Content uploaded by Richard H. Steinberg
Author content
All content in this area was uploaded by Richard H. Steinberg on Dec 30, 2014
Content may be subject to copyright.
UCLA School of Law
Public Law & Legal Theory Research Paper Series
Research Paper No. 06-43
POWER AND COOPERATION IN INTERNATIONAL ENVIRONMENTAL LAW
by
RICHARD H. STEINBERG
This paper may be downloaded without charge at:
The Social Science Research Network Electronic Paper Collection
http://ssrn.com/abstract=946783
12. Power and cooperation in international
environmental law
Richard H. Steinberg*
This chapter examines international environmental regulation from economic,
political, and legal perspectives. Section 1 introduces the economics and poli-
tics of international environmental regulation. International agreements on
environmental issues are often seen as symmetric contracts among states, solv-
ing cooperation problems among states with similar interests, or facilitating
side-payments from states that favor environmental regulation to states that
would not otherwise support regulation. In contrast, some realist political
scientists suggest that when international environmental interests vary across
states, international environmental agreements often result from coercion of
weaker states by more powerful ones.
With this framework in mind, the bulk of this chapter examines the negoti-
ation and substance of the world’s most important international environmen-
tal agreements.1Section 2 examines the main agreements related to
international environmental protection of the oceans, including those
concluded to protect fisheries and those intended to reduce land-based marine
pollution. Section 3 examines the main agreements relating to global air pollu-
tion and climate change – the Montreal Protocol to the Vienna Convention for
the Protection of the Ozone Layer (Montreal Protocol)2and the Kyoto
Protocol to the United Nations Framework Convention on Climate Change
(Kyoto Protocol).3Section 4 explores the main trade and the environment
issues and agreements, including the Basel Convention on the Transboundary
Movement of Hazardous Wastes (Basel Convention)4and the Convention on
485
*I thank Andrew Guzman, Kal Raustiala, and Alan Sykes for their suggestions,
and Jeremy Regal for research assistance.
1As this suggests, this chapter focuses on understanding commitments to (i.e.,
not compliance with) international environmental agreements.
2Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September
1987, 26 ILM 1541.
3Kyoto Protocol to the FCCC, FCCC Conference of the Parties, 37 ILM 22
(1998).
4Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal, 22 March 1989, 28 ILM 649 (1989).
International Trade in Endangered Species of Wild Fauna and Flora (CITES),5
as well as environmental issues in the World Trade Organization (WTO), the
North American Free Trade Agreement (NAFTA), and European Union (EU).
Section 5 concludes that most effective international environmental agree-
ments have resulted not from symmetrical contracting alone but from negoti-
ations that involve coercion by powerful, greener countries of weaker
countries that are generally less interested in international environmental
protection. In this sense, international environmental regulation is at least as
much political as it is economic.
1. Contracting and coercion: economic and political analysis of
international environmental law
International environmental policy questions have both economic and politi-
cal dimensions.
From an economic perspective, pollution and environmental degradation
raise health care costs, as well as the costs of producing some goods and
services (e.g., the productivity of fisheries). Moreover, at present and for
future generations, environmental degradation diminishes opportunities for
recreation and intrinsic enjoyment of nature’s beauty (Leopold 1949). At the
same time, environmental protection is financially costly for the govern-
ments and firms that undertake it. Environmental regulation in one country
may also place the firms that are subject to it at a competitive disadvantage
vis-à-vis foreign firms that are subject to less stringent environmental regu-
lation. Largely for these reasons, regulation of activities affecting the envi-
ronment may also be politically costly for policy-makers who choose to
engage in it.
Economic reasoning has long offered an important heuristic for analyzing
domestic environmental law and policy. Pollution may be considered a nega-
tive externality: absent government regulation, the costs of environmental
degradation are often not internalized into a producer’s cost function. Of
course, Coasian contracting may generate a Pareto-efficient reduction of such
degradation (Coase 1960). But without an initial governmental assignment of
a property right to be free from environmental degradation, the Coasian
market-based solution usually entails paying the polluter, a distributive conse-
quence that runs counter to a normative ‘polluter pays’ preference (Calabresi
and Melamed 1972). Moreover, in many instances, Coasian bargaining faces
a transaction cost or a collective action problem that undermines a potential
solution (Olsen 1971). Some environmental issues, such as overfishing or
486 Research handbook in international economic law
5Convention on International Trade in Endangered Species of Wild Fauna and
Flora, 3 March 1975 (amended 22 June 1979), 12 ILM 1085.
overhunting, may be characterized as a problem of the commons. Hence,
government intervention may be justified.
