| The problem of "environment and trade" is the concrete expression of "environment and development" in international trade.The "environment and trade" problem caused by the differences of national environmental concepts,development concepts and legal structures has gradually become one of the factors hindering global economic governance and global environmental governance.In order to cope with the global environmental crisis,the unilateral environmental protection measures implemented by governments of various countries that meet the "green" requirements are justified.However,ensuring "reciprocity" among countries is a common goal pursued by all countries in the world,and it is also reasonable.The hedging of two legitimate values has created a theoretical need to coordinate the problem of "environment and trade".The multilateral nature of WTO’s coverage agreement determines that it can only coordinate the issues of "environment and trade" at a lower level,and the higher-level coordination task needs to be left to the plurilateral agreement.The defects of the concept affect the construction of "environment and trade" rules and weaken its ability to resolve disputes between environment and trade.Difficulties in the actual operation of the appeal mechanism have weakened the WTO’s function of coordinating "environment and trade" issues,and the contracting parties have turned to seek higher-level cooperation on "environment and trade" in the region.In order to coordinate the contradiction between "green" and "reciprocity",the parties of WTO signed regional plurilateral trade agreements on the basis of WTO coverage agreements,aiming at strengthening global economic governance cooperation and global environmental governance cooperation,and coordinating potential conflicts between environment and trade.On November 15 th,2020,10 ASEAN countries and 15 countries including China,Japan,South Korea,Australia and New Zealand formally signed the Regional Comprehensive Economic Partnership Agreement.On the occasion of its formal entry into force,this paper analyzes the "green development" clause of RCEP,and compares it with WTO coverage agreements,CPTPP,bilateral trade agreements and multilateral agreements.It reveals the theoretical problem that the value level of "green development" clause is difficult to weigh the relationship between "inter-species equity","inter-generation equity" and "intra-generation equity",and the practical problem that the rule level is unclear and unclear.In a word,at the theoretical level,the concepts of sustainable development and green development fail to turn the macro-issue of environment and development into the meso-issue of environment and trade,and respond to the reciprocal characteristics of international trade,so as to identify the green orientation,development orientation and inter-species equity,inter-generation equity and intra-generation equity of green development.The theoretical problem is reflected in the practical level,which shows that RCEP’s "green development" clauses emphasize intergenerational equity and neglect intra-generational equity.This feature does not only exist in RCEP’s "green development" clauses,but also similar problems exist in WTO coverage agreements and CPTPP’s content of coordinating environment and trade.The theoretical problem of value level is transmitted to the practice of "environment and trade" through rule construction and dispute resolution."The law cannot be applied without explanation",which is usually caused by abstract terms,and the same is true for the "green development" clause in RCEP.The phenomenon of abstract terms is widespread in international law,especially in newly signed international conventions.The lack of necessary interpretation resources will make the interpretation and application of RCEP’s "green development" clause more controversial."Green Development" clause is the logical thread of the whole paper.Before carrying out research,we should first make clear which clauses and contents are included in the "green development" clause in RCEP,and make clear the contents of the "green development" clause in RCEP,so as to lay a foundation for the value analysis of the "green development" clause.According to the text of RCEP’s "green development" clause,this paper uses various interpretation methods,refers to similar international conventions,cites trade disputes related to the environment during GATT/WTO,and deconstructs RCEP’s "green development" clause in combination with China’s position among RCEP contracting parties.The object of interpretation is the "green development" clauses of RCEP,that is,the general exception clauses in Chapter V-Sanitary and Phytosanitary Measures,Chapter VI-Standards,Technical Regulations and Conformity Assessment Procedures and Chapter XVII-General Terms and Exceptions of RCEP.The main "green development" clauses are deconstructed into three parts: subject,behavior mode and legal effect,and compared.The pursuit of legal value is the source of the construction of legal rules and determines the trend of legal rules.The same is true for the "green development" clause of RCEP.Its construction and setting are based on the value orientation of "RCEP expects all parties to depend on each other,promote each other,and achieve fair development",rather than "passive water and soilless wood".As a macro concept of coordinating environment and development,the concept of "green development" should be applied to the middle-level problem of "environment and trade",but it does not respond to the theoretical defects of "reciprocity" in international trade,that is,the problems of "insufficient reciprocity" and "unfairness".Starting from the legal value of coordinating the relationship between environment and trade,this paper examines the preface and text of RCEP,and analyzes the relationship between RCEP’s "green development" clauses and "intra-generation equity" from the aspects of "green development" and "development orientation".Return the problem of "green development" in value level to the role of specific rules in coordinating "environment and trade",and point out the influence of defects in value level on specific rules in dealing with "environment and trade" and weighing the relationship between inter-species equity,inter-generation equity and intra-generation equity.High fragmentation is the basic feature of international environmental law.For this reason,the international community,faced with controversial environmental issues,tends to negotiate from easy to difficult,and adopts the law-making mode of "framework agreement+protocol+annex" and "double revision".With regard to the specific issues of environment and trade,how to focus the concept of green development on the characteristics of reciprocity in international trade,coordinate the relationship between green development,mutual benefit and intra-generation fairness,and ensure that all contracting parties share the responsibility and achievements of environmental governance is the ultimate goal of RCEP contracting parties.However,the "highly fragmented" feature of international environmental law implies that no matter what kind of value "environment and trade" should follow,or how to construct RCEP’s "green development" clause,it can’t be achieved overnight.Therefore,the "green development" clause of RCEP is an incomplete contract,which needs further negotiation and development in terms of value and rules.In order to enhance the demonstration effect of the text and give full play to the leading role of the contracting parties in environmental and trade issues,China should put forward a more mutually beneficial and inclusive value concept,guide the construction of environmental and trade rules,and let the contracting parties enjoy the institutional dividends brought by RCEP,share the responsibility and achievements of environmental governance.With the full implementation of the agreement,the value of "green development" will guide the parties to start further negotiations on "green development" clauses,and gradually form a set of "green development" clauses with high standards,flexibility and suitability for the region in RCEP.Under the guidance of Community of Shared Future for Mankind,all parties are urged to take equal but differentiated responsibilities,share the fruits of global economic governance and global environmental governance fairly and justly,and change from "one-way seeking benefits" to "one-way seeking benefits""Treaties must be kept" is the basic norm of international law.As for the proper state of RCEP’s "green development" clauses,we also need to pay attention to the performance of the contracting parties—that is,the connection between the "green development" clauses and domestic laws.Specifically,it includes two levels: the transfer between RCEP’s "green development" clause and domestic law,and the overall planning with domestic law.First,it is necessary to stipulate the transfer clause in domestic law,clarify the application relationship between RCEP’s "green development" clause and domestic normative legal documents,and determine the priority of interpretation and application of both.Secondly,China needs to revise the normative legal documents related to Chapter V and Chapter VI of RCEP.For example,to determine the protection scope of wild animal and plant species,and to standardize the procedural provisions that China should follow when promulgating standards,technical regulations and conformity assessment procedures. |
PDF Full Text Request