Issue brief - Entwined

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ABOUT THE AUTHORS Henrik Horn wrote his dissertation in economics at the Institute for International Economic Studies, Stockholm University, where he stayed until his resignation in 2007, the last 13 years as Professor of International Economics. He is since 2006 Senior Research Fellow at the Research Institute of Industrial Economics (IFN) in Stockholm, Non-Resident Senior Fellow at Bruegel, a Brussles-based think tank, and Chief Reporter (jointly with Petros C. Mavroidis) for the American Law Institute project Principles of World Trade Law: The World Trade Organization. Horn is Research Fellow in the International Trade and Industrial Organization Programmes of the Centre for Economic Policy Research, London, Editorial Board member of the World Trade Review, and Associate Editor of the Journal of World Trade. He has taught at e.g. Stockholm University, Stockholm School of Economics, the University of Michigan, Princeton University, the World Trade Institute (Bern), and the Graduate Institute of International Studies (Geneva), has served as a judge in the Swedish Supreme Court for antitrust cases, and he has worked for four years in the Economic Research and Analysis Division of the WTO. Petros C. Mavroidis is Edwin B. Parker Professor of law at Columbia Law School, New York and Professor of Law at the Un. of Neuchâtel, Switzerland. He is also Research Fellow at the Centre for Economic Policy Research (CEPR) in London. Since 2000 he has been acting as chief co-reporter (along with Henrik Horn) for the American Law Institute (ALI) project, “International Trade Law: the WTO”. His latest publication is “The Law of the WTO” (co-authord with George Bermann (Columbia) and Mark Wu (Harvard), ThomsonReuters, 2010. He is currently on leave from Columbia Law School and teaching at EUI, Florence.
ON THE ROLE OF MEAS IN THE WTO: LEGISLATORS’ SILENCE SPEAKS VOLUMES On the Role of MEAs in the WTO: Legislators’ Silence Speaks Volumes By Henrik Horn and Petros Mavroidis THIS BRIEF TARGETS • Policy makers in the environment and trade area. KEY MESSAGES • The role of multilateral environmental agreements (MEAs) in the World Trade Organization (WTO) legal order is highly unclear, due to lack of legislation and case law on the issue. • To determine the appropriate role of MEAs in the WTO, it is necessary to understand the reasons for the separation of agreements. • One can identify two broad reasons for separation: strategic benefits for certain countries, and contracting costs stemming from large, complex agreements. • Both of these reasons for separation suggest a very cautious approach to MEAs by WTO adjudicating bodies. • The main role of MEAs should be to provide factual information concerning environmental issues. purpose of issue <strong>brief</strong>: The purpose of this Brief is to point to reasons why adjudicating bodies of the World Trade Organization (WTO) should be cautious when drawing on multilateral environmental agreements. The main purpose of such agreements should be to provide factual information for adjudicating such disputes. International efforts to combat environmental problems are manifested in a large number of multilateral environmental agreements (MEAs). These agreements typically regulate economic activity, and as such have consequences for international trade. They may thus interfere with international trade agreements, and in particular the World Trade Organization (WTO) Agreement, which provide separate regulations of international economic activities. Despite the overlaps of the two sets of regulations, the role of MEAs in the WTO remains controversial. Legislators and WTO adjudicating bodies have so far shown little enthusiasm for a narrowing of the two, but there are frequent calls in the policy debate for recognition of MEAs in the WTO legal order. This <strong>Issue</strong> Brief suggests reasons why judges in disputes before the WTO should be cautious when drawing on MEAs. THE STATUS OF MEAS IN THE WTO The basic problem for defining the role of MEAs in the WTO is the fact that they are not among the covered agreements, that is, among the multilateral and plurilateral agreements that form the WTO Agreement. Hence, they are not included in the agreements that WTO Members must respect to comply with the WTO Agreement. The WTO Agreement is completely silent with regard to MEAs. In principle, this lacuna could have been filled by the WTO Committee on Trade and the Environment (CTE) and the other competent WTO bodies. The Agreement Establishing the WTO provides explicitly for this possibility to ‘complete’ the original contract (Art. IX). However, no substantive progress has been made there, despite many years of discussion. It has therefore been left for WTO judges to determine the role of MEAs in the WTO, but without any legislative guidance. ISSUE BRIEF 3
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