The Green Trade Barriers Legal Analysis

The deterioration of global environments brings trade restriction measures into the consideration of environment protection and the prick up of international economy competition causes the cut down of tariff and non-tariff trade barrier. Because of its concealment in implement and widespread in content, the obstacle intercalated by green barrier is very difficult to distinguish and break through by developing countries, which are inferior in funds and technology, hence green barrier is becoming the favorite weapon of trade protection for developed countries. As one of the largest developing countries in the world, China is one of the victims of green barrier. Based on the analysis of its concept, legal qualities and forms, the thesis brings forward the criteria of distinguishing green barrier, analyzes its causation, summarizes the effects on the imports and exports of our country and probes into the legal countermeasures of breakthrough green barrier. The whole thesis falls into five chapter as follows.Chapter one employs as its ground the concept of green barrier, demonstrating that green barrier should be defined in a narrow sense. Then, legal characteristics of green barrier are summed up as rationality in surface, legality in form, widespread in content and concealment in implement. The forms of green barrier are discussed in the sense of legal source as international environment treaty, environment regulations in mutual trade agreement, domestic environment law and international environment custom.The second chapter brings forward the criteria of distinguishing green barrier and rational environment protection measure. Rational environment protection measure should conform to the most-favored nation treatment principle and national treatment principle, and treat all the like product from any other countries equally without discrimination and no less favorable to domestic like product. Besides, the marked difference in development stage and environment technique level between developing and developed countries should be taken into consideration and special preferential treatment should be endowed to developing counmes. The proportion principle is also deviated to distinguish green barrier. It is believed that the existence of a less prohibitive measure should be confirmed negative and the environment benefit should be no less than the losses caused when a trade restriction measure is adopted to protect environment.Chapter three analyzes the causation of the emergence of green barrier. Theappearance and deterioration of green barrier is effects of the combination of different factors. People become allergic to ecological problem because of the deterioration of environment and depravation of pollution. Green consummation fashion surges out and a magnificent environment protection movement rise up. Economy globalization and competition standardization causes the cut down of traditional tariff and non-tariff trade barrier, and the protectionism seeks new barrier to trade. The internalization of manufacture cost germinates the green barrier of environmental subsidy and anti eco-dumping duty. The absence of definitude systematic design to the preferential treatment of developing countries in international environment treaty and the vagueness of environment protection exception in multilateral trade agreement leave room for developed countries to set up green barrier to trade. The prisoner gaming theory believes that trade barrier is the inevitable result of seeking maximum benefits in international trade.Chapter four summarizes the effluence of green barrier on imports and exports of China. Our predominant products such as agriculture product, textile product, mechanical and electrical products and toy product are excluded out of world market because of green barrier, which causes great losses to out enterprise. At the same time, a great amount of contaminative industry and product transfers from developed countries to China and a great deal of precious natural resource flow in the opposed direction, which causes grave damages to our eco system and poses direct menace to the health and safety of people.The last chapter analyzes and propounds countermeasures for green barrier. Encountered with double losses in imports and exports, we should participate in the negotiation of multilateral agreement and international environment treaty to promote a fair and rational international market and avoid the setup and augment of green barrier. The. WTO dispute settlement mechanism and trade barrier investigation system should also be availed to struggle for a more agreeable and favorable international environment for our imports and exports. The environment law and regulation and lawsuit mechanism should be simultaneously further consummated to prevent venomous and nocuous wastes transfer to our territory. Market mechanism should be used to enhance the environment quality of whole national economy.