The World Trade Organization under Challenge Democracy and the Law and Politics of the WTO’s Treatment of Trade and Environment Matters

“Hey-Hey! Ho-Ho! The WTO has got to go!” chanted a potpourri of protestors at the third Ministerial Meeting of the World Trade Organization (WTO), held in Seattle, Washington in December 1999.2 Mainstream U. S. environmental groups were a core part of the protests, having taken the lead throughout the 1990s in challenging the legitimacy of WTO decisionmaking. Their central claim is that WTO decisions on trade and environment issues are antidemocratic and thus lack legitimacy.3 This article takes their charges seriously, assessing the

1 By Gregory C. Shaffer, Professor, University of W isconsin School of Law. The primary support for this project came from grants from the National Science Foundation Law and Social Science Program and the Smongeski Fund of the University of Wisconsin Foundation. This was complemented by support from the University of Wisconsin graduate school research competition, the University of Wisconsin CIBER fund (U.S. Title VI grant) and the University of Wisconsin World Affairs and the Global Economy (WAGE) Initiative. Earlier versions of this article were presented at the American Society of International Law 1999 annual meeting in Washington DC, March 27, 1999, and at the ASIL International Economic Law Group biannual conference on February 20, 2000 in Washington DC. Thanks go to Francesca Bignami, Steven Charnovitz, Jeffrey Dunoff, Daniel Esty, Robert Hudec, Neil Komesar, Richard Parker, Kal Raustiala and Andrea Schneider for their helpful comments, and to Sonia Brown, Matthew Kim-Miller and Michael Mosser for valuable research assistance. All errors of course remain my own.

2 Joe Sharkey, Word for Word/Protest Studies, Skywriting, Collective Disappearance and Other Ways to Up the Revolution, N.Y. TIMES 7 (Dec. 5, 1999).

3 See e.g. LORI WALLACH AND MICHELLE SFORZA, WHOSE TRADE ORGANIZATION? CORPORATE

GLOBALIZATION AND THE EROSION OF DEMOCRACY (Public Citizen: 1999) (the Preface by Ralph Nader refers to “an

autocratic system of international governance that favors corporate interests,” and concludes that “Under the WTO, the race to the bottom is not only in standard of living and environmental health safeguards but in democracy itself” Id., at ix, xi) (underlining included in text)

relative representativeness of those partaking in WTO negotiations to define a legal framework for addressing the interaction of trade and environmental policies. The basic question is who is represented and how they are represented in determining law’s contours through the political process at the international level.4

This article examines how the World Trade Organization has addressed trade and environment issues through the creation of a specialized Committee on Trade and Environment (CTE), treating the Committee as a site to assess central concerns of governance-that is, who governs-in a globalizing economy. Northern environmental interest groups and many northern academics5 criticize the WTO Committee on Trade and Environment for failing to propose substantive changes to WTO law in order to grant more deference to national environmental policies having extraterritorial effects .6 The article, through its focus on the positions and roles of

4 This article addresses the issue of representation in the negotiation and creation of WTO rules, and not the interpretation of existing WTO rules by WTO judicial panels, which is the subject of a separate on-going study

5 This article expressly adopts the term northern-and not western-non-governmental organizations, academics, media, and governments to emphasize that these are predominantly north-south, and not east-west, issues that often divide not only governments, but also their respective constituencies, in reflection of their respective interests, values and priorities.

6 See, e.g., Steve Charnovitz, A Critical Guide to the WTO’s Report on Trade and Environment, 14 ARIZONA J. OF INT’L & COMP. L. 341, 342 (1997) (stating “hopes were dashed. When the CTE issued its report in November 1996, it became clear that two years of inter-governmental deliberations had yielded little output.”)

A number of U.S. and European academics have recommended a modification of WTO substantive and/or procedural rules in order to grant more deference to national environmental policies having extraterritorial effects.

See e.g. DANIEL ESTY, GREENING THE GATT: TRADE, ENVIRONMENT, AND THE FUTURE 113-136 (1994) [ESTY,

GREENING THE GATT] (proposing a three-prong test to address trade-environment issues in a more balanced manner)

state and non-state actors, provides an empirical grounding to better assess the democratic accountability of the WTO’s handling of trade-environment matters. It examines the representativeness of national trade agencies before the Committee on Trade and Environment, the impact of a sophisticated WTO international secretariat in framing debates, shaping knowledge and the appreciation of alternatives, and the role of powerful commercial interests and transnational environmental advocacy groups pressing for their conflicting goals.

Understanding the Committee on Trade and Environment is essential for three primary reasons. First, for those challenging the correctness and legitimacy of GATT and WTO panel decisions in trade-environment cases, the CTE discussions highlight how most countries (and their constituencies) believe panels should apply GATT and WTO rules. It is simply disingenuous to challenge the legitimacy and democratic accountability of WTO judicial decisions without recognizing how representatives in the WTO’s political body (the CTE) believed that the rules should be interpreted and/or modified. One of this Article’s central aims is to explain how most of the world outside of the United States feels about this issue, and why.

Second, this analysis shows how the World Trade Organization as a whole works in practice, and, in particular, why trade-environment discussions are often more polarized within the WTO than in other fora. Third, although this study focuses on a WTO political body, it has significant implications for understanding the law and politics of trade-environment linkages addressed in other international and regional fora. Many environmental groups and trade policymakers, including the outgoing WTO Director General Renato Ruggiero, call for the creation of a World Environment Organization.7 This article concludes by assessing the constraints and prospects of discussions in such complementary and alternative fora.

The article’s analysis is based on a sociolegal approach, focusing on the role of the contending players within the WTO’s institutional context and their relationship to domestic

and Conflicting Trade and Environment Regimes, in Trade and the Environment: Bridging the Gap (eds. Agata Fijalkowski and James Cameron (1998) (critiquing the CTE for its failure to produce more environmentally sensitive policy solutions for addressing trade-environment disputes under WTO law). Not surprisingly, for reasons examined in this article, there is little to no support of such environmental accommodations among academics from developing countries.

7 See Daniel Pruzin, WTO Chief Outlines Plans for Increased Transparency, 15 Int’l Trade Rep. (BNA) 1263 (July 22, 1998). See also infra notes 338 and 349.

policy debates.8 Its central premise is that larger “macro” theoretical and public policy analyses and normative legal prescriptions about “legitimacy,” “democracy” and “accountability”9 offer little value without a “micro” understanding of the underlying roles of power, access and interests in shaping legal outcomes.10 As the legal realist Karl Llewellyn maintained in the 1930s,

8 The evaluation of law in terms of actor behavior as opposed to formal rules was advocated in US legal circles by the legal realists during the intra-war period and, more recently, by “law and society” scholars. Sociolegal, or “law and society” scholarship, addresses the interactions of law and social phenomena, giving rise to what University of Wisconsin Professor Stuart Macaulay calls the “law-in-action.” For an introduction to “law and

society” scholarship, see LAW & SOCIETY: READINGS ON THE SOCIAL STUDY OF LAW (Stuart Macaulay, Lawrence

Freidman, John Stokey, eds) (1995). See also, Stuart Macaulay, Law and the Behavioral Sciences: Is There and There There? 6 LAW & POLICY 149 (1984) (noting some of the achievements of law and society scholarship and responding to critiques from critical legal studies scholars). For a legal realist approach, see e.g. Karl Llewelyn, Some Realism about Realism- Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1247-49 (1931) (maintaining that scholarship need focus on “the effects of their action [of courts, legislators and administrators] on the laymen of the community”).

9 For important assessments of international governance in terms of legitimacy, accountability and democratic, see e.g. Daniel Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law, 93 AMERICAN J. OF INT’L L. 596 (July 1999) (assessing legitimacy in terms of state consent, transparency and public participation, and technocratic expertise resulting in “good” decisions)

General Agreement on Tariffs and Trade, the predecessor to the WTO)

THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 127-34 (1995) (on the

legitimacy of norms such as “fairness”)

Patti Goldman, The Democratization of the Development of United States Trade Policy, 27 CORNELL INT’ L.J. 631 (1994)

1997 Y.B. INT’L ENVT’L L. 51 (1998)

STATE TO COSMOPOLITAN GOVERNANCE (1995)

10 In international relations scholarship, there is an on-going debate as to whether such microfoundations should be based on an economic model of actors/agents rationally pursuing their self-interests, or on a more sociological approach that assesses the impact of the overall international structure in which agents interact. See e.g. Alexander Wendt, Collective Identity Formation and the International State, American Political Science Review 384, 385 (June 1994) (arguing that, under a structural constructivist model of international relations, “state identities and interests are in important part constructed by these social structures.”). This controversy is sometimes referred to as the agent-structure debate. While this article is based on an actor-centric approach, it also integrates an assessment of the impact of the overall WTO system on outcomes (see model 2 described in infra note 17 and accompanying text).

“The argument is simply that no judgment of what Ought to be done in the future with respect to any part of law can be intelligently made without knowing objectively, as far as possible, what that part of law is now doing.”11

Part I provides an overview of three competing theoretical perspectives on the WTO’s treatment of trade-environment matters, in order to set up a subsequent examination of their relative explanatory power. The three perspectives are a two-level intergovernmental model, a supranational technocratic model, and a civil society/stakeholder model.12 The first focuses on national representatives as advocates of national positions

These competing theoretical frames are then applied to the article’s empirical assessments. Parts II, III and IV respectively address why the WTO Committee on Trade and Environment was formed, what accounts for its agenda and what accounts for the current status of Committee deliberations. Part IV addresses such competing explanations as the roles of state power, intra-state conflicts, a neoliberal-oriented WTO secretariat, state trade bureaucracies, business interests, and national and transnational environmental and developmental activist groups. It concludes by examining the relation of national “stakeholder” positions with those of their respective states, finding that divisions between northern and southern states have largely mirrored divisions between northern and southern non-governmental organizations. In short, the World Trade Organization is not such an anti-democratic institution as its critics, including U.S.

11 Llewellyn called for “the temporary divorce of Is and Ought for purposes of study.” See Karl Llewellyn, Some Realism about Realism-Responding to Dean Pound, 44 HARV. L. REV. 1222, 1236-37 (1931). The data for this study are drawn from interviews with the major participants in the Committee process, a comprehensive review of internal WTO-CTE documents submitted by members, the WTO secretariat and representatives of other intergovernmental organizations, and statements from business associations and environmental and developmental activist groups from around the world. These documents comprise thousands of pages of position-taking, analysis and information exchange. See infra notes 121-122, 148 and 219 and accompanying texts.

12See infra notes 16-18 and accompanying text.

academic critics, holding predominantly parochial views,13 claim.

Part V addresses the spillover effects of the CTE process outside of the Committee, in particular through its enhancement of the transparency14 of WTO decision-making, and its facilitation of inter- and intra-state coordination of trade-environment policy. This broader, more diffuse impact (not the failure to agree to legal amendments to WTO rules) will be the primary legacy of the WTO’s Committee on Trade and Environment. Part VI, the conclusion, assesses the rationale for, and prospects and constraints of, moving beyond the current stalemate within the Committee on Trade and Environment through the creation of a World Environment Organization. It notes that these constraints are significant because trade-environment tensions reflect differing social values, priorities and interests between and within states, and that their resolution will be determined neither by an “international civil society of stakeholders” nor by a technocratic international elite with a particular ideological orientation.

The article finds that, while an intergovernmental model best explains the formation and operation of the WTO’s Committee on Trade and Environment, the notion of the state must be disaggregated to assess conflicts within states among interest groups and state agencies. It assesses how powerful WTO members, such as the United States and the European Union, have

13 See e.g. reports on the Seattle demonstrations in the Indian press, as in C. Rammanohar Reddy, Globalization Bottoms Out, THE HINDU (Dec. 19, 1999), noting “The Seattle demonstrators were not articulating any global concern about WTO-driven intrusion into public space. The campaign was almost entirely driven by the interests of local U. S. groups. This was why the demonstrations were making demands on environment and labour standards that seemed to be inimical to the interests of the poor countries, a feature of the street action that many have already commented on.” The article found that “One aspect of the street protests during the recent WTO conference was apparent and disconcerting– the ignorance of Third World issues.”

14 The term “transparency” is a buzzword used in public discourse to assess public access- or lack thereofto deliberations and dispute settlement hearing within the World Trade Organization over trade and trade-related policies. This public access could be either (i) direct, through the provision of access of non-governmental groups to WTO negotiating rooms, committee meetings and dispute settlement hearings been driven and constrained by conflicts among influential political constituencies that work with and through their state representatives, consistent with a two-level intergovernmental approach. The divisiveness within the WTO’s two most powerful members has significantly contributed to the stalemate within the WTO Committee on Trade Environment, and thus the disaffection of U. S. and EU environmental activist groups who are more concerned about outcomes than process. This stalemate does not, however, mean that decision-making within the WTO Committee has been anti-democratic, or would be more democratic were an alternative “stakeholder” model implemented. Rather, the blockage within the CTE has been caused in large part by divisions between and within the very governments in which northern-based nongovernmental organizations are based, governments which, in turn, are the two most powerful members of the World Trade Organization.

This article’s findings demonstrate that, despite critics’ claims, the World Trade Organization is not an autonomous neoliberal dominated organization that is (by nature) antienvironment and anti-democratic.15 Rather, decision-making processes within the World Trade Organization are, for the most part, properly based on an “intergovernmental” model that, compared to the “civil society/stakeholder” and “supranational” alternatives, represents the best bet for ensuring relatively unbiased participation of disparate interests around the globe in an international fora. The article finds that implementation of a “civil society/stakeholder” model in which non-governmental groups play a direct role in determining policy outcomes at the international level is fraught with much greater problems of over- and under-representation than the model’s advocates admit. This is particularly the case for developing country constituencies whose stakeholders, from the standpoint of direct participation, are always under-represented internationally. While there is certainly continued room for improvement, the WTO’s Committee on Trade and Environment has facilitated the coordination of trade and environment policies domestically and internationally, and served as an important laboratory for enhancing the

15 For support from a developing country non-governmental commentator, see B.S. Chimni, WTO and Environment: Shrimp-Turtle and EC-Hormone Cases, 35 Economic and Political Weekly, 1752 (May 13, 2000) (“The WTO is far from being the anti-environment organisation it is portrayed to be by northern NGOs and academics.”). Ironically, the paper was financially supported by World Wide Fund for Nature-India, which in turn is supported by its northern parent organization.

transparency of the World Trade Organization as a whole. In this way, domestic constituencies may interact, in the future, on a somewhat more informed basis with their national representatives in determining state negotiating positions in international fora that implicate domestic concerns.

I. Theoretical Approaches to the WTO’s Treatment of Trade and Environment Matters:

The Confrontation of Empirics

This article applies three “ideal types” as alternative frames of analysis to respond to normative critiques of the WTO’s treatment of trade and environment matters as anti-democratic. The three examined perspectives are:

(i) an intergovernmental perspective which holds that the creation of the WTO Committee on Trade and Environment represents an attempt by states to take control of the trade and environment debate by bringing it to an organization which is state-dominated. Under a two-level intergovernmental model, this first perspective incorporates portions of the latter two, maintaining that national positions are shaped by national political processes involving competition among business and other stakeholder interests attempting to influence government, as well as competition among governmental actors attempting to respond to and shape constituent demands

(ii) a supranational technocratic perspective which appraises the WTO’s handling of trade and environment matters as a cooptation of policy-making by a technocratic network of trade policymakers having a neoliberal 17 policy orientation

16 The two-level intergovernmental model (in its ideal type), however, does not incorporate the entirety of the latter two models since it does not address the impact of international institutions on national identities and interests. Rather it maintains (i) that state representatives-and not supranational bureaucrats such as members of the WTO secretariat-are the primary determinants of outcomes negotiated in the WTO

17 The term “neoliberal” refers to a model of societal relations where government regulation of trade is constrained in order to foster the play of market forces driven by private enterprises pursuing profit maximization. Neoliberal commentators often rely on “public choice” theory, which maintains that trade protectionism is best explained by self-interested public authorities responding to well-organized minoritarian domestic producer interests.

officials working with the WTO secretariat, in turn supported by large private transnational businesses, all acting within the structure of the WTO trade regime

(iii) a stakeholder/civil society perspective which views the creation of the Committee on Trade and Environment as a response to ongoing systematic pressure from non-governmental advocacy groups before international and domestic fora to change the norms of the world trading system.18

These three models respectively focus on the roles of different players in determining political outcomes: states (as ultimately represented by chiefs of government), international and national trade bureaucrats (working through a transgovernmental trade policy network), and transnational non-governmental actors. These three “ideal types” are used as alternative frameworks for analysis because they incorporate the terms and concepts most prevalently used and abused by commentators on the World Trade Organization. This Article examines their relative explanatory power as applied to the WTO, assessing (i) why the WTO Committee on Trade and Environment was formed

See e.g. THE POLITICAL ECONOMY OF INTERNATIONAL TRADE, Ronald Jones & Anne Kreuger, eds. (1990). On public choice theory, see MANCUR OLSON, THE RISE AND DECLINE OF NATIONS 77-79 (1982) (noting how protectionist

interest groups can skew domestic policymaking, reducing national welfare) and, more generally, MANCUR OLSON,

THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965).

The use of the term “neoliberal” in this context should not be confused with the term “neoliberal institutionalism” (sometimes referred to as “rational internationalism”), a theory of international relations that is state-based, addressing why states agree to create international institutions to advance state goals. See infra notes 21-22.

18 In international relations theory, the stakeholder/civil society model can be viewed as a version of transnational relations theory, which focuses on the role of private actors, including business and non-business actors in directly determining policy outcomes. See presentation of transnational relations theory in Mark Pollack and Gregory Shaffer, Transatlantic Governance in Historical and Theoretical Perspective, in TRANSATLANTIC

GOVERNANCE IN A GLOBAL ECONOMY (Mark Pollack and Gregory Shaffer, eds.) (2001) [POLLACK AND SHAFFER,

TRANSATLANTIC GOVERNANCE].

11 and implications,19 which I also examine.

A. A Two-level Game Intergovernmental Approach

Scholars taking an intergovernmental approach view international organizations as formed and controlled entirely or predominantly by states to further state interests- and not those of nonstate actors, whether corporate or otherwise, or semi-autonomous lower level government officials. From a classical realist perspective, international institutions reflect the interests of the most powerful states, and do not constrain their operations.20 Rational institutionalists, on the other hand, maintain that even powerful states often agree to constraints imposed on them by international institutions in order to further national goals.21 In their view, states create

19 The three chosen perspectives have been employed to a different extent, and from a predominately a normative perspective, in the important and oft-cited article by Richard Shell, Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, 44 DUKE L.J. 828, 838 (1995) [hereinafter Shell, Analysis of the World Trade Organization], in which Shell advocates a “stakeholder” model as “a blueprint.” Unlike Shell, however, this Article takes a sociolegal approach, assessing the subsoil (players, power dynamics and institutional context) on which the foundations of any normative model (such as a stakeholder model) would be built. In addition, the Article presents each of the models in a slightly different manner than does Shell. While Shell, borrowing from regime theory, refers to a “regime management model” of WTO policy-making, this Article adopts a two-level intergovernmental perspective into its analysis of state-state negotiations, thereby incorporating the impact of commercial and other interests in the formation of national positions. As for the stakeholder model, this Article addresses its functional and normative limits in light of the relative stakes and power positions of stakeholders that, in fact, would best take advantage of such model, were it implemented. These stakeholders, of course, do not work in a vacuum, but may make alliances with representatives from the more powerful states, where in fact, the wealthiest and best organized stakeholders are located.

20 See, for example, the articles in NEOREALISM AND ITS CRITICS (Robert Keohane ed., 1986), and in

particular, the chapters by Kenneth Waltz

(1987)

TRADE (1990) (while Grieco agrees that institutions matter, as a neorealist, he focuses on state power and the importance of relative, as opposed to absolute, gains in the negotiation of trade liberalizing agreements). A reflection of a realist approach to international environmental politics is seen in Hurrell and Kingsbury, Introduction 11 THE

INTERNATIONAL POLITICS OF THE ENVIRONMENT (Andrew Hurrell & Benedict Kingsbury eds., 1992), one of whose

three central themes is “the nature and significance for international environmental protection of the conflicts between states over power, over the distribution of the costs of environmental management, and over questions bearing upon state sovereignty and freedom of action”).

21 See, e.g., ROBERT KEOHANE, AFTERHEGEMONY: COOPERATION AND DISCORD IN THE WORLD POLITICAL

ECONOMY (1984)

international institutions to reduce the transaction and information costs of negotiating and monitoring agreements, thereby helping ensure that reciprocally beneficial bargains are sustained.22

A variant of intergovernmental theory broadens this analysis by focusing on a two-level game that combines competition between domestic private interests leading to the formation of national positions, with competition between states that promote those interests internationally.23 National positions are first formed “liberally” through domestic political processes, often

involving conflicts among competing interest groups. These national positions are then defended by state representatives in bilateral and multilateral “intergovernmental” negotiations. For liberal intergovernmentalists, national positions are not abstract or static, but contingent, shaped by internal pressures from competing stakeholder interests. International institutions, such as the World Trade Organization, offer new possibilities of confrontation not only among, but also within, states .24 The WTO is not simply a neutral arena for facilitating reciprocally beneficial

For a definition of the more popular use of the term neoliberal, as used in this article, see supra note __.

22 Rational institutionalists borrow from game theory and neo-institutional economics. In a two-player “prisoners’ dilemma” game, for example, each player is worse off from cheating unless both players cheat, in which case both are worse off. If the game is repeated into the future, both players will have an incentive not to cheat. See discussion in Abbot, supra note 21. See also Robert Axelrod & Robert Keohane, Achieving Cooperation under Anarchy: Strategies and Institutions, 31 WORLD POL. 226 (1985)

23 See e.g., Robert Putman, Diplomacy and Domestic Politics: The Logic of Two-level Games, INT’L ORG.

427 (1988)

al., eds., 1993). See also Andrew Moravcsik, Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach, 31 J. COMMON MKT. STUD. 473, 483 (1993) (“Groups articulate preferences

environmental politics, see e.g., GLOBAL ENVIRONMENTAL POLITICS 22, 31-37 (Gareth Porter and Janet Welsh

Brown, eds, 2nd ed., 1996) (noting that “state actors are the final determinants of global environmental issues,” but that a theoretical explanation for global environmental regime formation or change… must incorporate the variable of state actors’ domestic politics.”).

24 See e.g. Miles Kahler, Conclusion: The Causes and Consequences of Legalization, 54 International Organization 661, 687 (summer 2000) (“To paraphrase E.H. Carr, legalized institutions offer a new meeting place for ethics and power, among , as well as within, societies.”).

intergovernmental outcomes, but a new institutional means for domestic actors to attempt to obtain their demands.25

In a two-level intergovernmental game, heads of national governments may be caught between a rock and a hard place-that is, between the demands of domestic constituencies and conditions required by their foreign counterparts. Nonetheless, they may also retain considerable flexibility on account of their unique position at both negotiating sites. They may thus be able to shape international and domestic outcomes through employing such strategies as offering side payments to domestic groups in order to win support,26 targeting threats or concessions at foreign interest groups to modify foreign positions,27 linking issues to rally support of key domestic and foreign constituencies,28 or manipulating information about domestic political constraints,29 or manipulating domestic ratification procedures or information about an

25 Cf. Helen Milner, Rationalizing Politics: The Emerging Synthesis of International, American, and Comparative Politics, 52 International Organization 759, 784 (Autumn 1998) (noting that, under her version of rational institutionalist analysis, “Institutions are not viewed as neutral arenas for cooperation, rather they are political means to realize one’s preferences.”).

26 Examples include the EC’s use of sectoral side-payments to the Portuguese textile industry to secure the assent of a reticent Portuguese government for the conclusion of the Uruguay Round and creation of the WTO. See the description in Youri Devuyst, The European Community and the Conclusion of the Uruguay Round, in 3 THE

STATE OF THE EUROPEAN UNION 449-467 (Carolyn Rhodes & Sonia Mazey eds., 1995).

27 See, e.g., Bananas: U.S. Issues Final List of European Imports to Be Hit with Higher

Duties in Banana Row, Int’l Trade Daily (BNA) (April 12, 1999) (listing the United States’ retaliatory targets in its dispute with the EC over its implementation of the WTO decision EC-Regime for the Importation, Sale and Distribution of Bananas).

28 By incorporating trade in services and the protection of intellectual property rights into the WTO and NAFTA trade regimes, for example, the Office of the United States Trade Representative garnered support from powerful domestic constituencies to lobby for the ratification of these politically-sensitive trade liberalization agreements.

29 U.S. trade representatives may refer to, and possibly even instigate, hard-line declarations from the U.S. Congress to coerce foreign negotiators. See, e.g., I.M. DESTLER, AMERICAN TRADE POLITICS (3rd ed. 1995) (noting

how USTR Robert Strauss worked Congress when negotiating with the Japanese in the late 1970s). Similarly, the European Commission may refer to French hard-line positions on agricultural negotiations to constrain the demands of U.S. and other negotiators for eliminating subsidies and other protective measures favoring EC agricultural producers. Cf. infra note 176 (discussing French suspicion of the EC acting as its bargaining proxy).

agreement’s terms.30 In other words, a two-level game can work in both directions, with domestic constituencies “liberally” shaping state positions and state representatives attempting to manipulate domestic preferences advocated in domestic fora. Two-level intergovernmental analysis thereby combines the domestic and international arenas into a single bargaining model.

