Environmental Engineering Reference
In-Depth Information
Most relevant to service
Least relevant to service
Intrinsic to service
External to service
Proximity to infrastructure
Storage capacity
Preserve environment
Preserve coastal access
Conserve historic values
Preserve scenic vistas
Figure 20.3
Relevance test applied to licensing requirements for coastal development of
LNG port
right end (least relevant) are requirements that relate to external impacts (e.g. preserving
scenic vistas) and not the service,
per se
.If the purpose of this discipline is to 'ensure
that . . . measures are necessary to ensure the quality of the service', which is permanent
language in GATS Article VI:4, dispute panels could reject requirements that are not
intrinsic to the service.
As with 'necessity', one end of the spectrum would require measures to be least bur-
densome, while the other end would tolerate measures that are more burdensome.
Negotiators avoid resolving their di
erences on this spectrum by creating vagueness or
ambiguity in the text, which kicks the real interpretation into the future, into the hands
of WTO dispute panels. However, a discipline such as 'relevance' need not be so vague.
Negotiators could de
ff
fi
ne relevance to include external impacts as well as inherent quality
of a service.
Conclusion
Since GATS became e
ective in 1995, its coverage has been interpreted by the WTO to
overlap with GATT with respect to distribution of goods. Trade disputes that would fail
due to GATT's exception for conservation of resources could be brought under GATS,
which has a much more limited provision on environmental inputs.
GATS rules on market access have been interpreted by the WTO to prohibit not only
limits on service suppliers, but also 'zero quotas' or bans. For example, GATS could pro-
hibit limits on the number of incinerators or other service operations.
GATS negotiations on sectors have been controversial. After an international cam-
paign to 'Stop GATS', the European Commission withdrew its proposal on water ser-
vices. The EC still seeks commitments on infrastructure services that are purchased by
public utilities from private industry, while the US position on public-private contracting
is ambiguous. The USA is proposing energy commitments that would cover LNG facili-
ties and electricity brokering. With one major exception, gambling, US negotiators have
resisted proposals to limit such commitments so as to safeguard domestic regulation.
GATS negotiations on domestic regulation have received little public attention. But
proposals being debated could constrain environmental regulation through relevance
tests, objectivity tests, pre-establishment tests and simplicity tests. GATS is evolving to
regulate the regulators of the service economy.
As its in
ff
fl
uence expands, GATS is attracting scrutiny from subnational o
cials, envi-
ronmental advocates and developing nations. They all seek to balance the 'o
ense' trade
agenda with a 'defense' governing agenda. In the words of the South Centre, 'Setting reg-
ulatory parameters based on foreign values or best practices ignores the unique historic,
ff
