant. I believe we
need something like that for the WTO. So as not to mimic it, I would
call it a ‘Counsel to the Panel’. A Counsel to the Panel would offer
some way of guiding the interpretation of the rules to make them more
consistent. A Counsel to the Panel could also be more accessible to
other, external, legal arguments, for example by going out and taking
part in conferences and meetings, listening and picking up the views
and passing them on to inform the panel.
I suggest, therefore, that these sorts of institutional reform would be
of benefit to the system as a whole and of particular benefit to those
who represent business, environment and development questions, be-
cause they would enable them to become users of the system. If you
use a system, you can infuse it with your beliefs, attitudes and points of
view, and you feel more as if it represents you. That is really the enter-
prise we should be embarking upon.
 Part IV
Environmental regulation and international investment
The Role of Foreign Direct Investment

The case of India

Veena Jha

Introduction
During the 1990s, foreign direct investment (FDI) has come to play an
increasingly important role in providing India with sources of long-
term capital. Increasing levels of FDI also holds the promise of pro-
moting sustainable development in so far as it encourages the transfer
and harmonization of environmentally friendly technologies and prac-
tices across borders. In India it is not clear whether FDI and its associ-
ated transnational corporations (TNCs) have contributed sufficient
leadership in fulfilling local and global environmental targets.
In India, the principal emerging issues with respect to international
investment and the need for sustainable development focus first and
foremost on the incorporation of a large number of sectors and regions
that have not so far benefited from FDI; second, on fostering the posi-
tive role that TNCs could play in conjunction with national govern-
ments in achieving environmental goals; and, third, on ensuring that
the competition between states for FDI should not induce a race-to-the-
bottom approach. The national and state governments will increas-
ingly have to consider and weigh policies with a view to encouraging
and fostering healthy competition and avoiding policies that seek to
attract capital on the basis of lowest-common-denominator variables in
terms of health and environmental standards.
The role of FDI in the Indian economy has varied over time, largely
as a response to the changing perception and policies of the Indian
government. Of late, the increasing and important role of FDI has been
recognized by most political parties, both as a source of finance and,
more importantly, as a source of top-of-the-line technologies. While
there has been a move towards greater liberalization of FDI across the
212 Veena Jha

board, certain priority sectors such as infrastructure have been especially

identified for investment promotion activities.
FDI has been increasing steadily during the 1990s, but, by compari-
son with other Asian countries, FDI levels in India are low. In fact, FDI
accounts for no more than two per cent of the total investment annu-
ally. Recognizing the important role that FDI can play in supplement-
ing domestic savings to achieve the targeted growth rates of GDP, the
government has set an ambitious annual target of US$10 billion for
FDI inflows by the end of this century.1 A number of policies, such as
tax breaks, permitting FDI in sectors that were earlier reserved for do-
mestic investors, increasing the limits of equity participation, reducing
tariffs, etc., have been put in place. It is also hoped that, with declining
investment opportunities in a number of Asian countries, some of that
investment may be diverted to India.
Simultaneously with growing FDI, concerns for pollution associated
with rapid industrialization have increased. An interesting dilemma
emerges in the Indian context, out of the twin objectives of attracting
investment and protecting the environment. While environmental laws
and regulations do not discriminate between foreign and domestic in-
vestors, pragmatic considerations arising from capital shortages and
technological needs may de facto result in a more favourable treatment
being granted to the foreign investor. Whether this results in tax breaks
or indirect subsidies or easier environmental clearance procedures re-
mains an open and largely empirical question. Another important
question is whether some environmental safeguards may be needed in
view of India’s emphasis on promoting large-scale projects in sectors
such as mining and power, a number of which are intensive in the use
of environmental resources.
To the extent that there is a trade-off between better environmental
performance and more FDI, it is important to resolve this trade-off to
make the two goals mutually reinforcing. There may however also be a
number of cases where FDI can be environmentally benign or may
1
Considering that average annual inflows in the post-economic reform period have
averaged at US$2.5 billion, apart from 1997–8 when it was estimated at US$4.1 billion, this
appears to be an ambitious target indeed. See Secretariat for Industrial Assistance (SIA)
newsletters, Delhi, various issues.
The role of FDI: the case of India 213

actually promote better environmental management. It is important to

reinforce these synergies through appropriate government policies. If
the state is better administered, then implementation of environmental
norms and standards may be better, though this is not necessarily the
case. The ‘dirty industry’ migration hypothesis would suggest that
states with a lower record of implementation of environmental stan-
dards would therefore attract the highest levels of FDI. This theory,
however, is not vindicated by actual inflows of FDI to various states.
The states that are best administered, and therefore have better track
records of implementation of environmental legislation, appear to at-
tract the highest levels of FDI.

Environmental issues, foreign investors and host countries

It is difficult to generalize on the environmental behaviour of the
TNCs. Several factors are relevant and while macroeconomic studies
reflect the absence of significant ‘dirty industry’ migration, they do not
take account of the projects that have been shelved on account of en-
vironmental considerations. While it is difficult to get an estimate of
TNCs that are environmental defaulters, or to estimate whether their
environmental performance is better or worse than comparable local
firms, an analysis of some specific examples will help clarify the ra-
tionale behind the environmental behaviour of specific TNCs in spe-
cific activities. Both positive and negative examples are considered
below.

Environmental concerns
A number of environmental concerns have been voiced about the op-
erations of TNCs in India. NGOs believe that, given the high fiscal
deficit as a proportion of total GNP, the national government would be
reluctant to control the operations of TNCs, thus leading to ecological
disasters. The dominance of TNCs in environmentally harmful sectors
is also a matter of concern, as this could mean that a large proportion of
TNC investment in India would necessarily focus on these environ-
mentally sensitive sectors.
214 Veena Jha

Indian NGOs have also expressed concern about the depletion and
excessive use of India’s genetic resources by TNCs. As TNCs control
much of the world’s genetic seed stocks as well as financing the bulk
of biotechnology research worldwide, they can reap large financial re-
wards from patenting life forms in India.
Other concerns voiced by various stakeholders relate to resource
depletion caused by the scale of operation of TNCs, e.g. deep sea fish-
ing, and the transfer of environmentally harmful technologies and prod-
ucts. Still others that have recently come to the fore in the Indian context
relate to the implementation of multilateral environmental agreements
(MEAs). Some commentators have claimed that, though TNCs have
access to the right technologies, MEAs may be conferring double ad-
vantages by providing them with a captive market and monopoly
prices accruing from the use of patented technologies.2

Highly publicized incidents involving TNCs. The most publicized envi-

ronmental disaster involved Union Carbide in the Bhopal gas disaster. A
leakage of a toxic gas from the plant killed thousands and injured as
many. It also polluted the water and the soil and caused cancer in a num-
ber of victims. The efforts of the Indian government to bring criminal
charges against Carbide’s top officials were frustrated. When the govern-
ment of India, representing Bhopal victims, tried to bring this case to the
US courts, the judge ruled that the case should be transferred to Indian
courts on the grounds of the doctrine of forum non conveniens, i.e. the
legal doctrine that lawsuits brought in by non-US plaintiffs can be dis-
missed if it is too inconvenient or improper to try the case in the United
States. This doctrine, according to some, gives TNCs strong protection
from having to account financially for the damages that they cause out-
side their home country.3 To challenge this judgment, a counter-doctrine
on ‘multilateral enterprise liability’, which emphasizes that the parent
company has control over its subsidiaries and should have controlled the
subsidiaries’ affairs, was invoked but was not accepted by the court. The
2
See J. Watal, ‘Technology Transfer in the Context of the Montreal Protocol’, paper
prepared for the UNEP-UNCTAD Project on the Use of Trade and Positive Measures
under MEAs (1997).
3
See R. Hager, Bhopal: Courting Disaster, Covert Action, Summer 1995.
The role of FDI: the case of India 215

Box 2: Would Du Pont endanger the environment?

• It was feared that Goa would be used as a dumping ground for the hazardous chemicals
produced by the proposed plant. These fears were rejected as baseless by the companies
on the grounds that both the Central Pollution Control Board and the State Pollution
Control Board had granted them ‘no objection’ certificates. It was also claimed that Du
Pont had been running this type of plant in several locations worldwide and all were well
within the specified toxic limits.
• Critics argued that Du Pont was bringing in an outdated product, since users all over the
world had switched to ‘kevalar’ which was considered technically superior nylon to 6,6.
Du Pont’s defence to this was that the superior product would cost more, and in any
case nylon 6,6 was superior to nylon 6, which was being widely used in India.
• It was believed that outdated machinery was being brought in by Du Pont from its Rich-
mond, Virginia, plant and that it could endanger the workers at the plant in addition to
increasing the possibility of causing environmental damage. Du Pont’s counter-claim sug-
gested that only a few machines, not exceeding 5 per cent of the total cost, were being
brought from Richmond, and that the rest of the plant would be new.
• No site appraisal or environmental impact or disaster management plan for the project
was carried out. Moreover, raw materials like hexamethylene diamine and adipic acid were
considered to be hazardous and were classified as hazardous health substances by US
health authorities and in both cases extensive care and protection was demanded in their
use. Du Pont claimed that in the United States adipic acid was used to make candy and
that the economic benefits of the project would be substantial.
• Concerns regarding disposal and handling of wastes, which would be contracted out,
were also raised. Du Pont issued a counter-assurance that the contractors would be
trained and that, as it had the technology to ensure their safe disposal, it could assure the
citizens that wastes would be disposed safely.

case was shifted to Indian courts where, according to some, a settlement

about a sixth the size of the original claim was made.4
Another highly publicized case which was more successfully re-
solved involved the US-based chemical giant Du Pont and its joint ven-
ture partner Thapar (see Box 2). This joint venture in the mid-1980s
applied for permission to build a factory for producing nylon 6,6, a
synthetic cord used in tyres. For this purpose they proposed to erect
their plant in a remote village in Goa. With a projected investment of
US$200 million, this was supposed to become the world’s largest pro-
ducer of nylon 6,6. The project was opposed by citizens’ groups, and
later an Expert Committee which was appointed to look into the safety

4
I. Jaising, ‘Legal Let-Down’, in T.R. Chouhan et al., Bhopal: The Inside Story, Apex
Press, NY, and the Other India Press, Goa, India, 1994.
216 Veena Jha

aspects of the project rejected it on several grounds. In addition to en-

vironmental objections, several other claims regarding the economic
benefits of the project were made. It was claimed that the employment
generated by the plant would not be comparable to several smaller
units with the same overall capacity, and that the benefits being offered
by the government in terms of land at near zero cost and infrastructure,
i.e. roads, were considered excessive and disproportionate to the eco-
nomic benefits that would be generated by the project.
Protests against the plant were voiced by environmental groups as
early as 1988 and began to arouse concern among local communities
located near the project. In response to rising public enquiry, Goa’s
Legislative Assembly created a House Committee to examine the ny-
lon 6,6 project. The Committee instituted a series of public hearings.
After interviewing Du Pont employees as well as many people and or-
ganizations in Goa, in late 1990 the Committee recommended, on both
environmental and social grounds, that the project be shelved. The
Goan state government refused to abide by the Committee’s findings,
but these findings helped to galvanize public opinion, and three gov-
erning councils of villages near the plant passed resolutions against the
project. During the following two years several campaigns were held,
but Du Pont started construction of the plant in September 1994. At the
actual construction site, there was a large rally by citizens in which
they pledged to tear down the boundary wall and equipment. There
was a wide-scale boycott of those people involved in the project, with
shops and hotels refusing to service them. Several anti-nylon protestors
were arrested and one activist died during a campaign. This marked a
turnaround in Du Pont’s attitude. In June Du Pont announced that it
would be shifting its plant to another state, Tamil Nadu.5
The shifting of the 6,6 nylon plant from Goa to Tamil Nadu could be
indicative of two factors: (a) the environmental absorptive capacity of
Tamil Nadu may be higher than that of Goa; (b) economic consider-
ations in Tamil Nadu may have been given priority over environmental
considerations.
5
See J. Greer and K. Singh, TNCs and India, Public Interest Research Group/Shahdara,
Delhi, 1996; also see M. Cabral e Sa, ‘Thapar-Du Pont: Troubled Times’, in Business and
Finance, 31 January 1991.
The role of FDI: the case of India 217

Another case that has been publicized in the media concerns the
transfer of a hazardous technology which is banned for domestic use
in Norway. The controversial technology was a membrane cell plant
whose operations were shut down in Norway in 1992, under pres-
sure from environmental groups against the use of chlorine in pulp
bleaching. Norway has a national policy which targets organochlorine
chemicals and includes a provision that the technology in question be
reduced and ultimately eliminated. In addition, its international com-
mitments for the reduction and elimination of harmful chemicals, such
as the North Sea Ministerial Declarations of 1987 and 1990, should
have put natural restraints on the transfer of environmentally harmful
technologies. In a counter-claim, however, the Norwegian firm claimed
that the technology being sold to India was not the outdated variety,
and the intermediary (another multinational) through which the deal
had been effected claimed that it had not brokered the deal.6
Other cases that have been brought up by the media concern distilleries
for making alcohol. A number of these companies are foreign-owned,
and considerable scepticism has been expressed over claims by a distill-
ery called Kedia Castle Dellon that a distillery could be a ‘zero-pollution’
plant. A plan submitted by the company to the State Pollution Control
Board in Rajasthan claims that about 1,800 cubic metres of spent wash
from the distillery would be processed daily to produce cattle feed. About
90–95 per cent of the wash would be evaporated, leading to the claim that
effluents and waste water would not be let out onto neighbouring agricul-
tural land. Citizens’ groups have, however, raised questions as to how
much energy would be required to evaporate such large quantities of wa-
ter and where the spent wash would go in case of a shutdown of this
cattle-feed plant. They object to the granting of a ‘no objection’ certificate
without a proper environmental impact assessment. Apart from the
possible pollution by this plant, local residents are also worried about
possible groundwater depletion by water-guzzling distilleries.7
In another case, an Expert Panel held Century Rayon responsible for
11 deaths from the inhalation of toxic gases emanating from the re-

6
See P. Seema, ‘Norway Ships Banned Technology to India’, Telegraph, 1 April 1995.
7
A. Krishna, ‘Is Zero-pollution Distillery Really Possible?’, IED, 20 May 1995.
218 Veena Jha

lease of untreated spin bath solution in an open sewage canal. The

Panel suggested that all major hazardous industries should systemati-
cally identify the processes used for treating and storing hazardous
chemicals, and factories should carry out a consequence analysis in
cases where effluents include chemicals beyond threshold safety lev-
els. This would help prevent disasters.8

Political views on environmental responsibilities of TNCs There are

several divergent views on the impact of FDI on environment and de-
velopment. Some, notably NGOs, contend that, in a rush to attract for-
eign investment, environmental regulations are now being violated.9
Many TNCS which produce products that are hazardous to human
health and the environment have been given permission to establish
operations in India, including Dow, Atochem, Kumaia Chemicals Lim-
ited and Mitsubishi. It is claimed that these companies, faced with
shrinking international markets on account of environmental concerns,
are setting up plants in India to boost their share in the Indian agro-
chemicals market.10
Many foreign investment projects that have been approved for aug-
menting foreign exchange earnings, such as fisheries, aquaculture and
agribusiness operations, have not been found to be environmentally
benign. Foreign companies involved in deep sea fishing and fish pro-
cessing have been accused of overfishing, leading to a loss of tradi-
tional fishermen’s livelihood as well as a loss of domestic markets and
a depletion of marine resources. According to the National Fish Work-
ers Forum, 100 per cent export-oriented joint ventures are likely to
deprive nearly 300 million Indian consumers of fish, as well as dis-
placing 7.5 million fisherfolk.11
Foreign corporations involved in shrimp and prawn production in-
cluding aquaculture have been accused of ignoring the long-term con-
8
See ‘Toxic Waste: Action Against Century Rayon Sought’, Hindustan Times, 13 April
1995.
9
See Greer and Singh, TNCs and India.
10
See J. Karliner, ‘The Bhopal Tragedy: Ten Years After’, The Global Pesticide
Campaigner, December 1994.
11
See T. Kocherr, ‘Campaign against Joint Ventures’, The State of India’s Economy 1994–
95, 1995.
The role of FDI: the case of India 219

sequences on the people and the environment. It is claimed by a num-

ber of environmental groups that the state and the central government,
in their desire to earn foreign exchange, have ignored the impact of
shrimp farming on agricultural land. In just ten years, land used for
shrimp farming becomes barren and unproductive; in addition, shrimp
farming leads to degradation of coastal mangrove swamps and water
pollution.
It is also claimed by environmental NGOs that, further to the liberal-
ization of investment and trade in 1991, concessions on taxes and cus-
toms duties have created a boom in the chemicals industry in India.
Those same concessions may also have encouraged toxic waste dump-
ing and migration of polluting and hazardous technologies to India.
Plants are being set up without proper environmental clearances from
pollution control authorities and NGOs have expressed serious con-
cern about the health and safety of workers living near such plants.
They view the Bhopal gas tragedy as an example of a TNC walking
away from its environmental responsibilities.
The ‘liberalizers’ argue that TNCs provide enormous financial re-
sources for investment in India, and thus are likely to be more careful
of the environment than comparable local firms. In addition, the top-
of-the-line technologies available to them, their access to distribution
and marketing networks and their export intensities furnish a number
of intangible assets which could be directed towards environmental
improvements. Their considerable expertise in facets of product devel-
opment, using brand names for marketing, advertising and R&D, can
also be used to enhance their environmental performance. This same
expertise would also expose them to a lot of criticism should they re-
nege from their environmental obligations. The liberalizers further ar-
gue that in India protection levels are still excessively high, and thus
the country is unable to reap the full benefits, including environmental
benefits, of FDI. They therefore advocate further liberalization as an
effective mechanism for enforcing standards, including environmental
ones, both on national companies and on TNCs.12
12
See Sengupta, A. Banik and R. Karthuria, FDI Inflows to India in the Post Reform
Period: An Analysis of the Structural and Policy Impediments, Occasional Paper no. 3,
International Management Institute Research Paper Series, 1996.
220 Veena Jha

There are several differences in the perceptions of different states

regarding the problems associated with foreign investment. Their per-
spectives are also coloured by their ability to influence FDI as well as
their ability to attract FDI. Sometimes these perspectives have been at
variance with the central government, as was exemplified by the case
of Enron in Maharastra.
It is also interesting to note that, while the nylon 6,6 plant was shelved
in Goa, negotiations on establishing it in another state, i.e. Tamil Nadu,
were immediately undertaken. That states may enter into some kind of
competitive deregulation in order to attract FDI, though not impos-
sible, is however unlikely. This is because FDI flows into states that
have better infrastructures and markets. Generally speaking, there is a
positive correlation between better infrastructure and better gover-
nance, with the result that implementation of environmental laws and
norms are also better in states with better infrastructure.

