Portfolio

Master of Science

Environmental Policy & Management

University of Denver – University College

Abstract Unit I

There have been many international environmental law cases that went through the General Agreement on Tariffs and Trade (GATT) to settle the disputes. The goal of this paper is to analyze some of the cases that deal with the GATT and determine how an international environmental protocol could use the GATT to pursue their own interests.

GATT Cases

The GATT is a set of multilateral trade agreements with the goal of removing quotas and reducing tariffs among contracting nations. GATT was replaced by the WTO in 1995 (Encyclopaedia Britannica 1998). The WTO includes sections describing requirements promoting sustainable development while also promoting free trade. The preamble to the WTO agreement states that “…expanding the production of trade in goods and services, while allowing the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with the needs and concerns at different levels of economic development” (WTO 2020). 

In the 1983 Canada – US Tuna Case there was an import prohibition of Canadian tuna by the United States. There was a misunderstanding of fishing jurisdictions between Canada and the United States, Canada seized fishing 19 US vessels due to Canada’s fishing boundaries (Nanda and Pring 2013, 533).  This led to the United States prohibiting all tuna imports from Canada. Canada then filed a complaint that the United States ban violated GATT, specifically violated GATT Articles XI:1 (Nanda and Pring 2013, 533). Dispute resolutions involve convening a panel. The panel determined that the United States import ban on Canadian tuna went beyond its own restrictions on domestic tuna fishing and since the United States did not offer any evidence of imposing any domestic restrictions on the consumption of tuna and tuna products the panel ultimately determined that the import ban did not meet the requirements of Article XX (U.S. Congress Office of Technology Assessment 1992). 

This case involved the interpretation of GATT Article XX and the United States was able to maintain their import ban on Canada using Article XX for their argument. The panel ultimately decided that the prohibition was not unjustifiably discriminatory, based on the United States imposing similar prohibitions other Central American countries (Nanda and Pring 2013, 534). The United States also had the same domestic restrictions on catching most tuna species, but not all species; because of this the panel decided that the United States violated GATT, specifically Article XI (Nanda and Pring 2013, 535). 

The case of Thailand – Cigarettes  is another example of GATT being used to limit imports. In this case, Thailand began prohibition against the United States on their cigarette exports. Thailand claimed exceptions under Article XX(b) of GATT, specifically exceptions based on measures necessary to protect human, animal or plant life and health. Thailand also argued that their import ban was necessary in order to implement an effective domestic policy for the use of cigarettes and to protect Thailand citizens from United States cigarettes which have additives that can potentially be more harmful (U.S. Congress Office of Technology Assessment 1992). The panel eventually determined that Thailand could have used other measures to regulate the imports of United States cigarettes like labeling requirements, and that an import ban was not necessary per Article XX(b) (U.S. Congress Office of Technology Assessment 1992). 

The Canada – Herring and Salmon case is an example of trying to use GATT provisions to ban imports of United States herring and salmon exports.  Canada pursued exceptions under Article XI:2(b) and Article XX(g). Article XI:2 exceptions permits prohibitions based on applied standards or regulations for the classification, grading, or marketing of goods in international trade (Nanda and Pring 2013, 535). Article XX(g) “permits any measure relating to conservation of exhaustible natural resources… made effective in conjunction with restrictions on domestic production or consumption” (Nanda and Pring 2013, 535). Canada pursued the exception in Article XI:2 by claiming the herring and salmon they were receiving was low quality. The panel determined this reasoning was not necessary. Regarding Article XX(g) the panel agreed with Canada that the herring and salmon are exhaustible natural resources, but the panel determined that Canada’s export prohibitions did not apply to domestic processors and consumers (U.S. Congress Office of Technology Assessment 1992). 

Conclusion Unit I

There are three important provisions in the GATT that are directly related to the cases I described above. The first is the Most Favored Nation (MFN) principle, the National Treatment principle, and the general ban on quantitative restrictions (Nanda and Pring 2013, 531). The panels overseeing these disputes used these provisions to ultimately make their final decisions.

