Trade and the Environment
| Author | Winston Anderson |
| Pages | 357-376 |
Page 357
15. Trade and the Environment
The emerging regulatory and legislative
framework governing trade-related envi-
ronmental issues has important implica-
tions for the Caribbean community.1 Caribbean
states are parties to both conventions seek ing to
restrict international trade in the interest of pro-
tecting the environment and treaties looking to
facilitate free and unhindered international trade
in goods and services. Conventions with such con-
trasting objectives can obviously come into conict
with each other.
A classical illustration of such a clash in the
Caribbean was presented by Natural Resources Con-
servation Authority v. DYC Fishing Ltd.2 e appli-
cant’s reliance on the international free trade regime
to export conch from Jamaica to the United States
was seemingly at variance with the international
environmental treaty provision that such exports
require permits, which could only be obtained on
conrmation that the harvest ing of the conch had
been consistent with local conservation laws and
that its export would not endanger the survival
of the species. e decision in DYC Fishing Ltd.
in favor of free trade was based on the technica l
ground that the agreement had not been incorpo-
rated into Jamaican law3—a procedural defect now
cured by the adoption of national legislation imple-
menting the agreement.4
Although the basic issues are the sa me, there
are three arenas in which the relationship between
treaties on trade and treaties on the environment
1. Taimoon Stewart, e Emerging Legislative and Regulatory Frame-
work Governing Trade-Related Environmental Issues: Implications
for CARICOM Countries, 3 C D, no. 3, 1996.
2. 58 W.I.R. 269 (C.A., 1999) (Jam.).
3. Winston Anderson, Implementing MEAs in the Caribbean: Hard
Lessons from NRCA v. Seafood & Ting, 10 RECIEL 227 (2001).
4. Endangered Species (Protection, Conservation and Regulation
of Trade) Act, No. 6 (2000) (Jam.).
need to be studied. At the global level, multilat-
eral environmental agreements (MEAs) have been
discussed and litigated in the context of the world
trading system, specica lly the General Agreement
on Taris and Trade (GATT), and the World Trade
Organization (WTO). At the regional level, the
Revised Treaty Establishing the Caribbean Com-
munity (CARICOM) Including the CARICOM
Single Market and Economy is predominantly a
trade and integration agreement, but it contains
important environmental provisions, including
exceptions to the trade arrangement in the interest
of protecting the environment. Finally, there are a
number of bilateral agreements between CARI-
COM and foreign states that attempt to deal w ith,
or must otherwise be viewed in the context of, the
regime for environmental protection. ese catego-
ries of agreements are now considered in turn.
Global Agreements on Trade and the
Environment
MEAs may restrict international trade to protect
environmental interests. Some of these rest ric-
tions may be imposed on noncontracting parties to
“encourage” them to join the MEA. e Conven-
tion on International Trade in Endangered Species
of Wild Fauna and Flora (CITES)5 requires the use
of import and export permits to trade internation-
ally in species whose survival could be endangered.
Such permits may be obtained only if the trade
does not threaten the survival of those species and
if exploitation was consistent with local conserva-
tion laws. International controls may be imposed
on the import and export of substances that deplete
5. Convention on International Trade in Endangered Species of
Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243 (entered
into force July 1, 1975).
Page 358 Principles of Caribbean Environmental Law
the ozone.6 e importation of hazardous wastes
from noncontracting states may be ba nned, and
importation in general may be subject to strict
conditions, such as the prior informed consent of
the importing country, inability of the exporting
country to d ispose of waste in an environmentally
sound manner, and the abilit y of the importing
country to handle the waste in an environmentally
sound manner.7
Environmental conventions may facilitate trade
by allowing parties to participate in emissions trad-
ing as a way of fullling their emission reduction
targets, but they may also impose trade restrictions
as a sanction where the party fails to meet those
targets.8 Trade in living modied organisms may
require the prior informed consent of the coun-
try of import as well as satisfaction of risk assess-
ment procedures, which allow importing states to
restrict imports where there is scientic uncertainty
regarding potential adverse eects of living modi-
ed organisms on t he conservation of biological
diversity in the importing countr y.9
Potential for Conflict
ese provisions, and others similar to them, seem
to conict or at least come into tension with the
basic principles and provisions of modern interna-
tional trade agreements encouraging free and open
trade. e GATT, originally adopted in 1947 in
the aftermath of World War II, was reformulated
in 1994 after several rounds of negotiations as the
trade rules of the WTO. e implementation of
these international rules on trade is assisted by an
advanced dispute settlement system involving the
Dispute Settlement Body, the Appellate Body, and
various ad hoc panels.10 All the member states of the
Caribbean Community, with the exception of e
Bahamas, are members of the WTO/GATT system.
