ENVIRONMENTAL POLICY
The removal of trade barriers in the post-war era was co-ordinated and pro-
moted under the General Agreement on Tariffs and Trade (GATT). Formally
agreed in 1947, GATT underwent eight rounds of negotiation, culminating
in the Uruguay round completed in 1994, which established the WTO as a
permanent body to oversee the implementation of GATT and related agree-
ments, and a quasi-judicial system of dispute resolution that requires con-
sensus among WTO members to overturn any of its decisions (Brack 2005 :
2). The WTO has 149 members and accounts for 97 per cent of world trade
(WTO 2006 ).
GATT was established long before any major global environmental con-
cerns arose, so its rules – still the main mechanism for governing trade –
contain few references to the environment, although the preamble to the
Agreement Establishing the WTO does include sustainable development and
environmental protection among its objectives. The one GATT rule that does
appear to address environmental issues is the general exceptions clause,
Article XX, which allows trade restrictions where they are ‘necessary to pro-
tect human, animal or plant life or health’ (Article XX(b)) or relate ‘to the
conservation of exhaustible natural resources’ (Article XX(g)). However, such
exceptions are subject to a range of qualifications, notably that they must
benecessary(i.e. there is no alternative), thatdomestic restrictionsmust also be
imposed and that any trade measures must not bearbitraryorunjustifiable.
There is also disagreement about whether measures intended to protect nat-
ural resources outside a country’s border are allowed and whether measures
can discriminate on the grounds of theirprocess and production methods, which
in many cases – because they produce transboundary pollution or deplete
natural resources such as fish or timber – are environmentally unsustainable
(Brack 2005 :8;Clapp and Dauvergne 2005 :136–7).
The restrictiveness of these rules, apparently reflected in some early deci-
sions of the disputes procedure, has led many environmentalists to con-
demn the GATT/WTO for failing to protect the environment. They cite, in
particular, the two decisions on the tuna–dolphin dispute. The first case was
brought by Mexico against the USA on the grounds that a US import ban
on Mexican tuna caught in ‘dolphin-unfriendly’ nets was discriminatory. In
19 91,the dispute panel said that Article XX did not apply because the USA
was trying toapplynational laws beyond its own jurisdiction and that any-
way the US banwasinbreach of GATT rules by discriminating against a
product on the basis of the way it was produced rather than because of its
own characteristics. In 1994, a second decision found in favour of the EU
because the US secondary ban on third-party sellers of tuna was unilateral
and arbitrary. Another similar case was the 1996 WTO ruling against a US
law on gasoline cleanliness, which was found to discriminate against imports
from Brazil and Venezuela. Yet, as DeSombre and Barkin ( 2002 )observe, the
problem in most cases where the WTO has ruled against a regulation is that
‘the regulations were not particularly good; they were either clear attempts
at industrial protection dressed up in environmentalist clothes, or they were