By Gary G. Yerkey International Environment Reporter Volume 24 Number 10 May 9, 2001 Page 358
The United States and the European Union have been finding it increasingly difficult to reconcile their approach to handling potential conflicts in the World Trade Organization over the interrelationship between further trade liberalization and environmental protection. The issue could become a major sticking point in efforts to launch a new round of WTO talks later this year. Both sides acknowledge that the link exists. But developing a joint approach to the issue has been impossible so far and could become even more difficult over the next few months, officials said.
U.S. and EU officials, speaking May 3, said the problem has been exacerbated by the failure of the administration of U.S. President George W. Bush to put in place key policymakers at the Office of the U.S. Trade Representative and other government agencies who would develop a formal U.S. negotiating agenda.
Charlotte C. Hebebrand, special trade adviser at the European Commission office in Washington, D.C., said the EU has become concerned that the United States has been slow to formulate its policy on the link between trade and environmental protection.
"It's worrisome," she said. "We are still trying to get some sense from the U.S. on where they would like to go."
She said the United States has focused its attention almost exclusively on increasing openness and transparency in international organizations.
"We don't have a problem with increased transparency," she said. "But we would like to go a little bit deeper."
William Krist, a senior policy scholar at the Woodrow Wilson Center, said he shares Hebebrand's concern and worries that it could have an impact on future cooperation.
"We have a new administration," he said. "We don't have lot of the key people in place."
EU Moving Ahead With Plan
Hebebrand said that, in the meantime, the EU has been putting forward detailed proposals in the WTO aimed at "clarifying" the relationship between WTO rules and multilateral environmental protection agreements, known as MEAs, such as the recently negotiated Biosafety Protocol. She said that many "legal ambiguities" currently exist, for instance, concerning what would take place if a WTO member country challenged the WTO-legality of a measure taken by another country under an MEA aimed at protecting the environment.
"We believe that it's in all WTO members' interest to clarify this relationship," Hebebrand said, adding that the uncertainties that arise simply from the potential for conflict, moreover, will make it much more difficult to negotiate MEAs in the future.
Hebebrand, speaking at a conference organized by the Washington International Trade Association, said that the EU, for instance, has proposed that trade ministers agree at the next WTO ministerial meeting--scheduled for Nov. 9-13 in Qatar--to a set of "basic principles" that would define the relationship between the WTO and MEAs.
The principles would include, she said, agreement that the WTO and MEAs are mutually supportive; that multilateral environmental policy should be made in MEAs and not the WTO; and that conflicts among parties to MEAs in connection with implementation of the agreements should be resolved within the MEA.
Hebebrand said the EU also wants to see confirmation in the WTO that WTO rules and MEAs are "separate but equal" bodies of international law.
Some sort of "accommodation mechanism" will also need to be developed, she said, to address the problem of potential challenges in the WTO by non-parties to MEAs regarding MEA-authorized measures taken to protect the environment but that may also have trade-restrictive implications.
She said the EU was floating the idea that the burden of proof would be reversed from current practice. That is, that the WTO complainant challenging a MEA measure would have to prove that the measure does not meet the conditions of WTO Article 20, which allows for trade-restrictive action to be taken to protect the environment, rather than, as is now the case, the defendant having to defend the action it took under Article 20.
"Such a reversal of proof would render a non-party's challenge more difficult," she said, "and might also have the effect of encouraging the non-party to join the MEA."
The EU, according to Hebebrand, is also willing to consider the development of a "code of good conduct" that would apply to trade measures taken under MEAs. This, she said, would help develop a mutually supportive relationship between MEAs and WTO agreements.
U.S. Official Cites Differences
Also speaking at the WITA conference, David van Hoogstraten, special negotiator for chemical, trade, and environmental affairs at the U.S. State Department, said the United States and the EU have "drifted apart" in the debate over the intersection of trade and environmental issues. He cited as an example the EU's "precautionary principle," which, according to other U.S. officials, the EU uses to justify unfair import restrictions on products that appear to pose risks to human health or safety--even though the scientific evidence supporting such restrictions may not be entirely conclusive or complete.
Van Hoogstraten said the U.S.-EU conflict has been particularly evident in the dispute over trans-Atlantic trade in bioengineered agricultural products.
"This is not to be taken lightly," van Hoogstraten said. "Our interests increasingly don't appear to coincide."
Copyright c 2001 by The Bureau of National Affairs, Inc., Washington D.C.:
