Study Of The "greening" Of The Wto Trade And Environment Dispute Settlement

While the conflict between trade and environment has become intenser than ever as the importance of environmental protection has been more and more recognized by the international society, it is unavoidable for the DSB of the WTO to deal with trade and environment disputes. Confronted by the sharp criticism from the environmentalists and environmental NGOs, the panels and the appellate body of the WTO had to seek new balance between trade and environment through more flexible interpretations of the trade agreements, thus lowering the hurdles for the members to invoke the environmental exceptions of the trade agreements. The methodology of this greening process, however, is questionable because its ad hoc use of interpretive tools as a means to that end has been incoherent and unpredictable in the first place and more importantly, its evolutionary interpretation undermines the sovereignty and interest of the WTO members, especially those of less developed ones.Part I of this article outlines the background of the trade-environment disputes. First, it briefly describes the theoretical debates between trade liberalists and the environmentalists and examines environmental issues in the GATT-WTO context. And then it describes the unprecedented merits of the new dispute settlement mechanism that have been the essential conditions for the successful functioning of the dispute resolution process of the WTO. Furthermore, this part analyzes the legal conflicts between domestic environmental laws and the WTO general principles.Part II then discusses the substantial interpretation by the panels and the appellate body during the trade-environmental dispute resolution processes. Following the examination of how the appellate body has interpreted the Article XX exceptions and the relative SPS and TBT provisions, this part shows how the appellate body has changed the WTO jurisprudence: The interpretation of GATT article XX(b) abandoned the "least trade-restrictive" or "less inconsistent with GAIT' test followed by the earlier panels, instead, incorporated environmental policies as important considerations for the justification of trade-environmental...