A two-level intergovernmental approach would predict that states largely respond to domestic pressures in forming their positions within the World Trade Organization on trade and environment matters, in particular when these issues become politicized. To the extent that commercial interests have higher per capita stakes in the outcome of trade negotiations than other stakeholders, the model predicts that they indeed play a more predominant role at the national level in the formation of national positions. However, it cautions that positions of national commercial constituencies are not necessarily neoliberal, since many national sectors-such as agriculture, steel and textiles-often have protectionist proclivities. Thus, the model predicts that national policy over trade and environment matters tends to have a more nationalist, mercantilist orientation, attempting to exploit environmental arguments to limit imports into its jurisdiction, on the one hand, and wary of environmental arguments wielded by other countries that prejudice its export interests, on the other. While the two-level intergovernmental approach is primarily positive, it also has important normative implications, first in assessing the democratic legitimacy of decision-making within the WTO’s Committee on Trade and Environment, and second, in enabling a more critical examination of alternative institutional models advocated by the WTO’s critics.

B. A Supranational Technocratic Approach

A competing perspective on international relations maintains that networks of mid-level technocratic officials may be able to shape international policy through working within supranational regimes, such as the World Trade Organization, in a manner independent of national political processes. Keohane and Nye, for example, define “transgovernmental” relations

30 See, for example, U.S. “fast track” procedures pursuant to which the U.S. Congress cannot amend the results of a negotiated agreement, but must approve or reject it in an up or down vote. See Harold Koh, The Fast Track and United States trade Policy, 18 BROOK. J. OF INT’L L. 143 (1992).

“as sites of direct interaction among sub-units of different governments that are not controlled by the policies of the cabinets or chief executives of those governments,” at least with respect to the details of negotiated outcomes.31 These relatively autonomous networks of lower level governmental representatives can work with members of international secretariats in specific policy areas to define appropriate policy options and thereby determine policy outcomes.32 A supranational technocratic approach predicts that WTO outcomes reflect the bureaucratic interests and ideological and epistemological biases of a network of trade elites, and thus do not reflect national interests as determined through national political processes, ultimately reflected in the positions of national heads of government.

The identity, background and outlooks of the predominant players in such networks, and the structure in which they operate, would determine the network’s policy orientation. Since the primary aim of the World Trade Organization is to facilitate trade liberalization, to the extent that international civil servants at the World Trade Organization play the predominant role in a WTO policymaking network, such network would likely have a neoliberal bias. In the tradeenvironment policy context, the network would tend to view environmental regulations as nontariff barriers to trade, as opposed to appropriate environmental protection measures. Network members would particularly scrutinize environmental regulations that have a more adverse impact on foreign trading interests than domestic producers. However, to the extent that national trade officials, and not WTO civil servants, play the dominant role in this network, the network’s

31 Robert O. Keohane & Joseph S. Nye, Transgovernmental Relations and International Organizations, 27 WORLD POL., 39, 45 (1974). Keohane and Nye note that “lack of control of subunit behavior by top leadership is

obviously a matter of degree.” Id. See also Introduction to TRANSNATIONAL RELATIONS AND WORLD POLITICS, at ix

xxix (Robert O. Keohane & Joseph S. Nye, eds., 1972). For an overview of “transgovernmental relations” theory, see Mark Pollack and Gregory Shaffer, Transatlantic Governance in Historical and Theoretical Perspective, in

TRANSATLANTIC GOVERNANCE IN A GLOB AL ECONOMY (Mark Pollack and Gregory Shaffer, eds.) (forthcoming

Rowman and Littlefield: 2001).

32 These policy-making networks are sometimes referred to as “epistemic communities,” defined as “a network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy relevant knowledge within that domain or issue-area.” See Peter Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 INT’L ORG. 1, 3 (1992). On the way institutions (such as the WTO) can shape state behavior through defining “logics of appropriateness,” see James March & Johan Olsen, The Institutional Dynamics of International Political Orders, 52 International Organization 943, 951-952, 964 (noting that international institutions are not only sites for intergovernmental strategic negotiations, but also “institutions for socializing individuals and creating meaning and for promoting specific concepts,” such as the “role… of markets “).

orientation will not necessarily be neoliberal, since trade officials represent protectionist producer interests as well as neoliberal export interests.

As this article will show, national officials indeed play a more predominant role in the formation of policy within the World Trade Organization on trade and environment matters. Thus, from the perspective of this technocratic model, it is more accurate to examine the WTO Committee on Trade and Environment as a transgovernmental process at the supranational level involving mid-level government representatives. These representatives are, in turn, in close contact with well-organized national economic interests. The WTO’s Committee on Trade and Environment, in other words, could be seen as a forum for national trade bureaucrats to directly and regularly contact their foreign counterparts, thereby facilitating the maintenance of an ongoing network that monitors international and national environmental regulatory developments. Better informed through the agency of the World Trade Organization, national trade officials can more easily intervene to limit the impact of environmental policy on trading interests.

Viewing trade-environment policy-making within the World Trade Organization as that of a technocratic network forging policy through the agency of a supranational organization lies at the center of normative debates over the legitimacy, accountability and democratic representativeness of WTO decision-making. On the one hand, it is precisely why the World Trade Organization is pilloried by its critics as an undemocratic, neoliberal institution independent of national democratic control.33 On the other hand, libertarians and public choice theorists, including some former members of the GATT secretariat, unabashedly advocate a neoliberal policy role for the World Trade Organization through which networks of national and international trade policymakers may promote the “public interest” by freeing economic exchange from governmental regulatory constraints.34 For them, such technocratic officials are

33 See supra note 3.

34 See e.g. ERNST-ULRICH PETERSMANN, CONSTITUTIONAL FUNCTIONS AND CONSTITUTIONAL PROBLEMS OF

INTERNATIONAL TRADE LAW ( 1991), who advocates the constitutionalization of international trade law through the creation of private international “trading rights” recognized before international and domestic courts, in furtherance of neoliberal free trade goals. See, for example, Petersmann’s call for recognition of “freedom of trade as a basic individual right.” Id. at 463. See also McGinnis and Movsiean, Reinforcing Democracy Through Trade, supra note 13.

more likely to make “better” policy, from the perspective of national and world economic welfare, than national officials subject to nationalist, mercantilist political biases. Yet to the extent that national trade officials represent protectionist producer interests, as well as export interests, they will not necessarily take a uniform neoliberal stance as advocated by libertarian commentators and as chastised by WTO critics. This article assesses the extent to which national trade bureaucrats, working with the WTO secretariat and business interests, shape the trade and environment debate within the WTO Committee on Trade and Environment and-through the Committee-outside of it.

C. A Civil Society/Stakeholder Approach

Theorists taking a civil society, or stakeholder, approach depict non-governmental actors as playing a central and increasing role in international arena, independent of state representatives.35 Some non-state theorists focus on how international market liberalization processes favor and reflect the power of transnational corporations who dominate policymaking nationally and internationally.36 Many others, however, focus on the role of non-business actors

in constructing knowledge, setting agendas, and transforming perceptions of alternative outcomes

35 In international relations theory, the civil society model of politics is sometimes referred to as “transnational relations” (in contrast to intergovernmental relations), in that it focuses on the role of private nongovernmental actors working across borders to directly determine transnational policy outcomes. See presentation of transnational relations theory in Pollack and Shaffer, Transatlantic Governance in Historical and Theoretical Perspective, supra note 18.

36See, e.g., SUSAN STRANGE, THE RETREAT OF THE STATE: THE DIFFUSION OF POWER IN THE WORLD

ECONOMY (1996) (stating that “the impersonal forces of world markets, integrated over the postwar period more by private enterprise in finance, industry and trade than by the cooperative decisions of governments, are now more powerful than the states to whom ultimate political authority over society and economy is supposed to belong,” id. at 4, and noting how non-state actors exercise power through providing and withholding credit, defining the nature of knowledge and deciding the terms and conditions of production, see id. at 1)

DAVID C. KORTEN, WHEN CORPORATIONS RULE THE WORLD (1995)

GLOBAL DREAMS: IMPERIAL CORPORATIONS AND THE NEW WORLD ORDER 19 (1994) (“The most disturbing aspect of

this system is that the formidable power and mobility of global corporations are undermining the effectiveness of national governments to carry out essential policies on behalf of their people.”). For a major work from the 1970s

assessing the privileged role of business in national policy-making, see CHARLES LINDBLOM, POLITICS AND

MARKETS: THE WORLD’S POLITICAL-ECONOMIC SYSTEMS (1977).

through their interactions with policymakers at the national and international levels .37

Under this latter analysis, the trade-environment debate within the World Trade Organization should reflect the impact of transnational networks of environmental activists striving to change the structure of the debate within the World Trade Organization as to the appropriateness of trade measures imposed on environmental grounds. These civil society theorists tend to focus on the power of persuasion as opposed to material coercion, in particular in respect of non-governmental organizations’ dealings with powerful states.38 These theorists examine the strategic role of non-state actors as norm entrepreneurs attempting to change perceptions of, and priorities concerning, the trade-environment nexus.39 Some go so far as to

37 See, e.g., MARGARET KECK & KATHERINE SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY

NETWORKS IN INTERNATIONAL RELATIONS 3 (1998) (noting how transnational advocacy groups “contribute to

changing perceptions that both state and societal actors may have of their identities, interest, and preferences, to transforming their discursive positions, and ultimately to changing procedures, policies, and behavior”)

Risse-Kappen, Introduction to BRINGING TRANSNATIONAL RELATIONS BACK IN: NON-STATE ACTORS, DOMESTIC STRUCTURES, AND INTERNATIONAL INSTITUTIONS, 3-33 (Thomas Risse-Kappen ed., 1995)

NATIONAL INTERESTS IN INTERNATIONAL SOCIETY (1996)

ECONOMIC INSTITUTIONS AND GLOBAL SOCIAL MOVEMENTS (Robert O’Brien, Anne Marie Goetz, Jan Aart Schote and Marc Williams, eds., 2000)

ORGANIZATIONS SINCE 1875 (John Boli & George M. Thomas eds., 1999).

The focus on how actors shape (or “construct”) norms that thereby affect policy outcomes is often referred to as constructivism. For an analytical account of “constructivism” and its variants in international relations theory, see John Ruggie, What Makes the Wold Hang Together? Neo-utilitarianism and the Social Constructivist

Challenge,” INTERNATIONAL ORGANIZATION 855 (Autumn 1998) (noting constructivism’s grounding in the

sociological approaches of Emile Durkheim and Max Weber). For constructivist analysis of the power of international organizations, see Michael Barnett & Martha Finnemore, The Politics, Power, and Pathologies of International Organizations, 53 International Organization 699 (Autumn 1999) (assessing how international organizations exercise power, that is autonomous from states, through their abilities to classify the world, fix meanings and articulate and diffuse new norms,” at 710). For constructivist approaches to international environmental politics with neo-Marxist and Gramscian orientations, see e.g. the contributions in THE ENVIRONMENT AND INTERNATIONAL RELATIONS (eds. John Vogler and Mark Imber(1996), such as Julian Saurin, International

relations, social ecology and the globalisation of environmental change 76, 81 (“The debate over environmental change is in large part a battle in the social construction of knowledge and meaning which is fought out in a global arena,” noting the benefits of Marxist inquiries) and Marc Williams, International Political Economy and global environmental change 41, 56 ( “The linkages between globalisation and ecological degradation are more usefully addressed through an approach which explores the interactions between transnational ideologies, transnational social movements and states,” noting the benefits of neo-Gramscian analysis).

38 See e.g. Martha Finnemore and Kathyrn Sikkink, International Norms Dynamics and Political Change, 52 International Organization 887, 900 (Autumn 1998) (noting that international NGO networks “are rarely able to ‘coerce’ agreement to a norm-they must persuade”).

39 See, e.g., KECK & SIKKINK, ACTIVISTS BEYOND BORDERS, supra note 37

International Norms Dynamics, supra note 38, at 888 (focusing on “processes we call ‘strategic social construction,’ in which actors strategize rationally to reconfigure preferences, identities, or social context.”).

declare that transnational environmental activists not only “constructively” shape outcomes, but also directly determine policy outcomes through transnational coordination within what they term “world civic politics,” or a “world polity.”40 Arguably, as communication and transportation barriers diminish, the ability of an organization in one country to influence perceptions and policies in another expands .41

Although the civil society approach has a positive, descriptive aspect, in the context of debates over the World Trade Organization, it is most commonly used in a normative sense. Most northern environmental activists advocate the adoption of a stakeholder model precisely because the model is not operational within the World Trade Organization or its Committee on Trade and Environment. Criticizing the WTO as unrepresentative and dominated by commercial concerns,42 they advocate an alternative pursuant to which “stakeholders” other than

40 See, e.g., PAUL WAPNER, ENVIRONMENTAL ACTIVISM AND WORLD CIVIC POLITICS (1996) [hereinafter

Wapner, World Civic Politics]

ed., GLOBAL GOVERNANCE: DRAWING INSIGHTS FROM THE ENVIRONMENTAL EXPERIENCE, 65-84.(1997)

CONTESTING GLOBAL GOVERNANCE: MULTILATERAL ECONOMIC INSTITUTIONS AND GLOBAL SOCIAL MOVEMENTS

(2000) (recognizes north-south tensions, but does not seriously assess them in using the term “global social movements”). See also Peter Wiletts, Who cares about the environment?, in THE ENVIRONMENT AND INTERNATIONAL RELATIONS, supra note 37, 120, 132 (“The Global Politics paradigm, with its emphasis on values and issues, gives a sound theoretical basis for the instinctive feeling, on the part of environmental researchers, that NGOs really are important in a more fundamental way.”).

41 As Keohane and Nye write, “the ability to disseminate free information increases the potential for persuasion in world politics. NGOs and states can more readily influence the beliefs of people in other jurisdictions.” Robert Keohane and Joseph Nye, Power and Interdependence in the Information Age, 77 Foreign Affairs, 81, 94 (Sept./Oct. 1998). See also John King Gamble and Chalotte Ku, International Law-New Actors and Ne Technologies: Center Stage for NGOs? 31 Law and P olicy in International Business 221 (winter 2000).

42 Many of these critics typically contend that the W orld Trade Organization serves multinational corporate interests. See Knapp, WTO Rejects U.S. Ban on Shrimp Nets, supra note[3]. For other critiques of the dominance of corporate trading interests in environmental matters, see, for example, WALLACH & SFORZA, WHOSE TRADE ORGANIZATION?, supra note 3

control global environmental and other standards, as well as trade rules”)

EARTH BROKERS: POWER, POLITICS AND WORLD DEVELOPMENT (1994)

RULE THE WORLD (1995). A more nuanced critique of the role of a neoliberal-oriented GATT (now WTO) secretariat is found in Robert Howse, The Legitimacy of the World Trade Organization, at 21-25, 1999) (manuscript on file) (referring to the epistemic power and illegitimacy of the “network of trade experts” in GATT and WTO policymaking, while maintaining that the WTO Appellate Body has somewhat curtailed their previous influence).

business interests play a greater role in international policy formation. They advocate, in particular, the incorporation of the views of multiple stakeholders from developed and developing countries into the WTO negotiating and dispute settlement processes and, in particular, of environmental interest groups .43 The aim of these northern activists is to integrate into WTO decision-making an “environmental” perspective alongside the currently predominant “trade” one.44

These advocates, however, typically fail to differentiate which stakeholders would likely benefit were the alternative model actually implemented, especially in light of which stakeholders presently most closely monitor CTE developments and lobby state representatives in defining their positions within the WTO Committee. They rarely review the representativeness

43 See, e.g., Daniel Esty, Public Participation in the International Trading System: Why the World Trade Organization Needs Environmental NGOs (International Centre for Trade and Sustainable Development, 1996) available in <http://www.ictsd.org/html/arcpubpart.htm>

World Trade Organization: Cooperation, Competition or Exclusion, 1 J. OF INTERNATIONAL ECONOMIC LAW 123,

147 (1998)

and his theory of communicative action. See, e.g. JURGEN HABERMAS, THEORY OF COMMUNICATIVE ACTION (1981), and BETWEEN FACTS AND NORMS (1996). Habermas advocates communicative action (action derived from deliberation leading to understanding and agreement as opposed to a common good) to instrumental action (action of particular interests to achieve given ends involving tradeoffs and compromises). See also Cass Sunstein, Democracy

Isn’t What You Think, N.Y. TIMES at 7 (reviewing JURGEN HABERMAS, BETWEEN FACTS AND NORMS (1996)).

An example of an attempt to create a stakeholder community bringing together northern and southern environmental and developmental NGOs is the International Centre for Trade and Sustainable Development (ICTSD), based in Geneva, Switzerland. The ICTSD closely follows CTE developments, helps organize tradeenvironment symposia bringing together northern and southern NGOs, state delegates, international civil servants and academics, periodically meets with CTE secretariat members and state delegates to the CTE, and publishes a bimonthly newsletter appropriately named BRIDGES. See their web site at <http://www.ictsd.org/>. Other examples are the symposia on trade-environment matters organized by the CTE secretariat that have brought together northern and southern developmental and environmental NGOs, business associations and academics. See infra notes 301-302 and accompanying text.

44 For a discussion of this, see infra notes 268-273 and 341-342 and accompanying texts.

of such non-governmental organizations themselves .45 Not surprisingly, representatives of northern-based non-governmental organizations, with greater resources and organizational capacities, are more likely to advocate adoption of a “stakeholder model.”46 They hope that, under this alternative model, their northern environmental views would more likely prevail.

***

These three perspectives, or “ideal types,” are used as alternative frameworks for analysis because they incorporate the terms and concepts most prevalently used and abused by commentators on the World Trade Organization. This article tests the explanatory power of these three theoretical approaches as applied to the World Trade Organization. By examining What Is, it provides us with the tools to better assess proposals for What Ought. The article empirically assesses (i) why the WTO Committee on Trade and Environment was formed

II. Why Was the Committee on Trade and Environment Formed?

The Committee on Trade and Environment was formed pursuant to a Ministerial Declaration annexed to the Marrakesh Agreement establishing the WTO in April 1994. The process, however, was started over two years earlier, for the Committee developed out of a Working Group first convened in November 1991 under the name the “Working Group on Environmental Measures and International Trade” (EMIT Working Group).

There were of course no provisions in the original General Agreement on Tarriffs and

45 See e.g. Ryan Lizza, Silent Partner, The New Republic, 22 (Jan. 10, 2000) (noting “the suspicion that Roger Milliken-billionaire textile magnate from South Carolina, founding member of the conservative movement, and patron of right-wing causes for almost 50 years-has been quietly financing the anti-globalization efforts of

Public Citizen and related organizations

regarding the source of Public Citizen’s financial support for the Trade Watch produced only marginal information”). Public Citizen’s Global Trade Watch is the Ralph Nader’s organization which played a central role in the protests at the 1999 WTO Ministerial Meeting in Seattle). See also Peter Spiro, New Global Potentates: Nongovernmental Organizations and the ‘Unregulated’ Marketplace, 18 Cardozo L. Rev. 957 (1996).

46 See Part IVC, infra notes 280-283 and accompanying text.

Trade (GATT)47 that clearly address environmental protection because, when the GATT was signed in 1947, the environment was on no domestic policy agenda either.48 There was, at the time, no Environmental Protection Agency in the United States or Europe, and no Greenpeace, World Wildlife Fund or Friends of the Earth. When environmental concerns became domestic and international policy issues in the 1970s, they were not addressed within GATT, but through the United Nations system. In anticipation of the 1972 UN Conference on the Human Environment, GATT members agreed to form the EMIT Working Group to examine, “upon request any specific matters relevant to the trade policy aspects of measures to control pollution and protect human environment, especially with regard to the application of the provisions of the General Agreement . . . .”49 However, no requests were made and the EMIT Working Group never met until twenty years later.50 Even in 1991, convening the EMIT Working Group and

47The GATT refers to the de facto institution operating to oversee the General Agreement on Tariffs and Trade (or GATT). The GATT, as an informal institution, became the WTO in April 1994. At that date, the former GATT agreement, signed in 1947, became known as GATT 1947

1994, LEGAL INSTRUMENTS-RESULTS OF THE URUGUAY ROUND vol. 1 (1994), 33 I.L.M. 1125 (1994). See generally

ERNST-ULRICH PETERSMANN, THE GATT/WTO DISPUTE SETTLEMENT SYSTEM: INTERNATIONAL LAW,

INTERNATIONAL ORGANIZATIONS, AND DISPUTE SETTLEMENT (1997) (providing an overview history of the GATT

and the WTO and their dispute settlement systems).

48 See Edith Brown Weiss, Environment and Trade as Partners in Sustainable Development: A Commentary, 86 Am. J. Int’l L. 728, 728 (1992). But see Steve Charnovitz, Exploring the Environmental Exceptions in GATT Article XX, J. World Trade 37 (Oct. 1991) (noting that states discussed wildlife agreements in the context of their negotiations over the creation of an International Trade Organization in the late 1940s). Although Article XX(b) and XX(g) of GATT 1994 respectively refer to “measures… necessary to protect human, animal or plant life or health

49 GATT Council, Minutes of Meeting Held in the Palais des Nations, Geneva,on 9 November 1971, C/M/74 at 4 (Nov. 17, 1971) (containing the decision of the GATT contracting parties to establish a group on environmental measures and international trade).

50 The trade-environment nexus was also not specified in the mandate for the Uruguay Round negotiations set forth in the 1986 Ministerial Declaration at Punto del Este, Uruguay. See Subjects for Negotiations in Ministerial Declaration on the Uruguay Round,, Sept. 20, 1986, GATT B.I.S.D. (33rd Supp.)at 19, 23-26 (1987). Nor did the environment appear as an issue in the 1985 report of an independent group of seven “eminent persons,” designated

defining its agenda was no easy matter, involving over eleven months of internal debates within the GATT Council.51

There is a certain amount of misunderstanding about why the GATT’s EMIT Working Group was finally convened and the WTO Committee on Trade and Environment formed in the 1990s. Many assume that they were primarily the result of pressure from U. S. environmental groups, who harnessed U.S. negotiating power to achieve their ends. The assumption is understandable given the largely contemporaneous signature of the 1993 environmental side agreement to the North American Free Trade Agreement (NAFTA),52 the importance of environmental issues in U.S. domestic debates over NAFTA’s ratification, and the formation within the Organization of Economic Cooperation and Development (OECD) of an analogous “Joint Session of the Trade and Environment Committees.”53 As Keohane has written, “If there is

by the GATT Director General, to make recommendations for multilateral negotiations. See TRADE POLICIES FOR A

BETTER FUTURE: THE LEUTWILER REPORT, THE GATT AND THE URUGUAY ROUND (1987).The report is known as the

“Leutwiler” report after its chairman. Then Senator Bill Bradley was one of the seven “eminent persons.”

51The convening of the EMIT Working Group was first raised in a Uruguay Round negotiating meeting in December 1990, but the first EMIT Working Group meeting was not held until November 1991. See the proposal to convene the EMIT Working Group, submitted by member countries of the European Free Trade Association, in Statement on Trade and the Environment, MTN.TNC/W/47 (Dec. 3, 1990). See EMIT, Report of the Meeting of the Group on Environmental Measures and International Trade, TRE/1 (Dec. 17, 1991) (being the minutes of the first EMIT W orking Group meeting). While Daniel Esty was at the United States Environmental Protection Agency (EPA), the EPA pushed the United States Trade Representative to support the convening of the EMIT Working Group. Correspondence with Daniel Esty, July 2000.

52 See North American Agreement on Environmental Cooperation (Environmental Side Agreement, Sept. 13, 1993), 32 I.L.M. 1480. See discussion in Daniel Esty, Economic Integration and the Environment, in The Global Environment: Institutions, Law, and Policy (Norman Vig & Regina Axelrod, eds), 191-192 (1999).

53 In 1991, the members of the Organization of Economic Cooperation and Development (OECD) also agreed to form an OECD Joint Session of the Trade and Environment Committees which, as the CTE, continues to periodically meet. For a fuller description of the work of the Joint Session and its impact, see Robert Youngman and

Dale Andrew, Trade and Environment in the OECD, in SUSTAINABLE DEVELOPMENT: OECD POLICY APPROACHES

FOR THE 21ST CENTURY 77 (1997). For a presentation of the issues by the Chairman of the OECD Trade Committee at the beginning of the joint OECD sessions, see Geza Feketekuty, The Link Between Trade and Environmental Policy, 2 Minn. J. Global Trade 171 (summer 1993). Many commentators believe that greater progress in exploring the substantive linkages between trade-environment policy was made in the OECD deliberations than in the WTO Committee on Trade and Environment. For an example of the Joint Session’s work focusing on the impact of trade on the environment, see The Environmental Effects of Trade (OECD 1994). This is explained in part by the greater likelihood of common social values among OECD members (consisting of the developed countries), and the fact that there is no binding OECD dispute settlement system that could enforce the findings of the Joint Session. Nonetheless, Youngman and Andrew note that, as with the EMIT W orking Group, a Nordic country, Sweden, proposed for the OECD to review trade and environment policy links, being particularly concerned with “the effects

one key variable accounting for [international environmental] policy change, it is the degree of domestic environmental pressure in major industrialized democracies, not the decision-making rules of the relevant international institutions.”54

Moreover, most developing countries opposed the EMIT Working Group’s convening and the CTE’s formation precisely because they feared the Working Group and Committee could serve to justify U. S. and European unilateral trade measures against developing country imports, resulting in “green protectionism.”55 In the GATT Council meetings leading up to the EMIT Working Group’s convening, the Thai representative (on behalf of the ASEAN group) asserted that “for GATT to address environmental protection problems as a general trade policy issue was inappropriate

of differing national environmental standards on trade.” Id.

54 Robert Keohane, Introduction to INSTITUTIONS OF THE EARTH: SOURCES OF EFFECTIVE INTERNATIONAL

ENVIRONMENTAL PROTECTION 15 (Robert Keohane et al. eds., 1995).