Looking at the 1983 case Canada – US Tuna, Canada pursued the MFN provision against the United States, using the GATT to pursue their own interests. The United States could not use Article XX(g) since they were not limiting domestic tuna catching. Looking at the Stockholm Declaration Principle 21, which grants states’ rights to regulate their own natural resource uses (Nanda and Pring 2013, 7). The United States attempted to use this strategy to limit imports but was unsuccessful.

The Thailand-Cigarettes case is an example of a country imposing an import ban to protect its people and the environment. This case is tricky since Thailand was striving to protect its citizens from the harmful effects of cigarettes. If Thailand wanted to pursue other avenues of protecting their public health, GATT could have been used to require greater disclosure of cigarettes’ composition, banning cigarette advertisements, establishing standard tax rates for both domestic and imported cigarettes, and controlling price/retail availability. Claiming the import ban is to prevent harm to public health is difficult when domestic production is maintained. It also makes it difficult to push for discriminatory prohibitions against the United States when Thailand voluntarily joined the GATT. This is an example of a country attempting to use the GATT as an abuse of environmental protection laws and public health.

The Canada – Herring and Salmon case focused on natural resource exhaustion and quality of product. They attempted to ban imports on the basis of salmon and herring being a natural resource and their goal was conservation. Canada attempted to pursue their interests using Article XX of GATT which the panel rejected since they were not consistent with domestic production as well.

Analyzing these three cases has proven that the GATT is effective in promoting free trade and holds countries accountable when they claim environmental sustainability or public health is the reasoning for discriminatory import prohibitions. If a country wanted to pursue their interests in either preventing imports of a specific commodity from a specific country, they can attempt to use the Convention on International Trade in Endangered Species (CITES) or the Montreal Protocol which have more of a solidified framework for establishing environmentally sound trade. Especially if a country can file a complaint using GATT to back them up, which was proven to be effective and a challenge to overcome.

Abstract Unit II

The failure of the Kyoto Protocol can be attributed to the lack of participation from major emitting countries, both developed and developing countries (Nanda and Pring 2013, 396). To better ensure the Paris Climate Change Accords do not meet the same fate, negotiators need to include aspects of Stockholm Principle 21, Agenda 21, and through transboundary air pollution agreements. Including aspects of these laws will give the Paris Climate Change Accord  the best chance at reaching their goals.

Paris Climate Change Accord

The Paris Climate Change Accord or Paris Agreement has the overall goal of keeping the global temperature rise below 2 degrees Celsius above pre-industrial levels. The Paris Agreement requires all parties to determine their contributions to reducing greenhouse gas (GHG) emissions through nationally determined contributions (NDC). This approach emphasizes the goal of all parties creating a plan that is best for their specific stage in development (United Nations 2015). The Paris Agreement builds upon the United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC was implemented in 1994. It did not contain any mandatory limits or enforcement mechanisms (Nanda and Pring 2013, 396). The enforcer was meant to be the Kyoto Protocol, implemented in 2005. 

Part of the negotiations of the Paris Agreement was tailoring GHG reduction and development goals based on if the country is developed or developing. The agreement acknowledged that for some countries alleviating poverty and growing the economy was priority. The agreement called on developing countries to enhance their mitigation efforts and start working towards emission reduction, compared to developed countries where emissions reductions was the only goal (The Editors of Encyclopaedia Britannica 2020). 

The Paris Agreement did not change the funding targets from previous conventions, they maintained that developed countries provide funding to least developed countries; at least $100 billion a year by developed countries by 2020. This funding could be in the form of grants, equipment, and technological expertise (The Editors of Encyclopaedia Britannica 2020). 

The last significant section of the Paris Agreement calls for transparency, cooperation, and flexibility when reporting progress towards NDCs. There is no way to enforce this part of the agreement, but there is an independent committee used to report annually, and each party reports progress every five years (The Editors of Encyclopaedia Britannica 2020). 