Positive environmental contributions by TNCs

While the preceding section has highlighted several examples of TNCs
wilfully flouting environmental regulations and Acts, there are equally
a number of examples where TNCs have had a positive effect on the
environment. The most striking examples are the activities of TNCs in
environmental services such as the provision of solar power, waste
management consultancies and water cleaning projects. TNCs have
also been active in testing and certification, including certification for
environmental management.
An opposing view however holds that TNCs have introduced many
dynamic changes in the Indian economy. The example of Maruti Udyog,
which is a collaboration with Suzuki, is often cited as an important ex-
ample. Maruti cars were the first to use catalytic converters and un-
leaded fuel. Today a number of newer vehicles on the road are de-
signed to use unleaded fuel. In the auto-components sector as well,
strict quality controls and close cooperation with vendors have changed
the market’s perception of design and quality and revolutionized the
components industry through a philosophy of vendor upgrading. Maruti
actively nurtured some critical component industries by establishing 11
The role of FDI: the case of India 221

joint venture companies for auto parts to help push quality and produc-
tivity concerns upstream. It has also pushed up the levels of fuel effi-
ciency so that competing cars are forced to adhere to higher fuel effi-
ciency standards.

Building environmental infrastructures. TNCs are becoming active

in the generation of alternative and renewable energy sources. TNCs
such as Amoco and Enron are in the process of creating a large solar
photovoltaic power project. Another California-based company called
Optimum Power International is in the process of generating wind
power from the breezy high-altitude locations in Kerala. Agreements
to supply electricity from these units to state governments at economic
and fixed prices are also being negotiated. Some of these projects are
being assisted by funding from the World Bank, the Asian Develop-
ment Bank and national aid agencies such as DANIDA. It is envisaged
that some of the power stations will also test equipment used in wind
turbines, will train personnel in the wind energy sector and will pro-
vide an information centre on better and alternative sources of energy,
including building a library.13
A number of Canadian and American TNCs are currently entering
into joint ventures in the area of waste management in India. These
companies are in the process of negotiating the provision of such ser-
vices to local municipalities.
Some TNCs such as Philips are also providing training to local com-
panies to implement ISO 14000 standards on environmental manage-
ment systems (EMSs); 32 companies in India have obtained accredita-
tion under ISO 14000 standards, of which a significant number are
Indian companies. Some testing and accreditation bodies that are
transnational in nature, e.g. the SGS, are also collaborating with the
national standardization bodies, such as the Bureau of Indian Stan-
dards, to build the infrastructure required to implement ISO 14000
standards on a wider scale.
The Indo-German Board of Trade has also set up several testing
agencies to test for toxic chemicals (such as pentachlorophenol) in

13
See ‘MNCs to Enter Alternative Energy Sector’, Economic Times, 15 April 1995.
222 Veena Jha

products such as leather and textiles. These testing agencies are either
set up by multinationals or funded by them. Multinationals have also
taken the lead in manufacturing environmentally friendly substitutes to
azo dyes and for providing testing facilities for them. Most of these
substitutes and testing facilities, however, can be utilized only by large
firms as they are too expensive for small and medium-sized enterprises
which comprise about 70 per cent of the textile industry in India.14
In response to a ban on the use of azo dyes in Germany, several large
firms including TNCs carried out a detailed analysis of the chemical
components of the dyes used by them in order to judge their eco-
friendliness and to gauge the extent to which they were required to
find substitutes. Once this was established, they were able to persuade
the dyestuff manufacturers, also dominated by TNCs, to switch to en-
vironmentally friendly substitutes. In fact, within a year TNCs and
other Indian large firms had switched to environmentally friendly alter-
native dyestuffs.15
In both the leather and textiles sector, some TNCs have not only set
up common effluent treatment plants (CETs), but have also provided
consultancy services to local companies to set up CETs. These services
are beyond the economic capacity of the small and medium-sized en-
terprises that dominate production in both these sectors. In the leather
sector, however, environmental infrastructure is better established
locally than in the textiles sector. While testing for environment friend-
liness of products is carried out both by TNCs and by government-
sponsored agencies, often the waiting time for the latter is much longer
than that for the former, perhaps because of the much higher prices
charged by TNCs.16
Another example is that of NOCIL, an agro-chemical-producing
TNC which installed on environmental infrastructure following notifi-
cation by the Central Pollution Control Board that its environmental
standards did not meet the requirements. This firm has taken care to

14
See S. Das, The Differential Impacts of Environmental Policies on Small and Large
Enterprises in India – with special reference to the Textile and Clothing and Leather and
Footwear Sectors, report prepared for UNCTAD under project INT/92/A58 1996.
15
Ibid.
16
Ibid.
The role of FDI: the case of India 223

ensure that spills and wastes are minimized, as well as putting up R&D
efforts to overcome problems identified in maintaining and operating a
common effluent treatment plant. The company has established a well-
defined system for environmental management under the managing
director. The set-up is designed to emphasize a self-regulatory mecha-
nism. Following these changes the Central Pollution Control Board
gave its consent for its operation.17 Cooperating with authorities on the
setting of high environmental standards TNCs have had a much more
decisive influence in setting voluntary standards than mandatory envi-
ronmental standards. Examples of TNCs acting in collaboration with
national authorities are to be observed particularly in dyestuffs and in
refrigeration in India. Both these industries are dominated by TNCs.
In the dyestuff sector there are no statutory eco-standards. However,
European manufacturers of dyes and organic pigments have voluntar-
ily formed the Ecological and Technological Toxicological Associa-
tion of Dyes and Organic Pigments Manufacturers (ETAD), which
recommends certain standards for handling, packaging and labelling
dyestuffs. Although ETAD is a voluntary organization and does not
have the authority to enforce compliance, it is compulsory for all
ETAD members to adhere to ETAD’s guidelines and standards. It is
nevertheless believed that TNC affiliates of ETAD have been active in
getting governments to ban several benzidine-based dyestuffs that are
known to be carcinogenic. In India, too, it is believed that the members
of ETAD have cooperated actively with the Bureau of Indian Stan-
dards in obtaining this ban.18
In the pharmaceutical sector, a TNC called Biocon India adheres to
the detailed specification for eco-friendly pharmaceuticals laid down
by both the United States and the United Kingdom, and latterly these
specifications have been adopted by the Bureau of Indian Standards.
Guidelines on packaging and the use of the ‘recyclable’ symbol as well

17
See ‘Environmental Audit of NOCIL Agrochemicals conducted by the Central Pollution
Control Board’, Programme Objective Series, Probes/49/1992–3.
18
See V. Bharucha, ‘The Impact of Environmental Regulations and Standards set in
Foreign Markets on India’s Exports’, in V. Jha et al. (eds), Trade, Environment and
Sustainable Development: A South Asian Perspective, Macmillan Press, New York and
Basingstoke, 1997.
224 Veena Jha

as environmental information on products initially begun by TNCs are

now widely used for several products. Standards on food exports, par-
ticularly marine products, earlier adhered to by Japanese TNCs are
now also being followed by local firms. In all these cases, however, a
clear economic advantage, in terms of either brand image, premium in
export markets or better recognition, is seen to be the driving force
behind local firms adopting higher standards. These higher standards
may or may not translate into norms advocated by the Bureau of In-
dian Standards.
In the refrigeration sector, a TNC collaboration established under the
Indo-Swiss Collaboration in Ecological Domestic Refrigeration and
the German government is investigating options for producing eco-
logical refrigerators. It is hoped that the standards set by these refrig-
erators will not only address concerns of ozone depletion under the
Montreal Protocol, but will also address concerns of climate change.
The project is being jointly set up by the governments of the respective
countries, TNCs and research institutes. To gain experience in operat-
ing under Indian conditions, pilot projects are being established at re-
frigeration factories of Godrej and Voltas. These pilot plants will be
certified by the Technical Safety Inspectorate for Energy and Environ-
ment, located in Germany.

Affecting the adoption of EMSs in the local industry Technological

upgrades in both the textiles and leather sectors contribute signifi-
cantly to their better environmental performance. While large compa-
nies have been able to form joint ventures and access superior eco-
friendly technologies and management systems, smaller firms are
unable to do so. Even if the collaborating company is a relatively small
TNC, they seek the larger and better established Indian company as a
partner. Thus, the dissemination of better technology and environmen-
tally friendly products in these sectors has been limited to the large-
scale segment of the producers.19
TNCs have been particularly active in helping firms set up EMSs in
order to comply with the ISO 14001 group of standards. Four TNCs

19
See Das, Differential Impacts.
The role of FDI: the case of India 225

have virtually dominated the market for certifying that firms comply
with ISO 14001. Nearly 32 firms have obtained ISO 14001 certificates,
of which most are local firms. TNCs that were earlier involved in pre-
shipment inspections are now also certifying Indian firms against ISO
14001 standards. They also provide training and have organized vari-
ous seminars to promote the adoption of these standards by firms.
In addition, TNCs have required their suppliers, subcontractors and
vendors to adhere to ISO 14001. Auditing and other forms of training
are also provided by these TNCs. However, the rates charged by these
firms are approximately double those charged by the Bureau of Indian
Standards in granting ISO 14001 certification. The Bureau of Indian
Standards has so far certified only one firm versus the 30 odd certified
by TNCs. This difference can be attributed to several factors, including
the late entry of the Bureau of Indian Standards onto the certification
scene, the aggressive marketing strategies of the TNCs, and perhaps
the wider acceptability of TNC certification by buyers down the supply
chain.20

India’s stance in international debates on TNCs and environment

In the debate on MAI and the WTO discussion group on a Multilateral
Framework on Investment (MFI), India has pointed to certain inequi-
ties between investor and host-country obligations. Discussions at the
OECD on the MAI and environment have placed the entire burden on
the host country by insisting that binding language on not lowering
environmental standards be included in the text on MAI. A proposal
was also floated to include common minimum standards of environ-
mental protection in the host countries. However, this proposal was
opposed by some OECD countries themselves on the grounds that the
higher environmental standards of the more advanced countries would
be uneconomic for others. In India’s view, such macro policies will
serve no purpose as individual investment contracts are negotiated on
the basis of several factors among which environmental performance
is one of the less important. India would prefer to legislate in a way in

20
Information provided by the Bureau of Indian Standards.
226 Veena Jha

which there is a higher level of investor obligation, even though com-

parable standards cannot be met by domestic firms because of capital
and technology deficits.
To ensure that TNCs make the greatest contribution to their econo-
mies, host governments may need to institute screening mechanisms
that weed out detrimental FDI projects and encourage beneficial ones.
They would also need to institute a mechanism of investors’ obliga-
tions on various economic, social and cultural necessities, protection
of the environment, and promotion of sustainable development. A
moot point in this regard is whether TNCs should be asked to maintain
the same environmental standards in host countries as they have in
home countries, even though host-country domestic investors may be
unable to maintain the same standards because of a lack of capital,
technology or relevant skills. Discussions on MAI at the OECD have
not given much thought to these considerations.
Noting that stronger public liability clauses on FDI have a chilling
effect on FDI inflows, the requirement of not lowering standards may
be difficult both to define and to implement.21 For example, policies to
attract FDI, such as exempting some industries from FDI clearance
procedures, including environmental clearance, could be interpreted
as a lowering of environmental standards. Similarly, raising the exemp-
tion limits on FDI from US$12.5 to US$25 million could be interpreted
as a lowering of standards, although strictly speaking these proposals
were directed at facilitating the approval of FDI projects. An MAI that
allows developing countries little flexibility in balancing competing
economic, social and environmental interests may find little support in
India. On the other hand, given the vast resources of TNCs to under-
take environment protection measures, either a code of good business
practices or investor obligations on a case-by-case basis may better
meet India’s concerns.
Another contentious issue involving TNCs is the Trade-Related In-
tellectual Property Rights (TRIPS) Agreement of the WTO. According
to a number of NGOs, the Indian Patents Act should be amended in

21
See FDI and the Environment: An Overview of the Literature, Note by the Secretariat,
OECD, Paris, 1997.
The role of FDI: the case of India 227

view of developments concerning plant genetic resources, plant breed-

ing and the development of biotechnology. The current TRIPS Agreement
may increase the monopolies of TNCs operating in the pharmaceuti-
cal and seed sectors. NGOs argue that the Indian Patents Act could
exclude patents on life forms, prevent patents on indigenous knowl-
edge from being registered both in India and in foreign countries, and
put under compulsory licensing some essential and generic drugs. It is
claimed that these developments would reduce the profitability of TNCs,
but that they would have a beneficial impact on the preservation of
India’s biodiversity.22
NGOs argue that pressure to enact laws on plant varieties has come
from TNCs seeking monopoly rights to global seed companies. How-
ever, laws should be drafted to focus on the conservation of biodiversity
and on the protection of farmers’ rights and innovation, with limited
rights being granted to the seed industry. Again, there appears to be a
conflict of interests between the protection of indigenous knowledge
and the interests of TNCs.
Debates on technology transfer and the role of the TRIPS Agreement
in facilitating such transfers have been another subject of public debate
in India. India has argued that trade secrets, copyrights and patents
awarded to TNCs for environmentally sound technologies should be
either reduced or eliminated in order to facilitate the wider dispersion
of such technologies.

Summary of findings and implications

Debates on the environment and investment abound in generalities.
Little distinction is made between the macro and the micro aspects or
between observations and causative factors. On the one hand, it is
claimed that companies are transferring production abroad in order to
avoid the more stringent environmental legislation at home. On the
other hand, it is claimed that TNCs are the main agents of change in
host economies, often bringing better technologies and products, par-

22
See V. Shiva and C. Alvares, ‘BJP on Swadeshi: the great U-turn’, in Third World
Network Features – India, Third World Network, Penang, 1998.
228 Veena Jha

ticularly to developing countries. In India both views may be valid,

depending on the sector of operation. Similarly, the level of environ-
mental protection offered by the investor in the host country is deter-
mined by several factors including, but not limited to, the regulatory
regime of the host country.
The environmental practices of FDI in India have so far had both
negative and positive effects on India’s environment. However, most
FDI is concentrated in the 29 sectors that have been deemed by the
Central Pollution Control Board to be highly polluting. It is therefore
likely that a number of new investments will take place in these pollut-
ing sectors.
FDI policies in India are being increasingly liberalized. The process
of trade and investment liberalization appears to be irreversible irre-
spective of the government in power. The trend in FDI flows also ap-
pears to be following an upward path, indicating that foreign investors
continue to regard India as a promising market.
Environmental legislation, though of a long-standing nature, has
proved to be difficult to implement in the Indian economy. While India
has a comprehensive body of environmental legislation, implementa-
tion – particularly at the state level – depends crucially on the gover-
nance capacity of the executive machinery. The political situation in
the country over the past few years has not been conducive to good
governance, especially in the environment sector.
This study has shown that urging TNCs to adopt better environmen-
tal practices has depended more on community groups and grass-roots
NGOs than on government action. The comparative weight given to
better environmental performance has been determined by factors that
are often case-specific. Thus, generalizations of the kind that show that
TNCs have adopted better technologies and environmental practices
than comparable local firms are difficult to ascertain empirically. More
case studies are needed to ascertain TNC practices. It is also necessary
to evaluate TNC performance against specific environmental goals,
such as the preservation of biodiversity, which are either of great na-
tional or great global significance.
The overall environmental performance of TNCs is difficult to judge
in the case of India. This could be attributed in part to the fact that cases
The role of FDI: the case of India 229

of environmental violation receive more publicity than positive prac-

tices.
Another issue that is deserving of attention is whether TNCs are
spreading environmentally beneficial practices to local industry. There
are several examples of model TNC factories, such as Colour Chem or
Bayer Dyes. The interesting question to examine would be whether
their practices are leading to comparable local firms adopting better
environmental standards and performances.
Another issue that assumes great importance in the Indian context is
the waste management practices of TNCs. Reports appear to suggest
that TNCs contract the management of their wastes to local firms; i.e.,
they shift their problems to local companies. How these contractors
compare with home-country firms would be an interesting question to
pursue. It would also be necessary to examine the costs of clean-up if
the TNCs were to undertake their own waste management.
In a rush to attract foreign investment, it is likely that some environ-
mental regulations that the government successfully enforced in the
past may now be violated. In particular, states may compete for invest-
ments, which could induce a race-to-the-bottom approach. It is espe-
cially important to analyse the behaviour of TNCs in sectors that are
considered ‘high priority’ for FDI by the Indian government. It might
also be useful to explore whether special environmental safeguards
would be needed in these sectors in order to promote sustainable de-
velopment. India’s stand in international debates appears to indicate
that both the host governments and the investors must have a stake in
promoting sustainable development.
Liberalization, privatization and the water sector
David Owen

Introduction
This paper considers the need for private-sector investment and man-
agement in the water sector.
The global players in the international water industry are principally
European companies – and it is no coincidence that in Europe it is en-
vironmental legislation that has been a central driver for private-sector
funding and operation. The paper examines some of the key driving
forces for future private-sector investment as well as the current state of
play, arguing that the private sector has a central role to play in ad-
dressing the need for potable water and sanitation in towns and cities in
developing economies.
Finally, the paper argues that, for private-sector involvement to work
effectively, independent regulation is needed to safeguard environ-
ment, public health and consumer interests at the same time as ensur-
ing an operating climate that encourages private-sector investment and
involvement.