In the international context, where there is no global sovereign, environ-
mental problems are particularly difficult to solve. There, states are the enti-
ties that must cooperate to regulate pollution and some states-often poor ones
– place little or no value on environmental protection.6The states that favor
global environmental protection may refuse on principle or be unable to ‘pay’
poorer states to limit environmental degradation. Moreover, the states that
favor global environmental protection may face significant barriers to cooper-
ation. And even if they can cooperate, the absence of a centralized global envi-
ronmental administrative authority implies that states and non-governmental
organizations are the only entities that can gather and disseminate information
about the precise sources and consequences of environmentally unfriendly
activities (Raustiala 2002). The fundamental international environmental
problem is that, unlike the domestic context, where a national government can
intervene to solve distributive, cooperation, and information problems, the
international system does not have a supranational sovereign. In this sense, the
international system is said to be anarchic (Waltz 1979).
Using economic reasoning, some political scientists have shown that inter-
national institutions may solve these problems. International institutions may
improve information generation and transmission, foster verification of and
compliance with commitments, and help solve collective action and other
cooperation problems (Keohane 1984). But in the environmental context,
successful establishment of such institutions presumes fundamental agreement
among states on environmental objectives and willingness to share associated
costs. As suggested above, in the international environmental context, there is
often fundamental disagreement on these issues between states on the impor-
tance of environmental protection and on the willingness to share costs – a
fundamental divergence of interests.
Sociological arguments suggest that interests are plastic. Transnational
epistemic communities (TECs) of expert professionals may persuade all states
of the adverse consequences of environmental degradation, but TECs exist and
operate effectively under only restrictive conditions of uncertainty (Haas
1992). Liberal interest group pressures, particularly those exerted by transna-
tional non-governmental organizations (NGOs) and other transnational advo-
cacy networks (TANs) of like-minded activists, could persuade all or most
countries that polluters have a duty to diminish environmental degradation
International environmental law 487
6This low value on environmental protection is understandable: whether envi-
ronmental protection is a normal good or a luxury good, poor states are less likely than
rich states to spend money on it.
(Moravcsik 2001; Keck and Sikkink 1998). Some argue that almost all inter-
ests are socially constructed and malleable (Wendt 1999). But the reconstitu-
tion of interests implicit in these approaches usually takes place over a long
time period and is undoubtedly constrained by material factors, such as the
financial costs of environmental protection. Empirically, therefore, TANs,
TECs, and other liberal pressures have not persuaded all states to support
across-the-board global environmental protection. Without broad global
convergence on environmental objectives, it is hard to reach consensual
Pareto-improving environmental agreements.
Concluding an international agreement through a side-payment offers
another form of contracting. States that favor environmental protection may
offer a side-payment to other states that otherwise would not support environ-
mental protection or that are unwilling to pay for it. If the side-payment is
large enough to induce voluntary agreement, then the arrangement is Pareto-
improving, as all parties will be better off. There are, however, a few reasons
why side payments might not be favored by states that support environmental
protection. First, some states may refuse to pay them out of a sense of the
unfairness of doing so. As suggested above, there is a normative current that
suggests that polluters ought to pay the costs of not polluting – and that they
should not get paid for such behavior. This stance may resonate particularly
well in the United States and Europe, two powerful, wealthy regions that
might otherwise be in a position to offer a side-payment. Second, if parties’
interests are highly divergent, or the costs of complying with an environmen-
tal agreement are high, then a side-payment may be too costly to be borne by
the parties favoring the agreement.