55 The Egyptian ambassador to the WTO, Mounir Zaharan recalls that “the environmental issue was imposed on the WTO during the last phase of the Uruguay Round with the argument that those who would oppose it would bear responsibility for the Round’s failure.” He confirms “that many developing countries feared the entry of ‘trade and environment’ in the WTO would lead to more protectionism.” Martin Khor, South Concerned over New Issues at WTO, (visited Oct. 2, 1998) <www.iatp.org/iatp> (reporting on remarks at a conference in Malaysia on July 9, 1996 entitled “The WTO: Perspectives from the South”). At the Conference, Dr Vandana Shiva of the Research Foundation for Science, Technology and Natural Resources Policy (India) maintained that developed countries sought to link trade and the environment in the WTO “to serve as a justification for unilateral trade measures.” Id. See also Cristina Hernandez, Green Protectionism: Does the end justify the means?, in Striking a Green Deal: Europe’s role in environment & South-North trade relations (Hernandez, who became Mexicos’s delegate to the CTE, denounces unilateral measures with extraterritorial effect as “green protectionism.”).

Developing countries’ reluctance to have environmental matters addressed in international fora is nothing new. They have long feared that environmental obligations could be imposed that limit their autonomy and their economic growth. Developing countries were similarly wary of the holding of the 1972 UN Conference on the Human Environment and the creation of the United Nations Environment Program. See e.g. David Kay and Eugene Skolnikoff, International Institutions and the Environmental Crisis: A Look Ahead, 26 INT’L ORG. 469, 474 (spring 1972).

56GATT Council, Minutes of Meeting: Held in the Centre William Rappard on 6 February 1991, C/M/247, at 22. (Feb. 6, 1991) [hereinafter February 1991 Council Meeting]. ASEAN (Association of Southeast Asian Nations) typically designated one member to speak for the association within the EMIT working group and the CTE. The members of ASEAN within the WTO are Brunei, Indonesia, Malaysia, the Philippines, Singapore and Thailand.

57 Id. at 25.

to handle this matter

However, the full explanation for the CTE’s formation is two-fold, involving both an effort to assuage northern environmental constituencies and an effort to subject environmental regulatory developments to greater GATT scrutiny and control. First, it is true that environmental groups within powerful states (the U.S. and EC) became increasingly active on international environmental issues during the 1980s and 1990s, in particular in connection with the 1992 United Nations Conference on Environment and Development, the largest international conference ever held.61 They also pressured their home states to enact environmental measures which led to trade conflicts, with issues ranging from tropical logging62 to ocean fishing practices. The most famous of these measures in GATT history was the United States’ ban on tuna imports from Mexico in response to fishing methods used by Mexican tuna boats that killed dolphins trapped in their nets.63 Mexico reacted to the U.S. ban by filing a GATT complaint, giving rise to a GATT dispute settlement panel finding that the U.S. ban was contrary to GATT

58 Id. at 23.

59 GATT Council, Minutes of Meeting Held in the Centre William Rappard on 12 March 1991, C/M/248, at 18 (April 3, 1991) [hereinafter March 1991 Council Meeting].

60 See Richard Eglin, Overview of Trade and Environment Issues, Speech before the Korea Environmental Technology Research Institute at an International Symposium on Trade and Environment (24 July 1996) (draft, provided by Eglin to the author, on file). Eglin was the first Director of the Trade and Environment Division of the WTO Secretariat.

61 The Conference is sometimes referred to the Rio Conference, as it was held in Rio de Janeiro, Brazil.

62 Austria passed a law in 1990 that mandated a labeling scheme for all tropical timber and imposed a new 70% tariff on tropical timber imports. Austria eventually backed down in response to ASEAN’s call for a product boycott on all Austrian products and Austria’s realization that it would lose a GATT case. Austria subsequently submitted a GATT working paper criticizing the use of extraterritorial environmental measures. See discussion in

Porter and Brown, GLOB AL ENV IRON MENTAL POLITICS, supra note 23, at 135-136 (citing Austria’s paper before the

EMIT Working Group, GATT and International Environmental Agreements, TRE/W/19, Oct 1, 1993).

63 Until the relevant U.S. legislation came into effect, U.S. tuna-fishing boats used the same method of encircling dolphins swimming in the eastern tropical Pacific Ocean since, by a quirk of nature, the desired tuna tended to swim beneath large schools of dolphins leaping from the ocean’s surface.

rules.64 This trade conflict, known as the tuna-dolphin dispute, generated more commentary and publicity than any other dispute in GATT history.65 Suddenly, the GATT became a symbol for groups that had no interest whatsoever in trade issues other than the impact of trade rules on nontrade initiatives. Because environmental groups believed that GATT rules constrained their ability to achieve environmental goals, they lambasted, and at times demonized, the GATT system for failing to accommodate their desired policies. For example, following the tunadolphin decision, Greenpeace erected a banner at GATT headquarters in Geneva projecting a lean dolphin being devoured by a great white shark named “GATT,” and other groups papered Washington with posters of “GATTzilla.”66

The United States and EC did not want environmentalist challenges to jeopardize the conclusion of the Uruguay Round of trade negotiations. They attempted to defuse these challenges to trade policy by supporting the formation within GATT of the EMIT Working Group, followed by the creation of a formal Committee within the new, and expanded, WTO

64 The tuna-dolphin dispute followed a 1990 court injunction obtained by U.S. environmental groups which forced the U.S. to ban imports of Mexican tuna. In January 1991, Mexico requested the Contracting Parties to establish a dispute settlement panel concerning the U.S. ban, which the Contracting Parties agreed to on February 6, 1991. The GATT Panel found that the U.S. import ban violated Article XI of GATT that prohibits “quantitative restraints” and was not permitted under GATT’s exception clause, Article XX. Article XX is discussed further in surpa note 48. For an excellent analysis of the tuna-dolphin dispute, see Richard Parker, The Use and Abuse of Trade Leverage to Protect the Global Commons: What We Can Learn from the Tuna-Dolphin Conflict, 12 GEO. INT’L ENVTL. L. REV. 1 (Fall 1999). For a briefer case review, see Joel Trachtmann, Decision: GATT Dispute Settlement, 86 AM. J. INT’L. L. 142 (1992).

65 As a member of the WTO Secretariat assigned to the CTE states, “The public paid little attention to GAT T panel reports until the tuna-dolphin case. There was a sectoral interest maybe, but not a public interest. The tuna-dolphin case brought the first concerted commentary and critique of a panel report. Before no one paid much attention to panel reports or GATT reasoning except for a small and narrow group of trade specialists.” Interview with Scott Vaughan, in Geneva, Switzerland (June 1997).

66 See Nancy Dunne, Fears Over Gattzilla the Trade Monster, FIN. TIMES, Jan. 30, 1992 at I3

can be seen in DANIEL C. ESTY, GREENING THE GATT: TRADE, ENVIRONMENT AND THE FUTURE, supra note 5, at 34.

structure, the Committee on Trade and Environment.67

Second, however, trading interests in all states, including those same powerful states, were concerned with the proliferation of environmental measures, evidenced by new national labeling and packaging requirements,68 the 1991 U.S. tuna-dolphin case, and the 1992 UN Conference on Environment and Development. The first nations to actually call for the convening of the EMIT Working Group were not the U. S. and EC, but members of the European Free Trade Association (EFTA), a grouping of those European countries that were not EC members, including Austria, Switzerland and all Nordic countries other than Denmark.69 These northern European countries, despite their “green” reputations, demanded the EMIT Working Group’s convening to defend their trade interests, not primarily to promote environmental goals. As an EFTA representative stated before the GATT Council, GATT needed to confront “the rising tide of environmental measures and international environmental agreements…, not least because many … used trade measures to realize their objectives.”70 The EFTA countries fretted about foreign environment-related measures impeding their exports, not about GATT’s need to accommodate more of them. They “drew attention to the forthcoming [Rio Conference] at which further environmental instruments having trade implications would be adopted” and hoped that GATT would prepare a “contribution” to it.71

Trading interests throughout the world, including in the United States and Europe, shared EFTA’s concerns. In the second tuna-dolphin case, the EC challenged the United States’

67 See U.S. and EC statements, in February 1991 Council Meeting [C/M/247], supra note 56 at 24-26, and March 1991 Council Meeting [C/M/248] supra note 59 at 17-22.

68 See supra and infra notes 62 and 76-78.

69 EFTA consisted of European counties that were not members of the EC, and at the time included Norway, Sweden, Finland, Iceland, Austria, Switzerland and Liechtenstein. Since 1991, Sweden, Finland and Austria have joined the EC, and Switzerland has left EFTA on account of a treaty signed between EFTA and the EC establishing a European Economic Area (or EAA).

70 February 1991 Council Meeting [C/M/247], supra note 56, at 20.

71 February 1991 Council Meeting [C/M/247], supra note 56, at 20. GATT secretariat members attended the Rio Conference and did submit contributions concerning GATT principles and rules. See infra note 236

secondary ban on tuna imports imposed on environmental grounds.72 The United States likewise threatened to challenge an EC Directive that would have banned the import of U. S. fur products on account of inhumane U. S. trapping methods.73 Even in the context of the contemporaneous tuna-dolphin dispute, the U. S. representative maintained, “Contracting parties should not let the important principles of GATT be trampled upon by governments trying to protect the environment.”74 As regards international environmental negotiations, the EC representative sustained “The sooner the GATT was involved in the design stages of environmental policies, therefore, the easier it would be to bring in a moderating influence from the trade policy point of view.”75

The proposed development of national eco-labels designed to modify consumers’ buying habits also raised a threat to foreign traders. The U. S. and EC were concerned by each other’s respective labeling and environment-related standards that could disproportionately raise their own producers’ costs.76 Developing countries claimed that their relatively small producers were even more disadvantaged by new U. S. and European labeling and packaging requirements.77

72 That is, the United States also banned tuna imports from European countries that did not themselves ban imports of Mexican tuna on account of Mexican tuna-fishing methods. See Panel Report, United States-Restrictions on Imports of Tuna, June, 1994, 33 I.L.M. 839 (1994)

73 For an overview, see Andre Nollkaemper, The Legality of Moral Crusades disguised in Trade Laws: An Analysis of the EC “Ban” on Furs from Animals taken by Leghold Traps, 8 J. ENVMTL. L. 237 (1996).

74 GATT Council, Minutes of Meeting: Held in the Centre William Rappard on 29-30 May 1991, C/M/250, at 14 (June 28, 1991) [hereinafter May 1991 Council Meeting].

75 Id. at 19.

76 These concerns continue today. See, e.g., Rossella Brevetti, Glickman Warns Senate Panel about Mandatory Country-of-origin Meat Labeling, 22 Int’l Trade Rep. (BNA) 919 (June 2, 1999) (citing U.S. Agricultural Secretary Dan Glickman’s testimony before the Senate Committee on Agriculture, Nutrition and Forestry, that “mandating origin labeling could be used to the detriment of U.S. exports in some markets,” such as the European Union. See generally Atsuko Okubo, Environmental Labeling Programs and the GATT/WTO Regime, 11 GEO. INT’L ENVTL. L. REV. 599, 639 (1999) (describing the potential increase in costs of numerous regimes having different labeling requirements).

Note: This article uses the American spelling for eco-labeling (with a single “l”) except where the English version (with a double “l”) is used in a document or quotation.

77 Cut flower producers in Kenya, Colombia and Ecuador, for example, denounced Germany’s packaging requirements for subjecting them to higher costs than their German competitors. ESTY, GREENING THE GATT, supra note 5, at 102. See also Mexico’s comments in CTE, Report of the Meeting Held On 25 and 26 March 1996,

Although U. S. and European environmental groups lambasted the GATT tuna-dolphin panel decision as anti-environmental, from Mexico’s perspective, the decision was extremely threatening to its fishing industry because the decision found that the U. S. “dolphin safe” private labeling regime complied with GATT rules.78

In short, states convened the EMIT Working Group and formed the WTO Committee on Trade and Environment primarily (although not exclusively) because, in reaction to domestic producer complaints, they perceived that environmental measures increasingly threatened their trading interests. As traditional trade barriers such as tariffs and quotas steadily declined,79 U. S. and European environmental regulations proliferated.80 Environmental and other domestic

WT/CTE/M/8, at 13 (April 11, 1996) (noting “Importers were also subject to disproportionate costs. Packaging requirements favored the use of local materials.”). For a developing country perspective of the impacts of northern

eco-labeling requirements on developing countries, see, ECO-LABELLING AND INTERN ATIONA L TRADE (Simonetta

Zarrilli,Veena Jha & Rene Vossenaar eds., 1997). The three editors were members of UNCTAD (United Nations Conference on Trade and Development) at the time of the book’s publication. V ossenaar is Chief of UNCTAD’s trade and environment section and Jha, an Indian who has a Ph.D. in economics from Cambridge University, was the section’s chief economist. Chapter 10 of the volume, for example, addresses how Dutch eco-labeling schemes, “derived from the specific environmental and economic circumstances in the Netherlands,” can be “unfair towards developing country exporters.” Harmen Verbruggen, Saskia Jongma and Frans van der Woerd, Eco-labelling and the Developing Countries: The Dutch Horticultural Sector, at 143, 155-156. Note: This article uses the American spelling for eco-labeling (with a single “l”) except where the English version (with a double “l”) is used in a document or quotation.

78 See Parker, What We Can Learn from the Tuna-Dolphin Conflict, supra note 84, at 24, 83 (noting that “Mexico was dissatisfied because the GATT decision upheld the cannery boycott [based on a strict dolphin-safe labeling requirement], which was more economically threatening than the [U. S. legal] embargo.” Id. At 46).

79 The eight multilateral trade rounds under GATT have reduced the amount of average ad valorem tariffs to under five percent, down from an average of 40 percent ad valorem at the end of World War II. See RAJ BHA LA & KEVIN KENNEDY, WORLD TRADE LAW 6 (1998). Within those rounds, “the first round of negotiations yielded 45,000 tariff concessions affecting one-fifth of world trade. In the sixth [multilateral trade negotiation round], the Kennedy Round, existing customs duties were reduced an average of 35 percent.” Id. In the Uruguay Round, the eighth and last completed negotiating round, participating developing countries reduced rates by 28 percent, and developed countries reduced rates to an average of 3 percent for goods from other developed countries and an average of 4.8 percent for goods from developing countries. Id. at 84-85

80 See, e.g., Inhabitants in the Field of European Community Environmental Law, 5 Colum. J. Eur. L. 39, (1998-99) (describing the increase in EC environmental legislation since the 1970s)

regulatory policies correspondingly became the object of battle between government authorities.81 Both trade and environmental factors were important to the CTE’s formation. Yet it was the forces of trade competition, in reaction to the perception of environmental groups’ growing success in promoting environmental regulation in national and international fora, that first brought environmental issues to the GATT and WTO.

III. What Accounts for the Agenda of the WTO Committee on Trade and Environment?

Since all environmental measures have economic effects and all trade measures impact on the environment, GATT and WTO members had to frame the Working Group’s and Committee’s mandates. Developing countries, in particular, persistently pointed out that the GATT was a “trade” organization, and not an environmental one. In response, the member governments defined the trade and environment linkage in a manner that focuses primarily on the trade impacts of environmental measures-not on the environmental impacts of trade rules .82 Governments, and particularly the trade-oriented bureaucracies within governments, see the World Trade Organization as a “dollars and cents organization”83 with rules and a dispute settlement system that affect their economic interests. States have largely relegated concerns over the environmental impacts of trade to other international institutions with fewer detailed rules and less judicialized enforcement regimes, such as the United Nations Environmental Programme (UNEP) and single issue international environmental organizations created under UNEP’s and others’ auspices.

81 See, e.g., DAVID VOGEL, BARRIERS OR BENEFITS, REGULATION IN INTERNATIONAL TRADE (1997).

82 On developing country concerns of “green protectionism,” see supra note 55 and accompanying text. Although in the end, the EMIT Working Group’s original trade-focused mandate was retained, the EC and U.S. argued that the mandate should not be limited. The EC was concerned that “the 1971 Group’s original terms of reference risked being seen as an attempt to screen environmental protection measures having an impact on trade . . . .” February 1991 Council Meeting [C/M/247], supra note 56, at 25-26. It objected “to any restrictive interpretation of the GATT’s competence on this matter.” March 1991 Council Meeting [C/M/248], supra note 59, at 18. The United States likewise observed that it “was not certain that the 1971 Group’s mandate was sufficiently broad to address the full range of issues involved.” February 1991 Council Meeting [C/M/247], supra note 56, at 25-26. Nonetheless, in order not to further delay the convening of the group, its initial mandate was retained.

83 Interview with Andrew Griffith, formerly Canadian representative to the CTE, in Geneva, Switzerland (June 1997).

The EMIT Working Group’s initial mandate was “to examine upon request any specific matters relevant to the trade policy aspects of measures to control pollution and protect human environment” (emphasis added).84 This trade-focused mandate was then broken down by the Working Group into three issues: “(a) trade provisions contained in existing multilateral environmental agreements… vis-a-vis GATT principles and provisions

84 The terms of reference, in their entirety, are “to examine upon request any specific matters relevant to the trade policy aspects of measures to control pollution and protect human environment especially with regard to the application of the provisions of the General Agreement taking into account the particular problems of developing countries.” Group on Environmental Measures and International Trade, TRE/2 (Dec. 17, 1991).

The preamble to the decision establishing a Committee on Trade and Environment provides that the Committee’s competence “is limited to trade policies and those trade-related aspects of environmental policies which may result in significant trade effects for its members.” See Trade and Environment, Decision of April 14, 1994, MTN/TNC/45(MIN).

85 See Report of the Meeting of the Group on Environmental Measures and International Trade [TRE/1 ], supra note 51, at 1. On the notion of “transparency,” see supra note 14.

86 Report by the Chairman of the Group on Environmental Measures and International Trade presented to the Contracting Parties at their Forty-ninth Session, GATT B.I.S.D. (40th Supp.) at 75, par. 9 (1995) (reporting to the January 25 and 26 1994 meeting of GATT members, the work of the EMIT Working Group in 1993, which is document L/7402).

By “competence,” delegates (and in this case, the Chair of the Committee) typically refer to whether states have granted the World Trade Organization, as an international institution, the power and authority to address an issue. This notion of “competence” has a legal meaning. In the context of debates within the WTO Committee on Trade and Environment, states would often maintain that the WTO Committee did not have “competence” to address environmental issues, but only trade issues. Thus, in the above quotation, the Chair is maintaining that the CTE only has competence to address “trade-related aspects of environmental policies,” not environment-related aspects of trade policies. Some commentators, however, also have used the term “competence” in a practical sense, maintaining that the WTO has developed an expertise on trade issues which it does not hold on environmental issues. Interview with Richard Eglin, former director of the Trade and Environment Division of the WTO, June 9, 1997, Geneva, Switzerland

Although the initial push for the formation of a WTO Committee on Trade and Environment came from developed countries, developing countries agreed to its formation provided the CTE’s agenda reflected their development concerns as well.87 This was part of their quid pro quo for agreeing to the CTE’s formation as part of an overall package concluding the Uruguay Round and creating the World Trade Organization. The agenda of the Committee on Trade and Environment was expanded to incorporate a package of ten items balancing concerns of developed and developing countries. The entire agenda is set forth in Table 1, together with an indication of whether developed or developing countries were primarily interested in such item, and noting the number of interventions of the most active developed and developing countries. Though the ten items have been formally retained, they were subsequently re-categorized in 1997 into two central clusters also identified in Table 1: a cluster involving “market access” issues, and a cluster involving “linkages between the multilateral environment and trade agendas.”88

Developed and developing countries were equally concerned by the numerous market access issues addressed within the WTO Committee. However, the CTE agenda also included issues involving a potential revision of WTO rules to accommodate environmental goals, some promoted primarily by developed countries, offset by others promoted primarily by developing countries. In each case, states defended their respective trading interests, blocking any recommendations for changes to WTO law.

A. Market Access Issues of Concern to All

Countries’ positions on the four items known as the “market access cluster”– items 2, 3,

87 The EMIT Working Group’s terms of reference explicitly provided that the group shall be “taking into account the particular problems of developing countries.” See supra note 84.

88 Table 1 is set forth at the end of this article. The clustering was done in order to provide greater substantive focus to discussions. See Trade and Environment Bulletin No. 17, The WTO Committee on Trade and Environment Establishes its Work Programme and Schedule of Meetings for 1997, PRESS/TE017 (Mar. 26, 1997), available in <http://www.wto.org/wto/environ/te17.htm>

<http ://www. wto . org/w to/env iron/te 0 20. h tm>.

4 and 689– shatter the conventional notion of a clean north-south split on trade-environment matters.90 Developing countries are increasingly outward-looking, demanding greater access to U. S. and European markets. They are correspondingly less focused on preserving domestic import substitution policies, which helps explain the decline of southern solidarity over trade policy.91 This policy shift now facilitates the formation of north-south coalitions, and south-south conflicts, over specific trade matters.

The key market access issue before the CTE was item 6, which broadly covers “the effect of environmental measures on market access… and environmental benefits of removing trade restrictions and distortions.” The purported environmental benefits of eliminating politicallysensitive agricultural, fishery, energy and other subsidies generated extensive debate within the WTO Committee. Agricultural exporting nations, including the United States, Australia, New Zealand, Argentina, Chile, Brazil and even India, joined forces in the Committee on Trade and

89 As for clustering the items, see supra note 88. Items 3 and 6, discussed in this paragraph, generated a significant amount of debate. Item 4, however, (concerning “the transparency of trade measures used for environmental purposes and environmental measures and requirements which have significant trade effects”) was less controversial, and was the only item where CTE members recommended a concrete initiative-the creation of a database by the WTO secretariat of all such measures and requirements, which the secretariat continues to compile and update. See CTE, Report (1996) of the Committee on Trade and Environment, WT/CTE/1, at par. 192 (Nov. 12, 1996) [hereinafter CTE 1996 Report]. Item 2 was a catch-all item that yielded little focused debate.

90 On north-south divisions over environmental policy, see e.g. The North, The South and the Environment: Ecological Constraints and the Global Economy (eds. V. Bhaskar and Andrew Glyn) 4 (1995) (integrating concerns over “equity” in its analysis)

91 See e.g., Alejandro Jara, Bargaining Strategies of Developing Countries in the Uruguay Round, in THE

DEVELOPING COUNTRIES IN WORLD TRADE: POLICIES AND BARGAINING STRATEGIES (eds. Diana Tussie & David

Glover 11, 27 (1993) (“Coalitions seem to better serve their purpose when built around well-defined interests of likeminded countries, whether developed or developing.”)

DEVELOPING COUNTRIES IN WORLD TRADE, 119, 135 (“Before the Uruguay Round, Argentina, like most developing

countries, had concentrated its trade diplomacy on the defense of import substitution, applying its skills mainly to securing import protection… But gradually Argentine interests focused on issues of market access, both in the bilateral and the multilateral arena.”)

Environment to employ environmental rationale to challenge the EC, Japan and Korea for protecting their agricultural sectors.92 India’s support of the United States is particularly noteworthy, as India often led the defense of developing country interests vis-a-vis the United States.93 The EC, Japan and Korea, in turn, however, also adopted arguments with which many developing countries were receptive, such as the need for agricultural protection to ensure “food security.”94 The issue of “packaging, labelling and recycling” requirements (item 3) also resulted in north-south coalitions and pitted northern governments against each other, witnessed by ongoing disputes involving Canada and the United States against EC labeling of wood products,95 and EFTA’s early challenge to EC packaging and labeling requirements.

States attempted to harness the effects of non-state actors to support their negotiating positions. In June 1997, the environmental group WWF-World Wide Fund For Nature sponsored

92 See presentation of state positions in Trade and Environment Bulletin No. 21, WTO Committee on Trade and Environment Welcomes Information Session With MEA Secretariats, Discusses Items Related to The Linkages Between The Multilateral Environment and Trade Agendas, Services And The Environment, Relations With NGOs and IGOs, and Adopts 1997 Report, PRESS/TE021 (Dec. 19, 1997) <http://www.wto.org/wto/environ/te021.htm>.

93 India stressed the need for “special and differential treatment for developing countries” and their “sovereignty over environmental resources.” CTE 1996 Report, supra note 89, at par. 48 (citing India’s non-paper of July 23, 1996 on item 2, setting forth India’s view on the relation of trade and environmental principles). See also India’s views on items 1 and 8, supra note 110.

94 For Korea’s food security argument, see Report on the Meeting Held on 25 and 26 March 1996, supra note 77, at par. 12. On the resonance of the “food security” argument, see, for example, India Willing to Abandon Traditional Allies in WTO Talks, If Necessary, Officials Say, 16 Int’l Trade Rep. (BNA) 1526, 1527 (reporting that Indian Commerce Secretary P.P. Prabju said that “India definitely wants discussed . . . agricultural subsidies in developed countries, specifically the European Union” in the new round of trade negotiations, yet also quoting his special secretary who admitted, “we have our own food security and rural employment issues in agriculture.”). See also remarks of Vandana Shiva, Director of the Indian NGO Research Foundation for Science Technology and Natural Resource Policy, Ecology in International Trade-A Small-Scale Perspective, WTO as a Conceptual Framework for Globalization 114, 118 (referring to the need to secure “food security”)

95 See e.g., Labeling: Canada, ASEAN, Other Nations Criticize Dutch Proposal to Label Wood Products, Int’l Trade Rptr. (BNA) (Dec. 2, 1998)

a symposium held at the United Nations in Geneva on the detriments of subsidies to the fishing industry. This, in turn, spurred the WTO secretariat assigned to the Committee on Trade and Environment to prepare its most ambitious analytical paper, a 78 page working paper prepared in two parts assessing the detrimental environmental effects of agricultural, fishing, energy and other subsidies.96 The focus on market access in item 6 permitted states to harness both trade liberal and environmental NGO support to advance their interests.97 For a neoliberal-oriented trade community, Article 6 helped frame the trade-environment linkage in terms of tradeenvironment synergies, as opposed to conflicts. Yet though the framing may have temporarily aligned certain non-state actors from the trade and environment communities, states continued to clash-in particular the United States, Japan, Europe and the Cairns group98 of agricultural

96 In its November 1997 paper, the Secretariat notes how “trade liberalization has the potential to have a twofold positive effect on the environment,” since it leads to a more efficient allocation of resources meaning fewer resources will be required for a given output, and it generates more wealth meaning more income will be available to protect the environment. CTE, Environmental Benefits of Removing Trade Restrictions and Distortions: Note by the Secretariat, WT/CTE/W/67 (Nov. 7, 1997), at para. 5. This latter paper is considerably more detailed, the initial paper and its addendum totaling 78 pages. The paper cites numerous economic studies of the relationship between growth in per capita income and the intensity of polluting effluents. It notes that some environmental problems (such as scarcity of potable water and sanitation) decline, some (such as particulate emissions and habitat loss) initially worsen and then decline, and some (such as carbon dioxide emissions) worsen.

