WTO Public Symposium 2003: Session XVII – State of Trade and Environmental Law

Session organized by IISD

Panelists and Viewpoints

Panel Moderator: David Runnalls, President, IISD

Steve Porter, CIEL
Draft Paper

Steve Porter, an experience attorney in environmental issues, gave a comprehensive background of the MEA and WTO relationship. Helping contextualize current events, he reviewed past legal cases. While no cases have been brought against the WTO some have dealt more broadly. For example, he explained the Tuna and Dolphin cases. Or even before that time there was the US petroleum border tax case and the Canada Herring Case. Porter explained that in every instance GATT law was applied to reach a resolution. However, there has been some dissention about applying GATT. For example, the reformulated gas case between the US and Venezuela and in 1998 the beef hormone case came to the appellate body.

Currently, he explained MEAs are used as points of reference, there is no shift in burden of proof. He wants to see rational and progressive development. He thinks the WTO can be a tool for accomplishing this, but reminded the audience that the negotiations are not taking place in a vacuum. He also warned that the narrow focus of Doha could limit the ability of the appellate body to take a case-by-case approach. Yet, as trade rules expand into other realms, it becomes more critical that the WTO address where it lies in relation to other international bodies.

Duncan Brack/ Kevin Gray, Royal Institute for International Affairs

See online slide presentation of the talk.

Maria Rita Fontes Faria, Permanent Mission of Brazil, Geneva

Ms. Faria made an interesting presentation based on her experience with MEAs themselves. She is a member of the CTE and has been involved in the MEA-WTO relationship issue since the UN Conference on Earth and Development in 1992 at Rio. From this interesting perspective she confidently asserted that MEAs are extremely complex, but also flexible. Flexibility provisions are included for capacity building, differentiated timelines and technical/financial assistance. She explained that the relationship between these agreements and the WTO is an old issue, and has been debated since before Doha.

There are a few approaches to the problem, and she gave a sketch of each. The status quo approach is supported by developing countries. Those who want some guidelines for dispute settlement she referred to as those interested in “softer accommodation”. Another group think that MEAs should accommodate the WTO rules. Currently, the demandeurs for the resolution of this problem are the EU, US and Japan. They advocate amendment of Article 20 of GATT and also want reversal of burden of proof. Developing countries think that environmental debates like this can be used to restrict market access, but they respect the need for discussion of this issue. They would appreciate if the already focused mandate continued to be limited to trade.

Ms. Faria believes that there is no inherent complication that needs legal clarification. She also hopes that members give up the conceptual debate and come more prepared to address trade related measure in MEAs. She also is of the opinion that MEAs and WTO are mutually supportive, and that participation of MEA secretariats in meetings would increase confidence and understanding between the two bodies.

Further Comments by Panelists and Delegates

The limited mandate

A delegate in the audience representing German industries asked for a clarification of the limited mandate and its importance. Duncan Brack responded that the limited mandate does make the discussion kind of useless. He offered that gains can be made elsewhere, though it is difficult to see where they will be. Stephen Porter gave a less critical response, saying that the limited mandate isn’t all bad as it contributes to precaution.

The GM Case

Another audience member was interested in how the GM case related to the MEA debate. Duncan Brack simply didn’t think that the GM case is relevant to the Cartagena protocol.

Developing Countries

During the question and answer period Marie Fuentes Faria expressed her view that there is a lot to gain in this discussion for developing countries. This was in response to a concern raised by a delegate from the Friends of Earth International.