Principle 21 – Stockholm Declaration

Principle 21 declares that “States have the sovereign right to exploit their own resources pursuant to their own environmental policies…” (Nanda and Pring 2013, 7). This statement is paired with the no harm rule, “the responsibility to ensure that activities within their jurisdiction and control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction” (Nanda and Pring 2013, 24). These two statements should be the base of the Paris Agreement, declaring that all GHG emissions are causing damage to the environment of other states or areas, forcing this to be a global issue calling for a full global effort and cooperation. 

Principle 21 also discusses the importance of economic development, “environmental policies of all states should enhance and not adversely affect the present or future development potential of developing countries” (Nanda and Pring 2013, 27). Although Principle 21 was one of the first international laws, the general principles of a country being able to exploit their own resources while also not harming the environment of neighboring countries is an appropriate and encompassing principle that can serve as the main law all parties abide by to achieve the temperature decrease objective of the Paris Agreement. 

Agenda 21

The Brundtland Commission was implemented in 1987 and published the report Our Common Future, coining the term sustainable development and applying it globally (Nanda and Pring 2013, 27). The Brundtland commission stated “…it is possible to achieve a path of economic development for the global economy which meets the needs of the present without compromising the needs of future generations” (Nanda and Pring 2013, 27). This use of the term sustainable development led to solidify the term in Agenda 21 at the United Nations Conference on Environment and Development (UNCED) held in Rio, Brazil 1992 (United Nations 2020). Agenda 21 is a widely adopted action plan that provides numerous policies, plans, programs, and processes that national governments can use to implement sustainable development in the 21st century (Nanda and Pring 29). One major challenge is the estimated billions of dollars a year Agenda 21 calls for, which can be a deal breaker for most countries.

The Paris Agreement should adopt the indicators system used in Chapter 40 of Agenda 21 to better ensure economic harm is not occurring while implementing the sustainable measures and ensure progress is being made on sustainable development. Alone, the indicators do not adequately measure sustainability, comparing multiple indicators like gross national product, pollution flows, and natural resource measurements will allow for governments and nations to self-regulate and monitor their status on sustainable development (Agenda 21 Chapter 40 2020). 

Conclusion Unit II

Domestic transboundary air pollution laws can be used to model provisions in the Paris Agreement. I believe that the Paris Agreement should adopt provisions that regulate GHG emissions through a smaller scope, through a fundamental international legal concept “the general principle of good neighborliness” (Nanda and Pring 2013, 336). Bilateral agreements controlling transboundary air pollution have been able to take significant steps toward progress and resolutions (Nanda and Pring 2013, 339). The Paris Agreement can model their GHG reduction strategies on these bilateral agreements, instead of focusing on pollution directly affecting neighboring countries, focus on climate change and GHG emissions. It could prove to be more effective to let smaller groups of countries deliberate on their own terms to reach agreements, with the Paris Agreement overseeing the process to ensure progress is being made towards the goals of the agreement. Fairness would need to be monitored when agreements between developed and developing countries are being made. The Paris Agreement would oversee these agreements to ensure developed countries are not taking advantage of developing countries, and also make sure these agreements are not delayed and progress is still being made. 

Developed countries who have built the reputation of not signing international treaties may be held more accountable if provisions are in place where their neighboring countries can file complaints about GHG emissions contributing to climate change, specifically if the language in the provision allows for these complaints to be filed based on good neighborliness.

This is where the Paris Agreement can potentially serve as a tribunal, similar to the process used in the Trail Smelter Case between Canada and the United States, which set a successful example in handling issues of transboundary air pollution (Nanda and Pring 2013, 339). Combine the language of Principle 21 of the Stockholm Declaration, the processes in Agenda 21, and narrowing the scope of accountability to good neighborliness can help enforce the Paris Agreement and overall help the agreement reach its goals. The Earth is one community, GHG emission affects the community through climate change; by nations participating in the Paris Agreement they are proving to be good neighbors to the rest of the Earth.