Third, politics may offer another solution that is less costly than making a
side payment. In the absence of a supranational sovereign to impose a solu-
tion, or like-minded states that can contract a solution, power offers a means
by which environmental arrangements may be established. Technically, legal
sovereignty implies that all international agreements are based on state
consent; behaviorally, however, weaker states may face insurmountable inter-
national political pressure to ‘consent’ to a particular agreement (Steinberg
2004). An agreement reached through coercion may be seen as asymmetric in
the sense that it generates less political support for the state from domestic
interests in weaker countries than in powerful ones; at the extreme, a weaker
state may be coerced into an agreement that actually runs contrary to domes-
tic political interests. Of course, the source and measure of state power varies
across environmental issue areas (Keohane and Nye 1974), and the extent to
which power is concentrated varies as well (Steinberg 1997). While richer
countries generally prefer more environmental protection than do poorer ones
(Wildavsky 1988), in particular environmental issue areas, some rich countries
may not support environmental protection or they may disagree among them-
488 Research handbook in international economic law
selves about the appropriate extent or means of protection. Where powerful
states can not agree, as in the case of climate change, no agreement will be
reached or any agreement that is reached will be of limited effectiveness.
According to the logic of this realist argument, environment-friendly rules and
agreements may be concluded in issue areas where the interests of powerful
states are sufficiently convergent, and their combined power is sufficiently
substantial, to coerce other countries into joining. Under these conditions,
bargaining between powerful and weak countries takes place on the Pareto
frontier (Krasner 1991).
Thus, these two approaches – contracting (either between like-minded
states or through side-payments) and coercion, one essentially economic, the
other political – together denote conditions under which effective international
environmental law may be generated. First, economic logic suggests that in
those environmental issue areas where states do share similar interests, they
may contract to reach an effective and symmetric Pareto-improving interna-
tional agreement. Alternatively, economic logic suggests the possibility of
Pareto-improving contracts concluded through side-payments. Second, realist
political logic suggests that when state interests diverge and side-payments
can not be made, effective international environmental agreements may be
reached only if powerful, greener states coerce weaker states into a particular
agreement. Third, it is possible that effective international agreements may be
reached from a combination of coercion and side-payments.
2. International environmental agreements on the sea: land-based
marine pollution and fisheries
There are two main issue areas in which international environmental agree-
ments have been concluded to protect the sea: those aimed at diminishing
land-based marine pollution and those regulating fisheries. These two sets of
agreements illustrate the two main means of reaching agreement, contracting
and coercion, respectively.
2.1. Land-based marine pollution
Over half of the world’s population lives within ten miles of the coast (Hunter
et al. 1998, p. 779), so it is not surprising that land-based marine pollution
(LBMP),7which involves the pollution of maritime zones by land-based
International environmental law 489
7Article 1 of UNCLOS defines marine pollution as: ‘[T]he introduction by
man, directly or indirectly, of substances or energy into the marine environment,
including estuaries, which results or is likely to result in such deleterious effects as
harm to living resources and marine life, hazards to human health, hindrance to marine
activities, including fishing and other legitimate uses of the sea, impairment of quality
for use of sea water and reduction of amenities’.
discharges, accounts for approximately 70 per cent of marine pollution (Kiss
and Shelton 2004, p. 539). This pollution contaminates and damages fisheries,
marine mammals (Hunter et al. 1998, p. 779),8coral reefs (Davidson 2002, p.
502), and other aspects of the marine environment.9Although the cumulative
consequences of marine pollution are greater than any single oil spill
(Wolfrum et al. 2000, p. 252), the international community has yet to develop
a comprehensive and enforceable global approach to the problem. However,
several regional agreements have been reached among like-minded countries.
The unsuccessful pursuit of effective global commitments The past three
decades are littered with global agreements containing hortatory provisions
relating to LBMP, but the international community has not established a
mandatory and enforceable global regime to regulate LBMP.
The doctrine of sic utere tuo ut alienum non laedes (use your property not
to injure that of another) has served as a customary international law justifica-
tion for regulating the discharge of land-based pollution (Guruswamy et al.