The need for investment

The continuity of Europe’s wealth and influence over the past 2,500 to
3,500 years has in part depended upon its access to reliable supplies of
potable water – water to drink, to enable the pursuit of settled agricul-
ture, to ease the passage of goods and people and to facilitate the in-
dustrial revolution and its ambiguous aftermath. The lack of such re-
sources or their abuse can be regarded as one of the central blockages
to the development of many regions.
Globally, there are four broad themes concerning the interaction of
water markets with the private sector. (1) In the Middle East and North
Africa and sub-Saharan Africa, the need is to get reliable supplies of
water to the customer in the first place and ensuring that these are not
The role of FDI: liberalization, privatization and the water sector 231

wasted through leakage and failure to recover wastewaters. (2) North

America faces the problem of having to persuade free markets to pay
an economic price for water and to unravel an astonishing web of hid-
den subsidies. (3) In Latin America and Asia, water privatization is
seen as a tool for developing and expanding the infrastructure needed
for human and economic development. (4) In contrast, the central
theme in most of Europe is one of enhancement and service extension
within a burgeoning common legal infrastructure laid down by the Euro-
pean Community (EC). The latter difference is a subtle and costly one,
since improvements in water quality and sewerage are not as visible as
putting in a modern service. Yet they are almost as essential.
Outside Europe, the urban population is set to soar. Forecasts of the
rate and extent of population growth remain contentious. What is not
open to dispute is the global trend towards urbanization. The most at-
tractive market for the private-sector water players is the operation and
upgrading of services in large cities. Mega-cities offer real economies
of scale for the operator and the potential to pass these savings on,
while smaller cities offer long-term growth potential.
There are currently 14 discrete areas in each of which more than 10
million people are living in close proximity, and water shortages and
sanitation problems are one of the central constraints to the develop-
ment of these areas. Over the next 25 years, at least 12 more such areas
will be added to this total, none of which currently has adequate water
or sewerage infrastructures. Most will be in Asia, yet there is a relative
lack of development of water resources in a number of key economies
in Asia at a time of population growth, urbanization and industrializa-
tion.
‘Water stress’ arises where annual water resources fall below 1,570
cubic metres per person per annum, while scarcity is seen as a major
problem when a country has less than 1,000 cubic metres of annual
water resources per person. This works out at 2,740 litres per person
per day. Worldwide, the average of renewable freshwater resources is
8,800 cubic metres per person per annum, of which 545 cubic metres
has been developed (see Table 1). By the year 2025, a total of 27 nations
is set to be in the ‘high water stress’ category, all but three in South Asia
and the Middle East and North Africa. In addition, perhaps 50 per cent
232 David Owen

of people worldwide are without access to adequate sanitation facili-

ties. As a result, some 12–25 million people a year die or cease to be
economically active because of water-borne diseases.

Table 1: Water resources, their development and application

Country Water potential p.a. Developed water p.a.
bn m³ m³ per capita bn m³ m³ per capita
China 2,800 2,350 460 385
Taiwan 67 3,190 18 857
South Korea 63 1,413 10.7 240
India 1,850 1,691 380 415
Pakistan 298 1,730 153 1,214
Vietnam 376 5,151 5.1 70
Thailand 110 1,864 31.9 541
Indonesia 2,530 13,316 16.6 87
Malaysia 456 23,385 9.4 482
Philippines 323 4,894 29.5 45

Sources: David Owen; UNDP, Human Development Report 1998, Oxford University Press,
Oxford, 1998; World Bank, World Development Report 1998/99, Oxford University Press,
Oxford, 1998.

Estimates of the global market size for water and wastewater services
and hardware range from US$200 billion p.a. (US$33 per capita) to
US$300 billion p.a. (US$50 per capita). The figure is notoriously im-
precise, however, because of the extent of hidden subsidies and the
inefficiencies inherent in the traditional municipal and quasi-private-
sector nature of the industry.
Despite the market’s size (and US$100 billion being spent during the
World Bank’s recent ‘Water Decade’), the United Nations concluded in
1997 that 25 per cent of the world’s population are facing water short-
ages. This is set to rise to 66 per cent by 2025. Global water consump-
tion is rising by 2.5 per cent per year, twice the rate of population
growth, having risen sixfold this century.
Against this background, state-owned and state-operated water and
sewerage concerns are finding it increasingly difficult to maintain their
levels of service, let alone expand to meet increasing urbanization or to
improve service quality. As a result, private water vendor services pro-
The role of FDI: liberalization, privatization and the water sector 233

vide water of dubious quality at five to 65 times the cost of piped water,
owing to a lack of viable alternatives (Table 2). The urban population
of the less developed regions is set to grow from 0.81 billion in 1975 to
2.02 billion in 2000 and to 4.03 billion by 2025. By that date, the UN be-
lieves that 65 per cent of the world’s population will be directly affected
by water shortages. According to the Global Environmental Facility
(GEF), US$700 billion of capital spending is needed to provide a basic
level of water and sanitation services (such as access to piped water and a
lavatory connected to a sewer in every street) over the next ten years.1

Table 2: The cost of scarcity: the price difference between water

from vendors and utilities
City Country Ratio
Dhaka Bangladesh 12:1 to 25:1
Istanbul Turkey 10:1
Jakarta Indonesia 9:1
Karachi Pakistan 28:1 to 83:1
Lagos Nigeria 4:1 to 10:1
Lima Peru 17:1
Manila Philippines 16:1

Sources: David Owen; Water Utilities Data Book, Asian Development Bank, Manila, 1993;
UNDP, An Urbanising World, UNDP, Oxford, 1996.

The politics of water privatization

As the UK water sector has demonstrated since 1994, the private sector
has the capability of delivering investment programmes well within
budget. Most of the figures on investment needs have been drawn up
by public-sector institutions and are based upon traditional engineer-
ing and financial approaches to water and sewerage. They highlight
the need for new sources of finance along with the potential to reduce
projected capital costs by 10–25 per cent.
But water provision is very much in the public eye. For municipali-
ties and regional governments, there are a number of fairly cynical rea-
sons why water provision can be turned into a political issue:
1
Cited in Anglian Water plc Preliminary Results Announcement, 26 May 1999.
234 David Owen

• It removes a powerful source of political patronage at the municipal

level. The provision of jobs in the local utilities can be related to
political affiliations.
• It eliminates a source of municipal revenues for subsidizing other
activities. This is especially the case when a degree of price trans-
parency is involved.
• There are a number of cultural and political shibboleths attached to
water being free and people being free to use it, irrespective of the
concerns of others. These can be mobilized during elections when
changes are proposed.

It is also very easy for vested interests to attack privatized water ser-
vices. You never ‘notice’ your water or sewerage services when they
are functioning perfectly, and thus perfection is taken for granted as
the norm: anything less than perfection – including for example the
perceived threat of supply limitations as seen in Britain in 1995 – is an
outright failure. In some countries, this can be a good reason for pri-
vate-sector investors to concentrate on areas such as bulk water provi-
sion, so that the actual dealings with the public remain in municipal
hands.
One of the commonest political arguments against the privatization
of water and sewerage services is that it will mean that water will be too
costly for poorer people. But this tends to ignore the fact that under the
current arrangements it is the poorer people living in urban areas who
have to pay over the odds to water vendors for supplies of distinctly
dubious quality. In India, for example, it is common for poorer urban
households to pay 25 per cent of their income for water services under
municipal control or via water vendors.
In fact, people are willing to pay an economic price for water ser-
vices if it comes with guarantees of quality and availability. Pragmatic
pricing policies based upon charging more per unit of water for house-
holds who use water for non-essential purposes has made private water
provision both affordable and viable. Popular support exists for ad-
equate supplies of water and improved public health at an affordable
rate. Opposition is notable among better-off households who are loathe
to pay an economic price for piped water supplies for gardens, washing
The role of FDI: liberalization, privatization and the water sector 235

cars and non-essential household uses. The fact that these are also the
people with the most political influence means that the political picture
is often distorted.
Privatization can be managed in such a way that local sensibilities
are catered for. While the ‘asset-sale’ privatization model (e.g. Britain
in 1989) has many fiscal attractions, taking the water and sewerage
infrastructure out of public hands has proven politically contentious.
A series of intermediate privatization models (operation and mainte-
nance, build–operate–transfer, and concessional) allow private-sector
operation with public ownership of the assets. Furthermore, by being
responsible for bulk water provision or sewage treatment and disposal,
the private-sector player needs to deal only with the municipality and
not with the public. Political risk can be managed even in the more
challenging markets, and cost and service quality benefits can be de-
livered directly or indirectly.

The role of the private sector

Private capital and management can help to address water and waste-
water infrastructure and service needs where projects can generate
enough revenues to cover their operating costs and service debts and
offer a competitive rate of return. Private capital can be attracted to
these projects where it can also be demonstrated that political and eco-
nomic risks are capable of being managed. As a natural monopoly, water
and sewerage are unique among the utilities undergoing privatization.
However, the progressive demand for better service standards and bet-
ter-quality drinking water create price pressures not seen in other utili-
ties.
There are many different models for private-sector involvement. The
private-sector operator can take over the entire utility system (produc-
tion, transmission, distribution and billing), or it can be unbundled into
five discrete areas: (1) bulk water provision, (2) water treatment, (3)
water distribution, (4) sewerage (effluent collection and distribution)
and (5) waste water treatment and disposal. This allows a company to
decide on what level of political risk it wishes to manage. Bulk water
provision, water treatment and sewage/wastewater treatment does not
236 David Owen

entail direct contact with the public, while water distribution and sew-
erage do. The latter, especially when involving billing and making a
service economically viable (for example, World Bank financed pro-
jects had water fees covering 35 per cent of the average cost of its sup-
ply), are the most politically contentious. In the words of the ASQC (an
American service quality monitoring organization), ‘the more contact
a firm has with its customers, the more it has a chance to screw up’.

Risks and risk management

Municipalities and governments can optimize the quality of a priva-
tization programme through appropriate framing. A transparent bid-
ding process greatly improves the quality of data that companies can
use for deciding on prices and returns. This needs appropriate perfor-
mance targets, the selection of suitably qualified operators for the short
list, and the right tariff levels for delivering performance at an accept-
able cost. The better the framework, the cheaper the cost of the project,
since predictable and fair rules are needed to secure long-term private
capital at good rates.
It is often difficult to raise money at reasonable interest rates from
local banks and capital markets, and the difference usually has to be
made up by international sources of debt and equity finance. A notable
exception has been Puncak Niaga, which raised US$250 million from
the Malaysian market, putting it on an even keel with its partner
Générale des Eaux for the US$600 million Selangor water manage-
ment concession. International debt is raised via commercial banks,
export credit agencies and multilateral institutions such as the World
Bank’s International Finance Corporation (IFC) to address sovereign
risks. Multilateral institutions are more experienced at mitigating and
assessing project risks than investors, and can play an important confi-
dence-building role with the government concerned. In turn, the capi-
tal markets are better for established water/sewerage concerns.
There is considerable uncertainty in valuing extant water and sewer-
age assets. These cannot be traded and indeed need to be maintained
and replaced. One could argue that, in the case of asset privatizations,
these assets have no intrinsic value at all and are best regarded as li-
The role of FDI: liberalization, privatization and the water sector 237

abilities. This is one of the reasons why managing assets (via a man-
agement company) can make more sense than owning them. For ex-
ample, following the 1997 privatization of Budapest’s sewerage sys-
tem, Générale des Eaux and Germany’s BWB own the management
company, which in turn owns 25 per cent of the asset company. The
majority of the latter company remains in the hands of the municipality.

Where privatization stands today

According to the IFC, there have been 140 water privatization projects
in the developing economies (see Table 3), with US$28.6 billion raised
for infrastructure work to date. Some two-thirds of the project costs
have been raised by international sources of finance (US$15 billion in
debt and equity and US$4 billion via export credit guarantees). Debt–
equity ratios have typically ranged from 60:40 to 73:30, which given
the experience of the power sector – where an 80:20 ratio is the norm –
have involved a lower than expected level of debt.

Table 3: Water and/or wastewater services provided by the

private sector
Region Population served (mn) % of population
European Union 126 30
Central/Eastern Europe 9 8
Russian Federation and Central Asia 0 0
Middle East and Africa 13 2
Asia and Australasia 72 18
North America 48 12
South America 21 5

Global total 289 5

Source: D.A.L. Owen, P. Hollobone and P. Wilde, Come On In, the Water’s Lovely, Panmure
Gordons, London 1998. See also D.A.L. Owen, World Water Review 1999, Masons, London,
forthcoming.

Rapid population growth, urbanization and industrialization have made

Asia the most compelling of international water and sewerage markets
(Table 4). Water is scarce and a modern operating infrastructure is rarer
238 David Owen

still. Most EC countries, operating within the framework of the EC Ur-

ban Wastewater Treatment Directive, will have 75–90 per cent of their
wastewater subject to secondary or tertiary treatment by 2002 (in ef-
fect meaning that 90–95 per cent of the effluent’s pollution load is re-
moved). In contrast, in Asia, putting in sewerage, let alone sewage
treatment, is at an early stage (see Table 4). Yet without a functioning
sewerage system and a reasonable level of sewage treatment, it is very
hard to obtain reliable supplies of water fit for drinking and for indus-
trial and commercial applications – even after treatment.

Table 4: Urban sewerage: current status in Asia (%)

Country None Primary Secondary Tertiary
Japan 50 0 50 0
China 92 2 6 0
Hong Kong 80 20 0 0
Taiwan 93 2 5 0
South Korea 80 10 10 0
India 90 5 5 0
Thailand 95 5 0 0
Philippines 98 2 0 0
Indonesia 100 0 0 0
Malaysia 90 10 0 0
Singapore 10 40 50 0

Sources: David Owen, Water Utilities Data Book, Asian Development Bank, Manila, 1993;
and Managing Water Resources to Meet Megacity Needs, Asian Development Banks, Manila,
1994. See also D.A.L Owen, World Water Review 1999, Masons, London, forthcoming.

Some 5 per cent of the global water and wastewater market are already
under private-sector control. But it would be wrong to assume that the
entire market is open to the private sector. For example, many con-
struction-related aspects of these markets are proving to be distinctly
unpalatable to private-sector service providers. In certain areas, provi-
sion of direct customer services (such as billing and metering) is liable
to expose a foreign company to local and nationalistic political con-
cerns.
Over the next decade, the addressable market, that is the market in-
volving privatization opportunities for municipal drinking water provi-
The role of FDI: liberalization, privatization and the water sector 239

sion and wastewater treatment services in urban areas, can be more

reasonably estimated to be in the region of US$25–45 billion per an-
num (Table 5). Longer-term markets, which will present opportunities
for the private sector from 2005 to 2025, include areas such as Japan,
where the concept of privatized water services remains somewhat eso-
teric, along with areas where urbanization remains at an informal stage.

Table 5: Estimates of the value of global water and wastewater

markets (US$ bn p.a.)
Privatized Target markets Longer-term Total market
Water 20–30 10–15 15–20 45–65
Wastewater 15–25 15–30 30–45 60–100
Total 35–55 25–45 45–65 105–165

Sources: Anglian Water International, Vivendi, and David Owen. See also D.A.L. Owen, P.
Hollobone, and P. Wilde, Making Waves Overseas, West LB, London, 1999, for revised data.

Table 6: Populations served by the global water companies

People served (’000)
Global Water Companies Domestic International Global total % international
Suez-Lyonnaise 16,000 66,760 82,760 81
Générale des Eaux 24,000 38,120 62,120 61
United Utilities 6,880 17,940 24,740 73
Thames Water 11,600 9,060 20,680 44
Severn Trent 8,300 10,250 18,550 55
Aguas de Barcelona 12,137 4,444 16,581 27
FCC 7,110 670 7,680 9
Anglian Water 5,827 1,600 7,427 21
Aguas de Valencia 2,040 150 2,190 7
Biwater 406 500 906 55

Source: D.A.L. Owen, P. Hollobone, and P. Wilde, Come On In, the Water’s Lovely, Panmure
Gordons, London, 1998; see also D.A.L. Owen, P. Hollobone, and P. Wilde, Making Waves
Overseas, West LB, London, 1999, for revised data.

Over the next two years, industry sources point to 50–70 million
people having their water and/or sewerage services privatized. This
number refers to services actively being prepared for privatization.
The underlying figure is likely to be at least as high over the next two
240 David Owen

decades. Major players such as Vivendi (Générale des Eaux) are com-
mitted to gaining at least 20 per cent of this market.

