The WTO, the environment and health and safety standards

Abstract

Because the WTO is more powerful than its predecessors, critics claim that it poses a threat to national sovereignty. Concerns about the ability of nations to set their own environmental and health and safety agendas have figured prominently in these critiques. In addition, because new provisions negotiated during the Uruguay Round promote the harmonisation of various product safety standards and require scientific justification for food safety standards, critics suggest that the WTO prioritises trade objectives at the expense of environmental and health and safety objectives. The article explores the extent to which the WTO has been able to reconcile trade, environmental and health and safety objectives by analysing its rulings on these matters. Overall, this analysis suggests that the WTO dispute resolution process has balanced all three sets of objectives. However, it is important to note the small number of disputes to date; only 21 of the 175 disputes before the WTO involve environmental and health and safety matters. Further, the WTO has issued decisions in only six of these cases. In one case, the WTO ruled that the regulations in dispute were permissible under GATT provisions that allow members to implement measures necessary to protect human life or health. In two cases, the WTO ruled that the regulations in dispute were permissible under the GATT's environmental provisions. In another, the WTO recognised the health and safety motivations behind the disputed trade restriction. However, in each of these latter three disputes the regulations were ultimately found to violate the agreement due to discriminatory implementation or lack of scientific justification for the specific measures undertaken. The other two cases, like most of those pending, appear to involve protectionist measures that merely purport to promote environmental or health and safety goals. The article begins with a review of the key features of the WTO and the provisions of the agreements negotiated under the GATT/WTO framework that relate to environmental and health and safety policies. The next section details WTO rulings in cases that involve the environment and health and safety issues. The following section analyses these rulings. The final section summarises the article's conclusions.