Environmental Engineering Reference
In-Depth Information
members may exclude from patentability inventions if 'necessary' to 'protect human,
animal or plant life or health or to avoid serious prejudice to the environment', and further
provides that members may exclude from patentability plants and animals other than
microorganisms provided that plant varieties receive protection either through a patent or
an e
ective
sui generis
system.
25
The meaning of these optional exclusions from
patentability has not yet been explicated in WTO dispute settlement.
ff
Conclusion
So much for the legal details; I conclude this chapter with a thought for the future. What
can environmental policy-makers learn from the trading system? For some, the answer is
the importance of the principles of non-discrimination and free trade. In my view, that
misses the point because the WTO rejects these principles as much as it embraces them.
26
The real lesson from the WTO is the success of an international regime that uses higher
law to enable governments to enact and lock in optimal policy changes that would other-
wise be hard to adopt because of vested interests. As Daniel Esty noted many years ago,
importing that approach can be bene
fi
cial for environmental law (Esty, 1994, p. 230).
Notes
* arts of this chapter draw from a study prepared for the World Bank Institute in 2007.
1.
Convention for the Protection of Birds Useful to Agriculture, 19 March 1902, 102 BFSP 969, art. 2 (no
longer in force).
2.
Convention for the Abolition of Import and Export Prohibitions and Restrictions, 8 November 1927, 97
LNTS 391, art. 4, ad art. 4 (not in force).
3.
Havana Charter for an International Trade Organization, 24 March 1948, art. 45.1(a)(x) (not in force),
available at http://www.wto.org/english/docs_e/legal_e/prewto_legal_e.htm.
4.
UN Conference on Environment and Development, Agenda 21, para. 2.21(b).
5.
Doha Ministerial Declaration, WT/MIN(01)DEC/1, 14 November 2001, para. 6.
6.
A TREMs is a measure in an environmental treaty, law or regulation that a
ects trade. Disputes about
TREM can be lodged in the WTO. For example, the
EC-Asbestos
case involved a complaint by the
Government of Canada about a French decree that banned the manufacture, sale, or importation of
asbestos
ff
bers. The purpose of the decree was to prevent harm to
human health. TREMs that inhibit trade are regularly used for environmental purposes. Of course, most
measures that inhibit trade are trade measures, not environmental measures. For example, tari
fi
bers and any product containing such
fi
ff
s, quotas
and countervailing duties are trade-related trade measures.
7.
Appellate Body Report,
European Communities - Measures A
ecting Asbestos and Asbestos-Containing
Products
, WT/DS135/AB/R, adopted 5 April 2001, paras 162-72.
ff
8.
16 USCS ยง3372(a)(2)(A).
9.
Appellate Body Report,
United States-Import Prohibition of Certain Shrimp and Shrimp Products
,
WT/DS58/AB/R, adopted 6 November 1998, para. 133.
10.
Appellate Body Report,
United States-Standards for Reformulated and Conventional Gasoline
,
WT/DS2/AB/R, adopted 20 May 1996, pp. 20-21.
11.
Appellate Body Report,
United States-Import Prohibition of Certain Shrimp and Shrimp Products -
Recourse to Article 21.5 of the DSU by Malaysia
, WT/DS58/AB/RW, adopted 21 November 2001.
12.
WTO, 'The environment: a speci
c concern', available at http://www.wto.org/english/thewto_e/whatis_e/
tif_e/bey2_e.htm. The Secretariat does not cite any legal authority for this assertion.
fi
13.
Agreement on Agriculture, Preamble recital 6, art. 20 (c); Doha Declaration, para. 13.
14.
Ibid. Agreement on Agriculture, art. 6.1, Annex 2, paras 2(a), 12. Among the listed subsidies are infra-
structure works associated with environmental programs and payments under environmental programs.
Eligibility for such payments has to be determined as part of a clearly de
fi
ned government environmental
or conservation program and be dependent on the ful
c conditions. Moreover, the amount
of payment has to be limited to the extra costs or loss of income involved in complying with the govern-
ment program.
fi
llment of speci
fi
15.
WTO, 'Relevant WTO provisions: descriptions', available at http://www.wto.org/english/tratop_e/envir_
e/issu3_e.htm.
16.
TBT, art. 2.2. See also ibid., art. 5.4. This requirement also applies to voluntary international standards.