97 For example, the Argentine representative to the CTE, Hector Torres, was viewed by environmentalists as a potential environmental ally. Argentina’s primary interest was in item 6. It aimed to use the CTE to pressure the EC, in particular, to reduce its agricultural subsidies and other barriers to market access for Argentina’s agricultural products. In exchange, Argentina appeared. more willing than other developing countries to accommodate NGO demands on items 1 and 10. Among other matters, Torres was the chair of a session at WWF–World Wide Fund For Nature’s fisheries conference co-sponsored with UNEP, see infra note 263, the rapporteur of WWF–World Wide Fund For Nature’s Expert Panel on Trade and Sustainable Development, see infra note 264, had a paper published by the Canadian NGO IISD, see infra note 271, and published the following article in a mainstream trade law journal: Hector Torres, The Trade and Environment Interaction in the WTO: How Can a ‘New Round’ Contribute?, 33 J. OF WORLD TRADE LAW 153 (1999). He was also invited to a conference organized by Global Environment and Trade Study (“GETS”) on trade and environment, where he provided participating NGOs with an update of the CTE discussions and exchanged views. See WTO Committee on Trade, Environment Gears up for Second Round of Talks, Int’l Trade Rep. (BNA) (Jan 31, 1996), at 172. GETS is an environmental think tank active on the issue of WTO transparency, created by James Cameron, Steve Charnovitz, Daniel Esty and Mark Ritchie, all champions of greater NGO access to WTO activities and of greater accommodation of environmental measures.

98 The “Cairns group” consists of a group of fourteen predominately agricultural exporting countries, formed in Cairns Australia early in the Uruguay Round of trade negotiations, that includes developed and developing countries. The original members were Argentina, Australia, Brazil, Canada, Chile, Fiji, Hungary, Indonesia, Malaysia, New Zealand, the Philippines, Thailand and Uruguay. See Diana Tussie: The Cairns Group in the

Uruguay Round, in DEVELOPING COUNTRIES IN WORLD TRADE, supra note 91, 181-203 (“The coalition had been

Australia’s intellectual child, but gradually other countries were pulled to the center of the stage.” Id. at 195)

CROOME, RESHAPING THE WORLD TRADING SYSTEM: A HISTORY OF THE URUGUAY ROUND 30-31 (1995).

36 exporting countries over agricultural trading interests.

B. Environmental Issues of Primary Concern to the United States and EC

The purportedly “environmental” items of primary interest to the United States and Europe were not surprisingly of primary interest to U.S. and European non-governmental organizations.99 These items respectively examined the existing environmental exceptions in GATT (item 1), in GATS (item 9), and their adjudication before WTO panels (item 5), as well as relations between the WTO and non-governmental organizations (item 10).100 Of these items, only item 1, concerning “the relationship between [WTO rules] and trade measures for environmental purposes,” generated considerable debate, as it implicated current GATT rules around which the controversial tuna-dolphin dispute turned.101 However, since these items would disproportionately affect the trading interests of smaller states and, in particular, of developing countries, developing countries (supported by developing country interest groups) viewed them less as “environmental” issues and more as market access/anti-protectionist issues.102 Working

99 Developing countries were of course interested in the outcome of discussions over these items from a defensive perspective, but they would have preferred that the items be kept off the CTE/W TO agenda.

100 Item 5 concerning “the relationship between the dispute settlement system in the multilateral trading system and those found in multilateral environmental agreements” was “discussed in conjunction with” and largely folded into item 1. See CTE 1996 Report, supra note 89, at par. 32. Item 9, which concerned issues under the General Agreement on Services (GATS) similar to those under GATT Article XX, generated little debate, with discussions being deemed merely “exploratory.” Id. at par. 154. Discussions over item 10, concerning the input of intergovernmental an non-governmental organizations, were largely transferred to General Council meetings, resulting in a General Council Decision on “Guidelines for arrangements with non-governmental organization” of July 18, 1996. CTE 1996 Report, supra note 89, at par. 165. On an informal basis, the CTE secretariat nonetheless worked relatively closely with non-governmental organizations, organizing a number of NGO symposia, as well as with representatives of international intergovernmental organizations, who were invited to give presentations to the CTE. See discussion infra notes 301-302 and accompanying text.

101 In particular, the GATT exception clause, Article XX, permits, subject to a number of conditions, trade restrictions “to protect human, animal or plant life or health” and for “the conservation of exhaustible natural resources.” Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15,

1994, LEGAL INSTURMENTS-RESULTS OF THE URUGUAY ROUND vol. 1 (1994), 33 I.L.M. 1125 art. XX(b), (g)

(1994).

For example, Canada and Australia were also skeptical over the potential use by the United States and EC of an expansive interpretation of the exception clauses in Article XX of GATT 1947.

102 For an overview of developing country positions on a modification of Article XX, see e.g. Magda

Shahin, Trade and Environment: How Real is the Debate?, in TRADE, ENVIRONMENT AND THE MILLENNIUM (Gary

Sampson and W. Bradnee Chambers, eds.), 35, 43-49 (1999).

together with smaller developed countries, they successfully opposed U.S. and European proposals that could amend or interpret WTO rules to better accommodate certain traderestrictive environmental measures.103

C. Environmental Issues of Primary Concern to Developing Countries

The two “environmental” items of primary interest to only developing counties104 similarly enabled them to adopt environmental arguments to restrict trade-item 7 concerning “the export of domestically prohibited goods” (or “DPGs”) (that is, goods not permitted to be sold in developed countries),105 and item 8 concerning “the relevant provisions of the Agreement

103 For an overview of the nine member submissions on item 1 before the CTE, see Chiedu Osakwe, Finding New Packages of Acceptable Combinations of Trade and Positive Measures to Improve the Effectiveness of MEAs: A General Framework, in Trade and the Environment: Bridging the Gap (eds. Agata Fijalkowski & James Cameron) 38, 41-45 (1998) and Magda Shahin, Trade and Environment in the WTO: A Review of its Initial Work and Future Prospects, 5 Third World Network Trade & Development Series (1997) (on file with author). Shahin and Osakwe were respectively the Egyptian and Nigerian delegate before the CTE. Osakwe is now a member of the WTO secretariat. See also CTE 1996 Report, supra note 89, at 3 n.12, 5 n.18, 7 n.26 (referring respectively to a non-paper of Switzerland

Nonetheless, the U.S. and EC positions on the need for Article XX to better accommodate trade restrictions on environmental grounds were largely accepted by the WTO Appellate Body through the Appellate Body’s subsequent interpretation of Article XX. This occurred in the fall of 1998 in its judgement in a dispute involving a U.S. ban of shrimp imports from Thailand, Malaysia, India and Pakistan on account of the shrimping methods used that resulted in the death of endangered sea turtles. For an overview and analysis of this dispute, see Gregory Shaffer, United States-Import Prohibition of Certain Shrimp and Shrimp Products, 93 AM. J. INT’L L. 507 (April 1999) [hereinafter Shaffer, Shrimp-Turtle Dispute].

104 Again, these issues were of interest to developed countries only from a defensive perspective, and they would have preferred to keep them off the CTE/W TO agenda.

105 This and related issues have been negotiated in parallel in other fora. For example, in March 1998, the parties to the Basel Convention on the Control of Transboundary Movements of Wastes and their Disposal agreed to amend it so as to immediately ban the export of hazardous wastes from developed to developing countries. See Basel Meeting on Hazardous Wastes Ends on Note of Optimism, (Feb. 27, 1998) <http://www.unep.ch/basel/press/press6.html>

on Trade-Related Aspects of Intellectual Property Rights” (TRIPs) in relation to sustainable development objectives. Not surprisingly, these two items were opposed by northern business groups and northern governments and advocated most fervently by southern (not northern) environmental and developmental non-governmental organizations.106

Although the Committee on Trade and Environment focused primarily on the impact of environmental measures on trade, states freely adopted “environmental” arguments where their trading interests could benefit.107 While most developing countries initially opposed the EMIT Working Group’s convening because environmental issues fell outside the WTO’s “competence,”108 they did not hesitate to wield environmental arguments to limit other countries’ exports after the WTO Committee was formed. African states, led by Nigeria, asserted that WTO rules should restrict the export of waste materials and domestically prohibited goods to protect the African environment and African health.109 India pressed for changes in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to limit patent rights, create “farmer rights” and recognize “indigenous knowledge” in order to promote sustainable development. India knew that these changes would economically benefit its farmers vis-a-vis U.S. and European agribusiness and pharmaceutical concerns. India maintained that forcing

106 See discussion infra notes 111-113 and accompanying text.

107 Environmental arguments have long had an elastic nature. They have, for example, long been employed in U.S. domestic commerce and EC internal market cases. In the United States, see e.g. Minnesota v Clover Leaf Creamery C., 449 U.S. 456 (1981) (concerning a Minnesota statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but not cardboard nonreturnable, nonrefillable containers). For the EC, see e.g. Commission v Denmark (Beverage Containers), Case 302/86, 1 CMLR 619 (1989) (concerning a Danish law requiring the use of only certain re-usable containers for the sale of beer and soft drinks).

108 See supra notes 56-59 and accompanying text.

109 Egypt, for example argued that “commercial interests should not prevail over the protection of human, animal or plant life or health.” CTE, Report of the Meeting Held on 16 February 1995, WT/CTE/M/1, at par. 5 (March 6, 1995). The Tanzanian delegate maintained that export restrictions on trade in waste materials and domestically prohibited goods were required so that developing countries would not become “convenient dumping grounds” for the developed world and its multinational enterprises. See May 1991 Council Meeting [C/M/250], supra note 74, at 6. The United States countered that these issues were more appropriately addressed in other international environmental fora. See CTE, Report of the Meeting Held on 14 December 1995, WT/CTE/M/6, at par. 32 (Jan. 17, 1996) (where the U.S. maintains that other organizations “had the competence and expertise” to address these items, unlike the CTE). This constituted a reversal of the parties’ respective positions on item 1 where developing countries maintained that, because environmental issues were to be addressed in other international fora, unilateral trade restrictions on environmental grounds were not in compliance with WTO rules.

developing countries to recognize and enforce intellectual property rights over life forms, as in the case of genetically-modified plant varieties, could result in monopolization of seeds available on the market, the growth of mono-crops, the loss of traditional farmer and indigenous knowledge and seed use, and ultimately a decrease in biological diversity because fewer plant varieties would be available,. India, supported by other developing countries, argued that, in this way, the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights would conflict with the 1992 Convention on Biological Diversity.110

When it came to calls for amending intellectual property rules, however, the United States and Europe switched stances on the issue of WTO competence. In defense of U. S. biotechnology, agribusiness and pharmaceutical interests, the U.S. responded, “the WTO was not an environmental organization and it lacked the competence to insert MEA [multilateral environmental agreement] goals in WTO Agreements.”111 Likewise Switzerland, another advocate of accommodating environmental exceptions into GATT Article XX (item 1), yet with its huge pharmaceutical companies now threatened by environmental arguments, “recalled the

110 See e.g. CTE, Report of the Meeting Held on 11-13 September 1996, WT/CTE/M/12 (Oct. 21, 1996). India has also proposed that countries prohibit the granting of patents to inventions made with foreign genetic material obtained in contravention of the principles of “sovereign rights” over genetic resources and “fair and equitable” sharing of benefits set forth in Article 15 of the United Nations Convention on Biological Diversity. See remarks of India in WT/GC/W/147 and WT/GC/W/225. PRINT AND ADD TITLES AND DATES. Similarly, India has proposed that environmental technology be transferred to developing countries on favorable terms, particularly technologies mandated by multilateral environmental agreements. See remarks of India in WT/GC/W/294. PRINT AND ADD TITLE AND DATE. For the position of Kenya on behalf of the “African Group,” Bolivia, Colombia, Cuba, Dominican Republic, Ecuador, Honduras, Nicaragua, Peru, and Venezuela, see V. Jha, R. Vossenaar and U. Hoffmann, Trade and Environment: Issues Raised in Proposals Submitted to the WTO Council during the Seattle Process and their Possible Implications for Developing Countries, in TRADE,

ENVIRONMENT AND SUSTAINABLE DEVELOPMENT: VIEWS FROM SUB-SAHARAN AFRICA AND LATIN AMERICA: A

READER (Pieder Konz, ed.) 375, 390-393, 399-402 (United Nations University, 2000) (citing remarks contained in the following WTO documents WT/GC/W/302, Aug. 6, 1999

111 CTE, Report of the Meeting Held on 11-13 September 1996, WT/CTE/M/12, par. 39 (Oct. 21, 1996). As for limits on patentability of discoveries by the United State’s bio-engineering industries, the U. S. likewise asserted that “it is not within the competence of the WTO to seek to remedy ethical, moral and religious practices.” CTE 1996 Report, supra note 89, at par. 140. The United States went on to argue that sustainable development is best promoted through intellectual property protection, that indigenous knowledge does not constitute intellectual property because it falls within the public domain, that in general, any problem for the transfer of environmentallysound technology lies not in the TRIPs Agreement, but rather in developing countries’ foreign investment restrictions. See CTE 1996 Report, supra note 89, at par. 138-143.

Committee’s mandate, bearing in mind that the WTO did not have a role in environmental standard-setting and that any interpretation of the Biodiversity Convention would be determined by its Conference of the Parties.”112 In line with its commercial interests, the EC also took a clear bottom line: “The TRIPs Agreement should not be weakened by anything which might transpire in the CTE.”113

***

What mattered in debates within the Committee on Trade and Environment was not the consistency of states’ arguments concerning the legal and practical competence of the World Trade Organization to address environmental issues, but rather the specific state objectives at stake. Agricultural-exporting countries such as Argentina pointed out the EC’s “inherent contradiction in claiming that free trade and environmental protection were mutually supportive, while at the same time, denying that [agricultural] trade distortions did not have negative environmental effects.”114 But it was to no avail. Similarly, the sub-Sahara African countries’ position on trade in domestically prohibited goods and waste products contradicted a host of developing country arguments, including concerning the WTO-illegality of extraterritorial regulation, the inappropriateness of holding developing countries to developed country standards, and GATT’s limited competence on environmental policy matters.115 India likewise capitalized on environmental arguments to promote its economic interests in respect of the WTO Agreement

112 CTE, Report of the Meeting Held on 21-22 June 1995, WT/CTE/M/3, at par. 52 (July 18, 1995).

113 EC comments quoted in Trade and Environment Bulletin No. 13, WTO Trade and Environment Committee Continues Discussing Proposals on Recommendations for the Singapore Ministerial Meeting and the Post-Singapore Work Programme, PRESS/TE 013, at 7 (Sept. 1996) available in <http://www.wto.org/wto/environ/te013.htm>. The EC’s position reflected the views of UNICE, the EC’s peak business lobbying association, which maintained that “the letter and spirit” of TRIPs must prevail and that the EC must “use the WTO dispute settlement system to redress any violations.” UNICE Position Paper on TRIPs and the Environment, 1 (Sept. 16, 1997) (on file). UNICE is the acronym for the Union des Confederations de l’Industrie et des Employeurs d’Europe.

114 CTE, Report of the Meeting Held on 11-13 September 1996, WT/CTE/M/12, at 7 (Oct. 21, 1997) (intervention of Argentina).

115 ASEAN nations, with business constituents potentially engaging in such trade, perceived how these arguments could be used against their interests on other agenda items, in particular item 1 concerning the use of trade measures for environmental purposes, and thus did not support their African counterparts on this issue.

on Trade-Related Aspects of Intellectual Property Rights, but held that the WTO had limited competence to assess environmental perspectives under item 1 concerning the WTO-legality of trade restrictions imposed on environmental grounds.116 States only argued about the limited competence of the World Trade Organization when they believed that environmental arguments prejudiced their economic interests. States made dollars and cents of the trade-environment linkage before this “dollars and cents” organization. They formed alliances with neoliberals and transnational environmental and business groups when it served their interests.117

IV. Alternative Explanations of the Current Status of the CTE Process: Contending States,

Neoliberal Networks, Conflicted Stakeholders

A. Why Negotiation of the 1996 CTE Report Mattered

Understanding WTO negotiations over trade-environment matters provides a better understanding of how the political bodies within the WTO operate, and in particular, why they provide such little guidance to WTO dispute settlement panels as to how to apply WTO rules to trade-environment disputes. The CTE presented a 47 page report to the first WTO Ministerial Meeting in November 1996 after a grueling negotiating process, culminating in a 36-hour marathon session where the concluding portion of the report was negotiated line-by-line.118

116 See CTE 1996 Report, supra note 89, at par. 133, 137 & 139. Interview with member of CTE Secretariat, Geneva, Switzerland, June 1998.

117 As for common interests between northern environmental groups and developing countries over item 8 (TRIPs), see Magda Shahin, Trade and Environment: How Real is the Debate?, suprea note 102, at 52-53 (“It is worth stressing at this juncture that developmental and environmental NGOs from the North as well as from the South latched on to the issue [of TRIPs and sustainable development] that developing countries should have been tackling in depth much earlier…. The recent failure of the lengthy negotiations on the Multilateral Agreement on Investment in the Organization for Economic Cooperation and Development… clearly denotes the strength and skills of environmental NGOs and, if they feel sidelined, TRIPS could be next in turn.”). Similarly, Shahin notes common interests of northern business groups and developing countries on market access issues, such as trade restrictions based on production and process methods. Id., at 55.

118 For two succinct presentations by participants in the negotiation of the CTE Report, see Magda Shahin, Trade and Environment in the WTO: A Review of its Initial Work and Future Prospects, 5 Third World Network

Trade & Development Series (1997) (on file with author)

AFFAIRS AND INT’L TRADE, REFERENCE DOC. NO. 3, A NEGOTIATOR’S POINT OF VIEW, at 17 (Oct. 1997) (on file

with author). Shahin and Griffith were respectively Egypt’s and Canada’s representatives in the negotiation.

Despite the intensity of the negotiation, none of the conclusions proposed any substantive legal changes to WTO rules, but rather called for “further work” on all ten agenda items.119

It was not as if state representatives had not fully explored the issues. By December 1996 when the Committee on Trade and Environment delivered its Report, the WTO trade and environment body (in its various mutations), had met thirty-two times over multiple days, in addition to informal consultations among members.120 The minutes of the formal meetings alone, in their summarized form, total around 800 pages.121 States submitted over fifty written proposals and observations.122 In addition, at the member states’ request, the WTO secretariat assigned to the Committee (the CTE secretariat) prepared over thirty working papers providing background information and analysis on the ten agenda items, which in turn cited numerous other studies

119 The 1996 WTO Ministerial Conference was held in Singapore from December 9-13, 1996. At the conclusion of the Conference, the Ministers issued a “Singapore Ministerial Declaration,” paragraph 16 of which briefly summarized the work of the Committee on Trade and Environment, noting that “further work needs to be undertaken on all items of its agenda.” WTO Ministerial Conference, Singapore Ministerial Declaration, WT/MIN(96)/DEC (Dec. 11, 1996) available in <http://www.wto.org/wto/archives/wtodec.htm> and 36 I.L.M. 218 (1997). Between Ministerial sessions, the WTO is run by the General Council, which oversees and is reported to by the WTO’s numerous committees and subcommittees, including the CTE. The General Council and each committee consists of a representative of each WTO member state.

120 In total, the EMIT Working Group met thirteen times, once in November 1991, six times in 1992, five times in 1993 and once in 1994. Pending formal ratification of the WTO agreements and formation of the WTO at the WTO’s first General Council meeting on January 1, 1995, the new trade and environment body met four additional times in 1994 as a “Sub-Committee on Trade and Environment of the W TO Preparatory Committee.” Subsequent to the WTO’s formation, the body met as the “Committee on Trade and Environment” six times in 1995 and seven times in 1996. Many informal consultations were of course also held among key member states, as well as the CTE’s chair and the director of the secretariat’s trade and environment division.

121 The total count is 801 pages of minutes of formal meetings. In internal WTO terminology, there are “formal” and “informal” meetings. The most difficult negotiations, however, take place in “informal” ones, for which there are no minutes. When the delegates negotiated the language of the final CTE 1996 Report, they went into “closed” sessions (a.k.a. held “informal” meetings). Insiders confirm that, if busy, delegates may only attend the “informal” meetings since those are the ones which “count.” Interview with U. S. and Canadian delegates in Geneva, Switzerland (June 1997). An interesting development in WTO-speak is the formation of an “Invisible Committee,” consisting of a small group of W TO members discussing the issues for a new round of negotiations. See WTO Members Consider Packaging Future Negotiations as New Round, INSIDE U.S. TRADE 13 (Nov. 14, 1997) (referring to “a meeting of the so-called Invisible Committee, a small group of WTO members . . . . The Invisible Committee was chaired by Canada and included the U.S., European Union, Japan, Argentina, Australia, Brazil, India, Korea, Luxembourg, Morocco, New Zealand, Norway, Poland, Singapore and Switzerland.”).

122 The precise number is difficult to calculate because many non-papers are not available from WTO archives. This calculation is based on all documents in the archives plus references to non-papers in the CTE 1996 Report and the secretariat’s Trade and Environment Bulletins.

from the World Bank, the Organization of Economic Cooperation and Development (OECD), the United Nations Conference on Trade and Development (UNCTAD), and other intergovernmental organizations.

Exhausted by a process which led to such a meager outcome,123 WTO members significantly reduced the CTE’s working schedule since 1996, meeting only three times per year from 1997-2000, tailoring the meetings more toward an analytic study of the trade-environment issues on the Committee’s agenda. Although, at the beckoning of the United States and EC, a “WTO high level meeting on trade and the environment” brought together heads of state from around the world in March 1999 to spur negotiation over trade-environment matters, it too resulted in no substantive developments.124 At the third WTO Ministerial Meeting in December 1999,125 the United States and EC again paid lip service to environmental issues,126 but there is no evidence that WTO rule changes desired by U. S. and European environmental non-governmental organizations will soon result.

The intensity of the negotiations over the 1996 CTE Report may seem ironic given that it

123See Michael Reiterer, Trade and Environment: Reflections on the Impact of the OECD Joint Session, INT’L ENVTL. AFF., 69, 70 (1997). The frustrating, exhausting nature of the negotiations over the Report’s language was universally confirmed in all interviews conducted by the author with participating state delegates and secretariat members assigned to the Committee on Trade and Environment.

124 The EC call for a “high level trade and environment meeting… to break the log jam” is cited in European Commission, The Rt Hon. Sir Leon Brittan QC Vice-President of the European Commission Solving the Trade and Environment Conundrum The Bellerive GLOBE International Conference Geneva, 23 March 1998, RAPID, March 23, 1998. The agenda and presentations to the high level meeting, held in March 1999, including from U.S. President Clinton and EC Commissioner Sir Leon Brittan, can be obtained from the WTO web site at <http://www.wto.org/wto/ibs/websym.htm>. In line with an intergovernmental perspective, Brittan only identified issues of interest to the EC, in particular items 1 and 3. Excluded from Brittan’s list were the CTE issues of greatest interest to developing countries, including reduced agricultural and fishery subsidies and a revision of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights. See critique from a southern non-governmental organization in infra note 337 . Moreover, there were internal divisions within the EC itself as to whether such a high level meting should take place. See Peter Lund, The Politics of Trade and Environment in the World Trade Organization, August 199, at 91 (masters thesis at Copenhagen Business School available in the WTO library) (from his interviews with Danish and other European officials, Lund notes opposition of souther European states such as France, Italy, Greece and Spain,).

125 See WTO, The World Trade Organization’s Third Ministerial Conference <http://www.wto.org/minist/seatmin.htm> (describing the meeting in Seattle).

126 See e.g. EU Unveils Broad Agenda for New Round, Including Standards on Environment, Labor, 16 I’NTL. TRADE REP. (BNA) 1160 (July 14, 1999), and Clinton Stresses Labor, Environment as Elements of WTO Agenda, Inside U.S. Trade 6 (Oct. 15, 1999).

gave rise to no procedural or substantive changes in WTO rules or practices. Yet the negotiation of the Report’s language, line by line, mattered to states because, as one state delegate noted, it was negotiated in an institution where “words have consequences.”127 As confirmed by another state delegate, “the WTO is an organization about reality.”128 That is, state representatives contrast the tenor of discussions in the World Trade Organization with discussions in UN bodies where states do not confront the same “consequences” when negotiating generalized principles concerning environmental norms.129 Upon issuance of the CTE Report, member states were thus careful to affirm that it “was not a legal document,”130 “did not modify the rights and obligations of any WTO member,”131 and “could not be used in part or its entirety in any dispute settlement process or any other legal instruments that might be developed subsequently.”132

State delegates perceive that words are more likely to have “consequences” in the World Trade Organization because of the economic impact of decisions rendered by its binding dispute

127 Interview with Chiedu Osakwe, former Nigerian delegate to the CTE, in Geneva, Switzerland (June 1997). Osakwe was contrasting discussions among states within the WTO compared to those same discussions within UN bodies. Osakwe left the Nigerian delegation to work in the WTO Secretariat’s Division on Trade and Development. In September 1999, he was appointed project co-ordinator of the WTO’s work with least developed countries and a special advisor to the Director-General. See WTO, Moore Announces Key Appointments for Development Issues (Sept. 13, 1999) <http://www.wto.org/wto/new/press136.htm>.

