Sustainable development:
Economy and the environment

More institutional linkages will give the environment and trade system coherences.

Laurence Boisson de Chazournes

Laurence Boisson de Chazournes University of Geneva

Laurence Boisson de Chazournes is Professor of international law at the Faculty of Law of the University of Geneva and a Visiting Professor at the Graduate Institute of International Studies (Geneva). She was senior adviser with the World Bank on international and environmental law from 1995 to 1999. A consultant and a member of groups of experts with various international organizations, including the World Bank, WHO, UNDP and WTO, she is the author of a large number of publications.

An academic view

Greening WTO's trade dispute settlements

The WTO's trade dispute-settlement procedure is one of the most powerful tools of the organization. Geneva specialists have been considering ways to improve its operations for the benefit of the environment.

There is no doubt that the dispute settlement mechanisms of Multilateral Environmental Agreements (MEAs) are different in nature from the WTO's. MEAs deal with environmental problems that, in most cases, call for prevention rather than adjudication. In recent years, many environmental treaties have incorporated non-compliance procedures, used as some sort of dispute avoidance mechanism. These procedures are usually characterized by being non-controversial and focusing on technical assistance. As such, MEA dispute-settlement mechanisms are often characterized as weak. I would argue against this view. In fact they reveal a characteristic of environmental protection: issues are considered of collective interest that need to be addressed in a constructive spirit with a forward-looking vision.

That said, there is room for strengthening MEAs' dispute-settlement mechanisms. The Kyoto Protocol's non-compliance procedure provides one good example of an MEA dispute settlement mechanism with greater efficiency and more power than earlier systems. It is based on assessing compliance and on responding effectively to non-compliance.

But because the WTO dispute-settlement mechanism exercises a «fatal attraction» to states because of its powerful regulations, it is also important to focus on «greening» the WTO dispute-settlement procedures to ensure fair consideration of environmental concerns.

One way to do this is through the establishment of institutional linkages (inter-institutional cooperation) to ensure coherence. For example, WTO members could encourage greater involvement of relevant MEA secretariats in dispute-settlement procedures. MEA secretariats could be invited to send comments and participate at the stage of consultations (after a change in WTO rules) or mediation as well as when a dispute reaches the panel.

Coordination between MEAs' dispute-settlement mechanisms and the WTO's dispute-settlement mechanism should also be considered before agreements are signed. From the moment drafting begins on a trade or environment instrument, its consistency and coexistence with other international instruments should be taken into account, including the dispute-settlement issue. There are trends toward this direction: Article 151.8 of the Convention on the Law of the Sea, the International Plant Protectio Convention (IPPC), Article XIII: 6, even paragraph 3 of Article 11 of the WTO's SPS (Sanitary and Phytosanitary) Agreement, entitled «Consultations and Dispute Settlement».

Clauses could also be inserted in MEAs or trade agreements for giving preference to one dispute settlement mechanism over another. A further step would be to impose mandatory requirements to resort to one dispute-settlement procedure or another. As an example, in sanitary and phytosanitary measures, environment and other standard disputes, the North American Free Trade Agreement obliges a NAFTA State to withdraw from a GATT(WTO) dispute (involving two NAFTA States) if the other NAFTA State prefers the NAFTA jurisdiction.