1999, p. 598). The 1972 Stockholm Conference (the results of which were
non-binding ‘soft law’) codified this notion in Principle 7 which provides that
‘states shall take all possible steps to prevent pollution of the seas by
substances’ (Guruswamy et al. 1999, p. 598). In 1973, the General Assembly
established the United Nations Environment Programme (UNEP) to imple-
ment the provisions of the Stockholm Convention (Mensah 1999, p. 299). In
1974, the UNEP devised the Regional Seas Programme built on a regional
control strategy consisting of four objectives, the conclusion or provision at
the regional level of: (1) action plans for research, assessment, and monitoring
of land-based sources of marine pollution; (2) legally binding conventions; (3)
technical protocols and annexes tailored to address particular threats; and (4)
financial and institutional support to enforce the first three provisions (Hunter
et al. 1998, p. 788).
In 1982, the international community touched upon LBMP in the United
Nations Convention on the Law of the Sea (UNCLOS), but the relevant provi-
sions are hortatory or so vague as to be ineffective. Article 194 obligates states
to ‘take, individually, or as appropriate, jointly, all measures that are necessary
490 Research handbook in international economic law
8Toxic chemicals in LBMP tend to remain in the tissues of marine mammals
and compromise their immune systems. These concentrations are often ‘bio-accumula-
tive’, which means that they increase as one advances through the food chain (Hunter
et al. 1998, p. 779).
9Coral reefs harbor many fish. More than one billion people in Asia depend on
coral reefs as a source of food (Davidson 2002, p. 502). Besides food, coral reefs can
serve as a source of tourism and protect shorelines from hurricanes (Davidson 2002, p.
502).
to prevent, reduce and control pollution from any source’ (Wolfrum et al.
2000, p. 252). Article 207 refers directly to the LBMP problem, providing that
states must ‘prevent, reduce, and control pollution of the marine environment
from land-based sources’ (Sands 2003, p. 429). In order to meet this aim,
member-states must take ‘internationally agreed rules, standards, and recom-
mended practices and procedures’ into account (Sands 2003, p. 429). Article
213 stipulates that states must enforce international as well as national envi-
ronmental laws (Wolfrum et al. 2000, p. 252).
After conclusion of the UNCLOS, the international community again
addressed LBMP through the UNEP’s Montreal Guidelines. The Guidelines,
which the UNEP adopted in 1984, constituted the first comprehensive attempt
to regulate LBMP (Mensah 1999, pp. 302–3). However, the resulting 19
recommendations and three Annexes are so broad and non-binding that they
have not required implementation (Hunter et al. 1998, p. 784).
Two scientific reports subsequently provided additional impetus to reach a
more substantive global agreement on LBMP. In 1987, the ‘Brundtland
Commission’ (the World Commission on Environment and Development)
published a report entitled Our Common Future. The Commission encouraged
international cooperation to combat the growing threats that pollution and
land-based development posed to the living resources of the sea. In 1990, the
Group of Scientific Experts on Marine Pollution (GESAMP) completed the
first comprehensive study on the effects of marine pollution, concluding that
land-based activities bore responsibility for the majority of marine pollution
(Mensah 1999, p. 297).
In 1995, 108 states and the European Union gathered in Washington, DC
to conclude an agreement calling for a global program of action to restrict
LBMP emissions (Sands 2003, p. 429). This conference produced two agree-
ments, the Washington Declaration on the Protection of the Marine
Environment from Land-Based Sources (Washington Declaration) and the
Global Programme of Action for the Protection of the Marine Environment
from Land-Based Activities (GPA) (Mensah 1999, p. 307). In the Washington
Declaration, participants announced their intentions to take action to combat
LBMP (Hunter et al. 1998, p. 785). In the GPA, participants specified four
fields of action, including a call for a binding instrument dealing with some of
the more dangerous pollutants (Sands 2003, p. 430).10 Yet the GPA failed to
International environmental law 491
10 These four areas are: (1) measures to ensure periodic assessment of the
current state of the coastal environment on both the global and regional levels; (2)
methods to facilitate information exchange; (3) a mechanism to coordinate activities of
organizations devoted to issues concerning LBMP; and (4) the establishment of an
intergovernmental mechanism to evaluate the progress in implementing LBMP
(Mensah 1999, p. 308). Point 17 urged the ban of at least a dozen bio-accumulative
include any mention of target reductions or timetables (Wolfrum et al. 2000,
p. 253). Rather than forming an organ to ensure implementation, the GPA
requests states themselves to ‘take the necessary measures for the implemen-
tation of the GPA at the national, regional, and international level’ (Wolfrum
et al. 2000, p. 253).