128 Interview with Andrew Griffith, former Canadian delegate to the CTE, in Geneva, Switzerland (June 1997).

129 For a cogent presentation of the way international environmental institutions address environmental

concerns, see, INSTITUTIONS FOR THE EARTH: SOURCES OF EFFECTIVE INTERNATIONAL PROTECTION (Peter Haas et al.

eds. 1993) (a state-centric analysis characterizing “intergovermental organizations and rules” as “extremely weak,” but nonetheless potentially promoting effective coordination through fostering agenda setting, facilitating the negotiation of new international environmental policy initiatives, and enhancing national capabilities for implementing them, id. at 424).

130 Statement of Singapore in CTE, Report of the Meetings Held on 30 October and 6-8 November 1996, WT/CTE/M/13, at par. 11 (Nov. 22, 1996).

131 Statement of CTE Chair, Ambassador Juan Carlos Sanchez Arnau of Argentina, in Report of the Meetings Held on 30 October and 6-8 November 1996, supra note 130, at par. 3. Similarly, the EMIT Working Group’s Chair earlier stressed that the group was not “a negotiating forum.” Report of the Chairman of the Group on EMIT, Ambassador Hideotoshi Ukawa of Japan, in GATT B.I.S.D. (40th Supp.), at par. 8, page 75.

132 Statement of India in Report of the Meetings Held on 30 October and 6-8 November 1996, supra note 130, at par.19).

settlement process.133 Potential disputes with real economic impacts tend to polarize the discussion of complex trade-environment issues.134 As a representative from an African nation to the Commitee on Trade and Environment confirmed, “Delegates are wary of the WTO. GATT is a binding contract. People are not as open and free wheeling as in other international fora. In the WTO, everything you say matters and can be used against you.”135

National representatives were vigilant over the wording of the CTE Report because they feared that the CTE Report could, in fact, be used against them in subsequent disputes implicating domestic economic and political interests. In the WTO’s first major tradeenvironment dispute following the CTE Report -the shrimp-turtle dispute-the claimants (Thailand, Malaysia, India and Pakistan), the respondent (the U.S.) and three third party participants (Australia, Nigeria and Singapore) each referred to different paragraphs from the CTE Report in support of their positions.136 The dispute settlement panel likewise cited the Report both in its findings and in its “Concluding Remarks,”137 as did the Appellate Body in

133 The W TO has the most active dispute settlement system of all international organizations. States are thus much more careful with the text of WTO agreements and agreed interpretations of WTO provisions because they will be interpreted within a binding dispute settlement process. The interpretation of WTO legal provisions can have extremely high stakes. For example, when the Appellate Body held against the United States’ “foreign sales corporation” tax exemptions as contrary to WTO rules on export subsidies, it was estimated that the U.S. may have to pay the EC over US$4-5 billion dollars annually if the United States does not comply with the WTO decision or otherwise settle the matter. See Joseph Kahn, U.S. Loses Dispute on Export Sales, N.Y. TIMES A1 (Feb. 24, 2000). During the first five years of the World Trade Organization’s existence, WTO members filed 185 claims (as determined by number of formal consultations requested-the first step of the process) before its dispute settlement body, and WTO panels rendered substantive decisions in 30 separate matters that were formally adopted by the WTO Dispute Settlement Body. Most of the filed claims, as well as claims never formally filed, were settled within the shadow of the WTO’s dispute settlement system. See Overview of the State-of-play of WTO Disputes (Jan. 13, 2000) <http://www.wto.org/wto/dispute/bulletin.htm>.

134 Ironically, the pressure of ongoing disputes can turn the GATT, despite its reputation as a relatively wellfunctioning international institution, into a General Agreement to Talk and Talk. The Uruguay Round itself took ten years of negotiation until sufficient issue linkage gave rise to tradeoffs resulting in the new W TO rules.

135Interview with Chiedu Osakwe, Nigerian representative on the CTE, in Geneva, Switerland (June 4, 1997), Similarly, in the words of a representative from the United Nations Environmental Program (UNEP), unlike UNEP, the WTO is a “contract-based organization,” one where breaches have consequences.

136 See Report of the Panel, United States-Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R (May 15, 1998), at par. 4.16, 4.53 & 4.71 (summarizing third party participants’ observations) [hereinafter Shrimp-Turtle Panel Report].

137 See Shrimp-Turtle Panel Report, at par. 7.50 (in findings) and 9.1 (in concluding remarks).

reversing certain panel findings.138 Although the CTE Report was not decisive in any party’s position, each tried to spin it to support its reasoning. Ultimately, while the Appellate Body still concluded that the United States’ import ban was “not justified” under GATT Article XX (the GATT exception clause),139 it nonetheless applied Article XX in a manner more accommodating to U. S. trade restrictions than earlier GATT reports, finding that the words of Article XX must be read… in the light of contemporary concerns of the community of nations about the protection and conservation of the environment.”140 In being more accommodating to trade restrictions for environmental ends, the Appellate Body decision could significantly affect developing countries’ trading interests. In fact, the Thai shrimping industry had annually exported almost a billion dollars of shrimp and shrimp products to the United States in the years immediately preceding the ban, constituting over 50% of Thailand’s total exports of these products.141 States’ belief that the “words” of the CTE Report had “consequences” was justified. 142

138 See Report of the Appellate Body, United States-Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Oct. 12, 1998), at par. 154-55 (referring to the importance of the environmental objectives and the absence of CTE “specific recommendations” in the context of its finding that the GATT Article XX(g) exception concerning the “conservation of exhaustible natural resources” is applicable), and par. 168 (noting the CTE’s affirmation of the importance of “multilateral solutions” in the context of its critique of the United States failure to engage in “serious, across-the-board negotiations,” at par. 167) [hereinafter Shrimp-Turtle Appellate Report].

139 See Id.

140 See Id.

141 The Thai shrimp industry is particularly dependent on the U.S. market, selling just over 50% of its shrimp exports to the U.S. In 1994 and 1995, the Thai shrimp industry exported shrimp and shrimp products to the United States valued at 981 million dollars. In 1996, the value of Thai imports of shrimp products into the United States dropped to $888 million, even though Thailand quickly revised its regulations in order to comply with U.S. shrimping requirements. See Fisheries of the United States, 1997 (Shrimp Imports by Country of Origin), U.S. Department of Commerce, National Oceanic and Atmospheric Administration (on file). The 50% figure is cited in Executive Summary, 1 BRIDGES (April 1997) (published by the NGO consortium International Centre for Trade and Sustainable Development, based in Geneva, Switzerland). Moreover, the uncertainty of access to the US market resulted in a glut of shrimp on the Thai market and plummeting prices. Many Thai shrimp farmers were forced to sell at a loss. Some lost their entire investments and a number reputedly committed suicide as a result. Interview with officials from the Thai Department of Fisheries, January 2000, Bangkok, Thailand.

142 Following the Appellate Body’s ruling, the United States continues to impose its legislation mandating sea turtle protection measures and has simply modified procedures pursuant to its implementing regulations in an attempt to comply with the Appellate Body’s more accommodating requirements. See Shaffer, Shrimp-Turtle Dispute, supra note 103.

The CTE Report was also negotiated in the context of on-going U.S. and EC parallel demands that the World Trade Organization address labor standards and possibly authorize trade restrictions were a country not to comply with minimum labor standards.143 Trade restrictions based on labor standards are analogous to those based on environmental standards because both are based on the manner in which a product is produced (in WTO jargon, on “process and production methods,” or “PPMs”), and not on any danger inherent in the product itself.144 Thus, developing countries feared that were the CTE Report to suggest that trade restrictions imposed to protect a foreign country’s environment could be authorized under WTO rules, this could imply that trade restrictions would similarly be permissible in order to protect a foreign country’s workers. Since WTO-authorized trade restrictions based on labor standards would even more severely prejudice developing country trading interests, the words of the CTE Report mattered.

143 See Gary G. Yerkey “‘Discussion” of Trade-labor Link Will Be Sufficient, Lang Says, 13 Int’l Trade Rep. (BNA) 1629 (Oct. 23, 1996) (reporting the efforts of the U.S. and almost all EU member states to have labor standards included on the agenda of the WTO’s first ministerial meeting). This concern over the inclusion of labor standards in the WTO agenda was a central conflict in the 1999 WTO Ministerial in Seattle Washington, in particular after President Clinton appeared to call for trade restrictions against countries not meeting minimum standards. See Roger Cohen, Clinton Remark on Child Labor Irks Brazil, N.Y. TIMES, Dec. 7, 1999, at A14

144 The PPM issue cuts at the core of the predictability of the WTO-GATT system, for if countries can restrict trade on the basis of how a product is purchased, then hard fought negotiations to reciprocally reduce tariffs can be rendered meaningless. The can also be made inequitable, since developed countries are more likely to impose restrictions on environmental grounds than developing countries. The controversial tuna-dolphin and shrimp-turtle cases both revolved around the issue of trade restrictions based on production and process methods. The United States import bans were made on the basis of how the tuna and shrimp were respectively caught (i.e. the production method), which had nothing to do with the tuna or shrimp themselves (i.e. the U.S. restrictions were, in WTO parlance, “non -product related”). Developing countries fear that an acceptance of non-product related production and process methods could undermine one of GATT’s core provisions, that concerning the non-discriminatory treatment of foreign “like products” (Article III of GATT 1947). If WT O members were permitted to ban the sale of products that did not meet with required national production methods- be they environmentally harmful emissions or minimum wage requirements-then developed countries might restrict their imports on the grounds that they are not “like products” because they differ in the manner in which they are produced.

Developing country are thus extremely wary of opening the door in any way to trade restrictions based on production and process methods. For example, the Egyptian ambassador to the WTO, Mounir Zahran noted developing countries’ concern “that the ecolabelling issue could be a prelude to introducing PPMs [process and production methods] into the WTO.” See Martin Khor, South Concerned over New Issues at WTO, supra note 35. The PPM-issue was also raised in respect of item 3(a) concerning taxes for environmental purposes. The CTE 1996 Report notes that “Different views have been expressed on the likely treatment under the Agreement of a rebate for exported products of indirect environmental taxes on a non-product related PPM in excess of the tax rebated on like products when sold for domestic consumption.” CTE 1996 Report, supra note 89, par. 56.

As a Brazilian WTO representative confirms, “We [developing countries] cannot be in favor of a change in Article XX [the clause providing for exceptions to GATT obligations]. We think that this would create an imbalance in terms of a whole set of disciplines and commitments and would set a precedent for other issues”-namely trade restrictions based on “unfair” labor standards.145

In the context of an institution with an effective dispute settlement system which implicates significant economic interests, states have been justifiably concerned about the repercussions of the more abstract discussions in the Committee on Trade and Environment on their specific trading interests. They were thus extremely guarded about the substance and language of the CTE Report, and remain guarded about the possibility of any substantive recommendation coming out of this or any other WTO Committee.

Any honest challenge to WTO trade-environment policy must be based on a clear understanding of how the WTO political process works and, in particular, the roles and positions of different players in respect of existing WTO trade-environment rules. The remainder of this section assesses the relative roles and positions of states (representing national positions), national trade bureaucracies, the WTO secretariat, and northern and southern business and other civil groups. Such an analysis provides us with a better understanding of who lies behind the WTO rules that dispute settlement panels ultimately must interpret in trade-environment disputes.

145Interview with Brazilian delegate, in Geneva, Switzerland (June 19, 1998). For further comments concerning labor standards from major figures from developing countries, see e.g. remarks of Julius Nyerere (former president of Tanzania), Social Issues in International Trade Discussions, Bridges 11 (Nov. 1999) (maintaining that the demands for social standards cloak protectionist designs and that, in any case, they should be accompanied by serious international anti-poverty measures)

While the WTO now incorporates intellectual property protection, a PPM, into the trading system by means of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), developing countries feel that this was forced on them by the United States and EC to their disadvantage, and is not an argument for incorporating yet another PPM requirement into the GATT system. For an overview of the political economy of the TRIPs Agreement, see Susan K. Sell, Multinational Corporations as Agents of Change: The Globalization of Intellectual

Property Rights, in A. Claire Cutler, Virginia Haufler, and Tony Porter, eds., PRIVATE AUTHORITY AND

INTERNATIONALAFFAIRS 169 (1999).

A. The Predominant Role of States

The WTO is a state-dominated institution and not surprisingly states played the dominant role in shaping the CTE agenda. Only states are formal members of the World Trade Organization, permitted to vote on WTO matters and file claims under WTO rules. Moreover, only states may attend, speak and submit papers to meetings of WTO committees, including the Committee on Trade and Environment.146 As the former director of the Trade and Environment division of the WTO secretariat confirms, “The [CTE] process was driven by proposals from individual WTO members.”147 Already by December 1996 (the month of the CTE Report), states had submitted over fifty documents to the Committee and its predecessor working group, setting forth their national experiences, observations and positions in respect of the CTE’s ten agenda items.148 These written submissions supplemented state’s numerous interventions at committee meetings, which also were typically based on policy papers developed in home capitals.149

1. Intra-State Conflicts. The reason that the Committee on Trade and Environment has been stalemated over its ten-point agenda is not solely because of a lack of consensus among states, but also because of a lack of consensus within states. In the United States, for example, the Clinton administration has been hampered in forming a clear position on the permissibility of trade restrictions on environmental grounds on account of conflicts between powerful business constituents, on the one hand, and environmental constituents, on the other.150 One WTO

146 The only exception to this rule is where states, by consensus, invite representatives of other international organizations to observe and sometimes present overviews of such organization’s work programs. Technically speaking, to be a WTO member, an entity only need have a separate customs policy, and need not be recognized as a separate political entity, or state. However, of the WT O’s 136 members, only Hong Kong is not a full-fledged state.

147 Eglin interview, supra note 86.

148 See supra note__. [CUT THIS NOTE]

149 State delegates confirmed that the positions they present at CTE meetings are typically based on policy papers prepared with representatives in home capitals. In many cases, states simply read the policy papers at the CTE meeting. Confirmed in interviews with state delegates to the CTE in Geneva, Switzerland in June 1997 and June 1998.

150 See, e.g., Administration Unclear on Policy for WTO Environment Committee, INSIDE U.S. TRADE, Jan. 26, 1996, at 19 (citing Gregory Mertz, of the U.S. Environmental Protection Agency concerning the slow pace of interagency discussions on account of “conflicting concerns”). On the controversial item 1, the United States only

secretariat representative criticizes the United States for bringing to the World Trade Organization what it is “incapable of solving at the national level,” calling this “madness.”151 Yet it was not madness for U. S. government representatives. They could appease domestic constituents by appearing to address issues in the WTO and letting other countries block changes to WTO rules that could affect U.S. business interests. They could use the Committee on Trade and Environment as a foil to avoid taking clear positions that would disaffect politically powerful constituencies.152 In any case, it was certainly not worth the administration’s risk of exposing itself domestically were its position ultimately rejected by other CTE members.

CTE secretariat members were similarly never clear about the EC’s position on the WTO

submitted to the CTE, during the final negotiations of the CTE 1996 Report, a “non-paper” setting forth certain general principles that the U.S. wished the Committee to endorse. These general principles merely stated that “WTO rules should not hamper the ability of MEAs [multilateral environmental agreements] to achieve their environmental objectives” and that WTO panels “should seek input from relevant MEA bodies in any dispute involving questions relating to an MEA.” CTE 1996 Report, supra note 89, par. 23.

U. S. business groups tended to argue in favor of clearer rules needed to prevent protectionist barriers on environmental grounds, and U. S. environmental groups tended to argue in favor of greater discretion for the use of trade policy as a coercive measure to promote environmental protection abroad. For example, while U.S. environmental groups would like the GATT exception clause to clearly provide that trade sanctions authorized under multilateral agreements should be automatically deemed permissible under the GATT exception clause (Article XX), business groups are quick to point out that “a WTO case involving a MEA [multilateral environmental agreement] to which the United States is not a party could come sooner or later.” Rosella Brevetti, WTO Rules Allow Parties to Join Pacts on Global Environment with Trade Provisions, 17 Int’l Trade Rep. (BNA) 446-447 (March 16, 2000) (noting comments of Timothy Deal, Senior Vice President of the U.S. Council for International Business). A case in point may be the Cartagena Protocol on Biosafety which permits countries to restrict the import of genetically modified seeds on the basis of the “precautionary principle” (that is, without clear scientific evidence that the seeds could harm the environment). For a discussion of the Biosafety Protocol and its relation to the WTO Sanitary and Phytosanitary Agreement, see Mark Pollack and Gregory Shaffer, Genetically Modified Organisms: the Next Transatlantic Trade War?, The Washington Quarterly (Oct. 2000). While business groups have close relations with the Office of the United States Trade Representative, environmental groups also exercise power in the United States because they can block granting “fast-track” negotiating authority to the Clinton administration, or otherwise block the negotiation of trade liberalization agreements. See, e.g., Environmentalists Seek Stronger U.S. Position in New WTO Talks, 17 INSIDE U.S. TRADE 22 (Oct. 1, 1999) (citing Sierra Club’s Executive Director’s warning that “failure to achieve changes [in the U. S. position for “millennium round” negotiations] could result in environmental groups lobbying against fast-track for any new WTO agreements that arise out of the negotiations.”).

151 Interview with a high level official of the WTO secretariat, in Geneva, Switzerland (June 1997).

152 For example, the WTO critic from India, Vandana Shiva, director of the Research Foundation for Science, Technology and Natural Resources Policy (India), states, “There were two functions sought to be served by linking trade and environment in the WTO: to serve as a justification for unilateral trade measures

legitimacy of private eco-labeling regimes (discussed under item 3)-that is, eco-label regimes developed by the private sector, often in conjunction with environmental groups, without government involvement.153 All eco-label regimes are controversial because they are typically based on production methods that do not affect the product consumed in the importing country, but only the environment of the foreign country. Moreover, domestic producer interests generally influence the details of national eco-labels regimes, and, by definition, private regimes, and can thus tailor them to discriminate against foreign competitors. Divisions among EC business and environmental/consumer interests impeded the EC’s ability to clarify its position.154 These internal EC stakeholder divisions were reflected, to a certain extent, in divisions between the EC directorates respectively responsible for trade and for environmental policy.155 While the EC trade directorate appeared more accommodating, the environmental directorate argued that the EC should refrain from agreeing that private eco-labeling regimes are subject to WTO rules because they could then more easily be challenged before WTO panels.156 EC member states’ competing interests also clash, whether over packaging regulations or the reform of the EC’s

153 Interview with a member of the CTE secretariat, in Geneva, Switzerland (June 1998). Eco-labels involve the labeling of a product as being relatively unhazardous to the environment compared to substitutable products. Some eco-labels take account of a product’s entire “life cycle,” from production to disposal. Eco-labels can be controversial because they can be created in a manner to favor local producer interests over foreign producers, thus constituting a discriminatory barrier to trade.

154 EC businesses, for example, under UNICE (Union des Confederations de l’Industrie et des Employeurs d’Europe), argued that all eco-labels, including “voluntary” labels (i.e. those developed voluntarily by private groups), should be governed by the WTO Agreement on Technical Barriers to Trade. See UNICE Position on Eco-Labelling for the WTO Discussion on Trade and Environment, July 22, 1996 (obtained by author from UNICE). EC environmental groups, fearing the constraints of TBT rules, argued otherwise. See, e.g., WWF, Eco-Labelling in The WTO Committee on Trade and Environment is it Serious? (visited Nov. 14, 1999) <http://www. panda.org/ resources/ publications/ sustainability/ wto/ eco.htm> (“[T]he WTO should not attempt to limit the consumers right to know, nor interfere with the development of this potentially important new environmental policy tool.”) For another example of conflicting pressures on EC negotiators from business and environmental groups, see Vinod Rege, GATT Law and Environment-Related Issues Affecting the Trade of Developing Countries, 128 J of World Trade 95, 141 (June 1994) (noting “conflicting pressures from EU industry and environmental groups on the position to take concerning Indonesia’s export restrictions on unprocessed rattan).

155 The European Commission is currently divided into 24 directorates general, one being the Directorate General for External Trade and another being the Directorate General for the Environment.

156 Confirmed in interview with EC representative in Geneva, June 1998. As a CTE secretariat representative stated, “The Canadian Pulp and Paper Association has a file ready against EC eco-labeling schemes.” Interview in Geneva, Switzerland (June 1998).

agricultural regime, which more recently pitted France against Germany, again hampering the formation of a clear EC position.157 The EC is, in consequence, less likely to expend political capital within the WTO on eco-labeling and other environmental issues, in particular where it could thereby be pressed to trade off EC-and, in particular, French and southern European-agricultural interests as part of an issue-linked package deal.

2. State Power. States are not equal players within the Committee on Trade and Environment. In the hundreds of pages of minutes of CTE and EMIT Working Group meetings, only twenty-two states (out of the WTO’s 134 members) spoke more than six times on the different items in the CTE’s agenda.158 The most active states were the United States, EC and Canada, in that order, even though the United States has been faulted by some WTO insiders for not taking a more entrepreneurial role.159 India and Mexico were particularly active among developing countries, reflecting India’s large population, relatively large gross national product, and its leading role among developing countries, and Mexico’s relative size and relevant experience with trade and environment negotiations under the North American Free Trade Agreement. Smaller developing countries remain at a distinct disadvantage, for their bureaucracies are less experienced with the details of international trade rules, and often, given scarce resources, they have only one (or in many cases, no) representative in Geneva to follow all

157 See generally HUGO PAEMAN & ALEXANDRA BENSCH, FROM THE GATT TO THE WTO: THE EUROPEAN

COMMUNITY IN THE URUGUAY ROUND (1995) (noting how it was difficult for the EC to take the initiative in the

Uruguay Round trade negotiations on account of EC member state differences)

158 The OECD members (i.e. those countries considered to be developed countries) so participating were Australia, Canada, the EC (collectively representing all member states), Japan, Mexico, New Zealand, Norway, South Korea, Sweden, Switzerland and the United States. The only non-OECD members on this list were Argentina, ASEAN (as a group), Brazil, Chile, Egypt, Hong Kong, India, Morocco, Nigeria, Sierra Leone and Venezuela. This is based on an approximate count of interventions found in the minutes of CTE meetings.

159 Interviews with a number of WTO secretariat members in Geneva, Switzerland (June 1997 and June 1998). See explanations for U.S. reticence in infra notes 150-152 and accompanying text.

WTO matters.160 More powerful states such as the United States and EC, thus drive WTO agendas. For example, the U. S. and EC were able to demand a “high level meeting on trade and environment matters” held in March 1999, but developing countries wield no such clout. As a senior Brazilian delegate confirms, “It’s a question of power. We don’t have the power to call for a high level meeting on matters important to us, such as tariff escalation or agricultural protection in the EC. We would simply be ignored. Only the U. S. and EC have the power to pressure other countries into holding high level meetings of ministers on specific matters of interest.”161

3. Divisions Between Powerful States. Divisions within and between powerful states have helped block proposals that could adversely affect developing countries’ trading interests. Divisions within the United States and EC over controversial CTE items, such as item 1 (concerning trade measures for environmental purposes) and item 3 (concerning eco-labeling and related national regulations), hamper their taking a more aggressive role. Divisions between the United States and EC over these matters, impede them from presenting a united, coherent negotiating package.162 The United States wished to leave item 1 for resolution by WTO dispute settlement panels while the EC sought a politically-negotiated clarification of GATT Article XX.

160 As of November 1999, twenty-eight WTO members did not even maintain permanent offices in Geneva because of a lack of resources. See WTO organizes ‘Geneva Week’ for non-resident delegations, 43 WTO Focus 16 (Nov. 1999). Where a developing country only has a single national representative, that representative must divide his or her time between more than seventy different WTO councils, committees, working parties and other groupings. See Gary Sampson, Trade, Environment and the WTO: The Post-Seattle Agenda 24 (2000). As Sampson, the former Director of the WTO’s Trade and Environment Division, notes, “The Egyptian delegation to the WTO has estimated that there were 2,847 meetings in the WTO in 1997, or an average of 10 meetings per working day.” (citing Communication from Egypt, High Level Symposium on Trade and Development, mimeo WTO 17 March 1997). Id., at 30. In consequence, many countries’ representatives simply do not attend or keep up with developments in most W TO committees. In any case, they are much less likely to instigate new policy initiatives.

161 Interview with Carlos A. da Rocha Paranhos, Brazil’s Deputy Permanent Representative to the WTO, (June 1998). The Indian NGO activist Vandana Shiva agrees, stating, “Industrialized countries can demand a forest convention which imposes obligations on the Third W orld to plant trees. The Third W orld cannot demand of the industrialized countries a reduction in the use of fossil fuels and energy. In the way the ‘global’ has been structured, the North (as the globalized local) has all the rights and no responsibilities, while the South has no rights and all responsibilities.” Shiva, The Greening of Global Reach, 22 THE ECOLOGIST 258 (Nov.-Dec. 1992). Neither northern governments nor northern environmental NGO s have called for unilateral trade bans imposed on the United States because of its profligate energy consumption, nor that this matter be addressed on the CTE’s agenda or at a WTO high level meeting. Hurrell and Kingsbury similarly note that “the states and peoples of the South have had less success in securing prominence for environmental problems closely associated with development. Hurrell and Kingsbury, International Politics of the Environment, supra note 20, at 37.

