Regulation of the International Trade of Endangered Species by the World Trade Organization

Article excerpt

I. INTRODUCTION

The past decade has brought heightened awareness of the tension between free international trade and the protection of endangered species.1 The timing of this conflict can be attributed to two trends. In the international trade arena, governments have continued to open their borders not only by lowering tariffs but also by reducing nontariff barriers (NTBs), such as quotas.2 Consequently, national economies have been exposed to increased competition from abroad.3 While many support this trend, others have attempted to use new forms of protectionism, such as environmental and labor regulations, to control the inflow of foreign goods and services that compete with domestic products.4 On the environmental front, wealthy nations have become increasingly aware of destruction to the environment caused by their industrialization.5 These nations are currently attempting to slow environmental degradation by enacting laws and promulgating regulations. Many of these provisions affect international trade.fi The goals of free trade and environmental protection often conflict and are rarely addressed by the same forum, making reconciliation a near impossibility.7 There is currently no single international institution that makes rules and settles disputes between trade and the environment without having a bias toward either side.8

International environmental law is primarily governed by Multilateral Environmental Agreements (MEAs),9 an institutional trend, which grew out of bilateral agreements concerning specific environmental issues.10 Most MEAs implement their agendas by enforcing trade restrictions on their members.ll Such trade restrictions are often referred to as ETMs (environmental trade measures). An ETM " `is a restriction on international trade with the announced purpose of promoting an environmental objective' and has `an actual or potential impact on international trade."' 12 The use of trade restrictions to enforce MEAs, however, often conflicts with the basic principles of the underlying international trade agreement.13 The World Trade Organization (WTO) generally interprets its principles promoting fair and free trade in a manner that leaves no room for measures to protect endangered species.14

The Convention on the International Trade of Endangered Species (CITES) is an example of an MEA that uses ETMs to achieve its conservationist goals.15 CITES regulates the international trade of endangered species in such a way that effectively prohibits trade in certain species.16 Consequently, CITES's enforcement mechanisms often conflict with the basic principles of the WTO.17

Whether ETMs are the most effective method for enforcing environmental protection measures is a hotly debated issue.18 Proponents of free trade often view MEAs like CITES as protectionist measures designed to decrease competition to domestic producers by preventing the importation of foreign goods, rather than as purely conservationist measures designed to protect the environment.19 The General Agreement on Tariffs and Trade (GATT)20 allows countries that do not have strict environmental regulations to produce goods cheaply, because they are not subject to stringent environmental standards that often raise the cost of production.21 Producers from such countries can then export those goods to countries where the goods will compete with more expensive products manufactured under strict environmental standards.22

Others argue that ETMs are not an effective way of achieving environmental protection goals because they do not attack the problem itself.23 Because ETMs only indirectly address the problem of environmental abuse, absurd consequences often result. For example, CITES prohibited trade in ivory until very recently.24 Because the ban lowered the value of ivory on the world market, many Africans necessarily relied more on income from farming.25 Thus, they were less tolerant of the growing elephant population, which trampled their fields and, as a result, killed more elephants. …