Yet the GPA has yet to develop a globally binding instrument, as countries
are reluctant to cede any sovereignty over activities within their territories
(Mensah 1999, p. 312). Both developing and developed countries seem unin-
terested in pursuing a mandatory and enforceable global LBMP regime. Some
developing countries fear that these environmental measures will curb
economic development (Ring 1997, p. 69). At the same time, developed coun-
tries have been unwilling to offer financial assistance to developing countries
to reduce LBMP (Ring 1997, p. 129). But most importantly, many studies,
including the one by GESAMP in 1990, have concluded that LBMP has yet to
make a significant impact outside of coastal waters (Mensah 1999, p. 312).
Regional approaches The generally concentrated and localized nature of
LBMP impacts explains why it has been easier to reach effective regional than
global agreement on the regulation of LBMP. States have signed several bind-
ing agreements concerning LBMP at the regional level.
European states adopted two regional agreements that were the first to
effectively address LBMP (Mensah 1999, p. 300). The first such agreement
was the Paris Convention for the Prevention of Marine Pollution from Land-
Based Sources in 1974. The signatories, all of whom were Western European
states, agreed to protect the marine environment in the Atlantic and Arctic
Oceans, excluding the Baltic and Mediterranean Seas (Hunter et al. 1998, p.
789). Articles 4(1)(a) and 4(2)(a) required the elimination of land-based
marine pollution caused by particular substances listed in Part I of Annex A
(Sands 2003, p. 431).11 These same articles also required the minimization of
the discharge of substances listed in Part II of Annex A (Sands 2003, p. 431).12
Articles 4(3) and 4(4) restricted the discharge of radioactive substances by
requiring the adoption of ‘measures to forestall, and as appropriate, eliminate
pollution of the maritime area [of these substances]’. Article 6 required the
492 Research handbook in international economic law
pollutants, including aldrin, dieldrine, chlordane, heptachlor, DDT, dioxins, furans,
endrin, hexacholorobenzine, mirex, polychlorinated biphenyls, and toxaphene (Hunter
et al. 1998, p. 787).
11 This list included mercury and mercury compounds, cadmium and cadmium
compounds, and persistent oils and hydrocarbons (Sands 2003, p. 431).
12 These substances were considered less harmful and easier to neutralize
through natural processes than the substances in Annex I. Part II included organic
compounds of phosphorus, silicon, tin, arsenic, copper, lead, nickel, and zinc (Sands
2003, p. 431).
states to forestall any pollution from land-based sources (Hunter et al. 1998, p.
789). In Article 7, the Convention’s administrative organ, which consisted of
one representative from each member-state, had the power to adopt certain
binding programs, measures, and decisions via unanimous vote (Sands 2003,
p. 432).
In 1992, the EC member-states replaced this agreement with the
Convention for the Protection of the Marine Environment of the North-East
Atlantic. Article 31 of the 1992 Convention ensures that many measures
passed under the 1974 Convention remain applicable (Kiss and Shelton 2004,
p. 540). The 1992 Convention also calls for the application of the precaution-
ary principle to restrict the emission of LBMP and the obligation to use the
‘best available technologies’ (BATs) to combat point-source pollution13 and
‘best environmental practices’ (BEPs) to combat pollution from diffuse
sources (Mensah 1999, p. 319; Kiss and Shelton 2004, p. 540). The 1992
Convention entered into force on 25 March 1998 (Wolfrum et al. 2000, p.
