Conflicts of Norms and Jurisdictions between the WTO and MEAS

Abstract

An increased environmental awareness has emerged among the world citizens. The World Trade Organization (WTO) has begun to consider environmental issues to a further extent. However, the WTO mainly leaves environmental concerns outside its scope. Therefore, such concerns are left to be regulated elsewhere, why Multilateral Environmental Agreements (MEAs) have come to involve trade affecting measures, which often conflict with the fundamental principles of the WTO. Consequently, the foremost aim of the WTO, namely to liberalize trade, is set against the urgent need of protecting the environment. This paper aims at examining the relationship between the WTO and trade affecting measures contained in MEAs. Potential as well as factual conflicts of both norms and jurisdictions may arise between the WTO system and MEAs. Conflicts may arise concerning which dispute-settling mechanism that shall have the juris¬dic¬tional power as well as which law that shall be applicable before that mechanism. Such conflicts are possible as a consequence of that provisions of MEAs might be considered when interpreting WTO law. Even though no factual dispute yet has been brought before the WTO dispute-settling mechanisms there is a significant risk for future conflicts. This paper presents some core principles of the WTO, the definition of conflict, possible conflicts that may arise between the WTO agreements and MEAs and common principles of international law on how the WTO agreements should be interpreted. Case-studies of two MEAs, namely the Conven¬tion of Inter¬na¬tional Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Kyoto Protocol are included. CITES is used as to give example of factual conflicts and the Kyoto Protocol as to show potential conflicts that may arise. Moreover, approaches on how to clarify this tense relationship and how to develop the dispute resolution of the WTO as well as MEAs as to better handle disputes involving environ¬¬¬mental issues are presented. The concluding part is aimed at examining possible solutions to the treated types of conflicts. Regarding possible solutions, key issues that are discussed are whether WTO violations may be justified either under article XX of the GATT, article XIV of the GATS or with reference to non-WTO law.