The need for independent regulation

The point of privatization
Privatization works where businesses are more competent than the pub-
lic sector at running utility services. The expansion of telecommunica-
tions services and the fall in the cost of telephoning is a case in point. In
the context of water, privatization is a key element in de-politicizing
water services, by liberating it both from national and regional budget-
ary constraints and from short-term political rhetoric. In essence, water
and wastewater privatization is about allowing major capital expenditure
projects to be examined on their economic, service and environmental
merits. In addition, monetizing water encourages its conservation, along
with service efficiencies (staffing levels can be cut by 30–66 per cent)
and the adoption of a ‘Best Available Techniques’ (BAT) approach to-
wards water quality and environmental compliance. The difficulty in
meeting the gap between theory and practice is that these ideals all de-
pend on the existence of independent regulators charged with optimiz-
ing value and service, water quality and environmental standards.
Many markets are privatizing without an adequate regulatory in-
frastructure in place from the outset. This in part reflects the fact
that, while the French water model has been widely copied, its legal
system has not. Water and wastewater services in France are framed
by a fairly comprehensive set of laws. As a result, its regulation is of
a passive nature, which relies on the judicial system to resolve dis-
putes. This approach has been copied by, for example, New Zealand
and Jamaica. The British model is based upon an independent regu-
lator (OFWAT) adopting an activist stance. OFWAT evolved from
OFTEL, which has regulated Britain’s telecommunications service
sector since 1984.
In areas where water scarcity is a more pressing issue, regulation will
need to emphasize the conservation of water in a supply-led industry,
as opposed to a demand-led approach which could cut costs by en-
couraging conservation.
The role of FDI: liberalization, privatization and the water sector 241

The need for independent regulators and their regulation

The need for an independent regulator as a balance between share-
holder and stakeholder concerns is paramount. Where such a balance
is struck is a political issue. Shareholder concerns must be reflected, so
that it is worthwhile for the private sector to invest in and operate these
services. There is a clear need for governments to lay out a political
agenda for each regulator. This means optimizing the transparency of
the pricing process so that shareholder and stakeholder concerns can
be balanced against each other.
Incentive-based regulation is essential for the water sector. The over-
riding obligation for each private-sector water regulator ought to be the
need to reward efficiency, especially where its original targets have
been exceeded. At the same time, tangible progress in customer ser-
vice, environmental compliance and drinking water quality need to be
rewarded, so that companies that perform strongly in these areas are
valued more highly than their competitors. This would bring about a
causal relationship between excellence of service and the creation of
shareholder value. Efficiency gains can be shared on a sound basis
between customers, shareholders and the environment. The latter is
arguably a customer benefit, since they gain through the improved
quality of their drinking water.
Lessons from the Multilateral Agreement on
Investment

A view from the negotiating table

Jan Huner 1

Introduction
From September 1995, when Frans Engering was elected chairman of
the MAI Negotiating Group, until April this year, when he stepped
down as chairman, I sat next to him when he conducted the meetings
of the Negotiating Group. The leadership of the Negotiating Group
was in the hands of a so-called Bureau, consisting of the chairman and
two vice-chairmen, one from the United States and one from Japan.
The Bureau met before each session of the Negotiating Group. One of
its main activities was to prepare the agenda for each session, and to
decide on the kind of documentation to be made available to the
group. I was the secretary of the Bureau. My work in these two and a
half years, and in fact the negotiation process as a whole, has been
greatly facilitated by the staff of the OECD Secretariat. Their profes-
sionalism, dedication and creativity has been truly impressive.
The negotiators’ failure fully to incorporate the environmental di-
mension from the start of the MAI negotiations is not the main reason
why the MAI as envisaged will not come about. The main problem
with the MAI is that its negotiators did not expect to have to sell it po-
litically. Most of the MAI negotiators were investment specialists, not
used to viewing from a political perspective the concepts that they con-
1
Editors’ note: A version of this paper was given as evidence to the House of Commons
Environmental Audit Committee Inquiry into the Multilateral Agreement on Investment.
See Multilateral Agreement on Investment, House of Commons Environmental Audit
Committee 1st Report, HC 58, V. II, pp 103–7, January 1999. For an alternative account of
the MAI negotions see David Henderson, The MAI Affair: A Story and its Lessons, RIIA,
London, 1999.
Lessons from the MAI: a view from the negotiating table 243

sider logical and essential parts of an investment discipline. Investor–

state dispute settlement is one of these concepts; compensation for ex-
propriation is another. They were thus wholly unprepared to defend
these concepts vis-à-vis opponents who were distorting them to por-
tray the MAI as a threat. Least of all did they expect to see the MAI
portrayed as a threat to environmental protection.
This is not to say that the concerns raised by environmental NGOs,
or indeed by environment ministries in some OECD capitals, were un-
justified. Most of these concerns deserved serious attention, and they
eventually got it. But by that time it was too late.
I will first examine how the environment was dealt with in these ne-
gotiations, and then try to draw some lessons from this experience.

The MAI story

The idea behind the MAI was to build on existing OECD commitments
and create a comprehensive investment discipline, backed up by a dis-
pute settlement mechanism which was to include investor-to-state pro-
cedures. Investor–state dispute settlement is unknown in trade agree-
ments, but it is a common feature of the many hundreds of bilateral
investment protection agreements that the OECD countries have con-
cluded over the past 40 years, mostly with non-OECD countries. It is
also a key feature of the investment chapter of the North American Free
Trade Agreement (NAFTA). As in the NAFTA, investor–state dispute
settlement in the MAI would cover both establishment (‘market access’
for the trade people), and treatment post-establishment. In the OECD
instruments, compliance is encouraged by peer pressure.
The main discipline of the MAI, as in all investment agreements, is
the rule of national treatment, combined with most favoured nation
treatment where national treatment is not applicable. In addition, cer-
tain performance requirements for investors, such as transfer of tech-
nology, are prohibited.
The negotiations formally began in September 1995, but they were
preceded by three years of preparatory work in the context of the
OECD Investment Committee. These preparations identified the main
concepts of the MAI. I myself chaired the working group on ‘Non-
244 Jan Huner

Member Countries and Institutional Issues’. It is noteworthy that the

environment was not an issue in this group. The focus was almost ex-
clusively on other agreements that contain investment rules. There was
much talk about the MAI’s relationship with WTO agreements, in par-
ticular the General Agreement on Trade in Services (GATS), which also
deals with investment in services. Another hot item was taxation: the
MAI was not to affect the many bilateral agreements on taxation con-
cluded between OECD countries.
But the issue of how the MAI relates to multilateral environmental
agreements (MEAs) was not discussed. This would suggest that it was
not a subject for debate in capitals either. That is certainly true for us in
The Netherlands. I am quite sure, though, that the environment was de-
bated in Washington in the context of preparing for the MAI negotia-
tions. After all, this issue figured fairly prominently in the NAFTA nego-
tiations, and the NAFTA investment chapter contains explicit provisions
on environmental concerns. It is in fact the NAFTA that provided the
model for the proposed ‘not lowering of standards’ provision in the
MAI.
In early 1996 the environment community began to wake up to the
MAI negotiations. In February of that year, the environment ministers
of the OECD consulted NGOs prior to a meeting of the Environmental
Policy Committee at ministerial level. They were confronted with
questions about the potential impact of the MAI on national and inter-
national environmental regulation. More than a few ministers did not
know what the MAI was all about. Consequently, upon their return
they issued instructions to be advised on this question. The results of
this sparked a lively discussion in the next regular meeting of the Envi-
ronment Policy Committee. The prevailing view was that the Commit-
tee should become involved in the MAI negotiations.
Curiously, a similar request had been made by the Trade Committee
and the Committee on Fiscal Affairs of the OECD even before the start
of the negotiations. The reasoning was that, since the OECD combined
various disciplines within its committee structure (and thus within the
Secretariat), we should make maximum use of this. However, most
delegates to the Negotiating Group, afraid that this might turn into a
turf battle, stressed that the Negotiating Group had been made inde-
Lessons from the MAI: a view from the negotiating table 245

pendent precisely to avoid the need for coordination with standing

committees. The solution adopted was that delegations could propose
subjects for discussion in the Negotiating Group, and that the relevant
expertise should be represented as desired in each delegation. Thus,
the environment was put on the agenda of the Negotiating Group for
the first time in October 1996, a year after the negotiations had started.
Meanwhile, environmental and other NGOs had been building up
pressure, both at the OECD in Paris and in capitals. In Paris the NGOs
that are regularly consulted in the framework of joint sessions of the
Trade and Environment Committees began to ask for similar consulta-
tions with the MAI Negotiating Group. In capitals, parliamentarians
were approached and briefed about the perceived negative effects of
the MAI as envisaged. Of particular concern was, and still is, the com-
patibility of the MAI with the Rio Declaration and with the emerging
system of MEAs.
But in what ultimately proved to be the most effective move of all,
NGOs began to exchange information and ideas through the Internet.
The apparent strategy was to provoke a public discussion about the
MAI. The tactical instrument chosen was a caricature of the MAI as a
threat to environmental, labour, cultural and development interests.
The Negotiating Group decided it did not want to meet with NGOs,
but it did agree to an informal briefing for NGOs in early December
1996. The discussion of the environment in the Negotiating Group in
October 1996 was based on three ideas put forward by the Chairman
of the OECD Environment Committee:

1. to place the MAI explicitly in the framework of sustainable devel-

opment;
2. to prevent promotion of foreign direct investment (FDI) by relaxing
environmental standards;
3. to ensure adequate environmental performance by investors.

These three basic themes were retained in the ensuing debates, which
led to the so-called ‘three anchor’ approach of the environment in the
MAI. The first anchor would be the preamble, which should re-affirm
parties’ commitment to the relevant principles of the Rio Declaration
246 Jan Huner

and to the relevant multilateral agreements. The second anchor would

be a provision built on NAFTA Article 1114, stating that environmental
and social standards as contained in national laws and regulations
should not be lowered in order to attract an investment. The main de-
bate here has been whether or not this should be a binding provision.
NAFTA 1114 only says that such lowering of standards is ‘inappropri-
ate’. The third anchor was investor performance on environmental pro-
tection: this would have to be ensured by associating the existing OECD
Guidelines for Multinational Enterprises. These Guidelines had been
supplemented with a chapter on environmental protection in 1991: there
is broad agreement that this chapter is in need of updating.2
I should signal at this point that the emerging MAI discipline on en-
vironment (and labour, which was dealt with in similar fashion) was
not based on consensus in the Negotiating Group. The United King-
dom took a very sceptical line towards all of this up until the early
spring of 1997. As the parliamentary elections of May 1997 approached,
and a Labour victory appeared a near-certainty, the UK delegation be-
came more silent on the issue. After the Labour government took power,
the UK became a strong advocate of meaningful MAI provisions on
environment and labour issues. It was the UK that, in September 1997,
suggested that an environmental review of the MAI was desirable.
Other opponents of labour and environment clauses in the MAI were
Australia, New Zealand, Korea and Mexico. Mexico was perhaps the
strongest critic, which is not surprising in the light of the NAFTA history.
International business took a dim view of this turn in the debate.
Business was regularly consulted through the standing Business and
Industry Advisory Committee (BIAC). A similar committee, the Trade
Union Advisory Committee (TUAC), was used for consulting trade
unions.
BIAC’s initial strong support for the MAI had already weakened
when it became clear that an almost total carve-out of taxation was in-
evitable. A binding clause on not lowering standards and on the annex-
ation of the OECD Guidelines on Multinational Enterprises, including
reopening the debate on the chapter in the Guidelines on environmen-

2
Editors’ note: A process to review the Guidelines is currently under way.
Lessons from the MAI: a view from the negotiating table 247

tal protection, were poorly received in business circles, particularly in

the United States.
There are doubts as to how representative BIAC’s views really are
for international business. The only worldwide business organization,
the International Chamber of Commerce (ICC), has never been a
strong supporter of the MAI. The ICC’s view is that a multilateral in-
vestment agreement in an era of globalization should necessarily be
worldwide. The WTO is clearly the relevant framework for such an
agreement. The MAI would at best be a useful intermediate step to-
wards a WTO agreement.
In spite of the negotiators’ ongoing efforts to produce something
meaningful on labour and environment, the NGO campaign against
the MAI further intensified throughout 1997. The fact that the original
deadline of May 1997 for concluding the negotiations was not met
provided the NGOs with a window of opportunity. One of their stron-
gest weapons was that the negotiations were conducted in secret. They
did have a point here. All of the Negotiating Group documents were
classified ‘confidential’. However, so-called ‘sanitized’ versions (i.e.
with country names removed) of the records of Negotiating Group meet-
ings were made available a few weeks after each such meeting, mostly
for the benefit of non-OECD countries. Draft texts were not released.
When the pressure from NGOs began to rise, the chairman of the
Negotiating Group suggested that Negotiating Group documents, in
particular draft texts, should be declassified. This was not approved by
a minority of countries. One of the arguments for not releasing texts
was that in doing so we would find ourselves having to negotiate with
NGOs about them. This prompted Canada to say that it had already put
draft texts on a ministry Internet site, and it would continue to do so.
By the early autumn of 1997 it became clear that some form of direct
dialogue between NGOs and the negotiators was inevitable. The chair-
man managed to persuade the reluctant minority of the Negotiating
Group not only that such a meeting should take place, but that to make
it meaningful the draft text of the MAI as currently known should be
made available.
Thus, a meeting with NGOs was called on 27 October 1997. This
was to prove to be a memorable and decisive event, for a variety of
248 Jan Huner

reasons. Memorable because some 50 NGO participants took part,

representating a wide range of interests and a wide range of intensity of
opposition to the MAI. Memorable also because the NGOs, in spite of
their differences, managed to agree on a single moderator on their be-
half. This had in fact been requested by Frans Engering, because it
seemed the only way to conduct an efficient and productive meeting.
This set-up largely helped to prevent a planned walkout by some of the
more radical American NGOs, who wanted an immediate response to
their demand that the negotiations be suspended immediately. Deci-
sive, because some of the points raised by environmental groups con-
vinced many Negotiating Group members that a few draft provisions,
particularly those on expropriation and on performance requirements,
could be interpreted in unexpected ways. The dispute between the
Ethyl Corporation of the United States and the Canadian government
illustrated the point that the MAI negotiators should think twice before
copying the expropriation provisions of the NAFTA. Ethyl considered
that the Canadian ban on a certain additive for petrol amounted to an
expropriation, mainly because Ethyl was the only producer of this ad-
ditive. Canada eventually went for a settlement that reportedly in-
volved the sum of $13 million. This surprised not a few observers, be-
cause Canada was expected to win the dispute. This settlement was
invoked by NGOs to demonstrate the need for clarity in the MAI as to
what expropriation really means. Above all, they insisted that the MAI
should clearly state that the expropriation clause can never be inter-
preted to prevent governments from adopting rules and regulations on
environmental protection.
Although everyone agreed on the usefulness of the NGO hearing,
this did not bring consensus on how to deal with labour and environ-
ment in the MAI any closer. In fact, the negotiations as such began to
unravel when the United States announced in February 1998 that in
its view the new deadline of April 1998 could not be met. The back-
ground for this lay in a combination of factors. Approval by Congress
of the MAI was far from secure. Also, there was still no firm view
within the government as to how best to deal with the labour–environ-
ment issue. The intense campaign by pressure groups was taking its
toll.
Lessons from the MAI: a view from the negotiating table 249

There were also signals from the French that it would be difficult for
them to sell the MAI politically. The artistic and intellectual community
had discovered the MAI as yet another American-inspired instrument
of ultra-liberalism, posing a threat to artistic and literary freedom and
cultural diversity in France. Environment is not the main political con-
cern in France when it comes to investment agreements.
The Chairman of the Negotiating Group made a final attempt in
March to bridge the gap by proposing a package of provisions on
labour and the environment. He did not succeed. Although there was
praise all round for this credible effort, the Europeans saw too many
NAFTA-inspired texts, and the Americans opposed making the ‘not
lowering of standards’ clause binding.
At the OECD ministerial meeting in April 1998, France proposed
that the negotiations be suspended for six months in order to determine
the political viability of MAI. This suited the United States very well,
and it was thus agreed. On 14 October 1998 Prime Minister Jospin
resolutely delivered the final blow to the MAI by announcing that
France had decided to withdraw from the negotiations.

The lessons
At this point, just two weeks after a French torpedo caused the capsiz-
ing of the leaky MAI boat, it is too early to tell precisely what made this
ship so vulnerable. It would be wrong to blame only the French for
sinking it. The truth is that the MAI had become a liability rather than
an asset to most OECD countries, but few countries were willing to
admit it. And it was not just poor handling of the environmental ques-
tion that was the main cause.
Let me offer some personal thoughts on what, in hindsight, caused the
problems. First of all, I remain convinced that the OECD is the right forum
for negotiating an investment agreement. Not only does it have the exper-
tise and the experience in this area, but more importantly, it is an interdis-
ciplinary organization where all other policy areas that were relevant in
the MAI debate are represented. In that sense the OECD is unique.
The question is: did we use this to our advantage? My answer is:
only very modestly, and far too late. Other committees and Secretariat
250 Jan Huner

directorates should have been actively consulted during the prepara-

tory phase between 1992 and 1995. In spite of the OECD dogma of
policy integration, the walls between the various disciplines in the
OECD can be as high as they are between ministries in capitals. We
should have copied the joint discussions on trade and environment,
where NGOs are also involved.
We are now, it seems, going to make up for this. In January 1999, an
OECD Conference on Foreign Direct Investment and the Environment
will be held in The Hague.3 It will be a joint responsibility of the Envi-
ronment and Investment Directorates of the OECD Secretariat. The co-
sponsors on the Dutch side are my own ministry and the Ministry of
the Environment. Here, at least, the walls have come tumbling down.
The second lesson is that the MAI debate and negotiations were
dominated by experts who spoke in a language that was impressive
and intimidating to the non-initiated. These experts had rarely been
challenged by politicians and political activists. The exception here
would be the Americans, who had been taught a lesson or two in the
NAFTA debate in their country. It remains a mystery to me why they
did not raise, or were not forced to raise, the labour–environment issue
at an early stage. Instead, the United States was totally preoccupied
with the liberalization question. They were caught by the NGO cam-
paign as much as were the Europeans. In my view, the only country
that woke up early to potential political problems was Canada, where
the cultural issue (not the environment issue!) was recognized as a
make-or-break issue at an early stage.
A third lesson is that complex multilateral negotiations in the trade
and investment field are likely to raise suspicions. If, on top of that,
you create an impression of secrecy, you have a political time bomb.
In the case of the MAI, it provoked NGOs to disseminate caricatures
of the MAI and press politicians to demand debates in national parlia-
ments. Not surprisingly, those debates were often unrealistic and
therefore unhelpful – witness the disastrous discussion in spring 1998
3
Editors’ note: The conference was held in The Hague on 28–29 January 1999. See also
Conference on Foreign Direct Investment and the Environment: Summary of the
Discussion, CCNM/EMEF/EPOC/CIME (98) 7, 13 April 1999, which can be found at
http://www.oecd.org//daf/env/report.pdf.
Lessons from the MAI: a view from the negotiating table 251

in the European Parliament, culminating in an equally disastrous reso-

lution.
The final lesson is the power of the Internet. This medium turned out
to be the worst enemy of the MAI. Let us make sure that, in any future
multilateral negotiation on investment, in the WTO or elsewhere, the
Internet is our best friend.
An industry view
Kristian Ehinger

The objectives of the MAI

How can environmental protection be built in into international invest-
ment agreements? My answer is simple: whenever and however this
serves the principal purposes of the MAI. Business does not seek an
MAI that gives investors scope to weaken their environmental policies.
Neither should the MAI restrict the possibility for host-country govern-
ments to adopt the non-discriminatory measures they deem necessary
to protect their environment and/or to conform to the standards estab-
lished in multilateral environmental agreements.
But what are the principal purposes of the MAI? In May 1995, after
four years of an OECD study on the feasibility of such a project, OECD
ministers called for:

The immediate start of negotiations [on an MAI] which will provide a broad
multilateral frame-work for international investment with high standards
for the liberalization of investment regimes and investment protection and
with effective dispute settlement procedures.

