Environmental Engineering Reference
In-Depth Information
Agriculture declared that fundamental reform is an ongoing process and committed
parties to begin new negotiations in 2000. These negotiations are to take into account the
so-called 'non-trade concerns, including food security and the need to protect the envi-
ronment'.
13
The Agreement on Agriculture contains a so-called 'green box' list of subsi-
dies that have an exemption from reduction commitments, so long as they have at most
minimal trade-distorting e
ects on production.
14
The WTO Secretariat has
opined that this green box enables governments to 'capture positive environmental exter-
nalities'.
15
Yet I am unaware of any research on the true value for the environment of green
box subsidies.
The Agreement on Technical Barriers to Trade (TBT) contains a complex set of rules
regarding government and private regulatory systems. A central rule is that technical
regulations not be more trade restrictive than necessary to ful
ff
ects or e
ff
ll a legitimate objective.
The TBT Agreement includes, among an illustrative list of objectives, the 'protection
of human health or safety, animal or plant life or health, or the environment'.
16
Furthermore, TBT requires governments to use international standards as 'a basis for'
technical regulations except when such standards would be an ine
fi
ff
ective or inappropri-
ate means for the ful
llment of the legitimate objectives pursued.
17
The applicability of
this requirement to international environmental standards has not been well de
fi
fi
ned or
litigated.
Despite the mention of processes and production methods (PPMs), the extent to which
these come within the scope of the TBT Agreement remains unclear. For example, would
the sustainable
sheries label devised by the Marine Stewardship Council be a TBT
measure? Another ambiguity in the TBT Agreement is whether the rules for conformity
assessment by non-governmental bodies would apply to organizations such as the Forest
Stewardship Council and Green Seal.
The Agreement on the Application of Sanitary and Phytosanitary (SPS) measures
governs trade and domestic measures imposed to prevent risks to life or health from pests,
diseases, additives, contaminants, toxins and disease-causing organisms. The governmen-
tal responses to epidemics, in so far as the ensuing policies involve trade in goods, are also
governed by the SPS Agreement.
18
The SPS Agreement was written with a focus on food
safety and veterinary concerns, and, at one time, trade law commentators thought that
environmental regulations would be governed by the TBT Agreement rather than the SPS
Agreement. Yet in 2006, the WTO panel in
EC-Approval and Marketing of Biotech
Products
gave a broad interpretation to the scope of the SPS Agreement and emphasized
that the Agreement could cover 'certain damage to the environment other than damage
to the life or health or animals or plants'.
19
This precedent may mean that the disciplines
of the SPS Agreement, which are among the strictest in the WTO, will collide more with
TREMs in the future.
When a measure is covered by the SPS Agreement, it is subject to numerous rules. For
example, SPS measures a
fi
ff
ecting trade have to be based on a risk assessment and cannot
be maintained without su
c evidence.
20
SPS Article 3 directs governments
to base their SPS measures on international standards, but allows governments to set a
higher level of protection than exists in the international standard. The Appellate Body
has taken note of 'the delicate and carefully negotiated balance in the SPS Agreement
between the shared, but sometimes competing, interests of promoting international trade
and of protecting the life and health of human beings'.
21
In that holding, the Appellate
cient scienti
fi
