On The Conflicts And Linkages Between Multilateral Environment Treaties And WTO

This article undertakes a study on the conflicts between multilateral environmenttreaties and WTO and their solutions under the background of fragmentation ofinternational law. Through the analysis and comparison of the norms of fifteenrepresentative multilateral environment treaties and WTO, this article finds out wheretheir conflicts exist. To analyze and finds out the solutions to these conflicts, thisarticle turns on the linkage theory of international law and develops the concept oflinkage arrangements. On this basis, this article reconsiders the related laws andinternational position of our country, analyses their shortcomings and puts forwardsthe suggestions for solution. The article consists of three parts: the introduction, themain body and the conclusion.The introduction introduces the research background, the current research resultsdomestically and abroad, the purpose and significance, the basic train of thought andresearch method, the framework and the innovative ideas of this thesis.The main body includes five chapters.Chapter one describes the international law background and causes of therelationship between multilateral environment treaties and WTO. In the discussions offragmentation of international law, the point of views of the Study Group ofInternational Law Commission and Mr. Joost Pauwelyn et.al. represent the oppositionof systematic approach and plural approach. Because multilateral environment treaties and WTO belongs to the differentsystems of international law, the inter-system characteristic of the relationshipbetween multilateral environment treaties and WTO makes the solution of theirconflicts orientated towards plural approach. This leads to the effects of the traditionalinternal-system conflicts solutions such as lex posterior and lex specialis be limitedwhen used to solve the conflicts between multilateral environment treaties and WTO.The basic reason for conflicts between multilateral environment treaties and WTOis that there is conflict between the more extensive goals or values of trade regime andenvironment regime to which multilateral environment treaties and WTO belongs.Based on the association between trade and environment, the request of the presentenvironment movement to intervene the economic activities including trade invadesthe goals of free trade and fair trade of WTO. In handling this contradiction, theconcept of sustainable development lacks specific framework support.The direct reason for the conflicts between multilateral environment treaties andWTO is the effects of environmental measures on trade. The application ofmultilateral environment treaties often turns out to be the trade measures from theperspective of WTO. To handle those disputes arising from the trade effect ofenvironmental measures, there will be different judgments or even contradictjudgments based on the choice of norms of multilateral environment treaties or WTOnorms. In addition, the application scopes of multilateral environment treaties andWTO are partially overlapping. It provides the conditions for the conflicts betweenmultilateral environment treaties and WTO.Chapter two compares WTO norms with the fifteen multilateral environmenttreaties to identify where their conflicts exist.To the present, the international law scholars' points of view about the definition ofconflict of treaty norms can be divided into two categories: strict definition and broaddefinition. The key point of strict definition is that the conflict should involve onlythose norms imposing obligations and its test should lie therein that two norms cannotbe applied at the same time. Broad definition includes all the contradictions betweennorms imposing commands and those imposing prohibitions, those imposing commands and those granting exemptions, those imposing prohibitions and thosegranting permissions. It holds that the conflict between treaties exists when one normconstitutes, has led to or may lead to, a breach of another norm.For not neglecting the contradictions between norms imposing commands andthose granting permissions and the contradictions between norms imposingprohibitions and norms granting permissions, the broad definition of conflicts oftreaty norms is necessary. The conflicts of treaty norms in broad sense can be furtherdivided into explicit conflicts which happen because of incompatibility betweennorms imposing obligations (norms imposing prohibitions and norms imposingcommands) and recessive conflicts which happen because of incompatibility betweennorms imposing commands and norms granting permissions, and incompatibilitybetween norms imposing prohibitions and norms granting permissions.During the related discussions in WTO, the WTO secretary has sorted out fifteenmultilateral environment treaties which involve trade related measures. Analyzedfrom the perspective of treaty norms and cases, there are some conflicts between somenorms of these multilateral environment treaties which provide trade related measuresand WTO norms. There are six multilateral environment treaties which show explicitconflicts with WTO and four multilateral environment treaties which show recessiveconflicts with WTO.Chapter three discusses the problem of how to resolve the conflicts between WTOand some multilateral environment treaties. Regarding this problem, Mr. JoostPauwelyn and other scholarship have put forward the concept of conflict norms liketraditional conflict laws. Because conflict norms are similar to traditional conflictlaws which are based on division of jurisdiction, it does not suit the conflicts betweendifferent treaty norms based on differentiation of function.In contrast, the concept of linkages hotly discussed by international law scholars ismore effective than pure conflict norms in handling inter-system conflicts betweennorms of multilateral environment treaties and WTO norms.Based on the discussions about linkages, this article suggests the concept oflinkages arrangement as the carrier of the linkage between treaties to further the research on the linkage structures which could be of help to solve the conflictsbetween treaties.After the analysis of the present norms of multilateral environment treaties andWTO norms, some linkage arrangements