256).14
Also in 1974, the states on the Baltic Sea established the Helsinki
Convention, another agreement located outside the UNEP program, to address
pollution from a variety of sources (Hunter et al. 1998, p. 789). Marine pollu-
tion was a particularly acute problem in the Baltic Sea, where it accounted for
over 80 per cent of pollution (Hunter et al. 1998, p. 789). Article 6 of the
Convention called for a permit system to control substances listed in Annex II;
the permit could only be issued upon approval by the designated national
authority (Hunter et al. 1998, p. 789). In 1992, the parties adopted a ‘new
Helsinki Convention’, with standards resembling those of the ‘new’ Paris
Convention. The 1992 Helsinki Convention called for states to adopt the
precautionary approach to restrict LMBP emissions (Wolfrum et al. 2000, p.
255). The new convention also called for BATs and BEPs (Kiss and Shelton
2004, p. 541). On 17 January 2000, the modified Helsinki Convention entered
into force. There are currently ten signatories, including the European
Union.15
International environmental law 493
13 Point source pollution refers to pollution that emanates from a discrete source,
such as discharge from a factory pipeline. That which does not emanate from a discrete
source is known as diffuse source pollution. An example of diffuse source pollution
would be run-off from agricultural crops which were sprayed with herbicides or pesti-
cides.
14 Signatories are Belgium, Denmark, the EU, France, Germany, Iceland,
Ireland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland,
and the United Kingdom (Wolfrum et al. 2000, p. 256).
15 In 2005, the parties included: Germany, Latvia, Sweden, Estonia, Finland,
Denmark, Lithuania, Poland, Russia, and the European Community.
By 1999, in addition to the foregoing, regional seas agreements had been
adopted in nine different regions.16 Four of these agreements contain only a
hortatory provision on LBMP, calling for contracting parties to undertake all
appropriate measures to limit land-based pollution from within their own terri-
tories (Hunter et al. 1998, p. 788). One other agreement, the Protocol
Concerning the Development of the Marine Environment of the Wider
Caribbean Region on 6 October 1999, covers 16 states of the Caribbean
(including the United States), but it has yet to be ratified by any of the signa-
tories (Kiss and Shelton 2004, p. 543).17
However, four of the agreements have entered into force and include
mandatory rules and processes regulating land-based pollution: the 1980
Athens Land-Based Sources of Pollution (LBS) Protocol concerning the
Mediterranean Sea (the Mediterranean LBS Protocol),18 the 1983 Quito LBS
Protocol concerning the Southeast Pacific region, the 1990 Kuwait LBS
Protocol covering the region around Kuwait,19 and the 1992 Black Sea
Protocol (Sands 2003, p. 436). These four agreements demand banning the
494 Research handbook in international economic law
16 The agreements covered the following areas: Mediterranean, Kuwait region,
West and Central Africa region, the Southeast Pacific region, the Red Sea and the Gulf
of Eden region, the Wider Caribbean region (Hunter et al. 1998, p. 788), the East
African Region, the South Pacific region, and the Black Sea (Mensah 1999, p. 299).
17 The Protocol incorporates GPA principles for the preparation of environmen-
tal impact assessments for ‘planned land-based activities or planned modifications to
such activities which are subject to regulatory control and which are likely to cause
substantial pollution of or significant harmful changes to the Convention area’ (Kiss
and Shelton 2004, p. 543). The agreement also sets forth strict maximum numeric
levels for pollution and timetables for compliance which surpass the level of detail in
any other LBMP Protocol (Hunter et al. 1998, p. 790).
18 The Mediterranean LBS Protocol is notable for covering activities within the
hydrologic basin of all member-states. The parties to the Mediterranean Protocol
defined the hydrologic basin as ‘the entire watershed area within [the territories of a
member-state] and draining into the Mediterranean Sea’. In 1996, the parties adopted
a new protocol that calls for strict regulation of point-source discharges and the releases
of materials in the air that may reach the Mediterranean Sea. This agreement has yet to
enter into force because it has only been approved by 13 of the 22 signatories to the
original convention, leaving it four short of the requirement for approval by 75 per cent
of the original signatories. The following parties have ratified the amended protocol:
Albania, Cyprus, the European Community, France, Greece, Italy, Malta, Monaco,
Morocco, Slovenia, Spain, Tunisia, and Turkey. The following states have not ratified
the protocol: Algeria, Bosnia-Herzegovina, Croatia, Egypt, Israel, Lebanon, Libya,
Syria and Yugoslavia (Kiss and Shelton 2004, pp. 541–2).