OECD ministers aimed to replace the vast network of more than 1,600
bilateral investment treaties (BITs) with a multilateral treaty that was
supposed to grant no less protection to foreign investors than the BITs.
BITs generally guarantee national treatment, non-discrimination and
most favoured nation status for foreign investors. Many provide not
only for state–state but also for investor–state dispute resolution. What
is new in the MAI is the element of ‘multilateralization’ and the aim of
significant up-front liberalization. It was not intended to include other
policy objectives in the MAI.
It has thus always been the position of international business that the
MAI is to be an investment agreement – a place to set high standards
for the treatment and protection of investment. An MAI should not and
Lessons from the MAI: an industry view 253

will not affect the behaviour of companies in meeting national laws

and regulatory environmental standards of host governments. It simply
says that governments should apply any laws or regulations on a non-
discriminatory basis. We have said many times that the MAI is not the
place to set specific standards on labour or the environment, and we
continue to believe that.

Environmental safeguards in the MAI

On the other hand, we recognize that the Agreement can make refer-
ences and provide appropriate safeguards to ensure that it does not
conflict with non-discriminatory domestic rules or agreed international
standards that are negotiated separately in specialized forums such as
multilateral environmental agreements.
For this reason, we continue to support the so-called ‘three-anchor
approach’, namely:

1. preambular language referring to the positive role that investment

should play in encouraging sustainable development;
2. a provision stating that environmental standards should not be re-
laxed in order to attract an investment; and
3. an appropriate reference taking note of the OECD’s voluntary Guide-
lines for Multinational Enterprises and associating them with the
Final Act of the MAI.

In our view, these three provisions are an effective and appropriate

means to address the key environmental aspects of the investment
agreement.
We have even gone further than the negotiators have so far been
willing to go, stating that the MAI could include an Article similar to
NAFTA 1114.1:

that nothing in the Agreement should prevent a signatory from adopting,

maintaining or enforcing any measure which it considers appropriate to
ensure that investment activity in its territory is undertaken in a manner
sensitive to environmental concerns, as long as such measures are consis-
tent with the obligations of the Agreement (i.e. national and most favoured
254 Kristian Ehinger

nation treatment). We believe these provisions will ensure that the context
in which countries liberalize investment regimes and develop investor pro-
tection will be consistent with the existing trends toward comprehensive,
effective and science-based environmental standards.

We maintain that the MAI is not an appropriate vehicle for setting

precise environmental standards. Such standards are more effectively
negotiated in multilateral forums established for that purpose. Environ-
mental issues are complex, and they deserve the concentrated attention
of government and all other interests in order to achieve comprehen-
sive and workable solutions. Any attempt to use the MAI would dupli-
cate, pre-empt and/or conflict with efforts in the proper, specialized
forums. The introduction of protective standards on, for example,
toxic chemicals in the MAI would undoubtedly duplicate and poten-
tially conflict with more specialized, multilateral efforts to address en-
vironmental management issues.
We are also concerned that more specific text on the environment
would introduce considerable uncertainty into binding MAI provisions
and could result in disputes in which parties use the language as an
excuse for administrative delays or outright discrimination against for-
eign investors. Moreover, we believe that any effort to establish bind-
ing environmental standards in the MAI will preclude the accession by
many non-member countries that is a key objective of the business
community.
There are many references in international law to the effect that nor-
mal, non-discriminatory government actions taken to regulate eco-
nomic activity cannot be considered to amount to expropriation. This
is also reflected in Article 11 of the Multilateral Investment Guarantee
Agency Convention, and we understand that an appropriate note to
this effect will be added to the MAI. However, it is necessary to include
measures ‘tantamount to expropriation’ so that governments cannot
resort to so-called ‘creeping expropriation’ through discriminatory ac-
tions clearly designed to ‘take an investment’.
In this context, it is even suggested that the investor-dispute settle-
ment mechanism would give multinationals extraordinary power to
challenge in particular smaller governments’ regulatory powers. But
this is not a new concept. The vast majority of BITs include investor–
Lessons from the MAI: an industry view 255

state dispute settlement provisions similar to those being considered

for the MAI. Most refer to the International Centre for the Settlement of
Investment Disputes (ICSID), which has been available for the media-
tion or conciliation of investment disputes between governments and
private investors for over 30 years. There is no evidence that these
facilities have resulted in frivolous cases or have been abused by for-
eign investors to obtain unfair advantages relative to their domestic
competitors. Rather, such mechanisms exist to ensure that foreign in-
vestors are protected from discriminatory treatment by host govern-
ments and domestic courts. Without an effective investor–state dispute
resolution mechanism, the MAI would be a clear step backwards from
the BITs.

Globalization as a positive force

We fully support OECD ministers’ conviction that globalization is a
positive force for improving living standards and ensuring sustain-
able development around the world. Promoting investment through
the MAI and other international instruments will thus help to improve
standards for environmental protection. Indeed, by introducing interna-
tional standards consistent with, for example, the ICC Business Charter
on Sustainable Development and/or internal codes of conduct, multina-
tional enterprises can and do accelerate the process by applying higher
environmental standards than their domestic counterparts.
Our primary objective for this Agreement is that it should truly raise
investor confidence by providing clear and strong obligations on non-
discrimination, investment protection and dispute settlement. We will
thus continue to oppose ambiguous provisions or language that leaves
open the possibility for conflicting interpretations of the obligations,
and hence increases the risk of unpredictable treatment of foreign in-
vestors or their investments.

What went wrong?

What went wrong with the MAI? This question certainly has to be
asked following the OECD Ministerial in April 1998 which failed to
256 Kristian Ehinger

resolve the MAI controversy, and especially after France officially

stepped out of the negotiations a fortnight ago.
I think that nothing went wrong so far in substance with the MAI,
since the OECD Secretariat’s work throughout the negotiations seemed
to stay in line with the main purposes of the task at hand. This is espe-
cially true in the context of the environmental relevance of the MAI.
Procedurally, on the other hand, one could argue with the benefit of
hindsight that it was not politically wise to concentrate the negotiations
of the MAI on governments. From the beginning, however, various
consultations have taken place with two NGOs: the Trade Union
Advisory Committee to OECD (TUAC) and the Business and Industry
Advisory Committee to the OECD (BIAC).
The non-inclusion of other NGOs and of parliamentarians has, in my
opinion, resulted in misunderstandings in certain circles. But I cannot
avoid the personal impression that some of these misunderstandings ap-
pear to be somewhat tactical. I have real difficulties understanding why
the MAI was seen to amount simply to a capitalistic and a neo-liberal
effort aimed at the suppression of the development of international
(core) labour standards and sustainable environmental development. I
simply repeat the original aims of the MAI: non-discrimination and na-
tional treatment plus liberalization of foreign investment – again, under
the auspices of non-discrimination and national treatment.

Would WTO negotiations be better?

Would WTO negotiations be better? This question was considered be-
fore the beginning of the negotiations and has been repeatedly raised
within the OECD.
One of the key debates at the beginning of the OECD negotiations in-
volved the question of whether it was more important to have broader
coverage geographically or higher standards. Supporters of negotia-
tions in the OECD felt it was better to have agreement on higher stan-
dards, which could be negotiated more quickly by advanced economies,
signed by some non-OECD countries, and then eventually transferred to
the WTO. Supporters of the WTO rightly said that the main problems lie
outside the OECD, and since non-OECD countries might not be pre-
Lessons from the MAI: an industry view 257

pared to sign an OECD agreement, it would be better to involve them

in the negotiations from the beginning – in the context of the WTO.
The compromise has been to push ahead with the OECD effort, and to
keep non-member countries informed in the hope that they will want to
sign on. The WTO option remains as an ultimate goal.
The good news is that some key countries have been following the
negotiations closely and have stated their intention to sign. These in-
clude Argentina, Brazil, Chile, Singapore and Taiwan. The bad news is
that some key countries, including China, India and Malaysia, have
not shown much interest in signing an MAI – whether at the OECD or
the WTO.
I continue to believe that the conclusion of an OECD agreement re-
mains the better choice – although France’s withdrawal will certainly
not improve the chances for such an agreement. Particularly in view of
the specific question at hand, i.e. the inclusion of environmental regu-
lation aspects, I would suggest that the chances of success would be
even lower in a WTO agreement. The WTO’s Singapore ministerial
agreement on the ILO’s competence on labour issues is a clear indica-
tion that almost any coupling of environmental regulations with a
‘WTO MAI’ would increase the obstacles to success.

Conclusions
In conclusion, let me quote the diplomatic language used by the UK Min-
ister for Trade, Brian Wilson, last week after the OECD meeting in Paris:

The intention of the MAI negotiating parties had been to present an agree-
ment to OECD ministers for signature in May 1999. This now looks most
unlikely. However, the Government – together with our new partners – re-
mains committed in the longer term to promoting the negotiations on in-
vestment to the WTO.1

The international business community remains committed to the achie-

vement of a broad multilateral framework for international investment

1
‘Brian Wilson Voices Support for New Rules on Investment’, DTI Press Release P/98/
799, 21 October 1998.
258 Kristian Ehinger

with high standards for the liberalization of investment regimes and

investment protection and with effective dispute settlement proce-
dures. It does not seek a weakening of environmental policies or the
restricting of host governments from adopting any non-discriminatory
measures they deem necessary to protect their environment and/or to
conform to the standards established in multilateral environmental
agreements.
A view from the South
Pradeep S. Mehta

Building environmental protection into international investment

agreements
Not lowering standards
One of the main demands articulated by the civil society movement in
relation to the OECD draft Multilateral Agreement on Investment (MAI)
is the incorporation of a clause on ‘Not Lowering Standards in the area
of Environment and Labour’. This demand is based on a fear that coun-
tries will lower or relax their environment and labour standards to at-
tract investment. The fear is partly right and partly wrong.
Assuming that the target for the MAI is the developing countries, it
must be admitted that in some of them standards have been lower than
those that prevail in developed countries. This is a result of the inherent
differential in levels of socioeconomic development in countries where
jobs take priority over environment. In these countries, standards are
generally never lowered as such, but those that exist may be less strin-
gent. And often the standards themselves may be high but their en-
forcement poor, for reasons ranging from sheer incapacity of the
enforcement machinery, in terms of resources, through to corruption,
supervisory negligence, or even lack of political will.
The issues relating to environment in the context of transnational invest-
ment or a multilateral framework are not limited to this area of lowering
standards to attract investment. There are two other major types of issues,
both of which smack of double standards. The first concerns ‘eco-
dumping’, and the second concerns operations that are inherently ‘dirty’.

Technology transfer or eco-dumping?

To what extent do multinationals follow environmental standards of
the highest quality in their developing-country operations? Do they
260 Pradeep S. Mehta

apply the same standards as in their home country or in other devel-

oped countries? Similar questions arise in relation to technology trans-
fer: are the technologies applied by multinationals in developing coun-
tries clean, or are their investments used as a means of shifting dirty
technologies?
In practice, these issues can be raised only if there is sufficient trans-
parency in the host country, so that potentially affected communities
can acquire impartial information and influence the siting of plants.
The same can be true of government authorities where they are re-
quired to allow or not to allow an investment that seeks to transfer dirty
technology.
Notwithstanding the infamous memo written by Lawrence Summers
when he was at the World Bank, calling for dirty factories to be located
in less polluted and poor African countries,1 often it is actually the high
standards of environmental protection in developed countries that re-
sult in transfer of polluting industries to less fortunate countries. A few
examples will bear this out:

1. In 1987, after synthetic Nylon 6,6 technology had lost out to steel
radials in the West, E.I. Du Pont de Nemours, the largest chemical
multinational in the United States, decided to shift their outdated
1938-fabricated nylon plant to Goa, a province in western India, in
partnership with an Indian company. Contrary to the firm’s claim of
being safe and clean:
• the production technology is unknown, and the process uses
hexamethylene diamine and adipic acid, which are flammable,
toxic and may be carcinogenic;
• the mandatory Environmental Impact Assessment was not con-
ducted;

1
Editors’ note: In 1991, an internal memorandum from Mr Summers was sent to senior
staff at the World Bank. One passage infamously asked ‘Just between you and me,
shouldn’t the Bank be encouraging more migration of the dirty industries to the LDCs [less
developed countries]? … the economic logic behind dumping a load of toxic waste in the
lowest-wage country is impeccable.’ The Bank apologized on behalf of Mr Summers, who
explained that the comments were intended as an ironic attempt to stimulate policy debate.
See ‘Save Planet Earth from Economists’, Financial Times, 10 February 1992.
Lessons from the MAI: a view from the South 261

• appropriate measures regarding critical areas of groundwater

protection, waste water treatment, solid waste recycling and air
pollution control were not considered; and
• most shockingly, in spite of a liability law in India spurred by the
Bhopal gas tragedy, the government agreed to indemnify Du
Pont against any claims resulting from an accident.
Following pressure from a strong citizens’ backlash in Goa, Du
Pont shifted the plant to Tamil Nadu, a state in southern India. The
Indian partner also retired, and now Du Pont is 100 per cent owner.
This is a typical example of the ‘WIMBY’ (welcome in my back-
yard) syndrome operating at the national and the subnational level
in India.
2. Following pressure by the British Health and Safety Executive,
Thor Chemical Holdings closed its mercury plant in Margate, Kent,
in 1987, while expanding in Carte Ridge, Natal, South Africa. The
facts were uncovered in April 1997, when 20 Zulu workers re-
ceived compensation of US $2million by suing Thor in the UK for
poisoning that resulted from working in the mercury plant.
3. Dansk Sojakagefabrik Industries of Denmark shipped a mercury
cell chlor-alkali factory to be located in Pakistan in 1991. The Dan-
ish company wanted to avoid the costly disposal fees that would
have been charged in the European Community, while at the same
time providing Pakistani businesses with cheap electricity. Subse-
quently, Denmark introduced a ban on such exports.

Inherently dirty operations

The second type of problem or issue associated with environmental
protection and transnational investment concerns extractive industries.
Some of these investments are inherently environmentally unfriendly,
even though the installation itself is run in accordance with good envi-
ronmental management practices. The best example is that of the oil
industry.
Studies by the Washington DC-based NGO Conservation Interna-
tional show that oil operations conducted by transnational corpora-
tions in Ecuador caused the spillage of an estimated 19 billion gallons
262 Pradeep S. Mehta

of toxic waste between 1972 and 1989.2 Between 1982 and 1992,
Shell’s subsidiary in Nigeria spilled about 1.6 million gallons of oil in
the Niger Delta, most from leaking pipelines, causing high levels of
water pollution and the death of fish, mangroves and tropical forests. In
a blatant example of the application of double standards, Greenpeace
reported that the construction of a single pipeline in Scotland required
Shell to produce 17 environmental surveys and a comprehensive envi-
ronmental impact assessment.
Similar problems have been observed and catalogued in other major
extractive industries such as forestry, mining and fisheries. How far
these problems can be resolved through environmental protection mea-
sures incorporated in an investment agreement is a moot point. Would
such measures lead to investors becoming more benign towards natural
resources and the ecology? Or should the problem not be addressed
through a raft of policy tools, including promotion of sustainable con-
sumption and production? Much work on this issue is currently under
way at the United Nations Commission on Sustainable Development
(CSD).

How to address the concerns

Over time, and in particular from the time of the Earth Summit in 1992,
the profile of these concerns has been high. The precursor of the CSD,
the UN Conference on Environment and Development, led to a plan of
action in the form of Agenda 21. This document included policy op-
tions for business, and its implementation is being addressed in sectoral
forums at the CSD.
Other than what has been catalogued in Agenda 21, businesses (both
foreign and domestic) need to follow, and governments need to legislate
and enforce, widely recognized fundamental principles of environmen-
tal protection. These should include the following basic principles:

2
Ian A. Bowles et al., ‘Oil and Gas Development in the Tropical Andes’, in Natural
Resource Extraction in the Latin American Tropics (citing work by Acción Ecológica and
the Natural Resources Defence Council), Conservation International Policy Brief no. 1,
Spring 1998.
Lessons from the MAI: a view from the South 263

• the precautionary principle, which calls for businesses to adopt

adequate measures against possible environmental hazards even
though full scientific evidence is not available;
• the polluter and user pays principles, which call for businesses to
pay for environmental harm caused by them in the course of con-
ducting their operations;
• the principle of transparency, which calls for businesses to afford
easy access to information on their operations by government in-
spectors or public interest groups;
• the principle of maintaining the same standards in plants/opera-
tions worldwide and keeping their employees and governments in-
formed about those standards.

There are several other relevant principles, and many are incorporated
in a number of voluntary guidelines, such as the OECD Guidelines for
Multinational Enterprises or the International Chamber of Commerce’s
Business Charter for Sustainable Development.
One of the arguments in favour of incorporating these principles in
an international investment agreement is that it will lead to the contract-
ing parties’ abiding by them through implementation and enforcement
of high standards, without running in a race to the bottom.

What went wrong with the MAI?

The OECD MAI aimed to secure increased rights for business and re-
sponsibilities for host countries. There were several fatal flaws in this
Agreement.

1. While the main goal of the MAI was to protect investments from
expropriation and nationalization, and if such an event took place
to provide for quick redress and compensation, its target was the
resources and the consumer markets of developing countries who
were never even a part of the negotiations.
2. The United States, at the instigation of its big business lobbies,
pushed the developed world to launch negotiations on the MAI in
early 1995 in the OECD, even though a multilateral forum for trade,
the World Trade Organization, had just been established.
264 Pradeep S. Mehta

3. The European Commission succumbed to the pressure of US busi-

ness lobbies in spite of a warning that the MAI would not be ac-
cepted by developing countries as they were not part of the negoti-
ating forum.
4. Both the WTO and UNCTAD Secretariats were very annoyed by
the move to negotiate an MAI within the OECD because the Agree-
ment was being negotiated among a select group of countries, and it
was thus incorrect to refer to it as a ‘multilateral’ agreement. The
UNCTAD Secretary General referred to it as the ‘plurilateral’ agree-
ment on investment, while the WTO Director-General launched a
broadside against the MAI by pushing for a discussion on the issue
within the WTO.
5. Most developing countries were clearly confused as, on the one
hand, the OECD was calling them to sign on to an agreement over
which they had had little influence and, on the other, it was nearly
those same countries who were pushing it at the WTO. No doubt, to
add to the confusion, there was also pressure on regional and bilat-
eral investment treaties.
6. The scope and ambit of the proposed MAI was too great, touching
on nearly every aspect of life and governance. Yet a very ambitious
(and impractical) target of completing it in less than two years was
set. The result was that the negotiators did not even bother to inform
and consult the other branches of their own government or parlia-
ments. This lead to the MAI being looked at most suspiciously by
civil society representatives and in many countries enraging par-
liamentarians from both ruling and opposition parties and also
subnational entities.
7. While the basic framework draft of the MAI was nearly ready by
December 1997, nearly 600 pages of reservations and exceptions
were filed by the member nations of the OECD. Half of these were
lodged by the United States. The negotiators went too fast in seek-
ing liberal conditions for business to operate in all countries, and
with the benefit of hindsight even the powerful USA’s knees were
shaking.
8. Lastly, the MAI sought to provide increasing rights to investors
without binding obligations, and also placed stronger obligations
Lessons from the MAI: a view from the South 265

on the host countries. There was no consideration of a need for a

proper balance of rights and obligations on the investors. This itself
was an anathema to most countries.

