Research Handbooks in International Law series
Edited by Malgosia Fitzmaurice, David M. Ong and Panos Merkouris
Chapter 19: Environmental Disputes in the WTO
Joanna Gomula Introduction The relationship between ‘free trade’ of goods (and services) and environmental protection is often presented in terms of a ‘clash’ or ‘conflict’. There is indeed, at first sight, an underlying conflict between the two notions themselves. The notion of free trade puts an emphasis on freedom: freedom to trade (goods and services), to maintain and develop trade relations, to structure trade transactions in the most efficient and unrestricted manner from the traders’ point of view. The notion of environmental protection puts an emphasis on protection, which implies the existence of restrictions designed to ensure the achievement of the designated objectives. In other words, ‘to protect’ means taking action, or refraining from action, that is necessary to preserve specific values, which merit such limitation of the freedom to act. This notional conflict may be at the root of occasional suggestions that freedom of trade cannot be reconciled with environmental protection. In fact, however, there is no such reality as ‘free’ trade. The major multilateral trade regimes, which are often quoted as examples of freedom of trade (and which sometimes even have the word ‘freedom’ in their official names), constitute sets of rules that restrict, through regulations, trade-related actions, with a view to facilitating trade, but not with a view to completely removing all obstacles. The World Trade Organization (WTO) and the North American Free Trade Agreement (NAFTA) prescribe rules that make trade among their respective members ‘free’ only to the extent that there is compliance with the detailed...
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