e main purpose of the WTO/GATT regime
is to replace protectionism and nationalism (which
6. Montreal Protocol on Substances at Deplete the Ozone Layer,
Sept. 16, 1987, 26 I.L.M. 1550 (entered into force Jan. 1, 1989).
7. Basel Convention on the Control of Transboundary Movements
of Hazardous Wastes and eir Disposal, Mar. 22, 1989, 1673
U.N.T.S. 126, 28 I.L.M. 57 (entered into force May 5, 1992).
8. Kyoto Protocol to the United Nations Framework Convention
on Climate Change, Dec. 11, 1997, 37 I.L.M. 22 (entered into
force Feb. 16, 2005). Under the Kyoto Protocol, the parties may
be subject to a penalty of 30% in the next commitment period
and may be prevented from selling emissions reductions.
9. Cartagena Protocol on Biosafety to the Convention on Biological
Diversity, Jan. 29, 2000, 2226 U.N.T.S. 208, 39 I.L.M. 1027
(entered into force Sept. 11, 2003).
10. For a more complete discussion of this subject, see chapter 1
above.
many felt had led to World War II in the rst place)
with free and open trade between states (which is
thought to discourage international armed con-
icts). Article I adopts the “most favored nation”
principle, which prohibits countries from discrimi-
nating in trade with foreign countries. A contract-
ing part y must treat imports from one countr y no
less favorably than like imports from other coun-
tries. Article III applies the nondiscrimination
principle in relation to domestic goods by requiring
a contracting party to accord no less favorable treat-
ment to imports than the treatment it gives to simi-
lar domestic goods. Under this national treatment
principle, an i mporting state cannot, for example,
impose higher ta xes or charges on imported goods
than the taxes levied on like domestic goods. ere
is good reason to believe that the national treat-
ment principle applies even before the good reaches
the territory of t he importing state and t hus to
regimes such as import licenses and those govern-
ing preshipment procedures.11
Article XI prohibits quantitative restrictions. A
contracting party is prohibited from imposing quo-
tas or import or export licenses on the importation
of products from or exportation to other contract-
ing parties. Article XX contains general exceptions
to the free trade regime, some of which are relevant
to the protection of human and environmental
health and the conservation of exhaustible natural
resources.
e WTO administers two other GATT-related
agreements of present relevance. e Agreement on
the Application of Sanitary and Phytosanitary Mea-
sures (hereinafter SPS Agreement)12 is concerned
with standards that safeguard food safety, as well as
animal and plant health. e agreement sets con-
straints on member states’ policies relating to food
safety (such a s bacterial c ontamination, pesticides,
inspection, and labeling), as well as animal and
plant health (for example, phytosanitary). Member
states retain the right to take SPS measures that
are necessary for this purpose, but these measu res
11. See Panel Report, Dominican Republic—Measures Aecting the
Importation and Internal Sale of Cigarettes, WT/DS 302/R (Nov.
26, 2004). In relation to this point, the author has been fortunate
to see an unnished paper by the late A. Ralph Carnegie, Professor
Emeritus of the University of the West Indies, entitled “Border
Measures Limitations on the National Treatment Standard Under
GATT/WTO Law: A Status Review” ( June, 2010) (unpub-
lished paper).
12. e SPS Agreement was negotiated during the Uruguay round
of the GATT. It was adopted December 15, 1993, and entered
into force with the establishment of the WTO on January 1,
1995. It is reprinted at 33 I.L.M. 1125.
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