Would WTO negotiations be better?

At the Singapore Ministerial Conference of the World Trade Organiza-
tion held in December 1996, it was, somewhat contentiously, resolved
to set up two working groups to study and examine the linkages be-
tween trade and investment, and between trade and competition policy
including anti-competitive practices. There was also agreement that
each working group could draw upon the other’s work as the issues are
closely interlinked.
Both working groups have progressed in terms of examining and
understanding the issues. The developing world views both investment
and competition policy as the developed world’s new tools for increas-
ing market access, and consequently approaches these areas with a
degree of suspicion, playing its cards close to its chest.
Some of the key remarks within the Working Group on Trade and
Investment, under its item on the Relationship between Trade and In-
vestment for Development and Economic Growth, include the fol-
lowing:

1. The OECD made a submission which analysed the relationship be-

tween foreign direct investment (FDI) and economic development
through case studies of six developing countries: Argentina, Brazil,
Chile, Indonesia, Malaysia and the Philippines. The key point to
emerge from the analysis in this submission was that the overall
policy framework in host countries was a critical factor in maximiz-
ing the gains from FDI. Trade policy was of particular relevance in
this regard. Policies pursued in the past by some developing coun-
tries with large domestic markets to attract FDI on the basis of a pro-
tected home market have lost their effectiveness as they have ran
into market saturation and foreign investors have shifted to more
dynamic countries and markets. Recent evidence showed that trade
liberalization has a positive effect on the volume of FDI inflows.
266 Pradeep S. Mehta

2. The Philippines, speaking on behalf of the ASEAN WTO mem-

bers, stated that FDI on the whole played an important positive role
in transferring intangible assets to recipient countries, especially
developing countries, but that developing countries have some-
times also been confronted with the negative effects of FDI. For
example, foreign affiliates were sometimes prevented from under-
taking certain activities by restrictions imposed by their parents in
technology transfer agreements, which might have an adverse im-
pact on competition and corporate development. Furthermore,
some developing countries faced the possibility of becoming lo-
cations for simple assembly operations. Referring to analysis of
possible negative effects of FDI in the contribution submitted by
Japan in WT/WGTI/W/11, a Philippines delegate observed that
instability in the balance of trade and balance of payments on
account of FDI movements was a very real risk, demonstrated in
the recent experience of some ASEAN countries, and that there
was also a risk of foreign companies exercising undue political
influence.
3. India supported the views expressed by the Philippines and pointed
to the need for further analysis of restrictions on transfer of technol-
ogy in transactions between parents and affiliates and the impact of
such transactions on trade and competition.
4. Referring to the text on the relationship between the mobility of capi-
tal and the mobility of labour, India pointed to the basic complemen-
tarity between capital and labour as production factors and between
capital mobility and labour mobility as delivery modes for trade and
investment in goods and services. Although this complementary re-
lationship between capital and labour called for a liberal, integrated
approach to the mobility of labour as part of the free global flow of
capital, goods and services, in reality mobility of capital and mobil-
ity of labour had been treated quite differently. The failure to ensure
mobility of labour more comprehensively as a complementary and
critical factor in the mobility of capital has far-reaching adverse
economic consequences, particularly by creating labour shortages
which prevent the efficient use of capital.
Lessons from the MAI: a view from the South 267

This is an issue that also occupies UNCTAD, which received a man-

date at UNCTAD IX, held in 1996 in Midrand, South Africa, to work
on a possible multilateral framework for investment and also to equip
developing countries with the necessary knowledge and negotiation
skills. UNCTAD has been organizing symposia around the world and
in Geneva, and these events have also helped developing countries to
understand the dynamics better.
At a symposium in New Delhi in July 1998, the noted trade theorist,
Professor Jagdish Bhagwati, denounced the OECD’s MAI and lauded
the efforts of UNCTAD and developing countries to reform it. Admit-
ting that FDI is a huge and growing phenomenon, he acknowledged
the attempt to draft the MAI and its eventual location at the WTO. ‘The
main problem, however, is that the MAI, as presently conceived and
pursued, is fundamentally flawed’, he asserted.
In a letter to the Financial Times on 22 October 1998, Bhagwati fur-
ther argued:

there are powerful reasons to have the matter dropped altogether from the
WTO agenda. First, the WTO is now a ‘Single undertaking’ so that the re-
vised MAI would still be mandatory on all WTO members. The issues it
touches are inherently controversial, will take the WTO gratuitously into
the politically supercharged domain, and endanger its real mission: to free
trade.
Many of us have been arguing that labour and environmental agendas be
pursued (proactively) by means other than trade treaties and institutions,
leaving the WTO to pursue free trade instead. But it is hard to tell the lob-
bies seeking to push these agendas into the WTO to get off its back even as
the MAI is sought to be worked into the WTO. It was bad enough to work
Intellectual Property Protection – an issue of enforcement of asserted prop-
erty rights against essentially poor nations rather than of trade where all
gain – into the WTO as the Uruguay Round closed. But with intellectual
property protection and an MAI both in, it would be hard to refute the
charge that what is good for capital at the WTO is not good for labour or for
nature.
268 Pradeep S. Mehta

Conclusion
In conclusion, there are three key questions to be considered:

• Is there a need for a multilateral and a comprehensive agreement on

investment, given that FDI is growing in the existing framework?
• Would such an agreement change the skewed nature of FDI flows?
• Would a multilateral agreement fulfil the development goals envis-
aged by developing countries?

If there is a need at all for a multilateral investment framework, then it

could take the form of a voluntary code on investment laws which
could be adopted by countries under the auspices of the United Na-
tions.
An NGO view
Nick Mabey

Introduction
The World Wide Fund for Nature (WWF) has worked on the MAI since
June 1996. We have produced between 12 and 14 papers and we have
had the dubious honour of being both praised and dismissed by sitting
ministers of state in the United Kingdom, though the government of
course retains a firm, united front on the issue!
The MAI has changed the intellectual and political climate for de-
bate on macroeconomic policy. This is partly because the negotia-
tions spanned the financial crisis, the causes of which were deeply
entwined with some of the capital liberalization issues in the MAI and
the IMF. Liberalization can never again be considered in isolation from
other issues. The idea that the sanctity of the WTO, or of any body that
deals with economics, can be preserved while environmental or other
issues are addressed in another forum is never going to become reality.
Investment affects everything and it is much more invasive than trade.
This was not appreciated by the MAI negotiators when they started.
Civil society and other government departments can no longer be ex-
cluded. It is no longer acceptable to try to bounce developing countries
into an agreement they have not negotiated. This was the biggest point
of principle against the MAI. When WWF started lobbying on the MAI
we were told it was not about developing countries, and just before it
collapsed the head of OECD said it was for developing countries. That
kind of volte face spreads distrust and undermines both the UN system
and the trust between North and South that we need if we are to move
forward.
As to an ‘Environment Investment Agreement’, if you look at the
European Union and its environmental harmonization, there is a pretty
strong case that has to be disproved by the other side for why environ-
ment should not be considered integrally inside an investment agree-
ment.
270 Nick Mabey

A conflict of world views

The MAI generated such opposition because there was a fundamental
clash between two different world views. On the one hand there was the
world view of the trade and investment experts (though not so much of
some of the companies). There was a very strong ideological strand in
their debate and the chairman of the negotiations exemplified that strand.
But there was also a second world view, which is not this economic view.
This is the vision of sustainable development and human rights to which
every government has signed up. It is the new world view.
The architects of the MAI said: ‘We know what the objective was of
the MAI; it was to get a high quality agreement.’ As one developing-
country delegate said in one of the outreach sessions, ‘What is high
quality for you may not be high quality for us.’ What does ‘high qual-
ity’ mean? This is a central question.

The economic world view

What does the economic world look like to the intelligent, high-
powered people negotiating the MAI? It is a world where free flows of
capital produce greater efficiency – a simple economic argument. At a
simplistic level, this is difficult to disagree with, but remember the as-
sumptions on which that argument is based – the assumptions that the
world is static, that everything is homogeneous, that there is one form
of private capital. When you study this model at college, there is no
social capital; there is no education; there is no environment. There is
no evolution in technology which occurs inside the investment process
and through learning-by-doing. In this model, companies are purely
price-driven in the way they relocate: they are not looking at market
growth; they are not looking at loss leaders; they are not looking at
building up networks. This model does not consider equity. It consid-
ers that all trade-offs are possible between environment, between
people and economic growth, and it is concerned only with nation-
states. In fact, this model pretty much drops every single piece of new
economic theory that has appeared in the last 20 years on the issues of
growth, industrial location, industrial specialization and development.
It represents an old set of theories.
Lessons from the MAI: an NGO view 271

If you take this view of the world, the only environmental problem
you come up with is the game theorist’s ‘prisoner’s dilemma’: that
countries will outbid each other by lowering standards over labour and
environment in order to attract investment, and that this is ‘non-opti-
mal’. This is why there is the ‘no lowering of standards’ clause in the
MAI; it flows directly from that logic. So the policy recommendations
are to raise domestic standards and coordinate action on incentives. If
you take this view of the world, you end up thinking that the MAI is a
very bland agreement: it does not really do a lot; it is ‘just’ an invest-
ment architecture, and you simply have to fiddle at the edges to deal
with other issues.
This ‘first-best policy’ perspective does not even approach the reali-
ties of liberalization. It is intellectually dishonest and factually incor-
rect. Show me a first-best world, and I will give you a first-best policy.
But the assumptions of the model that underlie the MAI are false and
they will always be false. This is where the tension arises.

The sustainable world view

Second, there is the world view of the massed hordes, caricatured as
barbarians at the gates, out there on the Internet. How do we see the
world? We see increasing negative environmental trends – 1.3 billion
people in poverty; two-thirds of the poor living in water-stressed coun-
tries; soil being eroded, and 60 per cent of fisheries under threat, with
fish being the primary source of protein of 950 million people. These
are all affected by investment. A great deal of investment goes into
natural resource areas.
We also see economic growth predicted to increase by three or four
times over the next 25 years at the same time as the population will at
least double. That is a lot of pressure on a world that is already going
down a very slippery environmental slope – and it is the poor who will
suffer from this. Climate change will affect the poor, not the rich – the
rich are those who caused it. Therefore, we see a dynamic world full of
resource-using industries; we see resources going from the South to
the North; we see the poor being pushed into the most polluted and
marginal areas; and we see a lot of unequal distribution, especially
272 Nick Mabey

since 95 per cent of investment comes from OECD countries – the ones
who are negotiating the agreement.
In this world, there are some new rules that go beyond the old-world
aim of capital efficiency. There is uncertainty and irreversible environ-
mental and social damage which is coded in the precautionary prin-
ciple – a key principle left out of the MAI. There is also the question of
equity: who suffers damage, and who gets benefits? If you trade envi-
ronmental quality against getting a factory built, or a resource-using
investment made, it is usually the same people who do not benefit from
the economic growth who suffer the environmental damage. The ‘pol-
luter pays’ principle was another principle from Rio that was left out of
an OECD agreement, although in many ways it is the OECD’s prin-
ciple. The issues of equity and compensation have to be addressed. It
is interesting that, compared with the deal-making culture of the WTO,
environmental agreements are about assigning responsibility and not
about doing deals – which is much harder for countries to accept.
If you consider that a country like the UK has been responsible for a
vastly disproportionate amount of emissions of CO2 over its lifetime as
a country (given that we industrialized first), you can see that we owe a
debt to the rest of the world, because our pollution has formed the
foundation of our capital stock and our current wealth. So environmen-
tal agreements are very bound up, in the new world, with distribution
of resources and equal access to the global commons. These are con-
cepts that are completely missing from the ‘efficient’ world of the MAI.
The rights of non-state actors were codified at the Rio Earth Summit.
People have the right to be heard independently of their nation-state;
they have the right to have some access. This was not addressed in the
MAI. The whole complex area of the indirect impacts of investment –
migration, urbanization, changes in structures, breakdown of social
groups, leading in turn to more environmental damage – was not even
on the agenda in the MAI. That is the world in which most of us are
working and how we see the impact of investment.
There are ecological limits to what we do and there are human rights
limits to what we do, and these cannot be traded off against economic
growth. There are limits to trade-offs and these limits are made up of
environmental, political and cultural rights. In this complex, contin-
Lessons from the MAI: an NGO view 273

gent and difficult world you have to consider every case and see what
happens when you open up markets and let investors in. Does it in-
crease development, does it reduce poverty, does it hurt the environ-
ment? This is not a case for promoting protectionism: it is a case for a
little more reality, a little less high-level assumptions and a little more
looking at what is really going on, including giving governments the
capacity to see what is going on.
International investment frameworks must enable environmental
protection. They are not a panacea. We never said we wanted to cure
the world’s environmental problems with the MAI, though this was
yet another caricature of the environmental groups’ position. We just
wanted to make sure that the MAI supported the efforts we are all pur-
suing at national and subnational levels. But it did not: it stopped them;
it chilled them. As well as not producing a positive agenda, the MAI
limited our ability to go down a positive road. Performance require-
ments, for example, can affect recycling, technology transfer, local
community management – all the projects WWF undertakes abroad.
They can prevent the capturing of resource rents, thereby reducing in-
centives for sustainable management.

Subsidiarity
It really comes down to the subsidiarity principle. The MAI was in
favour of investor protection. But investor protection was not an issue
for any company I talked to during the negotiations. The agenda of
investor protection is an old agenda, and I do not believe that people
have seen it as a major agenda since the 1970s. The MAI was in favour
of liberalization. But countries are liberalizing anyway, and in the stud-
ies that we have looked at, and in the countries we have visited, it does
not appear that liberalization is connected to capital flows. The MAI
was the wrong place to push liberalization. Liberalization and the
opening of markets should be decided by national actors. National ac-
tors may want to make sure that someone else cannot reverse these
decisions later to gain credibility, but that is very different from having
an instrument that sees rolling back regulation, and rolling back barri-
ers, as its main aim.
274 Nick Mabey

The MAI was in favour of performance requirements. Every country

wants foreign investment, and if there is a barrier to that investment,
one of two reasons is likely to lie behind it: either a policy interest or a
vested interest. Should an international instrument be used as a means
of getting rid of national vested interests? The answer from most MAI
negotiators to whom I have spoken was ‘yes’: they believe that gov-
ernments are stupid, and especially developing-country governments.
This is not a caricature: this is precisely what came from the mouths of
the MAI negotiators. They do not believe that governments can look at
foreign investment and say, ‘What is the best deal I can do? Do I put
some performance requirements on them; do I give them an obligation
to hire domestic workers, to feed in domestic suppliers; do I make
them export so I get some hard currency; do I not let them in, or do I let
them in for a certain amount of time and then close up to other firms so
as to let the incomers build up a base in my country?’ All these are tools
that have been used before. The MAI said, ‘No, you are stupid, you
cannot make those strategic choices.’ Why limit a country’s ability to
bargain with an incoming investor? The only reasons are to strengthen
the investor’s power, or because you think the government is stupid.
Why make sure that there is foreign access to privatizations in the
first wave? This is a very important part of the MAI, but is not very
much discussed. It is a key American company objective to get access
to lots of privatizations in the first wave. But we all know that pri-
vatizations are undersold. Every single privatization in the UK was
sold at a knock-down price. National citizens paid for those compa-
nies; they have the right to preferential access in the first round.

An MAI for sustainable development

There were lots of suggestions for changing the MAI. WWF came up
with many different ideas, and from March 1997 we made very strong
recommendations that were never considered. The OECD produced
recommendations; UNCTAD produced recommendations on a devel-
opment-friendly investment agreement – they were never discussed.
The OECD was always defensive; it was never looking at what positive
role it could play.
Lessons from the MAI: an NGO view 275

The MAI was clearly a very bad piece of economic policy. But
where do we go from here? If you want a new objective, then that ob-
jective is sustainable development. WWF has many ideas as to how
that could be promoted inside investment agreements. These include
requirements for environmental assessment, and a code of conduct
linked to investor protection so that you get protection from the inter-
national system only if you follow the international system’s rules.
That is pretty reasonable, and it happens in national countries. Liability
should flow with profits back to the home country: that is an important
principle, a remedy of last resort but something we would like. There
should be more emphasis on the positives: supporting ethical business,
supporting good-practice businesses by giving them preferential ac-
cess to guaranteed loans and trade promotion. Let us give people out
there a carrot to move in the right direction. We are not interested in
dealing with a bad agreement; we want to deal with a good agreement.
In conclusion, the areas we need agreement on generally cover the
things that weren’t in the MAI. I am not sure that the MAI had any eco-
nomic use at all, apart from increasing the bargaining power of incom-
ing investors. Politically, rights and responsibilities have to be linked
together, because you cannot get rules on responsibility for companies
without giving them something in return. WWF can work on some cre-
ative institutional lobbying in some different institutions, but the poli-
tics do not allow us to move in entirely separate and unconnected
tracks. If investment is simply passed over to the WTO and there is no
fundamental rethink, there will just be NGO opposition again. NGOs
want to see some thinking about objectives and some thinking about
how people negotiate.
Finally, my favourite quote from a leader in The Financial Times:
‘One lesson for international negotiations from the MAI fiasco – this is
not how to do it!’
 Part V
Summary of conference discussions
Halina Ward

Introduction
This section contains a short overview of the discussions that followed
each of the presentations at the Chatham House conference on ‘Trade,
Investment and the Environment’ in October 1998. The conference it-
self was attended by some 150 people, an international mix drawn
from government, industry, international institutions, non-governmen-
tal organizations and the academic world. Chatham House was par-
ticularly pleased that sponsorship made possible the participation of a
number of developing-country experts who would not otherwise have
been able to attend.
The discussion sections of the conference clearly reflected the high
level of expertise in the audience, and a search for ‘solutions’ rather
than a simple exploration of the issues. For the most part, the discus-
sion was ‘on the record’. Here, however, the aim is to present some of
the key themes and ideas, without identifying individual questioners.
The summaries of presentations are my own, and have not been re-
viewed by their authors. The structure of the original conference is re-
tained.

