Ole Kr. Fauchald Trade and environment: objectives n A convergence of objectives? ä Sustainable development as a common denominator? –Acknowledged in the preamble to the WTO ä WTO / MEAs: Mutual supportiveness –The debate over savings clauses in MEAs n Negotiations: “win-win(-win)” ä The Doha mandate: was it helpful? –WTO vs. MEAs – overlap of parties, no change to WTO –Environmental goods and services –Environmentally harmful subsidies – fisheries –CTE: environmental measures, TRIPS and labelling ä Trade in domestically prohibited goods ä Environmental impact assessment of trade

Ole Kr. Fauchald Overview of rules of WTO I n Trade in goods vs. trade in services n Obligation to reduce border measures ä Quantitative restrictions (services: market access in sectors listed in schedules) ä Tariffs / other border duties (only goods) ä Other custom formalities (only goods) ä Export subsidies (only goods) n Rules on non-discrimination ä National treatment and most favoured nation treatment (goods across the board, services only sectors listed in schedules) ä Explicit and implicit discrimination

Ole Kr. Fauchald Overview of rules of WTO II n Minimum requirements concerning internal regulation ä Duty to avoid unnecessary restrictions on trade (to a limited degree for services) ä Encourage use of international standards (to a limited degree for services) ä Regulation of use of subsidies for agricultural purposes (only goods) ä Duty to protect intellectual property rights n General exceptions ä Art. XX of GATT and Art. XIV of GATS n Conclusion: Broad range of measures can be regarded as ”trade measures”

Ole Kr. Fauchald Why ”trade measures” in MEAs n Carrots vs. sticks ä Why have MEAs preferred ”carrots”? ä The problem of non-parties - free riding n Four main reasons ä Trade generates the environmental problem ä Trade measures are the most effective ways to deal with the problem ä Prevent non-parties from undermining the environmental objectives (i.e. offset benefits of non-compliance) ä Punish non-compliance

Ole Kr. Fauchald Trade measures in CITES n Trade in endangered species as a problem ä Linked to overexploitation ä Less significant than other factors(?) n Between parties ä Ban combined with a system of prior informed consent ä Three lists - sustainable use vs. conservation –Appendix 1 - trade ban, but exemptions, Appendix 2 - export permit, Appendix 3 - concern of country of origin n Vis-à-vis non-parties ä Only trade when documentation comparable to the one required between parties

Ole Kr. Fauchald Trade measures in Montreal n Objective: Phase out production and use of ozone depleting substances (ODS) ä Differentiated responsibilities for developing countries n Between parties ä Established a licensing system for trade ä Ban on export to parties in non-compliance n Vis-à-vis non-parties ä Ban, with exception if non-parties comply with the requirements of the Protocol ä Extend to products made with but not containing ODS, but not applied in practice

Ole Kr. Fauchald Trade measures in Basel n Main objectives: ä Prevent export of hazardous wastes to countries that cannot treat it appropriately ä Treat the wastes close to the source n Establishment of lists of relevant waste n Between parties ä Prior informed consent ä Ban on export to developing countries - not in force n Vis-à-vis non-parties ä Transboundary movement must comply with the the obligations (art. 9)

Ole Kr. Fauchald Rights under WTO n Between parties to the MEA ä The MEA is likely to prevail - lex posterior / lex specialis: will a case be rejected? ä Unclear obligations under the MEAs ä Lack of appropriate dispute settlement mechanisms n Between a party and a non-party to the MEA ä The WTO Agreement is likely to prevail ä The main question is to what extent account will be taken of the MEA under the general exceptions

Ole Kr. Fauchald Unilateralism (Rio decl. princ 12) n What is unilateralism? n Why may unilateralism be necessary? ä Lack of willingness to deal with environmental problems ä Transboundary effects ä Time and irreversibility n Problems related to unilateralism ä Tool of the powerful ä Cover for protectionist policy / self-interest ä Undemocratic ä Long-term effect - undemine efforts to protect the environment ä Disagreement concerning the existence of an environmental problem

Ole Kr. Fauchald EIA of trade negotiations n Main issue in the OECD, taken up by the EU n Assessment of regulatory consequences, including effects on availability of measures ä Examples: New rules on services – requirement to follow international standards / new rules on investment n Assessment of actual effects in various sectors ä Effects of increased trade ä Effects of ”deregulation” n Identification of ”compensatory measures” ä Measures to offset potential consequences

Ole Kr. Fauchald Positive measures to protect the environment under WTO? n Division of work between WTO and MEAs ä Trade measures under MEAs vs. environmental measures under WTO? n The question of ”compensatory measures” – the responsibility of whom? ä International or domestic responsibility? ä Identify relevant and necessary measures ä Ensure that relevant measures are available ä Ensure that measures are implemented ä Ensure co-ordination