Abstract Unit III

Genetically modified organisms (GMOs) are created by the biotechnology industry in hopes of improving food quality and increasing food production (Nanda and Pring 2013, 487). There is plenty of skepticism and criticism surrounding GMOs  derived from the unknown risks to human health and the environment. There are a few strategies that European countries can use to regulate the imports of GMO products that will be discussed in this paper, the Codex Alimentarius Commission (CAC) provides strategies to manage GMOs, the Directive 90/220,the Novel Foods Regulation 258/97, and the 2001 European Council Directive provide strategic options to regulate GMO imports.

Codex Alimentarius Commission

The CAC is an intergovernmental body established by the United Nations Food and Agriculture Organization (FAO) and World Health Organization (WHO). The Codex set GMO food standards that would be used by the World Trade Organization (WTO) (Nanda and Pring 2013, 500). The CAC established food safety standards and guidelines in order to promote safety and fairness of international trade (Codex Alimentarius 2020). The full scope of the CA includes requirements for food hygiene, additives, pesticide and veterinary drug residues, contaminants, analysis and sampling methods, and labeling requirements (Codex Alimentarius 2020). 

Directive 90/220

The Council of European Communities adopted Directive 90/220 in 1990, in hopes of bringing together the different laws of all member states concerning the potential hazards of GMOs. This directive focused on the raw material imports (Nanda and Pring 2013, 503). This directive provided a legal framework for the deliberate release of GMOs into the environment, preventive action, and potential effects of these releases. The Directive provided a high level of protection throughout the community, in this case the community consisted of all European countries that joined the Directive. These European countries were able to place a de facto moratorium on United States corn exports, along with Swedish rapes and fodder beet. This moratorium mandated the “premarket approval” to avoid any effects on human health or the environment. GMO producing countries and exporters also had regulations imposed on them. These requirements mandated they provide detailed information on the specific conditions of use, handling, and proposals for labeling and packaging (Nanda and Pring 2013, 503). This is a good example of these countries controlling and regulating what kind of products are being imported. At a minimum the Directive ensures exporters are following specific requirements before their goods are received. 

If a member state were to approve of the use of a GMO, the other states have 60 days to object to the approval. If a member state were to reject the use of a GMO, the European Commission would end up making the determination for approval throughout the European Union. This provision does take away some of the power individual countries have with controlling the importation of GMOs. Even if they reject a specific product the EU can still go ahead and approve it. Once this EU approval is complete, no other member states can restrict its marketing (Nanda and Pring 2013, 504). 

An example of Directive 90/220 being used is with Novartis maize seeds. Novartis developed a genetically modified maize that protects itself from the European corn borer, a major pest to maize. The approval for the Novartis maize was submitted in 1994 to the Directive 90/220. This process started with the Directive choosing France as the member state to receive the Novartis application. France was chosen since they represent a significant portion of the market for the Novartis maize (Select Committee on European Communities 1999). The French Biosafety Commission reviewed the application and then sent it to the rest of the member states for final approval. There was significant opposition to the Novartis maize, and ultimately the final approval was decided by three EU scientific committees. They deemed the Novartis maize to be safe for humans and the environment. Final approval was granted in 1997, three years after the initial application by Novartis (Select Committee on European Communities 1999). 

Novel Foods Regulation 258/97

Another regulation similar to Directive 90/220, is the Novel Foods Regulation 258/97, adopted in 1997. The Novel Foods Regulation focuses on governing food safety assessments and labeling for GMOs, but specifically for processed foods that directly reach consumers (Nanda and Pring 2013, 504). The goal of this regulation is to prevent GMO products from entering the country without their consent and knowledge. Labeling requirements informed the consumer about composition, nutritional value, and nutribional effects (intended use of the food) (Nanda and Pring 2013, 505). A scientific assessment is necessary to determine if the GMO product was not equivalent to existing food. This procedure is similar to the Generally Regarded as Safe (GRAS) standard used in the United States (Nanda and Pring 2013). The Novel Foods Regulation focuses on food safety assessments and labeling as methods to regulate GMO imports to member states. A country can use this regulation to restrict imports and demand a food safety assessment for approval. Similar to Directive 90/220, if a country is a member state of these agreements, they cannot outright reject an imported GMO product, they will have to abide by these regulations to ensure safety. It is worth noting that these regulations were not meant to prevent the trade of the GMO products, but serve as a check/audit of these products for safety before they are released into the environment. The EU still wanted to promote trade and economic growth as well.