19 The Kuwait region includes Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi
Arabia, and the United Arab Emirates. The Kuwait LBS Protocol is notable for being
the first regional protocol to call for environmental impact assessments (Mensah 1999,
p. 318).
discharge of substances on their Annex I ‘black lists’, and require authoriza-
tion by a designated scientific authority to discharge substances on their
Annex II ‘gray lists’ (Sands 2003, p. 436). All of the protocols call for coop-
eration to develop standards, provide technical assistance, and establish a
system for assessing pollution levels and the effectiveness of measures (Sands
2003, p. 437). These agreements rely on the participation of parties rather than
a central secretariat for information gathering, compliance reviews, and
consultations in the case of one member-state’s LBMP harming the interests
of another (Sands 2003, p. 437).
Assessment of LBMP regimes The effects of LBMP are more pronounced
regionally than at great distances. And particular LBMP problems vary across
regions. As a result, LBMP interests are more salient at a regional than a
global level. Hence, there is no global, effective agreement regulating LBMP,
but there are several regional ones.
The regional LBMP regimes have been criticized by environmentalists for
‘weak standards and weak supervisory institutions’ (Hunter et al. 1998, p.
790), being established at the ‘lowest common denominator’, and accommo-
dating economic and commercial considerations (Mensah 1999, p. 320).
Moreover, most regional protocols lack dispute settlement mechanisms20 and
civil liability regimes to punish violations (Mensah 1999, p. 320). Finally,
some of the regional regimes have been criticized for lacking a reliable trans-
fer of resources to developing country member-states, which require serious
financial assistance to upgrade their institutional capacities (Schumacher et al.
1996, p. 115).
Nonetheless, several regional LBMP regimes are considered effective.
Effective, regional LBMP regimes are more likely to be found in wealthy parts
of the world than poor ones. As noted above, wealthier countries tend to be
greener than poorer ones and more capable of bearing the costs of environmental
protection. Moreover, when member-states are uniformly wealthy, the LBMP
regime has tended to be more comprehensive. Hence, three of the six effective
regional LBMP protocols involve predominantly EU member-states and EU
aspirants, and these three EU-centered protocols have been considered ‘relative
successes’ or ‘a model’ (Mensah 1999, p. 319; Wolfrum et al. 2000, p. 254).21
International environmental law 495
20 The Kuwait LBS Protocol does have a judicial commission to rule on disputes
between member-states (Mensah 1999, p. 320).
21 Some have argued that the Mediterranean Protocol has ‘achieved a measure
of success’ in no small part due to the influence of EU environmental legislation
(Mensah 1999, pp. 317–18). Since EU states had already ceded some sovereignty on
this issue by passing several directives relating to LBMP (Kiss and Shelton 2004 p.
540), they may have been more amenable to comprehensive agreements.
2.2. Fisheries agreements
Renowned law scholar Hugo Grotius re-introduced the Roman concept of
freedom of the seas in his 1609 work, Mare Liberum.22 By the 1800s, the legal
principle of the freedom to navigate on and fish this unregulated area known
as the high seas had gained universal acceptance among the major powers.
While customary international law allowed for an extension of a nation’s terri-
torial sovereignty over the marine area off its coast not to exceed three miles,
activities on the vast expanses of the oceans were free from any sort of regu-
lation (Hunter et al. 1998, pp. 678–9).
This freedom has created a classic ‘tragedy of the commons’, threatening
the long-term viability of fishing on the high seas. Until recently, no institu-
tion existed to manage the resource for the benefit of all. In the absence of
such an entity, each actor’s interest in short-term exploitation of the resource
exceeded the perceived long-term benefits of not exploiting the resource. This
short-sighted behavior has produced an overexploitation of the resource
(Ardia 1998, p. 519). Since fish are the primary source of protein for close to
950 million people and fishing represents up to 80 per cent of the exports in
certain developing countries, the current stagnation of fish yields23 carries
significant consequences (Kiss and Shelton 2004, p. 402).
