Book Review: Reconciling Environment and Trade

In International Review for Environmental Strategies (IRES) Volume 2 Number 1 (Summer 2001)
Peer-reviewed Article

"Reconciling Environment and Trade"
Edith Brown Weiss and John H. Jackson (eds.)
Publisher Information: Transnational Publishers, Inc. 2001
ISBN: 1-57105-141-4
Reviewer: Glen Paoletto

Reconciling Environment and Trade is clearly a superior work in the field of environment and trade, and one of the more interesting recent works in international law. With twenty-one chapters and five extensive appendices, the book takes the reader on a journey covering many of the critical and high-interest topics in international law today. The book is highly recommended for professors, researchers and practitioners interested in the recent debates related to international law, environment and trade. By bringing together a considerable amount of new research, as well as introducing new approaches to key issues, the book proves to be both thought-provoking and encouraging to researchers and practitioners in this field.

The book begins with the editors rightly pointing out that environment and trade can often conflict with one another. At first glance, the respective goals of international environmental law and international trade law do not sit well. On the one hand, international environmental law supports extensive environmental protection, calling for regulating mechanisms that encourage sustainable manufacturing; on the other hand, international trade law supports a type of free-for-all movement of products, and overlooks the way in which those products are made. By trying to reconcile the two, the book takes up one of the most difficult issues in international environmental law today.

In setting the background, the editors first provide an informative and comprehensive overview of the history and development of international environmental law and international trade law, leading the reader through the extensive existing maze with relative ease. Chapter 1 lays the foundation on which the remaining chapters rest, briefly discussing all the measures and mechanisms that make up international environmental law: domestic law, unilateral measures, international agreements and process and production measures (PPMs).

The debate behind PPMs remains pivotal to all the chapters in the book, and provides a common theme. PPMs refer to not just the product being traded, but also to the life-cycle of the product (i.e., how it was made). By focusing on PPMs, the editors take up the formidable challenge of searching for answers to the questions: at what point in time in a product's production life-cycle can it be considered to harm the environment? And if so, should that process be controlled and how do we control it? The answer to these questions have direct implications on trade and how we implement sustainable development, both nationally and internationally.

Related to PPMs is an ongoing international debate about when, in fact, a trade-related requirement (that refers to the environment) becomes a disguised trade barrier and national protectionism. The editors see the question this way: "how [do we] develop criteria by which to judge whether trade barriers are really protectionist measures in the guise of environmental (or other process) considerations" (p. 33). To seek answers, the editors have selected specific case studies to discuss all the essential points of the environment and trade debate.

Five case studies make up the heart of the book. Four of the cases are actual GATT/WTO cases. These are: the Reformulated Gasoline case, the Thai Cigarettes case, the Beef Hormones case and the Shrimp-Turtle case. The fifth case study centers on genetic engineering-Genetically Modified Organisms (GMOs)-and related issues. An actual case on GMOs has yet to happen, but the editors believe that the seeds for conflict are present and need to be considered. In each of these case studies, the editors and authors review the main points relating to environment and trade conflicts, both potential and actual. Such reviews prove not only interesting, but vital to the further development of thought on the key issues.

Combined, the five cases cover what may be the most important issues in environment and trade: air pollution, public health, food safety, endangered species protection and biosafety. A refreshing aspect of this publication is how the issues are framed and dealt with. In most publications, topics and materials related to international environmental law are presented vertically and categorically, yet as a result, can often be devoid of a sense of reality with their elaborate descriptions. Brown Weiss and Jackson, however, break that mold with Reconciling Environment and Trade. The editors have put issues and disputes that we see and read about every day into a context that both professionals and ordinary people can not only understand, but relate to. This takes experience and formidable understanding, and is a rare talent, indeed.

From the reader's perspective, the issues are kept clear even though discussions of the perplexing and complicated elements are given sufficient weight. For each of the case studies, the editors note that the book benefits from both a high-level seminar series, as well as supervised student teams who researched and wrote on various aspects. This background of research and brainstorming definitely pays off in the clarity of the writing and the cases presented. The reader can easily see the preparation that went into the book beforehand. For some, the rationale for selecting the five cases may be challenged; however, with the editors' justifications in place, the book is allowed to flow and can add directly to the debate in a constructive way.

Of the five case studies, three of the most significant WTO cases on environment and trade are included. These are: the Reformulated Gasoline case, the Beef Hormones case and the Shrimp-Turtle case. Of these, a very interesting is the Gasoline case because it also relates to the current Climate Change debate. The Gasoline Case involved a dispute between the United States and Venezuela/Brazil over the implementation of the U.S. Clean Air Act. In 1990, the U.S. Congress amended the Clean Air Act to issue regulations on both the composition and emissions effects of gasoline. The purpose of the amendments was to improve air quality by making only reformulated gasoline available for sale in identified heavily polluted areas. The objective was to reduce pollution; however, to determine the quality of gasoline, the U.S. Environmental Protection Agency (EPA) defined two baselines standards: an "individual" baseline defining gasoline quality by a particular producer, and a "statutory" baseline defining the average quality of U.S. gasoline in 1990. Domestic refiners could use either of the baselines, but non-U.S. producers were required to apply the statutory baseline. Venezuela and Brazil protested, calling for a WTO panel to find a solution.

After introducing the case in a flowing style, following chapters meticulously analyze the cases. Issues discussed related to the Gasoline case, for instance, include unilateral measures, regulations based on PPMs, implied limits of the GATT Article XX and how U.S. regulatory procedures could be better structured to avoid or reduce potential conflicts. From the practitioners perspective, one can get a quick overview of these important cases, how they were dealt with, what was decided and what is left to be decided and why. For example, Briggs' chapter 9 on "Conserving 'Exhaustible Natural Resources': The Role of Precedent in the GATT Article XX(g) Exception" provides an extensive review of the controversial GATT Article XX(g). It not only gives academics valuable information, but serves as essential reading for legal practitioners wanting to learn more about recent developments and views in international law. This approach of starting with basics and leading the reader onto ever-more challenging questions is a highlight of the book, used for each of the case studies, and definitely worthy of commendation.

Specific mention should also be given to the lone "future-oriented" case study on Genetically Modified Organisms (GMOs) (Part V of the book). This is a new and challenging area, where the editors see the potential for future disputes occurring. This whole area of biotechnology has been one of concern to the international community for some time, but to date it has proven difficult to define in terms of specific consequences and required action. To add substance, the newly adopted Biosafety Protocol is discussed at length in Chapter 21 entitled "The Cartegena Protocol on Biosafety: A Multilateral Approach to Regulate GMOs" by Bernasconi-Osterwalder. This chapter is a very worthwhile read about the Protocol and how it fits into GATT's scheme. There, the author skillfully navigates her way through the multiple trade, environment and health regulations and integration issues, while always underpinning discussions to one of the other mainstays of the book-the interpretation of scientific uncertainty. This type of work, which examines specific unilateral agreements, ascertains linkages and identifies areas of possible conflict, needs to be supported.

In summary, until recently, a number of practitioners, professors and researchers of international law had the feeling that international environmental law was losing ground. The background of the IT economy, globalization and general economic precedence continues to detract heavily from the issues of future security and risk management that international environmental law deals with. Reconciling Environment and Trade makes it clear, however, that international environmental law is not dying, but changing -and changing rapidly. With this book, one gets the feeling that international law is reinventing itself, thanks in large part to the ability of the editors to frame and describe the issues in a new light.

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