Climate Change, Regulatory Policy And WTO

Climate change has come to be seen as a major global environmental challenge. In order to set the context for the discussion of how WTO rules constrain domestic regulatory policies, Part I of this article briefly describes the potential regulatory policies governments may use to address climate change-emissions and energy efficiency standards, eco-labeling, voluntary agreements and domestic emissions trading programs. Part II then discusses the potential constraints on these forms of domestic regulatory policies that arise from the national treatment provisions under the GATT and the TBT Agreement, then examines whether the tests developed by the Appellate Body under Article XX of GATT and likely to be applied under the TBT Agreement constrain instrument choice. Part III focuses on the procedural constraints on states' choice of regulatory instruments, and in particular, constraints arising from requirements for science-based decisions. Part IV, EC -Asbestos decision.Finally, Part V argues that more than international negotiations on specific instruments are necessary to overcome concerns raised by applying trade rules in the face of scientific uncertainty about a risk.Chapter I is domestic regulatory instruments and the Kyoto protocol.This chapter is divided into two parts.The first part is about mandatory emission or energy efficiency requirements.The second part is about governments have a range of domestic regulatory options to address climate change. Mandatory emission or energy efficiency requirements. Mandatory emission or energy efficiency requirements are laws or regulations imposing particular emissions or energy efficiency characteristics on a product or production process. Voluntary agreements or challenges. In recent years governments have increasingly relied on voluntary actions by private parties to meet environmental objectives. Governments may also issue voluntary challenges to industry to meet certain targets , in exchange for which the companies receive recognition for their efforts.Eco-labeling, governments may also use eco-labeling to curb emissions and to meet obligations under the Kyoto Protocol. Eco-labels are designed to provide consumers with an indication of the environmental friendliness of a product based on an independent assessment.Domestic emissions trading,one of the most prominent aspects of the Kyoto Protocol has been the possibility of a global emissions trading regime. However, countries can also implement domestic emissions trading (DET) programs to reduce GHG emissions.Chapter II is about national treatment and Kyoto implementation.This chapter is divided into three parts.The first part is the relationship between GATT and the TBT Agreement.The second part is about National treatment under GATT and the TBT Agreement.First,is the regulatory measure covered by GATT or the TBT Agreement?Second, Are the domestic and imported products"like"?The third part is about the least restrictive means test.Both GATT and the TBT Agreement attempt to both foster free trade and permit domestic autonomy. The national treatment provisions use the notion of protectionism to address these two goals. However, both agreements also deal with these goals more explicitly-GATT through Article XX and the TBT Agreement through its provisions relating to least trade restrictive means and international standards. As discussed below, these provisions of both agreements rest on a similar form of balancing test. However, before discussing the test, it is important to note that there is a significant difference between the GATT and the TBT Agreement. Under GATT if no violation of Article III is found, the investigation stops. There is no further review of the substance or process for creating the measure. On the other hand, if there is a violation of Article III, then the country which imposed the measure has an opportunity to defend it under the exceptions provisions of Article XX. Chapter III is about Procedures,science and uncertainty.This chapter is divided into two parts.The first part is TBT Agreement and procedural requirements. a significant objective of the TBT Agreement is to ensure that the procedural requirements in establishing technical regulations minimize the opportunities for protective measures disguised as non-protectionist policies. The TBT Agreement has a range of obligations designed to foster transparency in regulatory decisions. These obligations include notification to other Members of proposed technical regulations not in accordance with international standards, a duty to provide other Members with an explanation of the justification for technical regulations, reasonable time for comments by other Members, consideration of these comments, listing of the final technical regulations and publication of regulations.Further the TBT Agreement requires that members establish an enquiry point where other members can obtain information on technical regulations.The second part is about science and uncertainty. Central to the ability of states to set their own regulations is the type of evidence they are required to have to base their decisions on and justify them before the WTO. Such evidentiary requirements are particularly important in the case of environmental regulations where there is often considerable uncertainty about the level, or even the existence, of a risk. As Sykes argues, an accommodation between scientific evidence requirements and the ability of states to set their own level of protection against risk 'is exceedingly difficult if not impossible. Meaningful scientific evidence requirements fundamentally conflict with regulatory sovereignty in all cases of scientific uncertainty'.Sykes makes his argument in the context of the SPS Agreement which has specific provisions relating to such evidence, but the central point is also applicable to decisions under GATT and the TBT Agreement which do not have such provisions. Chapter IV is about assessment of EC - asbestos. This chapter divides into three parts. The first part is the introduction of asbestos case. The second part is tries process of the asbestos and one of evaluations: Based on examination of TBT agreement. This case has fully manifested the benefit balance between the trade liberalization and independent rights of protecting public health of nations. It Mainly has two meanings : First, under WTO system, how much degree price of human health can be to sacrificed to promote the trade benefit; Second, how much degree sovereignty a country(specially developing countries) can have take the measure to control harmful working conditions and the products harmful to environment or health. The third part is about tries process of the asbestos and another evaluation: examination of GATT 20th. First, whether this law has violated the national treatment principle under the GATT .Next, whether this law is proved to be a necessary measure what be taken to protect health.Chapter V is about Climate change,instrument choice and trade rules.This chapter is divided into three parts.The first part is in terms of specific negotiations or actions around particular issues, most commentators on WTO rules and climate change point to the need for states to ensure they have transparent, well-documented regulatory processes and to engage in international negotiations over the use of specific instruments to combat climate change.The second part is about some commentators call for greater explicit balancing of trade and environment at the international level.The third part is about other commentators believe that the dispute settlement mechanism at the wto is best able to deal with these issues on a case-by-case basis,particularly with recent shifts by the Appellate Body towards incorporating other international agreements and providing opportunities for a broader range of stakeholders and experts to present views.In summary,through researching the regulation of climate problem under Kyoto ,this article stated the conflict between domestic control policy and WTO regulation , and analyzed its background, content, essence and solution of conflict. This article has certain theoretic and practical significance to discuss climatic change, domestic control policy and WTO questions. I hope that it can play a role of enlightenment.