Current European Directive 2001

In 2001, a European Council Directive outlined the approval process for the deliberate release of GMOs into the environment, similar to past Directives issued by the EU. Scientific assessments are sent to the European Food Safety Authority (EFSA), this also applies to member states who want to produce their own GMO products as well (Nanda and Pring 2013, 507). This led to concerns from Canada, the United States, and Argentina who requested meetings with the European Community in 2003. This led to a back and forth between the three countries and eventually the WTO. The WTO ultimately decided that the EU was in violation of their trade obligations under the Sanitary and Phytosanitary (SPS) Agreement (Nanda and Pring 2013, 508). The SPS Agreement is similar to GATT, where discriminatory trade prohibitions are not allowed, but trade restrictions are allowed if human health or the environment are at risk of harm, as long as the restrictions are justified (World Trade Organization 2020). Overall, with this ruling by the WTO the EU allowed for member states to implement restrictions on a case-by-case basis for specific GMOs. The restrictions have to be scientifically justified based on environmental impacts (Nanda and Pring 2013, 509). 

Conclusion Unit III

The Codex Alimentarius Commission established strong food safety standards, which then applied to GMOs. The purpose of this commission was to remove trade barriers. The CAC and SPS worked provided far reaching implications for resolving trade disputes, this process was evident in the disputes between the EU, Canada, the United States, and Argentina. The three European Directives I discussed above provide the framework and requirements for GMO approval before being deliberately introduced to the environment. The processes the EU mandated were lengthy and thorough but did provide each member state with some influence in the decision-making process. If a European country wanted full control over their own GMO imports, they would have to leave the conventions set in place by the EU. This comes with a tradeoff of not having any influence over what neighboring countries are importing, which has the potential to affect them as well. The provisions in the Directives do give member states some piece of mind on the vast number of checks and balances GMO exporters have to go through in order to reach final approval. 

References

Codex Alimentarius. 2020. “About Codex Alimentarius.” Food and Agriculture Organization/World Health Organization. Accessed November 2020. http://www.fao.org/fao-who-codexalimentarius/about-codex/en/#c453333

Encyclopaedia Britannica. 1998. “General Agreement on Tariffs and Trade.” Accessed November 2020. https://www.britannica.com/topic/General-Agreement-on-Tariffs-and-Trade

The Editors of Encyclopaedia Britannica. 2020. “Paris Agreement.” Encyclopædia Britannica. Accessed November 2020. https://www.britannica.com/topic/Paris-Agreement-2015

Nanda, P. Ved, and Pring, George. 2013. “International Environmental Law and Policy for the 21st Century.” Martinus Nijhoff Publishers.

Select Committee on European Communities. 1999. “Appendix I.” Parliamentary Business. Accessed November 2020. https://publications.parliament.uk/pa/ld199899/ldselect/ldeucom/11/11we39.htm

United Nations. 2020. “Agenda 21 Chapter 40.” Division of Sustainable Development. Accessed November 2020. https://sustainabledevelopment.un.org/content/dsd/agenda21/res_agenda21_40.shtml

U.S. Congress Office of Technology Assessment. 1992. “Trade and Environment: Conflict and Opportunities.” OTA-BP-ITE-94. Washington DC: U.S. Government Printing Office.

U.S. Food and Drug Administration. 2020. “Agricultural Biotechnology.” United States Government. Accessed November 2020. https://www.fda.gov/food/consumers/agricultural-biotechnology?utm_source=google&utm_medium=search&utm_campaign=feedyourmind2020

World Trade Organization. 2020. “Preamble.” WTO Agreement.

World Trade Organization. 2020. “The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).” World Trade Organization. Accessed November 2020. https://www.wto.org/english/tratop_e/sps_e/spsagr_e.htm