Day one
Brian Wilson MP, UK Minister for Trade, opened the conference with a
keynote address (see Part I). The opportunity to question a trade minis-
ter on environment and development issues was clearly welcomed by
many. What could be done to ensure that the proposed WTO High
Level Meeting was different from discussions in the Committee on
Trade and Environment (CTE), which had helped to air many of the
issues, but had not reached consensus? And, in the light of the lack of
developing country participation in the MAI, could redefining the ob-
jectives of investment liberalization help to build consensus among
less developed countries, and between developed and developing
280 Halina Ward

countries? Mr Wilson’s emphasis lay on the value of consensus and

dialogue built on trust as a key to progress.

Session 1: Background: changing patterns of trade and investment

This session included two presentations. Dr Damien Geradin of the
University of Liège sketched out the broad contours of the relationship
between trade and environment in terms of the relationship between
environmental regulation, competitiveness and the WTO rules. From
the (UK) DFID, David Batt followed with a paper on the development
dimension of trade and investment issues. Mr Batt introduced the
‘win–win’ theme, and stressed the need to ‘join up government’ on
these issues by ensuring coherence and consistency across govern-
ment departments. The ensuing discussion introduced what was to
become one of the principal themes of the conference: although the
countries of the North are seen as the champions of environmental
protection, they do not meet their own responsibilities. How can this
mismatch be addressed?
The distinction between ‘developed’ and ‘developing’ countries has
always been a key element of any discussion on the relationship be-
tween trade and environment, as such discussions are frequently polar-
ized along ‘North–South’ lines. But one participant asked whether in
the trade arena the distinction between ‘developed and developing’
countries was really so sharp. The idea of working towards ‘win–win’
solutions through a ‘convergence’ of interests takes on a rather differ-
ent perspective from a starting point that suggests that ‘we are all de-
veloping countries’.
Some more detailed questions picked up on the ‘win–win’ theme of
David Batt’s paper. Could reductions in subsidies in agriculture and
fisheries offer valuable ‘win–win’ opportunities? Agriculture was iden-
tified as an area with particular potential, the more so since negotia-
tions on agriculture are scheduled to begin independently of any deci-
sion on a ‘comprehensive’ Millennium Round.
Summary of conference discussions 281

Session 2: Trade and environment – the key debates

Session 2 of the conference, on ‘Trade and Environment – the Key
Debates’, presented perspectives on three related areas of the trade and
environment debate: Building Markets for Sustainable Trade; Multilat-
eral Environmental Agreements (MEAs) and Trade; and Process and
Production Methods (PPMs) and Trade.
Much of the section devoted to Building Markets for Sustainable
Trade homed in on the practical impact of environment rules and stan-
dards on the ground in the real world of trade. Given the controversial
nature of the idea of ‘squeezing unsustainable trade out of the system’,
why not focus instead on how to stimulate trade through market incen-
tives?
A variety of perspectives was offered by the speakers. Nick Robins
(IIED) put forward some positive case studies, but stressed that these
should not be considered representative of the current situation on the
ground: a continuing lack of trust and inadequate information and ac-
cess to standard-setting processes present developing-country produc-
ers with real obstacles.
Moses Adigbli’s paper exemplified this more sceptical view from a
developing-country timber industry perspective. For example, he ques-
tioned whether some forest certification schemes are sufficiently sensi-
tive to the concerns of developing-country producers. In his view, all
authenticated national forest certification schemes should be equally
accepted in the marketplace – in contrast to the situation in the UK,
where an important buyer’s group recognizes only one certification
scheme: that of the Forest Stewardship Council (FSC). But others high-
lighted both the potential role of buyers’ groups as an interim step to-
wards scaling up the role of consumers, and the role of procurement
policy in changing consumption patterns. The related issues of ‘whose
ethics’ and ‘who are the stakeholders’ for the purposes of labelling
schemes were addressed in discussions too; once again, the impor-
tance of consensus-building was emphasized.
David Wheeler of The Body Shop asked: ‘What are the accelerators
and decelerators for good business practice?’ He highlighted some of
the problems of voluntary labelling and certification standards, includ-
ing a lack of penetration in the marketplace, the levels of investment
282 Halina Ward

required to meet their requirements, and the idea that they could be a
distraction from another ‘good’, namely active corporate disclosure.
He underlined the potential business benefits of an approach based
on a policy of ‘active engagement’ with external stakeholders, but ar-
gued that labelling schemes themselves were unlikely to lead to much
progress. What was needed from policy-makers was more mandated
corporate disclosure (including possibly environmental or social dis-
closure attached to stock exchange listing requirements), and manda-
tory labelling on crucial environmental and social issues. In discussion,
one speaker countered with a note of caution on mandatory certification
and labelling – it could simply lead to control being handed over from
producers (e.g. farmers in the case of organic certification) to bureau-
crats. An alternative approach to the problem of ‘label proliferation’
was raised in discussion: if too many labels in the marketplace simply
confuse consumers, why not seek to develop international standards?

Multilateral environmental agreements

The texts of presentations by Michel Potier (OECD), Duncan Brack
(RIIA) and Reinhard Quick (VCI) are included in this volume. At the
conference, additional papers by Michael Grubb (RIIA, on the trade
implications of the Kyoto Protocol and the Climate Change Conven-
tion) and Veena Jha (UN consultant) were also presented.
During the discussions, one theme concerned the role of multilateral
environmental agreements (MEAs) as a driver of industrial innovation.
The Montreal Protocol was pointed up as an effective agreement in
part because it had done just that, and more quickly than had been an-
ticipated. The discussion concerning the Kyoto Protocol represented a
new area of concern: for example, would emissions trading be covered
by the General Agreement on Trade in Services, and how would the
Subsidies Agreement apply to initial allocations of permits? These re-
mained areas for further study.
If the Kyoto Protocol represents one emerging area of MEA/WTO
concern, another relates to MEAs that might emerge in the future. Could
an increase in trade-restrictive ‘take-back’ schemes (for example for
old television sets) have an impact on MEAs such as the Basel Conven-
Summary of conference discussions 283

tion in the future, as one participant suggested? Or might it, as another

speculated, lead to a push for a freestanding ‘green international take-
back scheme’?
Better coordination between ministries at the national level is often
seen as a key to better integration of trade and environment. But the
danger of ineffective coordination becoming a ‘chill factor’ on the nego-
tiation of MEAs was highlighted – for example, where some countries
had argued for the incorporation of a GATT ‘savings clause’ in the MEA.
Finally, the issues of ‘hierarchy’ between different legal systems
were also explored. What role could the International Court of Justice
(ICJ) play as an integrating force? The WTO’s dispute settlement sys-
tem is relying more and more on general principles of international
law: has the time come when one could foresee the WTO’s Appellate
Body referring a case to the ICJ? No clear answer emerged, though
there was some support for the principle that this should be permis-
sible.

Process and production methods

This section included three different perspectives on this issue: Konrad
von Moltke focused on re-interpreting ‘like products’; Charles Arden-
Clarke (WWF International) considered the impact of the Shrimp/Turtle
Appellate Body report for the future of the PPMs debate; and René
Vossenaar (UNCTAD) assessed issues relating to PPMs from a devel-
opment perspective.
During the discussion session, a number of speakers considered the
significance of PPMs, both politically in the trade arena and as an envi-
ronmental regulation. If this most controversial issue was not yet at the
centre of the political debate, was that perhaps because any attempt to
develop rules of general application now could lead to a solution that
was worse than the problem?
The discussion on ‘sustainable trade’ was taken up again in this ses-
sion. There was some support for the idea that this notion of ‘sustain-
able trade’ should lie at the heart of any resolution of the relationship
between trade and the environment as a whole, and of the PPMs issue
in paticular. Industrialized countries in the North were often seen as the
284 Halina Ward

demandeurs on trade and environment, without recognizing that, in

order to achieve something, it would be necessary for them to put
something on the table. Developing countries wanted market access.
Consequently, the idea of ‘sustainable trade’ offered real potential for a
‘meeting of minds’. As such, it should be viewed as a key issue in po-
litical as well as academic circles. But one speaker underlined that
‘market access’ for developing countries was about more than just sus-
tainable trade and should not be confused with it. Market access, fur-
thermore, should be addressed first.
What were the key elements of ‘sustainable trade’? There was per-
haps a tendency at the conference to focus on the environmental side
rather at the expense of the social, said one participant. There was a
broad recognition that the notion of ‘sustainable trade’ would need to
be reflected in a social dimension too, covering for example labour
conditions. But it was recognized that the challenges of addressing
the social dimension alongside the environmental added consider-
able complexity to the debate.
Linked to the ‘sustainable trade’ discussion was an emerging idea
that there should be an ‘environmental’ or ‘sustainability’ assessment
of further trade liberalization. This could ultimately mean that negotia-
tors would be required to prove that liberalization would produce so-
cial and environmental benefits.

Concluding keynote address: John Gummer

Day one of the conference concluded with a keynote presentation by
John Gummer (see Part I).
Mr Gummer’s presentation led to discussion of the proper scope of
the WTO’s responsibility and of its place in a system of global gover-
nance. Did calls for the WTO to address social cultural issues, for
example, simply suggest that the WTO had become a victim of its own
success, or should more be made of the reference to sustainable develop-
ment in the WTO’s Preamble?
Was there indeed a need for a ‘world governing system’? For some,
the idea carried dangers, including an implication of absolutism. Oth-
ers focused on the notion of ‘subsidiarity’ – that issues should be dealt
Summary of conference discussions 285

with at the most appropriate level, and that some issues call for a glo-
bal governance system. On the other hand, Mr Gummer stressed that
subsidiarity should be seen as a ‘bottom-up’ concept. From a top-
down perspective, subsidiarity ‘always stops at your level’. Calling for
a global governance structure could be going too far. But for many
participants, what was needed was an equally powerful body along-
side the WTO on the side of environment and, more than that, sustain-
able development. The cultural dimension of trade also needed atten-
tion – i.e. protecting the ‘biodiversity of humanity’. Yet here, one
man’s culture could be another man’s protectionism.

Day two
Session 3: Environment and investment
Session 3 opened with a focus on investment and the role of trans-
national corporations. To what extent could the activities of private
actors improve environmental standards? Do transnational corpora-
tions ‘leapfrog’ environmentally sound technologies to the developing
world or outsource dirty technologies? Can environmental regulation
be ‘win–win’? What role can or should transnational corporations play
in multilateral negotiations? Three speakers addressed these and re-
lated issues: Tom Burke (see Part I), Veena Jha, with a particular focus
on the experience in India (see Part II); and David Owen, with a par-
ticular focus on the water sector (Part IV).
For NGOs, a key issue in the discussion session was the links between
deregulation and a move towards enhanced private-sector power. One
participant put forward some minimum preconditions that would need
to be met before her organization could accept that activities of trans-
national corporations could lead to improved environmental standards:
these included recognition of the development priorities of host coun-
tries; acceptance of community and national ownership of natural re-
sources; acceptance of labour and human rights; and a recognition that
resources are finite.
Still on the NGO side, one participant said that it was becoming clear
from a strategic perspective that NGOs would need to consider more
closely the role of transnational corporations in international negotia-
286 Halina Ward

tions. One related area for consideration was the hypothesis that it was
in the interests of transnational corporations to promote the creation of
a forum in which trade and environment could be integrated, given
their interest in the convergence of the two regimes. An obstacle lies
not so much with companies as with a lack of political will to deliver
up the sovereignty necessary to create a global environment organiza-
tion. The WTO is as powerful as it is precisely because it has been ac-
companied by a transfer of sovereignty of a scale that would not be
feasible on the environment side.
What of the related possibility of some degree of convergence be-
tween ‘government’ and ‘public’ politics, for example over GMOs?
How could this impact on transnational corporations? Such conver-
gence around future conflict over GMOs might not prove to be on
terms sought by corporate elites. There is a real danger, said one spea-
ker, that both the economy and the environment could be undermined
precisely because of the enormous lack of integration between them.

Keynote address: ‘The GATT at 50: New Challenges’

This session was followed by a keynote address from Renato Ruggiero,
then Director-General of the WTO (see Part I). The discussion focused
on three issues. The first was once more the feasibility of establishing a
global environmental organization: a need was highlighted to ensure
that this was linked to parallel progress on the development side,
where for example there had been moves to seek ‘bound’ duty-free
access for least-developed-country exports, which so far had not made
much progress. The second was transparency and participation in WTO
dispute settlement proceedings. While the WTO’s lack of transparency
continued to concern participants, the Shrimp/Turtle decision was
hailed by one speaker as the culmination of a clear line of action to say
that each dispute settlement panel is autonomous and may organize its
own work as it thinks necessary – including through consideration of
non-governmental representations. Third, on the prospects for a High
Level Meeting, Mr Ruggiero characterized this as an opportunity for
an ‘open heart dialogue’. He stressed the potential for the meeting to
ease the relationship between trade and environment at national level.
Summary of conference discussions 287

Environmental regulation and international investment agreements

This session included four presentations on the lessons that could be
learned from the experience with the failed MAI. Dr Kristian Ehinger of
Volkswagen began from an industry perspective, followed by Pradeep
Mehta (CUTS, India) from a developing-country NGO perspective;
Jan Huner of the Netherlands Ministry of Economic Affairs, who had
worked alongside the Dutch chair of the MAI Negotiating Group; and
finally Nick Mabey of WWF from an environment NGO perspective. A
short discussion session followed. All agreed that mistakes had been
made. For some, these lay in the fundamentals of the MAI. One speaker
regretted that the MAI had not been treated as an opportunity to start
afresh – instead, established concepts from bilateral investment agree-
ments had formed its core. For others, the objectives had been sound,
but the large number of exceptions tended to go against those objec-
tives.

Session 4: Conflict resolution and dispute settlement

This session incorporated two presentations. Professor Thomas Cottier
of the University of Bern began by asking why tensions between trade
and environment might be increasing. Because, he answered, trade
policy had become ‘the number one instrument of foreign policy’. He
considered WTO cases relating to environment policy, and wondered
whether the emerging case law relating to biotechnology disputes sug-
gested that the SPS Agreement offers more leeway than the concept of
‘like products’ in the GATT and TBT Agreements. The GATS offers far
more scope than the GATT to condition ‘national treatment’ obliga-
tions on environmental grounds, and he hoped that potential should be
fully explored. Ultimately, environmental impacts might be associated
mainly with services rather than with goods.
On the issue of unilateral versus multilateral measures, the reality
was that, without the dialectics of ‘unilateral measures and multilateral
pressures’, multilateral standards would not emerge. In this area in par-
ticular, Professor Cottier saw a tension between traditional concepts of
public international law – very much defended by developing coun-
tries – and a concern to protect the global commons. Might it be pos-
288 Halina Ward

sible to start defining and building a consensus on the values, items

and goods that belong to the idea of the ‘global commons’? Much
could be done through dispute settlement to resolve the tension be-
tween trade and environment, but panels could not be expected to do
everything. There was a need to prepare the thinking.
James Cameron (FIELD and Baker and Mckenzie) focused on the
operation of the WTO dispute settlement system, and the implications
of the Shrimp/Turtle report for future non-governmental involvement
in dispute settlement processes. A theme in the discussion concerned
the ‘unilateral–multilateral’ relationship. In some areas, such as ani-
mal welfare, the multilateral ap
proach was not realistic because of a lack of multilateral (as distinct
from bilateral or plurilateral) political will. What then? For the time
being, there seemed little cause for optimism that unilateral measures
might find favour with the WTO, though there might be scope for ex-
ploring the idea of a labelling approach some more, or for looking
more closely at the possibility of using tariffs as a way of shaping poli-
cies. On a related issue, how could the balance needed to protect the
weak from arbitrary exercise of power by the strong most effectively
work in relation to unilateral measures? And how should the WTO deal
with multilaterally inspired domestic action, with those measures that
somehow fall between MEAs and domestic regulation which con-
cerns only a country’s own jurisdiction? For Cameron, this was a key
area for consideration in the future.
On amicus briefs (see James Cameron’s paper, pp. 203–208), there
was some discussion of the implications of the Shrimp/Turtle report.
James Cameron stressed the value of amicus briefs as a means of
invigorating the process, particularly in the early days of a system.
Should the WTO system incorporate a permanent arbitrator or court?
Some participants thought it should. Professor Cottier put forward a
number of additional suggestions for reform, starting with the consul-
tation phase of dispute settlement proceedings. In his view this should
be reinforced, with an obligation upon parties to a dispute to consult
before starting formal panel proceedings. Cottier suggested that the
WTO’s Appellate Body should also have a ‘remand power’ to allow it
to send cases back to panels to avoid repetition of the situation that had
Summary of conference discussions 289

arisen in the Beef Hormones case, when the Appellate Body changed
the burden of proof, but wasn’t able to send the case back to be heard
again through this new lense. Finally, he suggested that perhaps an of-
ficial voice to represent the WTO Secretariat in dispute settlement pro-
ceedings could be a useful idea.