are identified to exist in WTO andmultilateral environment treaties. The categories of the WTO-related linkagearrangements in multilateral environment treaties include: the linkage arrangementscomposed of conflicts norms without affecting the pre-existing internationalagreements, the linkage arrangements composed of substantive norms imposinglimitation on environmental measures like GATT Article XX and the linkagearrangements which set out mutual support.These three categories of the linkage arrangements in multilateral environmenttreaties indicate three relational categories (deferential, collaborative, and autonomous)between certain multilateral environment treaties and WTO. Nonetheless, becausethere is no corresponding linkage arrangement in WTO to form the complete andeffective linkage, it's not adequate to merely depend on the present three linkagecategories in multilateral environment treaties for solving the possible conflictsbetween multilateral environment treaties and WTO effectively.Chapter four makes a study on using norms of the law of treaties to supplement thedeficiency of the linkages between multilateral environment treaties and WTO.The report of International Law Commission in2006and the monograph of Mr.Joost Pauwelyn in2003have analyzed the effectiveness and deficiency of the normsof treaty interpretation of the Vienna Convention on the Law of Treaties (Article31toArticle33) and the norms of treaty application such as lex specialis and lex posteriorin solving conflicts of treaty norms. During the discussion of linkage betweenmultilateral environment treaties and WTO, these norms of treaty interpretation andnorms of treaty application which are outside the multilateral environment treaties andWTO can affect the norms of multilateral environment treaties and WTO norms tosome extent. It's possible that they can help to supplement the deficiency of thelinkages between multilateral environment treaties and WTO.On the problem of using norms of treaty interpretation to supple the deficiency of the linkages between multilateral environment treaties and WTO, bdue to, inter alia,the blank of intents of treaty parties is too big, the power of DSB has been limited andnorms of treaty interpretation themselves have deficiencies, the effectiveness of normsof treaty interpretation in supplementing the deficiency of the linkages betweenmultilateral environment treaties and WTO is not satisfied.On the problem of which norms should take priority, because treaty parties show noclear inclination and the relationship of lex specialis and lex posterior itself still bearscontroversies., the point of view that lex specialis and lex posterior could be used toconstruct independent linkage lacks enough support.For the profound reasons, there are two difficulties in using norms of treatyinterpretation and treaty application to supplement the deficiency of the linkagesbetween multilateral environment treaties and WTO. Firstly, because the fundamentaltension in treaty goals and values between multilateral environment treaties and WTO,it is inappropriate to depend on techniques to decide which treaty and its valuesshould take priority when there is conflict between inter-systematic treaties. Secondly,the principle that "recommendations and rulings of the DSB cannot add to or diminishthe rights and obligations provided in the covered agreements" leads to theself-contain character of WTO, the norms of treaty application which can introducenon-WTO norms have not been introduced into WTO regime by the DSB and itshould not be.According to this analysis, it is too optimistic for the International LawCommission to conclude that the norms of treaty interpretation and the norms oftreaty application would be adequate to solve the conflicts between treaties.Chapter five discusses the modification of norms to improve the linkages betweenmultilateral environment treaties and WTO.In history, the draft of ITO included the linkage arrangements which set out themutual support with multilateral environment treaties. The linkage arrangements withIMF in GATT/WTO regime also successfully prevented the conflicts betweenGATT/WTO and IMF.Based on the analysis of the negotiation documents of related issues in Doha Round, it can be perceived that the statements of the countries about the relationship betweenmultilateral environment treaties and WTO are affected by their national benefitsdeeply. The typical example is that the statements of the countries' delegations inCommittee on Trade and Environment are not identical with the countries' positions atother occasions. In order to correct this practice which distorts the needs ofinternational society development, it's necessary to develop some kind of normsarrangements to construct the linkage between multilateral environment treaties andWTO for facilitating the mutual support of trade and environment.According to the experience of NAFTA, the linkage arrangement composed ofconflicts norms in NAFTA providing for preference of certain multilateralenvironment treaties over NAFTA construct the relationship of NAFTA's deference tothe multilateral environment treaties. This is a practice for WTO reference.In China's experience, the case "China-Measures concerning wind powerequipment" shows that China did not pay enough attention on the linkage composedof substantive norms in multilateral environment treaties and WTO when Chinadecided the related measures. In the present laws, China's trade laws and environmentlaws pay little attention to the linkages between multilateral environment treaties andWTO. On this point, improvement should be made in future legislation.Meanwhile, as far as external positions are concerned, it's necessary for China tocheck its diplomatic positions on the relationship between multilateral environmenttreaties and WTO, including admittance of conflicts because of absence or deficiencyof linkages between multilateral environment treaties and WTO, and putting forwardthe improvement suggestions on deficiency of present linkages between multilateralenvironment treaties and WTO. By reference to the experience of NAFTA, revision ofWTO norms to acknowledge certain multilateral environment treaties is a reasonablesolution. It will be helpful for China to consider an open position on this problem.