162 See generally supra notes 72-76, 92 and 95 and accompanying texts.

The United States challenged EC eco-labeling schemes, most recently those covering genetically modified seeds and food,163 and also supported the CAIRNS Group’ challenge of EC agricultural subsidies as detrimental to the environment. Because of these intra and inter-transatlantic divisions, the U. S. and EC could not offer developing countries sufficient side payments to agree to changes in WTO rules advocated by U. S. and EC environmental groups. From a realist perspective, these divisions over trade-environment policy within and between the WTO’s two most powerful members explain why WTO rules have not changed.

4. Divisions Between Developing Countries. Developing countries’ positions within the WTO/GATT have shifted from protecting their domestic import-substitution policies to expanding their exports to the developed world. The result is increased competition and trade conflicts among developing countries and a reduction in developing country “solidarity.”164 Although there were north-south divisions over intellectual property issues in the Committee on Trade and Environment, most issues addressed in the CTE could pit states before WTO dispute settlement panels irrespective of their levels of development. While the United States and EC remain the WTO’s most common opponents, developing countries increasingly file trade claims against each other.165

5. Attempts to Change Southern Norms. Developed countries have attempted to change the appreciation of trade-environment matters within developing countries by working through,

163 See Pollack and Shaffer, GMOs, supra note 150

164 The former Egyptian representative to the CTE, Magda Shanin, for instance, comments on the “lack of solidarity today” of developing countries, “in stark contrast with their solidarity during the 1960s, 1970s and 1980s.” See Magda Shahin, Multilateral Investment and Competition Rules in the World Trade Organization: An Assessment, 6 TRANSNATIONAL CORPORATIONS 127 (August 1997). See also, Mark Drajem, India Willing to Abandon Traditional Allies in WTO Talks, If Necessary, Officials Say, 16 INT’L TRADE REP. (BNA) 1526 (Sept. 22, 1999). A trend toward less developing country unity in international trade talks is, in part, a reflection of structural changes in the global economy, with developing countries being more export-oriented, as well as an ideological shift in favor of a more market-oriented trading system. For a reflection of the shift of developing countries’ focus from southern solidarity to coalitions based on sectoral interests, see e.g. Alejandro Jara, Bargaining Strategies of

Developing Countries in the Uruguay Round, in The DEVELOPING COUNTRIES IN WORLD TRADE: Policies and

Bargaining Strategies (eds. Diana Tussie & David Glover 11, 27 (1993) (“Coalitions seem to better serve their purpose when built around well-defined interests of like-minded countries, whether developed or developing.”) and supra note 91.

165 See e.g. Robert Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three

Years, 8 MINN. J. GLOBAL TRADE, 1 (1999).

and in conjunction with the WTO’s secretariat and transnational non-governmental groups. The Dutch, for example, have financed a pilot series of regional symposia that would bring together state representatives from trade, industry, environment and other ministries with business, environmental and developmental non-government organizations. Their hope is that these NGO-government symposia will spur greater policy coordination on trade-environment matters in developing countries which, in turn, could help overcome the gridlock in the Committee on Trade and Environment and “place the issue of trade and environment on the agenda of the next Millennium round negotiations.”166 Following the Dutch initiative, the WTO, the Dutch embassy and the Geneva-based NGO consortium International Centre for Trade and Sustainable Development became partners in the program. Seven regional trade-environment intergovernmental symposia were organized by the WTO secretariat and respectively held in Malaysia, Trinidad and Tobago, Chili, Czeck Republic, Ivory Coast, Egypt and Zimbabwe. Parallel symposia involving regional non-governmental organizations were arranged for the meetings in Chile and Zimbabwe.167 However, there is no sign that the regional meetings have yet to change developing country national positions.

Similarly, northern non-governmental groups have formed networks with developing country groups to likewise empower environmental constituencies within the developing world.168 Yet as examined below, developing country NGOs continue to support developing

166 Correspondence from the Dutch Ambassador to the EC Ambassador to the WTO (June 1998) (on file with author).

167 For a book containing the presentations at the meetings in Chile and Zimbabwe, see VIEWS FROM SUB

SAHARAN AFRICA AND LATIN AMERICA: A READER, supra note 110. The organization of regional trade and

environment symposia by the WT O was initially to involve only government representatives. The organization of parallel NGO symposia involving government officials and non-governmental organizations was promoted and financed by the Netherlands. See also ICTSD Proposal for Civil society Participation in WTO Trade and Environment Regional Seminars for Developing Countries, April 3, 1998 (Annex 3 to the Dutch Ambassador’s letter (on file). The first two pilot NGO regional symposia were held in Santiago, Chile and Harare, Zimbabwe, respectively in September and December 1998, followed by symposia in Malysia, Trinidad and Tobago, Czeck Republic, Ivory Coast and Egypt. See Statement by the Director-General on Transparency and Interaction with Civil Society to the WTO General Counsel, 15 July 1998 (July 15, 1998) <http://www.wto.org/wto/archives/dgspnote.htm> (stating that the WTO “is now organizing seven regional symposia on trade and the environment with the participation of developing countries”)

168 See supra note 40 and infra note 251.

country representatives on the issues addressed before the WTO Committee on Trade and Environment, in particular concerning the WTO legality of unilateral trade sanctions imposed on environmental grounds.169 Constituencies in developing countries continue to hold different social priorities, reflective of their different interests. Their state representatives continue to represent these interests and priorities before the World Trade Organization.

B. Role of Neoliberal Interests and Ideas

As an observer of the CTE process from the United Nations Environment Programme complains, “At the end of the day, the forum, the structure of the debate, the structure of the agenda, the whole thing defines itself as a trade discussion on environmentally relevant issues and not vice versa…. It’s a question of the framing of the whole debate. It’s what they talk about, why they talk about it and how they talk about it…. The way the debate is set up, determined, defined, leads itself to one kind of discussion,” that is, a trade discussion.170

Yet while trade interests predominated in CTE discussions, they were not necessarily neoliberal ones. That is, national trading interests promoted trade protectionism at home as well as trade liberalization abroad. They wielded environmental arguments, whether in one direction or the other, for trade ends.

Many critics of the World Trade Organization as a neoliberal institution imply that it is the WTO secretariat that defines the WTO’s outlook. Yet since only states are entitled to speak and vote within the World Trade Organization, a more subtle analysis of neoliberal influences must focus on the role of state delegates, influenced by national commercial interests, assisted by the secretariat working within the WTO institutional context. In assessing neoliberal ideas and interests171 advanced within the Committee on Trade and Environment, one must start with

169 See Part IVD, infra notes_278-289.

170 Interview with Deborah V oorhees of the trade and environment division of the United Nations Environment Programme (UNEP) (June 1997). The UNEP observer was not referring to the powers of the CTE secretariat, but rather to the predominance of state trading interests represented by state trade delegates in shaping the debate. For an academic critique of the GATT for its trade bias, see e.g. Dunoff, Institutional Misfits, supra note 5, 1047-1071.

171 For an overview of the neoliberal perspective, see supra note 17.

states’ representatives themselves, who largely came from state trade and foreign ministries.

1. Role of State Trade Bureaucracies. As the World Trade Organization is a trade body, the most active representatives before the Committee on Trade and Environment predominantly came from trade ministries or from economic divisions within foreign ministries. While the United States, EC and other developed countries also sent representatives from agricultural and environmental agencies, trade delegates typically, although not always, presented the national position. Developing countries, on the other hand, were almost always represented by foreign or commercial ministries.172

While it is true that states primarily (although not exclusively) framed the CTE debate in terms of a debate over trade, the actual role of neoliberals in such framing was limited. The demands for economic protection in agricultural, energy and other sectors, the domestic political salience of trade-environment issues addressed within the Committee on Trade and Environment, the trade and environmental slants actually adopted by state delegates, and the outcome of the debates, all undermine the simplistic critique that the World Trade Organization and its Committee on Trade and Environment have not accommodated environmental measures because they are neoliberal-dominated institutions. Especially in the United States and Europe, environmental non-governmental organizations actively lobbied their government representatives on these issues, pressing Congress not to grant the Clinton administration “fast-track” negotiating authority and opposing trade liberalization initiatives by the EC’s trade directorate.173 While some trade delegates played a predominant role in CTE debates, they received their instructions from home capitals, which, in countries with more developed bureaucratic systems, involved

172 For an overview of the trade policy process in a number of developing countries, see Tussie and Glover, The Developing Countries in World Trade, supra note 91 (including chapters on Argentina, Brazil, Costa Rica, India, Mexico and Asian newly industrialized countries). Whereas the United States and EC have a specialized trade bureaucracy, developing countries typically do not. Developing county diplomats often must rotate from Geneva to what they consider to be less desirable foreign posts. One diplomat noted that after Geneva he would be sent to Bulgaria. Interview with developing country diplomat, Geneva, June 2000.

173 See Neil Buckley France Blocks Bid for Eu-US “Marketplace “, FIN. TIMES (April 28, 1998)

intra-agency debates.174 Trade representatives did not even play the dominant role in determining and representing national positions on some agenda items. For example, representatives from the agricultural ministries of the U. S., EC, Japan, Korea, Canada, Australia and New Zealand all attended CTE meetings and typically delivered their country’s position on item 6 (concerning the “environmental benefits of removing trade restrictions”), insisting or denying that a removal of agricultural subsidies would benefit the environment.175 Although EC and Japanese trade negotiators may have been more willing to compromise on liberalizing agricultural sectors,176 national agricultural associations made sure that EC and Japanese agricultural ministries intervened.177 The outcome in CTE debates on this issue was, in consequence, not a neoliberal one.

National delegates advanced issues that were politically salient in their home countries, as

174 For the United States, see e.g. Trade and Environment: Conflicts and Opportunities, U.S. Congress, Office of Technology Assessment, OTA-BP-ITE-94, at 10 (1992) (noting that an interagency group coordinated by USTR started meeting on trade-environment policy in 1991). U.S. environmental groups worked closest with the Environmental Protection Agency, whose officials often attended and sometimes submitted official U.S. positions at meetings of the CTE. Conversation with former EPA member who participated in CTE meetings, W ashington, April 2000. See e.g. The Greening of World Trade, A Report to EPA from the Trade and Environment Committee of the National Advisory Council for Environmental Policy and Technology (1993)(containing supporting papers submitted by Durkwood Zaelke of the Center for International Environmental Law, Robert Repetto of W orld Resources Institute, Konrad von Moltke of Dartmouth College, and Michael McCloskey of Sierra Club).

175 Agricultural ministries were closely involved with item 6 of the CTE’s agenda concerning the “environmental benefits of removing trade restrictions,” since some states used it to promote liberalization of the agricultural sector, including through the reduction and elimination of tariffs, quotas and subsidies, to promote environmental goals.

176 For example, a representative from a northern EC member state in Geneva confirmed that the EC could agree to remove some the EC agricultural trade barriers in exchange for developing country compromise on item 1, but that this was opposed by southern EC member states and their agricultural constituents. Interview in Geneva, (June 1998). France, in particular, closely monitored the European Commission’s position on agricultural trade liberalization, having little confidence in the EC’s ability to negotiate on France’s behalf in agricultural trade negotiations. See Lionel Barber et al., US Stands Ground on Farm Pact: Statement as France Renews Threats to Veto GATT Deal, FIN. TIMES, Sept. 23, 1993, at 26

negotiations in PAEMAN & BENSCH, THE EUROPEAN COMMUNITY IN THE URUGUAY ROUND, supra note 157.

177 On the power of Japanese agricultural pressure groups, see, for example, Aurelia George, The Organization of Agricultural Cooperatives as a Pressure Group in Japan, in COOPERATION IN WORLD AGRICULTURE 97 (1985). See also Ex uno, plures, Economist, 44 (Aug. 21, 1999) (concerning the power of the Zenchu [Central Union of Agricultural Co-operatives] in Japan.)

a two-level intergovernmentalist perspective would predict. Canada focused on challenging EC eco-label regimes concerning wood and paper products because the wood products sector accounted for over 12% of Canada’s exports and over 6% of Canadian employment.178 Argentina, Australia, Brazil and New Zealand focused on attacking agricultural subsidies because this item was of great interest to their most vocal constituents on CTE matters, their agricultural export sector.179 Conversely, Japanese, Korean and EC negotiators, recalling the mass demonstrations in Japan, Korea and Europe in protest against the WTO Agricultural Agreement at the end of the Uruguay Round,180 were not about to permit the CTE to recommend further liberalization in agricultural trade. Similarly, farmers in India engaged in mass demonstrations against the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)181 and Indian negotiators correspondingly raised environmental arguments in support of an amendment of the TRIPs Agreement, even though they had earlier maintained that the WTO was not competent to discuss environmental impacts. Developing countries attempted to deploy environmental rationales to weaken the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights because they realized that the TRIPS Agreement was much more likely to benefit developed country constituencies to the detriment of their own consumers and

178 Canada correspondingly presented three of the nine state submissions on item 3 concerning the trade impact of eco-labeling, packaging and related schemes. The export revenue of the Canadian wood products sector

was 39.7 billion Canadian dollars in 1998. See CANADIAN FOREST SERVICE, STATE OF CANADA’S FORESTS 1998

1999 (1999). This constitutes over 12 percent of all Canadian exports and accounts for approximately one out of every sixteen jobs in Canada (around 877,000 in total). See Department of Foreign Affairs, Press Release No. 34, Canada’s 1998 Exports at Record Levels, (Feb. 19, 1999) <http://www.dfait-maeci.gc.ca./> (citing $323.4 billion in Canadian exports).

179 See Daniel Pruzin & Mark Felsenthal Cairns, U.S. Agree on Agriculture

180 See Trade Pact Stirs up India, S. Korea: Many Fear Invasion of American Rice, Cincinnati Enquirer, Dec. 16, 1993, at B 9

181See John Tanner, Biodiversity-India: U.S. Giant, Peasants Battle for “Blessed Tree, ” Inter Press Service, October 12, 1993 (reporting half a million protesting farmers in the central Indian city of Bangalore protesting “against the patenting of agricultural products.”).

producers.182

Differences between national agencies on CTE matters reflect divisions within WTO members. Agricultural ministries are more likely to defend agricultural interests

Neither does a neoliberal ideology promoted by technocratic networks of mid-level trade officials explain the positions of developing countries. On the one hand, developing countries with a less developed governmental infrastructure were less likely to develop inter-agency processes to determine national positions, so that trade and foreign ministries were more likely to predominate.186 Some Geneva-based delegates from developing countries were also more likely to have greater discretion than their counterparts from developed countries.187 However,

182 The argument that the TRIPS Agreement will favor developed country constituencies to the detriment of developing countries is maintained by well-known trade economists such as Alan Deardorff, Should Patent Protection Be Extended to all Developing Countries? in ____ 497 (“patent protection is almost certain to redistribute welfare away from developing countries” Id. At 507)- NEED FORMAL CITE from BOOK

183 The Geneva-based delegate from Japan from the foreign affairs ministry, for example, involved the environmental ministry in the formation of Japan’s position on item 1, to counterbalance the trade ministry’s trade focus. Interview with Japan’s delegate, in Geneva, Switzerland (June 1998).

184 See infra note 150-157 and accompanying text.

185 See GRIFFITH, CANADIAN DEP’T OF FOREIGN AFFAIRS AND INT’L TRADE, REFERENCE DOC. NO. 3, A

NEGOTIATOR’S POINT OF VIEW, at 17 (Oct. 1997) (on file with author). See also internal EC divisions, supra note 153-157 and accompanying text. On the notion of PPMs, see supra note 144.

186 In relatively developed countries such as Korea, while environmental ministries were consulted, they were less prepared for the legalistic and trade oriented issues than were the trade, agricultural and foreign ministries. See interview with representative from Korean Foreign Ministry, who confirmed that “since environmental benefits are difficult to quantify, it is difficult for environmental ministry to have much impact.”

187 They were more likely to represent their countries in meetings and sometimes played a central role in the development of national positions. For instance, the delegate from Nigeria, Chiedu Osakwe, was very active in the CTE process until he joined the WTO in May 1998, especially on the issue of trade restrictions on domesticallyprohibited goods. Many developing country participants claimed that he was taking too “northern” of a perspective

especially where developing countries had more structured, experienced civil services, such as in Brazil, India and Mexico, clear guidelines were typically established in national capitals.188 The United States, for example, suspecting that Mexico’s intransigence on U.S. demands in the Committee on Trade and Environment and the General Council for greater WTO “transparency” did not reflect Mexico’s national position, complained to high officials in Mexico’s central administration who quickly confirmed that these were indeed Mexico’s positions.189 Lower level trade officials were not autonomously determining Mexican policy outside of the control of Mexican heads of state.

Although northern governments and environmental NGOs complain that developing countries do not integrate the views of environmental ministries in the formation of their national positions, it should be recalled that the United States did not even create its Environmental Protection Agency until 1970. This was a time when the United States had a per capita gross domestic product that far surpassed, and poverty and malnutrition rates far inferior to, those of developing countries today. It is thus logical that environmental preservation is seen in a different context by developing country representatives and their constituencies.

Moreover, even though developing country delegates with a trade orientation predominated in the formation of their national positions, their positions were typically not

on trade and environment issues. He, on the contrary, argued that there was no “southern” perspective, and he was present to fight for what he considered to be Nigeria’s interests. When he left the Nigerian mission, however, Nigeria became significantly less engaged with the process in the CTE. Interestingly, in Osakwe’s dissertation on U.S.-Nigerian relations, one of the three factors he uses to analyze changes in US-Nigerian relations over time is “the policy managers involved in the relationship.” Chiedu Igwebuike Osakwe, Conflict and Cooperation in Nigeria-United States Bilateral Relations, 1960-1994, at viii-ix (1996) (unpublished Ph.D. dissertation, New York University) (available from UMI Dissertation Services). The other two factors are “the relative rates of economic change in the two countries” and “the risk assessments each country makes of the other.” Id. He concludes that “The caliber and type of diplomatists appointed as representatives for a country matter . . . [P]olicy managers should be appointed or recruited who are professional in training, moderate in temperament, consensus in orientation . . . .” Id. at 433.

188 Confirmed in interviews with representatives from Brazil in Geneva (June 1998).

189 Interview with Ricardo Barba, Deputy Permanent Representative to the WTO from Mexico, in Geneva, (June 1997).

neoliberal, much less of a unitary perspective.190 When India’s delegates raised environmental arguments in an attempt to amend the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement, they did not do so because of diplomatic ideological preferences in India’s trade bureaucracy for or against environmental protection

In short, state delegates were careful to advance (if on the offensive) and not compromise (if on the defensive) their national positions within the CTE for future WTO negotiations over agriculture, intellectual property rights, technical standards and all other matters. If anything, state representatives were not predominantly neoliberal (whereby they would have promoted free trade regardless of their domestic producer interests), but rather mercantilist (attempting to

190 For a critique of a presentation of the “unitary” view of WTO members on trade-environment matters,

see comments of Cheidu Osakwe in in POLICING THE GLOBAL ECONOMY: WHY, HOW AND FOR WHOM? (ed.

Sadruddin Aga Khan), 251-252. For a description of trade policy-making in Nigeria, see Enoch Okpara, Development of Trade Policy in Sub-Saharan Africa: the Role of Civil Society, in TRADE, ENVIRONMENT AND

SUSTAINABLE DEVELOPMENT: VIEWS FROM SUB-SAHARAN AFRICA AND LATIN AMERICA: A READER, supra note 110,

at 189,192-195 (United Nations University, 2000) (noting that “the ministry primarily responsible for external trade was the Ministry of Commerce and Industry,” which still dominates policy formation but increasingly receives input from a private sector that seeks import protection “to protect locally manufactured goods from unbridled foreign competition” and “liberalized import policy… [for] industrial raw materials and other inputs”).

191 See infra note 181 and accompanying text (concerning demonstrations in India over the TRIPs Agreement).

192 See, e.g., OECD, Trade, Employment and Labor Standards, 139-40 (1996) (classifying India as having a restrictive trade regime). Steve Charnovitz, implicitly criticizes India, with its highly protected market for taking a hypocritical position on the use of trade measures to promote environmental goals, stating “Even governments that routinely employ trade measures to protect favored domestic industries evinced no embarrassment in casting doubt on the propriety of trade measures in MEAs . . . .” Yet India, as other developing countries, was consistent in defending its conception of its most vocal constituents’ economic interests. See Charnovitz, A Critical Guide to the WTO’s Report on Trade and Environment, supra note 5, at 356.

expand their countries’ exports and limit competition from imports).193 As assessed subsequently, the positions advanced by state trade delegates on specific trade-environment issues reflected those advocated by their own most vocal stakeholder constituencies, including those of nonbusiness advocacy groups. State trade delegates did not support neoliberal foreign exporting interests as they would have had they truly been committed to free trade economic theory.194

2. Role of Business Interests. Large transnational businesses in the United States and Europe certainly organized to help shape the debate of trade and environment issues within the Committee on Trade and Environment and other fora.195 They operated through long-standing associations, such as the International Chamber of Commerce,196 the United States Council on International Business, the EU’s Union des Confederations de l’Industrie et des Employeurs d’Europe, and relatively new ones, such as the World Business Council for Sustainable

193 As one developing country delegate states, “We are all a bunch of haggling merchants here.” As merchants, when delegates use environmental arguments, they use them to advance their trading interests.

194 See Part IVD, infra notes 278-298 and accompanying text.

195 See, e.g., Gary G. Yerkey, U.S., EU Business Leaders to Urge Further Easing of Impediments to Trade, 14 Int’l Trade Rep. (BNA), 1909, 1910 (noting how “companies with a particular interest in intellectual property rights protection- such [as] Pfizer Inc., Time W arner Inc., and Microsoft Corp.- will also be pressing the United States and the EU at the TABD meetings… to ensure that governments live up to the commitments made in the WTO [TRIPs Agreement].” The EC Trade Commissioner, Sir Leon Brittan, the US Commerce Secretary and the Deputy US Trade Representative, among other senior officials, attended the meeting sponsored by the Transatlantic Business Dialogue).

196 The members of the International Chamber of Commerce (ICC) consist of sixty three national committees, as well as individual companies from countries where a national committee has yet to be formed. The U.S. Council for International Business is the U.S. national member of the ICC. See ICC web site at <w w w.i c cwb o. o r g/i c cw w> .

Development197 and the Transatlantic Business Dialogue.198 These associations generally have greater access to state trade representatives than other non-state actors because of their importance to domestic economies, as well as to domestic elections.199 They thus can work more discretely than other non-state actors.200 Businesses obtain information on what transpires in the

197 The Geneva-based World Business Council for Sustainable Development (WBCSD) consists of approximately 120 member corporations from around the world, including such multinationals as Shell (Netherlands), Nestle (Switzerland), Total SA (France), Volkswagen (Germany), Dow Chemical, Mobile, Texaco and Weyerhauser (US), and Hitachi, Mitsubishi and Sony (Japan). The WBCSD results from a 1995 merger of two international business associations which were formed in the early 1990s to coordinate business’s positions during the UNCED “Earth Summit” negotiations. The WBCSD reports that it “is expanding its network of national BCSDs to have a presence in every developing region of the world.” See WBCSD, Signals of Change: Business Progress Towards Sustainable Development 47 (1996).

198 A U. S. Department of Commerce official maintains that “‘virtually every’ market-opening initiative undertaken by the United States and the EU in the past couple of years has been suggested by the TABD.” Gary G. Yerkey, U.S., EU Business Leaders to Urge Further Easing of Impediments to Trade, supra note __, at 1909. As an example of the work of the Transatlantic Business Dialogue (TABD), it formed an “issue group” consisting of representatives of U.S. and European forest and paper industries to explore “areas of common concern” and the potential for “concerted action”. The group found that the “most immediate issue” it faced was the EC’s proposed eco-labeling scheme for paper products. It formally opposed it before the EC “on the grounds that it is discriminatory and a breach of fair competition and trade.” See remarks of W. Henson Moore, President and CEO of American Forest and Paper Association to Hearing before the Subcommittee on Trade of the Committee on Ways and Means of the House of Representatives, 104th Congress, 2nd Session, Sept. 11, 1996, Serial 104-92, at 91 (in preparation for the finalization of the CTE 1996 Report and the first WTO Ministerial Meeting in Singapore) [hereafter Subcommittee on Trade, 104th Congress, 2nd Session]. Moore’s remarks were subsequently supported by Elizabeth Seiler, Director of Environmental Affairs, Grocery Manufacturers of America (which groups “trade associations representing aluminum, forest and paper, chemical, plastic, electronic and food and consumer product companies”) (attacking European eco-labeling schemes and promoting work of the CTE to resolve trade problems inherent in some labeling schemes). Id. at 152-54.

199 Private parties in the developed world have resources which dwarf those of developing countries. Of the 100 largest holders of wealth, 51 are companies and 49 are States. See Robert Kaplan, Was Democracy Just a Moment?, ATLANTIC MON THLY, Dec, 1997, at 71 (citing this figure). That is, over fifty multinational corporations hold more wealth than over sixty percent of the members of the WTO. Commercial interests can afford lawyers and consultants to represent them, including former “insiders”, such as former national trade delegates and WTO secretariat members. Businesses pool their resources for greater impact. They form broader organizations, such as the International Chamber of Commerce and the Business Council for Sustainable Development, to represent them on non-sector specific issues. They form sectoral associations, such as the International Council on Mining and the Environment (ICME), to follow specific issues pertinent to their industries. Not surprisingly, when northern commercial interests present their views before CTE symposia, their well-informed remarks are more pertinent to issues currently before the CTE. Stated in interviews with developed country delegates to the CTE, June 1997 and June 1998, Geneva.

