On The Trend Of Trade-environment Cases In WTO

Traditionally, supporters of free trade and environmentalists have regarded eachother as the obstacle to development, and both sides have very different views as towhat constitutes development. This article considers the various dimensions tointernational trade governance in the context of the environment, and through anumber of cases indicate the development trend of trade-environment case, thesecases include: US-Tuna I, this case leads to a dialogue on trade and environment;Shrimp-Turtle, it influences the judicial tendency of trade and environment issues;Canada v. European Asbestos, it describes the ‘same product’ includes the impact onenvironment and health; the SPS matters in PPMs; US-Tuna II; it describes the TBTissues in PPM; Brazil-Retreaded Tyres, it points the complementary regulatorymeasures are also ‘necessary’; and China and raw materials case, Chinese exportrestrictions on rare earths case, US targets Chinas wind subsidy. From US-Tuna I toBrazil-Retreaded Tyres are about national treatment; and from China and rawmaterials case to US targets Chinas wind subsidy are about subsidy and exportrestriction. We can see clearly that the development trend of WTO trade andenvironment disputes: from around national treatment to subsidies and exportrestrictions.These cases and the emergence of this trend change within the countriesindustrial policy. Some governments want encourage and motivate the investment ofthe renewable energy field. Such investment subsidies, not only to address the threatof the climate change, but also to increase employment opportunities, many ofgovernments gather political forces, so that make the subsidies legalized. However,this conflict with the WTO provisions (such as anti-subsidy), or with the party’s WTOcommitments of some members (such as China), also with the irrational, or outdatedWTO rules. Subsidies for environmentally beneficial industries and exportrestrictions for scarce resources are a major problem faced by the WTO DisputeSettlement Body. Though disturbing to environmentalists, these environment and trade disputesallowed the DSB to better identify the role of Article XX with respect to the trade andenvironment relationship. Though not fully understood at the time, Shrimp-Turtlechanged the way Appellate Bodies would deal with the compliance of environmentalmeasures to the trade regime, recognizing that trade treaty interpretations had to be inlight of environmental concerns. And with subsidies and export restrictions as thecore of the recent cases, government subsidies for the investments of renewableenergy as a means of not only addressing perceived climate change threats but also asa means to increase job availability. In this way, the trade and environment interfaceeach other.This article highlight the relevance of the WTO’s institutional framework, withits adjudicatory and administrative functions, in fostering the cross-fertilization oftrade and environmental issues.The adjudicatory and administrative functions of the WTO, each within its owncapacity can serve as a catalyst for more dialogue among trade and environmentalistsand may ignite the recognition for new environmental agreements. The adjudicatorycapacity also serves as a legitimizing tool for the work done within the administrativecapacity of the WTO. The WTO’s adjudicatory function and its adherence to the ruleof law and capacity to use judicial discretion in the interpretation of that law can setthe course for how future negotiations in this area will evolve, both within theadministrative capacity of the trade regime and outside the WTO itself. Furthermore,through new interpretations of WTO law and willingness to incorporate non-tradeelements into applying that law, adjudicatory panels are allowing environmentalconcerns to ‘seep’ into trade concepts. The cross-fertilization of trade andenvironment also promote the development of trade and environment issues, thesecases in this article describe the development trend of trade-environment cases well,but this trend is not static, is advancing.