INTERNATIONAL ENVIRONMENTAL LAW AND THE WORLD TRADING SYSTEM : WHICH CHOICES FOR INTERNATIONAL COMMUNITY IN THE CONTEXT OF GLOBALIZATION ? Agnès Michelot, University of La Rochelle (France) ABSTRACT - OCTOBER 2003 International Commercial law and international environmental law have been elaborated separately. Historically, international economical relations are at the origins of many international regulations. While, international environmental law is a very new branch of law borned with the ecological awareness in the sixties. His particularity is to be « disorganized » due to a processus of elaboration influenced by dramatic events having consequences at a worldwide level . International environmental law and international commercial law, two bodies of international law whith very different aims, have each developed without much consideration of the other. The changing configuration of international exchanges creating a new international society implies the confrontation of these two branches of international law. Globalization have changed all the perspectives of development and each experience takes a universal dimension. It refers to the multiplicity of linkages and interconnections between the states and societies which makes up the present world system . From an ecological point of view, globalization brings out global environmental degradation like climate change, atmospheric pollution, loss of the world’s biodiversity and the necessity to carry out transsectoral politics of conservation. From an economical point of view, globalization imposes to considerate different aspects of environment like the level of natural resources and their condition of exploitation. Encompassing an increasingly complex set of rules and policies managing the interaction between environmental law and the world trading system is a key challenge to the achievement of sustainable development . There are several ways in which the environment might suffer from liberalisation of trade as defined by World Trade Organisation (WTO) . First free trade tends to increase economic activity and this will tend to mean more materials and energy to feed the expanded economic activity. Second, free trade may result in industrial and agricultural reorganisation to get larger productive units and to have access to larger markets ; the consequences should be the developement of industrial sources of pollution and the use of intensive agricultural techniques. Third, free international trade neglects the environment which means that free markets fail to account for environmental losses. One such example is the failure to internalize environmental costs into the costs of production. This situation has generated concerns that, countries which do not internalize environmental costs will have cheaper production costs and an advantage in the international markets. Fourth, the total removal of subsidies including subsidies to support environmental production could lead to create a kind of « unfair advantage » for industries, companies, or states which do not respect environment in their activities and then do not include « environmental costs » . From another perspective, the removal of subsidies taking the form of price support, can help to reduce over-production and this may profit to the environment (i.e Common Agricultural Policy in European Community). In other terms, if subsidisation could be an important tool in achieving environmental objectives, « perverse subsidies » may be harmful to the environment. Free trade could help the development of other types of economical activities like biological agriculture or ecotourism. In fact, there is no simple link between free trade and environmental loss. Moreover, we do not have efficient tools to evaluate the welfare gains of improved free trade and the welfare losses from environmental degradation. It makes choices of development very difficult for international community especially in the context of globalization. International community has to consider at the same time rules and orientations of a world trading system submitted to multiple types of pressures due to the process of globalization, and the environmental requirements to preserve global ecological equilibrium. Therefore, environmental considerations appear as a deficiency in the international trade system. Reference to environment is made just as an exception to free trade in article XX of the General Agreement on Tariffs and Trade (GATT) . It is also important to note that all article XX exceptions are subject to a general requirement that any restriction should not « constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or ‘act as’ a disguised restriction on international trade ». The Agreement on Technical Barriers to Trade, the Standards Code, deals also explicitly with environmental standards making clear that it should not create unnecessary obstacles to trade . Overall, GATT treats any environmental case for restrictions as an exception to be dealt with either article XX or through the Standards code and there is no specific instrument on trade and environment within the current WTO regime although several Uruguay Round agreements contain provisions relevant to the environment. A number of Asian countries, particularly ASEAN countries, have been vocal in their opposition to proposals by developed countries regarding putting environmental issues on the trade agenda. This very restrictive approach to environmental problems does not really seem satisfactory regarding sustainable development if we consider that this concept involves the integration of environmental concerns and aspirations for development at all levels of decision making . From a theorical and practical point of view, international community has to adapt the principles of international exchange in regards to the principles of international environmental law and to overcome the opposition which could appear between these two branches of international law. Potential conflict between international environmental law and world trading system especially appear in Multilateral Environmental Agreements (MEA) containing trade measures. The range of measures extends from specific requirements on Parties, to measures not specified but taken ‘pursuant to’ an MEA so as to achieve the MEA’s objectives. Main international conventions provide for the use of trade restrictions in order to protect the environment : the 1973 Washington Convention on International Trade in Endangered Species (CITES Convention), the 1987 Montreal Protocol on substances that deplete the Ozone Layer and the 1989 Basel Convention on the control of transboundary Movements of hazardous wastes and their disposal. But in a large perspective many international conventions dealing with environment have adopted trade measures especially multilateral agreement on biodiversity and opened treaties concerning substance dangerous for the environment. Trade related measures include : requirements that export permits be issued, export prohibition or export restrictions, and control on products made with specified substances. These trade provisions potentially conflicts with provisions of the GATT which require to treat all trading partners equally and to treat products from GATT member countries in the same manner as domestic products. Even though trade restrictions implemented as a result of environmental conventions do often deviate from GATT rules, they should be treated as legitimate under international law at least to the extent they are implemented among the parties themselves and not vis-à-vis outsiders. More generally, what is on stake in the development and implementation of international environmental regulations related to the world trading system is to maintain the unity of the international juridical order. International community has to assume the construction of a world order able to make priorities in the interest of future generations. Elements of Bibliography ABDELMALKI Lahsen, MUNDLER Patrick, Economie de l’environnement, Hachette, Collection Les Fondamentaux, Paris, 1997. 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ISDD. 国际环境法和世界贸易体系在全球一体化的情况下国际社会将做何选择？ Agnès Michelot 摘要：国际商法和国际环境法已经分开进行详细拟定。过去，许多国际规则都源于国际经济关系, 而国际环境法就是在六十年代随着生态意识的发展而出现的新兴的法律分支。他的特殊性还不完善，因为其拟定的过程受到了世界范围内产生了严重后果的重大事件的影响。国际环境法和国际商法，做为有着不同目的国际法的两个主体，各自独立发展，互不影响。国际贸易结构的变化创造了一种新的国际社会，其中蕴涵着这两种国际法分支之间的冲突。全球一体化已经改变了所有发展的观点并且每次经历都会从全球范围来看。这是涉及到了联系的多样性和构成当今世界体系的国家和团体之间的相互联系。