A Green Road to Development: Environmental Regulations and Developing Countries in the WTO
Skinner, Jonathan, Duke Environmental Law & Policy Forum
The intersection of environmentalism and economic development is of growing interest and renewed prominence--as are the tensions associated with balancing these interests. With the collapse of the Doha negotiations in the summer of 2008, a fractured chasm continues to grow between the developed and the developing worlds. (1) However, the conflicts do not evidence a failure of the international trade regime; instead they signify the growing influence and sophistication of developing states. The rise in influence of these states, however, is viewed by some as a threat to environmental conservation. Skeptical states even proposed alternative international organizations to address the perceived diverging ambitions. (2) Nonetheless, environmentalists should not advocate withdrawing from the trade-environment debate, but instead should encourage sustainable development as an alternative to ostracizing any group of Nations. This paper contends that the World Trade Organization is the proper forum for greening the road to development and bridging the interests of the developed and developing worlds.
The Marrakesh Declaration of 1994(3) affirmed the establishment of the World Trade Organization (WTO), effectively transitioning the international community from the General Agreement on Tariffs and Trade (GATT) (4) framework to the WTO system. (5) The historic agreement of the WTO recognized the importance of integrating developing countries into the international trade community whilst also preserving the environment. (6) The framers emphasized that sustainable development is a primary objective, though the means thereto should reflect the "needs and concerns" of countries "at different levels of economic development." (7) Indeed the change in language from GATT 1947 evidences negotiations recognizing "that the objective of 'full use of the resources of the world' set forth in the preamble ... was no longer appropriate to the world trading system of the 1990s." (8) Though not an explicitly binding obligation, the preamble of the WTO does "add colour, texture and shading to [an] interpretation of the agreements annexed to the WTO Agreement." (9) The Marrakesh Agreement also created a permanent WTO Committee on Trade and Environment (CTE) that "contribute[s] to identifying and understanding the relationship between trade and environment in order to promote sustainable development." (10) In practice, however, the problem of striking a balance between the unique situations of developing countries and preserving environmental values appears, in WTO case law, to be insoluble.
Historically, environmental regulations were viewed as a NorthSouth divide between developed and developing countries (or between importing and exporting countries), whereby developing countries were restricted from market access based on environmental regulations. Initially, unilateral action by developed countries improperly overstepped the boundaries of domestic regulations and invaded national sovereignty. (11) Currently, politicians remark that unilateral environmentally friendly measures might even create environmentally harmful competitive advantages, such as pollution havens (12) in developing countries, where only through multilateral agreements could developing countries be brought up to international standards of environmental protection.
Though a World Environmental Organization (WEO) (13) or even an International Environmental Court (IEC) (14) might be a satisfactory forum to detangle the web of Multilateral Environmental Agreements currently in effect, a WEO or an IEC is an unnecessary addition to the global community. Instead, the WTO is adequately structured to accommodate environmental concerns, does reference environmental agreements, and is developing a greener jurisprudence, even with respect to the unique concerns of developing countries. As discussed below, the WTO is, in fact, the optimal system to reconcile environmental protection and development. …