200 Businesses may not wish to provide ammunition to W TO critics by being too visibly connected with WTO policy developments. Moreover, unlike environmental non-governmental organizations, businesses do not need to issue constant press releases to be in the public spotlight, and thereby help raise funding for lobbying endeavors.

World Trade Organization through consultants and trade association representatives, many of whom are based in Geneva,201 and many of whom were formerly in leading positions in international and national trade organizations. For example, Arthur Dunkel, the former Director-General of GATT, became the Chair of the International Chamber of Commerce’s Commission on International Trade and Investment Policy, which follows the Committee on Trade and Environment and other WTO committees.202 Paula Stern, former chair of the U.S. International Trade Commission, became the Transatlantic Business Dialogues’s trade consultant and was designated a member of President Clinton’s Advisory Committee on Trade Policy and Negotiations.203 The former Canadian national representative to the Committee on Trade and Environment confirms that he was in close contact with Canada’s Pulp and Paper Association on CTE matters, forthrightly stating, “Canada’s approach on eco-labels reflected the business needs of its forest products industry.”204 Personal relations with key figures in government and

201 The International Chamber of Commerce and World Business Council for Sustainable Development have offices in Geneva. The International Council on Mining and the Environment has hired as a consultant the husband of the director of the WTO Appellate Body Secretariat. In general, in terms of resources, multinational companies have more assets than many WTO members, and they effectively target their expenditures on matters affecting them.

202 The ICC’s Commission also “formulates recommendations on post-Uruguay Round trade policy issues for the 1990s including: trade and the environment, trade and competition, trade and investment, trade and labour standards”. See ICC Policy Statement, “Trade Measures for Environmental Purposes”, Document no. 103/187 Rev. and Document no. 210/535 Rev. (Oct. 24, 1996), at 1. Dunkel is also a member of the board of directors of Nestle SA and Credit Suisse group. Nestle is , in turn, a member of the World Business Council for Sustainable Development.

203 Stern engages in what she terms “entrepreneurial diplomacy,” whereby corporations take a leading entrepreneurial role in defining the agenda and the terms of trade negotiations. See, for example, TABD’s role in the negotiation of mutual recognition agreements and harmonized international standards. See Jeff Gerth, Where Business Rules: Forging Global Regulations That Put Industry First, N.Y. TIMES, Jan. 9, 1998, at D2. Stern is President of the Stern Group, an international trade advisory group in Washington. She was an ITC commissioner for nine years and chaired the ITC from 1984-86. Other examples of the revolving door in Washington D.C. between the public and private sectors are former USTR Mickey Kantor, who is now a partner at Mayer, Brown & Platt

204 Interview in Geneva, June 1998. The same holds true for developing countries. Regarding the Brazilian government’s response to it pulp and paper industries on the eco-label issue, see, for example, EC Eco-label Program Raises Concerns for Brazilian Business, Government Officials, Intl’l Env’t Daily (BNA) (Feb. 3, 1993).

intergovernmental organizations provides businesses with access unavailable to others.205 Business influence, however, is primarily exercised through access to state representatives, not the WTO secretariat, as businesses recognize that state representatives are the primary decisionmakers within the World Trade Organization.206

Yet commercial interests are not always neoliberal, resulting in conflicts between exportoriented and purely domestic businesses. The U.S. steel industry, for example, is constantly demanding relief from imports and the need to preserve U. S. antidumping laws to keep out lowpriced import competition. Similarly, agricultural interests in the EC, Japan and Korea certainly oppose the elimination of agricultural trade subsidies and tariff barriers on environmental or any

205 In the United States, for example, the Federal Advisory Committee Act requires the creation of sectoral and functional committees consisting of representatives of civil society “fairly balanced” in their viewpoints to provide input on trade policy formation. Business interest groups, however, are predominantly represented in these committees. Environmental groups have had to litigate to even have a single seat on sectoral committees involving lumber and wood products and paper and paper products. See e.g. Panels Must Include Environmentalists, THE NATIONAL LAW JOURNAL, B5 (Nov. 22, 1999) (noting that a federal court ordered the USTR to “name at least one environmentalist to each of two panels that advise her on trade agreements for wood and paper products” in order to comply with the Federal Advisory Committee Act)

206 TRY TO GET EXACT QUOTE As Christopher Boyd, Senior Vice President of Environment and Government Affairs of Lafarge SA, a global manufacturer of construction products, such as cement, confirms in an interview, “re importance of national capitals for companies See Christopher G. Caine, Powers of Persuasion: Behind the Scenes with the World’s Top Lobbyists, 10 CORP. LEGAL TIMES 20 (2000) (citing Christopher Boyd, Senior Vice President of Environment and Government Affairs of Lafarge SA, a global manufacturer of construction products, on the importance of national capitals for industry lobbyists, as opposed to the WT O itself. This was part of a series of interviews of lobbyists for multinational corporations on their lobbying strategies and goals for the WTO).

other grounds. Similarly, developing country non-exporting interests are typically less supportive of WTO trade liberalization initiatives than developing country exporting interests.207

Moreover, U.S. and EC businesses favoring greater WTO constraints on environmentallybased trade restrictions do not always prevail in domestic policy debates. In fact, they have often criticized their national delegates’ positions within the Committee on Trade and Environment and other fora for being too accommodating to environmental exceptions to trade rules. For example, US biotechnology companies and agribusinesses were unable to block the signature of the Cartagena Protocol on Biosafety in January 2000, although they believed that it could undermine WTO rules in accommodating import bans of genetically modified seeds and foods on allegedly environmental grounds, but without any clear scientific basis.208

3. Role of the WTO Secretariat. Opponents of neoliberalism, both on the left and the right, typically critique the World Trade Organization for encroaching upon national sovereignty, as if the WTO were an undemocratic autonomous actor with a single voice, independent of its member states. The WTO has become reified by its critics into an insidious agent of globalization of commerce and culture which infiltrates national borders and wreaks local havoc. At the GATT’s fiftieth anniversary in 1998, protestors spray-painted Geneva walls with “WTO

207 Interview with Ricardo Melendez, currently Director of the International Centre for Trade and Sustainable Development (ICTSD), based in Geneva, and formerly delegate for Colombia to the CTE, Geneva (June 1998). Melendez noted also that many businesses in the export sector in developing countries are more willing to compromise on trade and environment matters than non-exporting businesses because they already have had to adapt to changes in international markets.

208 Businesses noted that the new Protocol “could potentially cause trade disruptions primarily because it creates new momentum for countries banning imports on uncertain science”on allegedly environmental grounds. See AG Groups Fear Biosafety Precaution Principle, Producers Downplay, INSIDE U.S. TRADE 7 (Feb. 18, 2000). See also Pollack and Shaffer, GMOs, supra note 150.

As for frustrations of EC businesses, see e.g. UNICE Position on the Relationship between the Provisions of the Multilateral Trading System and Trade Measures For Environmental Purposes, including those pursuant to Multilateral Environmental Agreements (MEAs), July 22, 1996 (critiquing the European Commission for going too far in its proposal and advocating retention of a more constraining “necessity test”). Confirmed in telephone interview with Dr. Reinhold Quick, the representative from UNICE (the European employers’ confederation) who drafted the position paper, May 1998. For an overview of the EC position, see Julio Garcia Burgues and Mikel Insaust Muguruza, “Trade and Environment in the WTO” The European Community’s Participation in the Committee on Trade and Environment”, RECIEL, vol 6, issue 2 (1997). Burgues is the Deputy Head of International Affairs, Trade and Environment at the Environment Directorate-General.

World Terrorist Organization.”209 This turned out to be a relatively mild precursor to the huge protests in Seattle, Washington at the third WTO Ministerial Meeting in December 1999.

The WTO’s impact becomes transparent to environmental activists when WTO dispute settlement panels hold that national laws (with at least in part an environmental purpose) violate WTO rules. Yet before critiquing these judicial decisions as illegitimate, one needs a clear understanding of the political process that determines WTO rules in the first place, and how the players involved in that process view them. One of the primary purposes of the Committee on Trade and Environment was to respond to criticism of past panel decisions and determine whether GATT and WTO rules should be modified or further guidance be given as to how they should be interpreted. This was, after all, the first item in the CTE’s agenda. In the end, although the 1996 CTE Report did cite a number of international law principles, including that unilateral sanctions should be avoided, by far a majority of WTO members determined that no rule modifications were needed. Yet before smugly responding that the political process is democratically superior to the judicial one, one must assess whether the rule-makers themselves were biased in favor of certain interests, such as neoliberal multinational corporate interests, over others. This section assesses the role of the WTO secretariat in that underlying political

210

process.

There are approximately five hundred professional civil servants within the World Trade Organization, whose role is to provide assistance to the WTO’s member states upon request. This secretariat consists primarily of trade economists and trade lawyers. Of the six secretariat members assigned to the WTO’s Trade and Environment Division in 1998,211 four were neoclassical economists and two were international trade lawyers, one formerly a member of a

209 They overturned and burned vehicles and ransacked such globalization symbols as a Burger King and a Macdonalds outlet. It was reported to be the most violence Geneva had experienced in decades.

210 An analysis of the role of the secretariat and the identity of panelists in the W TO judicial process (i.e. in the interpretation and application of W TO rules by WTO dispute settlement panels is part of a parallel on-going project of the author.

211 For ease of reference, members of the WTO secretariat assigned to the Trade and Environment Division of the WTO are sometimes referred to as the CTE secretariat. It is these secretariat members who provided services to the Committee on Trade and Environment, as examined in this section.

national trade ministry.212 WTO secretariat members thus could be viewed as an epistemic community having “shared normative beliefs” (in free trade theory), “shared causal beliefs” (in how trade liberalization creates wealth), “shared notions of validity” (in applying neo-classical economic methodology)213 and “a common policy enterprise” (to facilitate government negotiations toward trade liberalization).214 This is evidenced in remarks of the former Director of the WTO’s Trade and Environment Division, Richard Eglin, an economist, who stated before a meeting of Korean trade and business representatives that the role of the Committee on Trade and Environment is to ensure that “steps taken to resolve environmental problems must uphold and safeguard the principles of the multilateral trading system,”215 and to “remain vigilant to the threat of the use of environmental measures for trade protectionist purposes.”216 On the basis of their expertise, impartial reputation,217 inside information and close contacts with trade diplomats, secretariat members can, at least at the margins, help shape knowledge, frame issues, identify interests, facilitate coalition-building and thereby affect outcomes.

The capacity of a technocratic, supranational secretariat’s proclivities to affect outcomes, however, depends on what the secretariat actually does and the political saliency of the issue at stake.218 The members of the CTE secretariat perform primarily five functions: the organization

212 Interview with a member of the secretariat assigned to the CTE, Geneva, June 1998.

213 As a former CTE secretariat member stated “This is a first best organization.” Interview with Scott Vaughan, assigned to the CTE, Geneva, Switzerland (June 1997). “First best” is an economic term signifying, in the CTE context, that trade and environment policies should be the most economically efficient possible.

214 These attributes of epistemic communities are set forth in Peter Haas’ work, which notes that epistemic communities “have (1) a shared set of normative and principled beliefs . . .

215 Eglin, supra note 60, at 5. Eglin also confirmed that the CTE “must remain strictly within the competence of the WTO,” which is “limited to trade and those trade-related aspects of environmental policies which may result in significant trade effects for its Members.” Id. at 5

216 Eglin, supra note 60, at 24.

217 By “impartial,” I mean that the secretariat does no favor any particular WTO member. As noted above, the secretariat is not impartial from an ideological perspective.

218 For an excellent analysis of the power of the European Commission within the EC, see Mark Pollack, The Engines of Integration? Supranational Autonomy and Influence in the European Union, in Wayne Sandholtz

and Alec Stone Sweet, eds., EUROPEAN INTEGRATION AND SUPRANATIONAL GOVERNANCE, 217-249 (1998).

of meetings and recording of minutes

States expect secretariat members to keep abreast of studies of trade and environment issues, particularly those conducted by other international organizations. In distributing information to all state delegates, the secretariat helps create a common base of understanding to defend the World Trade Organization from challenge by transnational environmental nongovernmental organizations. Upon request of states, the secretariat researches and prepares papers on specific issues. Through September 30, 1999, the CTE secretariat provided delegates with 54 papers, totaling almost 1,000 pages.220 Secretariat submissions addressed the environmental benefits of trade liberalization221 as well as the “economic and trade implications”222 of specific environmental instruments, such as packaging requirements,223 eco

219 Another example of where the secretariat can play a key role is in the dispute settlement process. The WTO secretariat has a legal division which attends all hearings and prepares the drafts of the decisions for approval of the panelists. Insiders note how, while the panelists are designated for only a single panel, the secretariat of the legal division remains. This legal secretariat thus represents a reservoir of knowledge as to past practice and cases. Although, with the creation of an Appellate Body of judges, the role of the secretariat may be more constrained, it nonetheless retains an inside role in the dispute settlement process.

220 A count of 983 pages includes some annexes of new environmental agreements or proposed drafts of agreements. NEED SPECIFY THE DATE AS OF. A list of all papers provided by the CTE secretariat on the agenda items through the November 1996 Singapore Ministerial meeting is listed is included in Annex IV to the CTE 1996 Report. Prior to the completion of the CTE 1996 Report, the secretariat prepared 46 papers on such items. Since the Singapore Ministerial meeting, the secretariat has prepared 28 more papers for the CTE. These can be obtained through the document search option of the WTO web site. The most important CTE matters in terms of secretariat output was item 1 (20 papers), item 3 (9 papers) and item 6 (5 papers). Most of the secretariat’s papers relevant to item 1 concerned developments in different international environmental fora. See discussion in infra note 310 and accompanying text.

221 See, e.g., and supra note 96 and infra notes 225 and 229 .

222 CTE, Taxes and Charges for Environmental Purposes-Border Tax Adjustment: Note by the Secretariat, WT/CTE/W/47 (May 2, 1997), at 1.

223 See EMIT, Agenda Item 2: Multilateral transparency of National Environmental Regulations Likely to Have Trade Effects: Note by the Secretariat, TRE/W/10 (March 17, 1993). One secretariat paper points to problems of transparency, short deadlines for adaptation and the proliferation of differing national standards which adversely affect foreign traders, noting how market entry barriers “can be increased when input from local industries is a

labeling schemes,224 and eco-taxes and charges225 among other matters. The CTE secretariat coordinates its research with other international organizations, such as the Organization of Economic Cooperation and Development, the United Nations Conference on Trade and Development, and the World Bank, which it cites in the papers that it prepares for the Committee.226 Many of these studies were, in turn, cited in the controversial CTE 1996 Report.227

dominant part of the process.” EMIT, The Trade Effects of Environmental Measures: Note by the Secretariat, TRE/W/13 (June 29, 1993), at 5. The paper recalls that content requirements for packaging “are likely to be tailored to domestic resource availability, technology, or preferences.” Id. at 9.

224 EMIT, Agenda Item 3: Packaging and Labelling Requirements: Note by the Secretariat, TRE/W/12 (June 14, 1993).

225 See Taxes and Charges for Environmental Border Purposes-Border Tax Adjustments: Note by the Secretariat, [WT/CTE/W/47], supra note 221.

226 The most widely cited organizations in CTE papers were the Organization of Economic Cooperation and Development (OECD), the United Nations Conference on Trade and Development (UNCTAD), the World Bank, the United Nations Food and Agricultural Organization (FAO), and the United Nations Environment Programme (UNEP). For example, in a detailed 1997 report by the Secretariat on the “Environmental Benefits of Removing Trade Restrictions and Distortions,” the secretariat cites work from over fifteen international organizations, the predominant being the OECD (32 cites), UNCTAD (32 cites), the FAO (31 cites) and the World Bank (29 cites). See Environmental Benefits of Removing Trade Restrictions and Distortions: Note by the Secretariat, [WT/CTE/W/67], supra note 67, and its addendum WT/CTE/W/67/Add.1 (March 13, 1998) (the count comprises the report and its addendum).

The secretariat’s first report to the CTE on the environmental benefits of removing trade restrictions and distortions cites contributions from a World Bank discussion paper series seven times. See CTE, Environmental Benefits of Removing Trade Restrictions and Distortions: Note by the Secretariat, WT/CTE/W/1 (Feb. 16, 1995). The W orld Bank series was organized by Patrick Low, now director of the WTO’s Research Division. The secretariat submission also cited six papers by Kym Anderson, a former member of GATT’s research division. Two of these papers were included in the 1992 GATT economic study, The Greening of World Trade Issues, which Anderson co-edited with Richard Blackhurst, the GATT Research Division director at the time.

227 In the CTE’s 1996 Report, “the CTE welcomes efforts of other inter-governmental organizations, in particular the UNCTAD and ITC [the WTO’s joint research center with UNCTAD], to collect and disseminate additional information on the use of trade-related environmental measures, and recommends the WTO Secretariat cooperate with those organizations to ensure duplication is avoided.” CTE 1996 Report supra note 89, at 43.

The most influential document for purposes of the CTE 1996 Report was probably the OECD’s 1995 Report on Trade and Environment to the OECD Council at Ministerial Level. This report was cited by the CTE secretariat in its papers, by member states in their arguments, as well as in the final CTE 1996 Report. See, e.g.,

CTE 1996 Report, supra note 89, par. 103-04 (citing the OECD Report’s findings of “positive effects” of high levels of environmental protection on competitiveness and the principle that trade measures should not be used to force harmonization of environmental standards). During the negotiation of the CTE 1996 Report, many delegates were seen comparing the language in the OECD Report with that being negotiated in the CTE. See Michael Reiterer, Trade Impact of the OECD Joint Session, 9 INT’L ENVTL. AFF. (1997), 69, 78 (“I can also confirm from my personal experience that many delegates-and not just those of the OECD countries-were carrying the green-banded OECD Ministerial Report during the final negotiations.”). Also confirmed to author in interview with the Canadian delegate to the CTE. Reiterer concludes that this shows that the Joint Session “has fulfilled the think-tank function that is

Although the secretariat largely controls the content of its CTE submissions,228 it is usually cautious not to appear partisan. Secretariat submissions were thus largely informative and not argumentative in tone. Nonetheless, this is not always the case, as some secretariat members have clear preferences. For example, members of the CTE secretariat were clearly interested in exploring the issue of how trade liberalization results in environmental benefits.229 As the former director of the CTE secretariat confirmed with pride, “the Secretariat did not pull any punches in saying that agricultural protection is by and large a disaster for the environment.”230

In public relations, which has become particularly important for the WTO, the secretariat is protective of its employer and a defender of trade policies with a neoliberal bent. For example, the WTO secretariat periodically publishes reports on its own initiative with a view toward defending the WTO’s trade policy before the larger public. In the midst of the outcry in the United States over the tuna-dolphin decision, the WTO secretariat included an extensive analysis of trade and environment matters in its annual report International Trade 90-91.231 The secretariat authors argued “that unilateral restrictions on trade would never be the most efficient instrument for dealing with an environmental problem.”232 They warned, “There is a serious risk

generally ascribed to the OECD,” and that “positive spill-over effects from the OECD and the WTO process will be needed and welcome.” Id.

228 Eglin Interview, supra note 86. However, the secretariat is aware of the parameters and political sensitivities of the debates within the CTE and is constrained by those parameters and sensitivities.

229 In interviews in Geneva in June 1997 and June 1998, secretariat members assigned to the CTE expressed how the CTE was particularly interested in exploring “win-win” type situations, where the WTO could use environmental rationale for further liberalizing trade. See also Environmental Benefits of Removing Trade Restrictions and Distortions: Note by the Secretariat [WT/CTE/W/67], supra note 96, at 2 (a secretariat paper to the CTE citing numerous economic studies of the relationship between growth in per capita income and the intensity of polluting effluents. It notes that some environmental problems (such as scarcity of potable water and sanitation) decline, some (such as particulate emissions and habitat loss) initially worsen and then decline, and some (such as carbon dioxide emissions) worsen. As to the benefits of trade liberalization, the secretariat explains how generally, “trade liberalization has the potential to have a twofold positive effect on the environment,” since it stimulates efficient resource allocation so that fewer resources are used per unit of output, and it generates wealth which can be invested in environmental protection.

230 Eglin interview, supra note 86.

231GATT, International Trade 90-91 (Geneva 1992). 232Id. at 21.

that the trading system could get badly bruised by a rush to deal with environmental issues,”233 and conclude by pointing out “that current restrictions on international trade can be bad for the environment,” focusing on the situation in agriculture.234 The secretariat helped highlight these issues for state delegates. Two years later, the issue of potential “win-win” benefits from agricultural trade liberalization was incorporated in item 6 of the CTE’s agenda. Moreover, the CTE certainly has not been in “a rush to deal with environmental issues” by amending WTO rules.235

The CTE secretariat also acts as a liaison with international environmental organizations to help states’ delegates to the World Trade Organization monitor international developments. At the instruction of state delegates, members of the CTE secretariat observe meetings of, periodically address, submit papers to, and correspond with these environmental organizations,236 and then report back to the Committee on Trade and Environment on developments within

233Id. at 31

234Id. at 38. The report also cites empirical studies which “suggest caution in asserting that cost difference due to differences in environmental regulations are substantial, or that the trade and investment effects within particular industries are large.” and pointedly states “that GATT rules block the unilateral use of trade measures to dictate changes in the environmental policies of other nations.” Id. at 22, 31. Cf. Shrimp-Turtle Appellate Report, and assessments of this report, supra note 132.

235 Nonetheless, with the WTO still on the defensive on trade and environment matters, the WTO secretariat helped prepare, in coordination with UNEP, a more thorough, nuanced analysis of trade and environment matters in preparation of the third WTO Ministerial Meeting held in Seattle, Washington. See Hakan Nordstöm & Scott Vaughan, World Trade Organization, Special Studies No. 4, Trade and Environment Report (Oct. 14, 1999) <http://www.wto.org/wto/new/press140.htm>. The Report argues that “that international economic integration and growth reinforce the need for sound environmental policies at the national and international level.” Id.. Nordstrom is an economist in the WTO’s Research Division, and Vaughan, who was formerly a member of the CTE secretariat, contributed to the 1999 Trade and Environment Report when he had moved to UNEP.

236For example, Richard Eglin, Director of the secretariat’s Trade and Environment Division, wrote Lawrence Eicher, Secretary-General of International Organization for Standardization (ISO) on July 3, 1996, stating “The WTO Secretariat followed closely the proceedings of the ISO Technical Committee 207 and its subcommittees at their meetings in Rio de Janeiro from 16-23 June, with particular attention to the drafting of the trade principles” in ISO draft principles concerning eco-labelling schemes. Eglin said he found draft language “confusing” and suggested that ISO should change the word “should” to “shall” in the following passage from a draft of ISO 14020 setting forth ISO’s “General Principles for all Environmental Labels and Declarations”: “the provisions and interpretations of the WTO should be taken into account”. Eglin made the same suggestion concerning a draft of ISO 14024- “Environmental Labels and Declarations- Environmental Labelling Type 1- Guiding Principles and Pro cedures.”

them.237 The secretariat thereby helps states quell potential conflicts between environmental measures proposed in these fora and WTO rules and principles. The secretariat’s oversight also helps state delegates intervene by instructing their domestic colleagues of WTO constraints and thereby protect state trading rights.

Finally, the secretariat provides drafting and mediation services when states negotiate over trade and environment issues. The secretariat’s mediation services were central to the CTE 1996 Report. The secretariat prepared successive drafts and circulated them with bracketed passages containing alternative language. The Director of the secretariat’s Trade and Environment Division, Richard Eglin, met with key states over controversial individual items, such as the relation of WTO rules to multilateral environmental agreements, and proposed alternative draft language which states might accept. While the secretariat cannot dictate what states accept, it can push states to the limits of what they can accept to reach consensus.238 As confirmed by the former Canadian delegate to the WTO Committee on Trade and Environment, “The role of the Secretariat in the informal drafting process of October 31-November 1 reflects

237 Secretariat members assigned to the EMIT W orking Group and then to the CTE, attended meetings and made contributions to the Rio Conference and its various follow-ups before the Commission on Sustainable Development. See, e.g., Committee on Trade and the Environment, Communication from the Secretariat, WT/CTE/W/3 (March 10, 1995). Similarly, secretariat members attended meetings of the Basel Convention, the Montreal Protocol, the United Nations Food and Agricultural Organization and the United Nations Environment Programme. The secretariat then reported back to the CTE delegates on developments in these different fora in a series of papers which, together with updates, totaled ___ in number. NEED ADD COUNT See, e.g., CTE, UNCED Follow Up: Results of the Third Session of the Commission on Sustainable Development: Note by the Secretariat, WT/CTE/W/7 (May 18, 1995)

238 Robert Hudec, international trade law professor at University of Minnesota, notes that the role of the WTO secretariat in the drafting process considerably expanded in the more complex Uruguay Round of trade negotiations, compared to the eight previous GATT negotiating rounds. E-mail exchange with Robert Hudec concerning an earlier draft, Nov. 27, 1999 (on file). This greater de facto delegation of states to a centralized international secretariat is explained by the increased number, scope of coverage and complexity of the Uruguay Round agreements that states negotiated as part of a single package, ultimately requiring approval by consensus.

the professionalism and skill of the Secretariat in developing the basis for a consensus text.”239

The WTO secretariat does not fulfill a passive secretarial role. While secretariat representatives take the position that their role is solely to serve national delegates, and though they do not speak at meetings, they can shape states’ understanding of feasible alternatives and their desirability. Through their presence at meetings, they are aware of national positions. In private, they can indirectly work with members, including through the CTE’s Chair,240 to facilitate negotiations and the forging of coalitions and consensus.