Final panel discussion

The final session of the conference consisted of a panel discussion on
‘the future’ of the trade–investment–environment debate. It consisted
of a series of short panel presentations (from Charles Arden-Clarke
(WWF International), Gary Sampson (WTO Secretariat – see Part I),
Magda Shahin (Ministry of Foreign Affairs, Egypt – see Part III) and
David Wakeford (ICI – see Part I), followed by a longer discussion and
questions from the floor.
Discussion returned to the debate on whether there should be a Glo-
bal Environment Organization. Once again, much discussion focused
on the appropriate scope of the WTO’s responsibility. Charles Arden-
Clarke spoke of ‘mainstreaming’ the environment into all of the WTO’s
activities. Others took a cautious approach: that this should not mean
changing the rules unless the changes were in line with the WTO’s
competence, which is limited to trade. One speaker stressed that the
arguments in favour of making existing environmental organizations
more effective or creating a global environmental organization should
not stand in the way of ensuring that the WTO better accommodates
environmental interests in the trade policy that it applies. For one NGO
speaker, too, lobbying for a global environment organization was not
considered an effective use of his organization’s limited resources,
which were currently targeted at working within the existing struc-
tures. In any event, returning to the earlier theme of ‘global gover-
nance’, one participant doubted whether even a global environmental
organization would be sufficient to achieve the necessary integration.
Once again, the idea came up that after Shrimp/Turtle perhaps WTO
dispute settlement had achieved what was needed and there was no
need to change the WTO rules. The ‘slippery slope’ argument – im-
plicit in many presentations throughout the conference – was reiter-
290 Halina Ward

ated: beyond trade and trade-related aspects, the WTO should not be
made an organization that looks at different interests from labour to
good governance. But participants were also reminded of the ‘chill
factor’ that could result from a failure properly to integrate trade and
environment, or, as a result, from trade officials becoming involved in
international environmental negotiations.
There was criticism of the Committee on Trade and Environment.
Had it gone far enough or even outlived its usefulness? In some areas
perhaps, one participant suggested, the CTE had already done as much
work as it could be expected to do. If this work had not delivered a
‘solution’, perhaps that was because there was nowhere to go on these
issues.
Could the Millennium Round prove to be the ‘terminal round’ for the
WTO? Could a failure sufficiently to accommodate environment and
sustainable development concerns lead to its demise? Or does it in re-
ality work rather well? One participant emphasized that, for example,
in terms of all the requests for consultations initiated under the WTO,
only a very small number had anything to do with environment.
Discussion returned to the ‘win–win’ theme and its implications. For
one speaker, there was a need to focus more on the dynamics of trade
in the marketplace – on the dialectic between companies in their sup-
ply chains and associated policy moves, not simply on the dialectic
between ‘unilateral’ and ‘multilateral’. As to the implications of ‘win–
win’ solutions for the Millennium Round, one government participant
highlighted three areas ‘ripe for the picking’ in terms of win–win solu-
tions: (1) the elimination of fisheries subsidies, an area where consider-
able work had already been done; (2) the General Agreement on Trade
in Services, where there could be a very clear and direct link between
improved market access and environmental gains; and (3) the elimina-
tion of export subsidies in agriculture, to put an end to the current sig-
nals for overproduction, trade distortion and land use with negative
impacts. The conceptual thinking on the ‘win–win’ theme had already
been done. The challenge now was to identify the key areas for re-
form – to enable developing countries to say ‘yes’ to genuinely ‘win–
win’ solutions.
Index

Adigbli, Moses 73–82, 281 EMS 154

Agenda 21 113–14, 262 environmentally friendly PPMs 172
agriculture 26, 58, 280 textiles 59, 64
amicus curiae briefs 34, 204–7, 288 timber 80, 82
Appellate Body (WTO) 12–13, 16, see also International Organization
34–5, 101, 188–9, 192 for Standards
Beef Hormone case 95, 100, CFCs 37, 162–3
199–200 chemicals industry 217–18, 219,
Reformulated Gasoline case 147–8 221–2
Shrimp/Turtle dispute 6, 93, 99– Clean Clothes Campaign 61
100, 110–12, 121, 127, 161–2 clean technology see environmentally
Arden-Clarke, Charles 183–6, 283, sound technologies
289 climate change 38–9
Article XX see General Agreement on coffee 60, 65
Tariffs and Trade (GATT) Article XX Committee on Trade and Environment
(CTE) 54–5, 101, 112, 290
bans see trade restrictions commodity markets 172–3, 179–80,
Basel Convention 32, 98, 122, 123–4, 181
128, 144, 282–3 companies
Batt, David 49–55, 280 responsibilities 30–1
Beef Hormones case 95, 100, 199–200 water 239
Bhopal Gas disaster 214–15 see also transnational corporations
biotechnology 199, 214, 227 competitiveness 96–7, 114–20, 153,
see also genetically modified 156–60
organisms conflict resolution see dispute
Body Shop, The 62, 83–7 settlement
border tax adjustment 119–20 consumers
Brack, Duncan 122–37, 282 environmentally conscious 73–82,
Brittan, Sir Leon 7, 18, 27 83–7, 163–4, 174
Burke, Tom 27–35, 285 labelling 15
responsibility 30–1
Cameron, James 203–8, 288 sustainable trade 60–1
capacity building 8, 172 Convention on International Trade in
Century Textiles, India 64–5 Endangered Species (CITES) 98,
certification 108, 122, 123–4, 195
292 Index

Cottier, Professor Thomas 187–202, transfer of technology 116–17, 167,

287–9 259–60
Counsel to the Panel 208 water and wastewater 231–3, 234,
cross-border environmental 237–8
management 169 wealth creation 24–6
CTE see Committee on Trade and ‘dirty industry’ migration 157–8, 169,
Environment 213, 260–1
dispute settlement
Dansk Sojakagefabrik Industries 261 future 136, 201–2, 206–8
decision-making 9 investor-state 242–3, 254–5
collective 4–5 WTO system 34–5, 136, 187–202,
developing countries 69–70 204–7, 283, 287–9
national/global 43–5 Dispute Settlement Understanding
transparency 7, 17, 193, 286 (DSU) 187–9
WTO 23, 193 DSU see Dispute Settlement
see also subsidiarity Understanding
Denmark 129, 261 Du Pont, India 215–16, 260–1
Department for International
Development (DFID) 49–55, 63 eco-dumping 158, 259–61
developing countries eco-imperialism 39–41, 97
agriculture 26 eco-labelling 83–4, 113–14, 154, 171
bio-colonialism 70 Eco-Tex certification 59, 64
capacity building 8, 172 Ehinger, Dr Kristian 252–8, 287
competitiveness 114–20 EMS see environmental management
decision making 69–70 systems
DFID activities 49–55 enforcement 26, 37
emissions reductions 38–9 environmental infrastructures 221–4
free trade benefits 11 environmental law 194–200, 228
Ghanaian forestry case 73–82 environmental management systems
institutional capacity 69–70 (EMS) 154, 171–2, 221, 223, 224–5
international support 78–9, 80–2 environmental organization,
least developed country needs 8 international 25, 26, 130, 286, 289
MAI position 259–68 environmental premium 79–80
market access 167–8 environmental protection 5–7, 17
MEAs 52–3, 139 environmental safety standards 159,
MTS modification 135–6 199–200
organic sector 66 environmental subsidies 55, 166,
PPMs 152–75 198–9
sustainability 49–55 environmentally sound technologies
sustainable trade 56–72 (ESTs) 12, 156–7
Index 293

FDI 168–9 PPMs 97, 197

transfer 116–17, 167, 259–60 product standards 94
equivalence 113, 114 Shrimp/Turtle dispute 107–12
Ethical Trading Initiative (ETI) 63 unilateral trade restrictions 92–7
European Union (EU) 51–2, 83–4, see also World Trade Organization
145–9 Generalized System of Preferences
ex ante approach 133–4, 142, 144–5 (GSP) scheme 51–2
ex post approach 133, 142 genetically modified organisms
expropriation, MAI 248, 254 (GMOs) 28, 41–2, 155, 156, 286
Geradin, Dr Damien 91–101, 280
fair trade 50–1, 60, 65, 66–8 Germany 63
foreign direct investment (FDI) 168–9 Ghana 73–82
impacts 265–6 global environmental organization,
India 211–29 see World Environmental
Forest Stewardship Council (FSC) 80, Organization
83 globalization 3–5, 158–9
forestry 59, 73–82 decision-making 9–10
France 249 interdependence 4–5, 38–40
FSC see Forest Stewardship Council MAI 255
responsibility 28–9
GATT see General Agreement on see also liberalization of trade
Tariffs and Trade GMOs see genetically modified
General Agreement on Tariffs and organisms
Trade (GATT) 20, 118 green consumerism 73–82, 83–7,
Article III 94, 95, 97, 107 163–4, 174
Article XX 16, 106–12, 125–6, 143, Grubb, Michael 282
161 GSP see Generalized System of
chapeau 108–9, 134, 145, Preferences scheme
147–8, 204 Gummer, John 36–45, 284–5
direct trade bans 92–3
future MEA reference 204 harmonization, PPM-based standards
import prohibitions 195–6 164–5, 173–4
potential amendments 13–15, hazardous materials 217–18
134, 141, 142, 145, 149–51, 204 High Level Meeting 7, 18, 21–3, 112–
‘Understanding’ 106, 134, 142, 13, 131, 185, 286
145, 150, 204 Huner, Jan 242–51, 287
‘like products’ 125, 155–6, 176–82,
193–4, 198 IIED see International Institute for
MEA trade restrictions 98–100 Environment and Development
(IIED)
294 Index

ILO see International Labour labelling 15, 83–7, 156, 223–4, 281–2
Organization see also eco-labelling
imperialism, economic 39–41, 97 Lango Cooperatives Union, Uganda
India 64–5, 214–18, 221–9, 260–1 66
institutional capacity, developing LCA see Life Cycle Analysis
countries 69–70 least developed country needs 8
intellectual property rights (IPRs) liberalization of trade 11–12, 158–9,
178–80, 226–7 228, 230–41, 273, 284
international environmental Life Cycle Analysis (LCA) 14, 84
organization 25, 26, 130, 286, 289 ‘like products’ 125, 193–4, 198
International Institute for Environment ambiguity 176–8
and Development (IIED) 64, 71–2 concept 155–6
International Labour Organization PPMs 177–82
(ILO) 8 see also intellectual property rights
International Organization for
Standardization (ISO) 84–5, 154, Mabey, Nick 269–75
175 MAI see Multilateral Agreement on
14000 series 53, 59, 171–2 Investment
certification 62 market access 114–20, 167–8
TNCs 221, 224–5 market forces 163–4
International Tropical Timber Marrakesh Agreement 103–4, 127
Organization (ITTO) 52, 77 Maruti Udyog 220–1
Internet 8, 207, 245, 247, 251 Mehta, Pradeep S. 259–68, 287
investment Millennium Round 26, 131–4, 136–7,
bilateral investment treaties, 252 290
FDI 168–9, 211–29, 265–6 Moltke, Konrad von 177–82, 283
international 16–17, 78–9, 287 Montreal Protocol 37, 98, 122, 123–4,
see also Multilateral Agreement on 132, 162–3, 282
Investment MTS see multilateral trading system
investor protection 273–4 Multilateral Agreement on Investment
investor-state dispute settlement 242– (MAI) 16–17, 242–51
3, 254–5 background 243–9
ISO see International Organization for developing countries 259–68
Standardization expropriation provisions 248, 254
ITTO see International Tropical failings 102–3, 255–6, 263–5,
Timber Organization 270–3
France 249
Jha, Veena 211–29, 282, 285 globalization 255
India position 225–6
Kyoto Protocol 140, 282 industry position 252–8
Index 295

investor-state dispute settlement relative influence 131

provisions 242–3, 254–5 waivers 133
liberalization 273 multinational companies see
NGO involvement 245, 247–8, 250, transnational corporations
256, 269–75 mutual recognition 113, 114
OECD/WTO as forum 249–50, 256–
7, 265–7 Nadakavukaren Schefer, Krista 187–
sustainable development 275 202
three-anchor approach 245–6, 253 NAFTA see North American Free Trade
UK position 246 Agreement
UNCTAD role 267 NGOs see non-governmental
multilateral environmental agreements organizations
(MEAs) 12, 98–9, 100, 122–37, non-governmental organizations
282–3 (NGOs) 63, 101, 183, 213–14,
adherence to 184 285–6
developing countries 52–3, 139 MAI involvement 245, 247–8, 250,
effectiveness 139 256, 269–75
EU position 145–9 non-product related PPMs 129–37
GATT Article XX potential North American Free Trade Agreement
amendments 13–15, 134, 141, 142, (NAFTA) 133–4, 243–4, 246, 253–4
145, 149–51, 204 Norway 217
industry perspective 142–51
MTS conflict 125–9, 139 OECD see Organization for Economic
MTS resolution mechanisms 129– Cooperation and Development
37 organic sector 66, 83
OECD perspective 138–41 Organization for Economic
PPM-based standards 153, 162–3 Cooperation and Development
TNCs 214 (OECD) 138–41, 225–6, 249–50,
trade measures 106, 122–4, 138–9 256–7
WTO relationship 13–14, 105–6, Owen, David 230–41, 285
112–13, 138–41, 143–51
multilateral trading system (MTS) 3– Panel (WTO) 107–10, 121, 288
5, 111 ‘political chill’ argument 128, 129
competence 104 polluter pays principle 263, 272
criteria specific modification 134, pollution havens 96, 114, 157, 181
135–6 pollution tax 119
Kyoto Protocol 140 Potier, Michel 138–41, 282
‘like products’ 155–6 PPMs see process and production
MEA conflict 125–9, 139 methods
MEA resolution mechanisms 129–37 precautionary principle 263, 272
296 Index

privatization 230–41, 274 (SPS) Agreement 95, 106–7, 199–

process and production methods 200, 202
(PPMs) 14–15, 109, 152–75, 283 Shahin, Magda 102–21, 289
commodity markets 179–80, 181 Shrimp/Turtle dispute 12–13, 107–12,
‘like products’ debate 177–82 183–6, 197–8, 203–8
non-product related 113–14 amicus curiae briefs 204–7
PPM-based standards 95–7, 100–1, Appellate Body report 6, 93, 99–
153–4, 156–64, 197–8 100, 110–12, 121, 127, 161–2
certification 172 Panel report 107–10, 121, 288
competitiveness 96–7, 153, PPMs 183–6
156–60 procedural issues 204–6
consumer preference 163–4, 174 WWF recommendations 183
environmental management Singapore Ministerial Report (1996)
171–2 104, 105, 110, 112–13, 121, 132
harmonization 164–5, 173–4 small and medium-sized enterprises
MEA inclusion 162–3 (SMEs) 114, 173
minimum standards 165–6 SMEs see small and medium-sized
policy responses 164–6 enterprises
positive impacts 166–73 Solomon Western Islands Fair Trade
premiums 170–1 (SWIFT) 66–8
subsidies 166 SPS see Sanitary and Phytosanitary
trade restrictions 95–7, 100–1 Measures Agreement
unilateral 160–2 standards
Shrimp/Turtle dispute 183–6 environmental safety 159, 199–200
product standards 94–5, 100 labour 8
protectionism 11, 25, 27–8, 71, 77, process 95–7, 100–1
160–2, 180 product 94–5, 100
see also International Organization
Quick, Reinhard 142–51, 282 for Standardization; process and
production method-based
Reformulated Gasoline case 147–8 standards
regulatory infrastructure 240–1, 287 subsidiarity 273–4, 284–5
renewable energy sources 221 subsidies
Ricupero, Rubens 102 environmental 55, 166, 198–9
risk management 236–7 PPM-based standards 166
Robins, Nick 56–72, 281 win–win 55
Ruggiero, Renato 3–10, 286 supply chain management 61–2
sustainability 12, 24, 49–55, 275
Sampson, Gary P. 20–3, 289 sustainable trade 56–72, 283–4
Sanitary and Phytosanitary Measures barriers 71–2
Index 297

case studies 64–8 negative impacts 213–20

commodity markets 172–3 positive impacts 219, 220–1
driving forces 60–3 technology transfer 259–60
global market 58–60 TRIPS 226–7
SWIFT see Solomon Western Islands transparency 32, 260, 263
Fair Trade disputes process 34–5
labelling 15
Tagua Initiative, Ecuador 68 WTO 7, 17, 193, 286
taxation 119–20 TRIPS see Trade-Related Intellectual
Technical Barriers to Trade (TBT) Property Rights Agreement
Agreement 95, 106 Tuna/Dolphin dispute 92–3, 197
technology
globalization 3–4, 9 UNCED see United Nations
transfer 116–17, 167, 259–60 Conference on Environment and
see also environmentally sound Development
technologies ‘Understanding’ clause, Article XX
textiles 26, 59, 64–5, 222 106, 134, 142, 145, 150, 204
Thor Chemical Holdings 261 UNEP see United Nations
timber 52, 66–8, 73–82, 155 Environment Programme
Timber Export Development Board, UNICE see Union of Industrial and
Ghana 73–82 Employers’ Confederations of
TNCs see transnational corporations Europe
tourism 59–60 unilateral trade restrictions 92–7, 100,
toxic materials 221–2, 261–2 107–10, 153–4, 160–2
trade restrictions 14, 71, 75, 92–3, 95– Union Carbide 214–15
7, 98–101, 195–6 Union of Industrial and Employers’
see also unilateral trade restrictions Confederations of Europe (UNICE)
Trade-Related Intellectual Property 142–51
Rights (TRIPS) Agreement 178–9, United Kingdom (UK) 36, 63
181–2, 226–7 eco-dumping 261
transfer of technology 116–17, 167, Government 11, 16, 17, 49–55
259–60 MAI position 246
transnational corporations (TNCs) 30, United Nations Conference on
115 Environment and Development
cross-border management 169 (UNCED) 116–17, 170–1, 267
EMS 169, 172, 221, 224–5 United Nations Environment
environmental infrastructures 221–4 Programme (UNEP) 141
environmental performance 228–9 Uruguay Round 11, 26, 110, 166
FDI 211–29
India position 211–29 Vossenaar, René 152–75, 283
298 Index

Wakeford, David 24–6, 289 World Trade Organization (WTO)

Ward, Halina 279–90 Agreement on MEAs 135–6, 137
waste 221, 229, 261–2 conflicting goals 189–91
water stress 231–2 decision making 23, 193
water and wastewater dispute settlement system 34–5,
Asia 231, 237–8 136, 187–202, 204–8, 283,
global markets 230–1, 239 287–9
global resources 230–3 DSU 187–9
privatization 230–41 environmental commitment 192
regulatory infrastructure 240–1 future conflict resolution 136, 201–
wealth creation, developing countries 2, 206–8
24–6 MAI 256–7
Wheeler, David 83–7, 281–2 MEAs relationship 13–14, 105–6,
White Paper on International 112–13, 138–41, 143–51
Development 49–55 objectives 20
Wilson, Brian 11–19, 279–80 PPMs 14–15
win–win approaches 53–5, 166–73, transparency 7, 17, 193, 286
280, 290 see also Appellate Body;
World Environmental Organization Committee on Trade and
(WEO) 25, 26, 130, 286, 289 Environment