Yet while it is true that the secretariat, when it speaks, speaks from a trade vantage, and while it is true that there is no one in the WTO secretariat who, like the Lorax, “speaks for the trees,”241 the influence of the WTO secretariat, compared to that of powerful states and powerful constituencies withing states, is at best marginal. While a neoliberal-leaning WTO secretariat may have some influence, it is misleading to characterize the secretariat as an independent voice that shapes states’ trading policies to a significant extent. Within the World Trade Organization, secretariat members operate under the instructions of states and are under the watchful eyes of state delegates.242 As a former member of the CTE secretariat confirms, “unlike the World Bank secretariat which makes executive decisions on project finance, the WTO secretariat has

239 He further notes how “the drafting sessions of October 31 and November 1 indicated how effective such informal processes can be, as did the TRIPs discussions held late in the marathon session.” Andrew Griffith, A

Negotiator ‘s Point of View, supra note 185, at 22-23.

240 The Chair to the CTE is always an ambassador to the WTO from one of its member states.

241 “He snapped, ‘I’m the Lorax who speaks for the trees which you seem to be chopping as fast as you please But I’m also in charge of the Brown Bar-ba-loots who played in the shade in their Bar-ba-loot suits and happily lived, eating Truffula Fruits.”

DR SEUSS, THE LORAX 35 (1971). I am thankful to Richard Parker for recalling this.

242 As Richard Eglin, the head of the WTO secretariat’s Trade and Environment Division at the time of the CTE 1996 Report, states, “[WTO] members views clashed so much that the secretariat could not play much of a role…. Although the secretariat should act as a broker, it can’t when member views are diametrically opposed.” Interview, Geneva, Switzerland, June 15, 2000. Another WTO secretariat member confirmed, “Parties closely oversee the secretariat when they feel affected by it. Interview, Geneva, Switzerland, June 1997. For example, a member of the secretariat assigned to the Appellate Body noted how he/she was once reproached by a delegate from a powerful state for having lunch with a member of the secretariat assigned to the legal division. The message to the secretariat members was clear-states did not wish any ex parte discussion on a legal matter between these two divisions, so that it was preferable that the secretariat members not even meet socially.

significantly less power,” but rather “works as an intermediary” to facilitate state-to-state discussions, negotiations and monitoring.243 States were not used by the World Trade Organization as agents to enforce WTO trade liberalization norms. Rather, the WTO secretariat assigned to the CTE was used as agents by states to monitor international environmental negotiations in order to protect state trading interests.244

Because of the consequential nature of WTO decision-making, states keep the WTO secretariat on a “tighter leash.”245 Trade and environment issues addressed within the WTO Committee on Trade and Environment are highly politicized (witness the Seattle demonstrations) and can significantly impact states’ economies. State delegates, as well as business and environmental and developmental organizations, thus heed developments within the WTO Committee on Trade and Environment. Ultimately, discussions and negotiations within the WTO Committee on Trade and Environment were dominated by states with conflicting interests.246 CTE secretariat members were just as frustrated with and exhausted by the endless CTE debates leading to no concrete results as were national delegates .247

C. Role of Other Stakeholders: Environmental and Developmental Non-governmental

Organizations

Different interests have attempted to advance their goals through the institutionalization of trade and environment issues within the World Trade Organization, as suggested by neoliberal and stakeholder perspectives. Northern environmental groups, in particular, are frustrated by the failure of the WTO Committee on Trade and Environment to recommend any changes in WTO rules. They are especially frustrated regarding the issue most important to them, item 1

243 Interview with Scott Vaughan, June 2, 1997. In short, unlike the secretariat in the World Bank, the WTO secretariat has no independent executive decision-making authority.

244 See infra notes 308-320 and accompanying text. CUT THIS NOTE?]

245 Id.

246 See infra notes 277-298 and corresponding text. [CUT THIS NOTE?]

247 Confirmed in interviews with secretariat members assigned to the CTE, in Geneva, Switzerland, June 1997 and June 1998.

concerning the use of trade measures to enforce international environmental agreements and advance environmental goals through unilateral state action. Because of the stalemate within the WTO Committee on Trade and Environment, they advocate a stakeholder model under which they would play a greater role in CTE deliberations. They have already used the CTE process to pressure the World Trade Organization to make its decision-making more transparent so that non-governmental organizations may better coordinate pressure on governments, in particular through the media, domestically and internationally.248

Yet the adoption of a stakeholder model of WTO governance has not been advocated by all non-governmental organizations (NGOs) .249 The model has been primarily advocated by environmental groups in the United States and Europe, not the south, because southern NGOs,

248 The World Bank has, in the last years, worked much more closely with non-governmental organizations, integrating their views into its decision-making process, in response to intensive NGO pressure in the United States. See Citizens’ Groups: The Non-governmental Order, THE ECONOM IST, 20, 21 (Dec. 11, 1999) (noting that environmental NGO campaigns against the World Bank in the mid-1990s led the Bank to develop working relations with NGOs so that now “more than 70 NGO specialists work in the Bank’s field offices” and “more than half of World Bank projects last year involved NGOs.”).

249 While a large number of grassroots northern and southern non-governmental organizations signed a joint “Statement… Opposing a Millennium Round” which they presented to the WTO-organized Symposium on International Trade the day before the Ministerial Meeting began in Seattle, the Statement was abstract, blurring the serious differences among non-governmental organizations on specific issues. See Statement form Members of International Civil Society Opposing a Millennium Round or a New Round of Comprehensive Trade Negotiations, (available at http://www.citizen.org/pctrade/gattwto (visited March 30, 2000). These differences were highlighted in NGO remarks at the Symposium itself. At the symposium, no southern non-governmental organization supported increased NGO involvement in WTO negotiations and dispute settlement. Northern non-governmental organizations such as Greenpeace and As You So, on the other hand, respectively called for “greater participation by NGOs in the proceedings of the WT O, including the dispute settlement process” and “a more substantive role for NGOs.” See International Institute for Sustainable Development, Summary Report of the Seattle Symposium on International Trade Issues in the First Decades of the Next Century, 34 SUSTAINABLE DEVELOPMENTS 5 (Dec. 1, 1999) “As You So” is a San Francisco-based environmental foundation. For a description of the differences among nongovernmental organizations signing the statement, see Debi Baker and Jerry Mander, Invisible Government (available at http://www.twnside.org.sg/title/deb 11-cn.htm (visited March 30, 2000). For the perspective of a southern non-governmental opponent of the WTO, see e.g. Walden Bello, Why Reform of the WTO is the Wrong Agenda, 43 FOCUS ON TRADE 1 (January 2000) (an electronic bulletin published by Focus on the Global South, a “research and action” program based in Bangkok, Thailand) (arguing that northern-biased “inequalities [are] built into the structure, dynamics, and objectives of the WTO” and that developing countries should aim “to radically reduce [the WTO’s] power and to make it simply another international institution”). See also infra note__. This is an opposite perspective from that of northern NGOs who maintain that environmental and labor standards should be integrated into the World Trade Organization and that NGO stakeholders should have the right to directly participate in WTO dispute settlement hearings and committee meetings.

although sometimes large in number,250 are short on resources and typically localist in orientation. They thus recognize northern NGOs’ advantage in international fora. Just as all states are not equal, all NGOs are not equal. Northern non-governmental organizations have more funding, are located closer to WTO offices in Geneva,251 are more likely to finance international networks,252 and have greater indirect access to information from their state representatives.253 Non-governmental organizations from the south have less access in part because southern governments themselves have difficulty monitoring all developments in the World Trade Organization-including in its Committee on Trade and Environment.254 In fact, one London

250 See Citizens’ Groups: The Non-governmental Order, THE ECONOM IST, 20, 21 (Dec. 11, 1999) (citing an article in World W atch that estimates that India alone has about one million grass-roots NGOs, compared to a figure of around two million in the United States). Another source cites that, as of 1994, India had a more modest but still substantial number of “some 10,000 NGOs involved in development and environmental issues.” See Benjamin Richardson, Environmental Law in Postcolonial Societies: Straddling the Local-Global Institutional Spectrum, 11 Colo. J. Int’l Envtl. L. and Pol’y 1 (2000), citing World Resources Institute, World Resources 1994-95 84 (1994).

GCS NEED UPDATE THIS AND GET CURRENT REPORTS AND CITES.

251 Geographically, U.S. and European non-governmental organizations are located closer to Geneva, reducing their transportation costs and inconvenience. WWF International’s headquarters is in Gland, Switzerland, within twenty-five miles of Geneva, and connected by train. The U.S. NGO Center for International and Environmental Law (CIEL) leases office space in Geneva, while other NGOs use the office space provided by the ICTSD consortium.

252 The WWF family, for example, has affiliates or offices in at least twenty-seven countries. See WAPNER, W ORLD CIVIC POLITICS, supra note 40, at 77. Friends of the Earth “has offices and multiple local chapters in over fifty countries. Id., at 121.

253 Environmental non-governmental organizations are represented, for example, on the U.S. administration’s Trade Advisory Committees. U.S. and EC trade representatives also periodically meet with nongovernmental organizations on trade-environment issues before W TO meetings or in respect of trade-environment disputes. The author, for example, was invited to USTR briefings of NGOs on the controversial W TO shrimp-turtle case. In the WTO shrimp-turtle dispute, the only place in the world with a public file containing the submissions of Thailand, Malaysia, Pakistan and India which could be photocopied was at the Office of the USTR in Washington. Washington-based non-governmental organizations and trade associations were thus able to obtain copies of these submissions conveniently and at minimal cost. However, U.S. trade advisory committees are dominated by business interests, and environmental non-governmental organizations have had to sue the Office of the United States Trade Representative to obtain access to sectoral trade advisory committees. See supra note 205.

254 The primary concern in respect of the “transparency” of WTO decision-making for developing countries is that WTO rules have been traditionally negotiated by small groups of large developed countries without developing countries present. See e.g. Bhagirath Lal Das, Why the WTO Decision-Making system of ‘Consensus’ Works against the South’, Third World Network Website, at http://twnside.org.sg/souths/twn/title/bg13-cn.htm (visited Dec 13, 1999) (noting that developing countries are always on the defensive”). Bhagurath Lal Das was India’s Ambassador and Permanent Representative to the GATT. See also Chakravarthi Raghavan, The Return of the ‘Green Room’, Third World Network Website, at http://www.twnside.org.sg/souths/twn/title/green2-cn.htm (visited

based environmental non-governmental organization, the Foundation for International Environmental Law and Development (FIELD), even negotiated a deal with a developing country, Sierra Leon, to represent it before the Committee on Trade and Environment in order for FIELD to support the cost of attending and reporting in meetings in exchange for FIELD’s direct access to CTE meetings.255 Sierra Leone, beset by violent civil conflict, did not have the resources or the priority to itself represent its “stakeholder” interests and represent them before the Committee on Trade and Environment. A northern NGO, though with serious conflicts of interest, offered to do so in its stead.

In short, northern non-governmental organizations are much better positioned than southern non-governmental organizations and southern trading interests to have their views heard at the international level.256 Given scarce resources, southern states even question the appropriateness of the WTO sending NGO delegates to Geneva for symposia when those resources could be spent on water purification, nutrition, education and disease control projects

Dec. 13, 1999) (the green room refers to the conference room in GATT headquarters where former GATT Director General Arthur Dunkel held informal meetings with key GATT members to drive forward the Uruguay Round negotiations). See also infra note283.

255 In other words, the London-based NGO would obtain direct access to CTE debates and in return Sierra Leone would receive, free-of-charge, information on what transpired within the CTE, albeit filtered through the London-based NGO. Sierra Leone had no permanent representative in Geneva on account of its lack of resources. Developing countries in the CTE, however, recognized the FIELD representative (James Cameron) and at first demanded that he be excluded from the room. Another FIELD representative from London, Beatriz Chaytor held a Sierra Leon passport and was subsequently permitted to attend CTE meetings as Sierra Leone’s representative after the CTE secretariat received confirmation from the Sierra Leone government of its approval. Even this authorization, however, was cryptic, for Ms. Chaytor’s name was hand-written on a government letter above a scotched-out name. Within the CTE, Ms. Chaytor allegedly read a long “NGO-type” statement about how the WTO was “antienvironment.” Interview with a member of the CTE secretariat, June 2000, Geneva. For Ms Chaytor’s version of this experience, see Beatriz Chaytor, Cooperation between Governments and NGOs: the Case of Sierra Leone in the

CTE, in TRADE, ENVIRONMENT AND SUSTAINABLE DEVELOPMENT: VIEWS FROM SUB-SAHARAN AFRICA AND LATIN

AMERICA: A READER (Pieder Konz, ed.), supra note 110, at 89.

256 An article published by the southern NGO Third World Network, for example, maintains that agendasetting of large “international NGOs” is “led from their offices in London, Paris or Brussels. There is great reluctance to give their offices based in developing countries a greater say in running international campaigns… The involvement of southern counterparts is often restricted to generating research data to be used by northern advocates….” Binu S. Thomas, WTO Steals a March on International NGOs, Third World Network Website, at http://www.twnside.org.sg/souths/twn/title/march-cn.htm (visited Dec. 14, 1999). Thomas is noted as an employee of an international NGO who is based in Bangalore, India.

in developing countries.257 While some northern commentators may condescendingly counter that the alternative use of funds will not go to social services, but to line the pockets of southern elites to pay “for a fourth mistress,”258 the fact remains that international NGO conferences remain more of a prerogative of northern governments and northern constituencies.

Information comes at a price. Northern environmental non-governmental organizations such as Greenpeace and WWF-World Wide Fund For Nature, have multi-million dollar budgets that they target to address environmental matters. Their budgets exceed that of the World Trade Organization itself and are several times the size of the United Nations Environmental Programme.259 They can thereby channel more resources toward CTE negotiations than the vast majority of WTO members. Northern non-governmental organizations publish glossy magazines,

257 Interview with a developing country delegate to the CTE, June 1998, Geneva (noting that flights to the conference alone cost one to two thousand US dollars per participant, and that during the conference, many NGO representatives stayed at four and five star Geneva hotels. The delegate also questioned the representativeness of some “developing country NGO s,” some of whom were created and/or financed by environmental NGOs from the United States and thus “played no policy role in the developing country.” The CTE secretariat financed the expenses of certain developing country NGOs for the 1996 meeting “on an exceptional basis out of the Secretariat’s own budget.” See Trade and Environment Bulletin No. 16, Report of the WTO Informal Session With Non-governmental Organizations (NGOs) on Trade and Environment, PRESS/TE016, at 3 (Nov. 28, 1996), available at <www.wto.org/wto/environ/te016.htm> [hereinafter 1996 NGO Symposium]. The Netherlands, Canada and Australia used development funds to finance the costs of developing country NGOs participating in the third NGO symposium. See Trade and Environment Bulletin No. 19, WTO Symposium on Trade, Environment and Sustainable Development, PRESS/TE019 (July 1997) <www.wto.org/wto/environ/te019.htm>.

258 Comments of a former delegate from a developed country who attended CTE meetings (April 2000). Ironically, the former delegate was responding to the above remarks of a developing country delegate who (he did not know) is a highly respected, well-educated, well-informed woman who was an active participant in the CTE.

259 The annual budget for Greenpeace rose from US$24 million in 1985 to some US$100 million in 1990.

See THOMAS PRINCEN AND MATTHIAS FINGER, ENVIRONMENTAL NGOS IN WORLD POLITICS : LINKING THE LOCAL

AND THE GLOBAL 2 (1994). Greenpeace’s total income for 1998 was US$125,297,000. See Greenpeace, Greenpeace 1998 Annual Report, (June 16, 1999) <http://www.greenpeace.org/report98/index.html>. WWF International, just one of WWF’s many branches, had a 1998 total income of US$53,450,000. See World Wildlife Fund, Annual Report 1998 (visited Oct, 19, 1999) <http://www.panda.org/wwf/Report98/accounts.html>. See overviews of

Greenpeace and WWF–World Wide Fund For Nature in WAPNER, WORLD CIVIC POLITICS, supra note 40, at 41-116.

GET BUDGET FOR ALL WWF BRANCHES AND FOR WTO AND UNEP IN/AROUND 1998. See e.g. comments of Edward Goldsmith, Co-founder of International Forum on Globalization, in Policing the Global Economy, supra note 190, 171, 173 (noting UNEP’s “annual budget of a mere $70 million-a third of that of an NGO such as the World Wildlife Fund for Nature.”)

circulate statements and pamphlets,260 coordinate lobbying campaigns, call press conferences,261 take out full page adds in major publications, such as the New York Times,262 and, more recently, submit amicus briefs to WTO dispute settlement panels.263 Non-governmental organizations such as the WWF–World Wide Fund For Nature proactively fund major symposia held within the United Nations to which they invite state delegates and representatives of the World Trade Organization and other international organizations.264 WWF–World Wide Fund For Nature has even created a parallel CTE, which it calls the Expert Group on Trade and the Environment,

260 See, e.g., The GATT Trade and Environment Work Programmes: A Joint NGO Statement, signed on March 3, 1994 in Gland, Switzerland (WWF International’s headquarters) and signed by WWF International and 2O WWF national affiliates, as well as by Greenpeace International and 10 Greenpeace national affiliates, and 29 other NGOs. This document was then attached by Friends of the Earth International in its statement “concerning the environmental implications of the Uruguay Round of GATT” to the Subcommittee on Economic Policy, Trade and Environment of the Committee on Foreign Affairs of the U.S. House of Representatives, 103rd Congress, 2nd Session, March 8, 1994, at 83-103.

261 See, e.g., Michael Battye, Environmental Groups Blast World Trade Body, REUTER EUR. COMM UNITY REP. (Dec. 8, 1996).

262 See, e.g., Invisible Government, N.Y. Times, Nov. 29, 1999 (consisting of an anti-WTO advertisement by the Turning Point Project, a coalition of over 60 non-profits formed specifically to produce a series of advertisements for publication in the New York Times, see Turning Point Project (visited Dec. 5, 1999) <http://www.turnpoint.org/>)

263 In the shrimp-turtle case, the WTO Appellate Body admitted an amicus brief jointly submitted by WWF–World Wide Fund For Nature and FIELD. In addition, an amicus brief prepared by the Washington DC-based Center for International Environmental Law (CIEL), in association with other NGOs, was attached as a supporting annex to the U.S. submission to the Appellate Body. See discussion in Shaffer, Shrimp-Turtle Dispute, supra note 103.

264 The WWF-UNEP conference on fisheries, held in June 1997 at the UN in Geneva, was funded primarily by WWF–World Wide Fund For Nature. It brought together state delegates to the CTE, representatives of the CTE secretariat, representatives of other international organizations (including of the United Nations Environmental Program, the United Nations Development Program, the Food and Agricultural Organization and the OECD. The conference was seen as a model by CTE secretariat members. See supra note 81. Studies from the conference were cited seven times by the CTE secretariat in its paper concerning the environmental benefits of removing state subsidies. See Environmental Benefits of Removing Trade Restrictions and Distortions: Note by the Secretariat [WT/CTE/W/67], supra note 96.

Similarly, James Cameron, the co-director of the London-based Foundation for International and Environmental Law and Development (FIELD), is also co-director of the publisher Cameron & May, which organizes annual symposia on WTO dispute settlement and related matters.

consisting of trade and environment specialists from developed and developing countries.265

In particular, northern environmental NGOs attempt to harness the media to shape perceptions of problems and desired outcomes.266 They can more effectively work the media not only because of their greater resources, but because of the media’s determination of what is worthy for print, in large part a reflection of the international media’s primary audiences located in developed countries.267 For example, in response to the December 1999 demonstrations at the

265 The group meets a few times per year and issues periodic reports that WWF International then distributes to the CTE secretariat and state delegates to the CTE, as well as any other interested party. See, e.g., Expert Panel on Trade and Sustainable Development, 2nd meeting, Cairo, 16-18 February 1997, WWF EPTSD Secretariat Report, at 1. The original panelists included developing country representatives to the Committee on Trade and Environment who were active in the debates leading to the 1996 Report (Magda Shahin of Egypt, Hector Torres of Argentina and Chiedu Osakwe of Nigeria), developed country representatives, representatives from the United Nations Conference on Trade and Development, the World Bank and the WTO (including the leading neoliberal academic and member of the WTO secretariat Ernst-Ulrich Petersmann), representatives from three northern NGOs (including Greenpeace International and FIELD), three southern NGOs (including Third World Network)), the Executive Director of the north-south NGO consortium International Centre for Trade and Sustainable Development, and business representatives (including the President of the US Council for International Business).

266 As Deborah Rhode writes, “The way journalists frame their coverage helps reshape the legal world that they claim only to represent. What gets lost in translation also gets lost in public policy debates. As social science research consistently demonstrates, the media influence not only what we know but also what sense we make of that knowledge.” Rhode, A Bad Press on Bad Lawyers: The Media Sees Research, Research Sees the Media, in Patrick

Ewick, Robert Kagan and Austin Sarat, eds. SOCIAL SCIENCE, SOCIAL POLICY AND LAW (1999), at 139 (citing John Fiske, MEDIA MATTERS: EVERYDAY CULTURE AND POLITICAL CHANGE (1994), among others). Northern international

environmental NGOs engage with the media in an attempt to define the issues in public debate. See Alison Anderson, Source-media relations: The production of the environmental agenda, in Andrew Hansen, ed. THE MASS MEDIA AND ENVIRONMENTAL ISSUES 51-68 (1993) (noting how environmental NGOs hire scientists and consultants

in order to gain legitimacy as primary sources and definers of issues before the media)

267 By international media, I refer to that available, read and/or viewed worldwide, and in particular in international capitals such as Geneva, Switzerland. This media includes CNN, Sky TV, the International Herald Tribune (joint venture of the New York Times and Washington Post), the Financial Times, the Wall Street Journal, and wire dispatches such as AP, Reuters and Agence France-Presse. The Indian environmental, activist Vandana Shiva, claims that “Within the dominant discourse on development, the ‘local’ has been written out of environmental concerns

Although northern-based critics of the WTO critique the mainstream media for its pro-WTO coverage. See e.g. Seth Ackerman, Prattle in Seattle: WTO Coverage Misrepresented Issues, Protests, 13 EXTRA! 13-17 (Jan./Feb. 2000), they fail to note that such coverage still reflects a northern focus on the relation of WTO rules to U.S. environmental laws restricting developing country imports. See e.g. the New York Times editorial Messages for the W.T.O. published in response to the protests in Seattle, infra note 267. Northern-based media tend to cover environmental issues important to northern-based NGOs, such as trade bans imposed for the preservation of endangered species in developing countries, more than those important to developing country NGOs, such as the provision of clean water and sewage systems and other local concerns.

WTO Ministerial Meeting in Seattle, the New York Times wrote in its lead editorial entitled “Messages for the W.T.O.:” “The lesson from the demonstrators this week is that future trade panels must not just talk about protecting the environment but actually do so…. The W.T.O. is now on notice that future panels should bend over backward to side with the environmental advocates when the cause is just and not a disguised form of protectionism.”268 The New York Times editorial, of course, did not bend over backwards to take account of the views of developing country constituencies about the appropriateness of unilateral US sanctions.

In these information campaigns, however, northern environmental NGOs do not represent the environmental perspective.269 Rather, the term environment has vastly different meanings to a northern public than to stakeholders in developing countries. In developing countries, it is much more difficult to separate the notion of the “environment” from that of “development” because people’s livelihoods are more intimately connected on a day-to-day basis with the environment. Developing country stakeholders are thus much less likely to adhere to a “preservationist” perspective of environmental protection when their lives and livelihoods are directly at stake.270

While northern environmental NGOs may be “internationalist” in orientation and more likely than the WTO secretariat to represent the “trees,” they do not represent a “global civil

268 See Messages for the W.T.O., N.Y. TIMES A30 (Dec. 2, 1999). Although the statement is vague, the editorial could only have been referring to the controversial US shrimp-turtle case about which US environmental groups were protesting in Seattle.

269Similarly, there is not a single northern environmental group perspective. For differences among U.S. environmental groups on U.S. ratification of the North American Free Trade Agreement, see John J. Audley, Green Politics and Global Trade: NAFTA and the Future of Environmental Politics, supra note 45 (“environmental community was bitterly divided,” Id. at 2)

270 For an assessment of the different treatment of the environment in the United Kingdom and India, see Graham Chaywan, Keval Kumar, Caroline Fraser & Ivor Gabel, Environmentalism and the Mass Media: The North-South Divide (1997) (noting the different perceptions of the word “environment” in Britain and India, and that in India, because many people’s livelihood is directly connected to the environment, “it is difficult to separate it from development” (at xiv)). For an examination of environmentalism from a wide variety of perspectives, see World views and Ecology, Mary Evelyn Taucker & John Grim, eds. 1993.

society.”271 They have a specifically northern perspective, and often, even more specifically, an Anglo-Saxon one.272 Their representatives were raised and educated in the north. Almost all of their funding comes from contributors from the north. They obtain their financing by focusing on single issues that strike the northern public’s imagination, in particular animal rights and species preservation issues–the motivating force for their demand for changes in WTO rules under item 1 following the two tuna-dolphin decisions.273 Southern states and southern NGOs thus distrust

271 For a call for the development of a “cosmopolitan” state-decentered politics, see, for example, David

Held, DEMOCRACY AND THE GLOBAL ORDER: FROM THE MODERN STATE TO COSMOPOLITAN GOVERNANCE (1995)

and A. Linklater, THE TRANSFORMATION OF POLITICAL COMMUNITY (1998). The sense that northern environmental

groups’ views represent a “global” and not a parochial northern outlook is reflected in the statement by Held et al.,