There are two standard alternative solutions to the tragedy of the commons:
privatization and regulation. Since the mid-twentieth century, powerful coastal
states, led by the United States, have used their naval power to expand territo-
rial waters so as to, in effect, privatize large fisheries. They have subsequently
used access to those fisheries as a source of bargaining leverage to coerce
weaker fishing states into agreements that regulate stocks of fish that straddle
territorial and international waters.
Extensions of coastal sovereignty Following World War II, US President
Harry S. Truman issued the first extension of territorial authority past the
traditional three-mile zone when he established a fishery conservation zone to
protect Alaskan salmon (Picard 1996, p. 319). Although the United States
assured other countries that this action would not interfere with their freedom
496 Research handbook in international economic law
22 In this work, Grotius defended the right of Dutch ships to traverse through
areas of the Indian Ocean and Eastern Seas over which England and Spain exercised
control. Grotius argued that natural law forbade ownership of the commons; therefore,
the rights of navigation and fishing on the high seas were basic rights of all nations
(Hunter et al. 1998, p. 678).
23 Due to persistent overfishing, fish production has stagnated since the 1990s.
Overfishing has resulted in a substantial increase in annual yields of fish from 18
million tons in 1950 to 56 million tons by 1970 (Kiss and Shelton 2004, p. 402).
of navigation,24 the countries that followed suit unilaterally expanded their
respective jurisdictions without the attendant assurance of the continuation of
the freedom of navigation (Picard 1996, p. 319). By 1958, almost 20 countries
had claimed control over their continental shelves (Hunter et al. 1998, p. 679).
The conflict over the high seas led to the first two United Nations
Conferences on the Law of the Seas (UNCLOS I and UNCLOS II) in 1958 and
1960, respectively. The tension between coastal states, which asserted an
extension of territorial control, and the distant water fishing nations, which
desired to minimize national control over the seas’ resources, was irreconcil-
able in those negotiations (Hunter et al. 1998, pp. 679–80) and that tension has
since defined all subsequent fisheries negotiations.
The naval force-distance gradient, defined as the degree to which naval and
associated political power diminishes as we move away from a home base
(Boulding 1963, p. 245), permitted coastal states to continue unilaterally
declaring extension of their territorial seas. Hence, the nationalization of the
sea continued to the point that by 1973 states had asserted authority over one-
third of the ocean territory (Hunter et al. 1998, p. 680).
In 1973, negotiations began on UNCLOS III, which concluded in 1982.
UNCLOS III has become a seminal document for the protection of the marine
environment. The most notable achievement of UNCLOS III was codification
of the nationalization of ocean territories that had already taken place in fact
because of the local power of coastal states. According to Article 17, a state
exercises control over the territorial waters up to 12 miles from the coast
although it has to permit the innocent passage of ships. However, innocent
passage does not permit the exploitation of local marine resources.
Furthermore, coastal states were granted an exclusive economic zone (EEZ)
that extends up to 200 miles from the coast.25 Articles 61 through 68 permit a
coastal state to regulate the marine resources within its EEZ, and these rights
include obligations to ensure the conservation of species (Articles 56, 61, and
62). Article 73 grants a coastal state the right to inspect, board, and arrest any
vessel within its EEZ. Beyond the EEZ, only the flag state (the state in which
the ship is registered) possesses the right to regulate vessel activity. Part XII
of UNCLOS III (Articles 192–237) places a duty on states to preserve the
habitat of depleted, threatened, or endangered species and other types of
marine life. The net result is that over 90 per cent of the world’s fisheries
International environmental law 497
24 The Truman Proclamation included a disclaimer that the conservation zones
would maintain their ‘character as high seas . . . and the right to their free and unim-
peded navigation’ (Picard 1996, p. 319).
25 Article 76(1) states that the EEZ covers whichever is larger: the 200 miles
from the baseline (the area that covers coast to the harbor walls) or the edge of the
continental margin.
reside within EEZs (Hunter et al. 1998, pp. 680–83; Wolfrum et al. 2000, pp.
226–9).
This ‘privatization’ of coastal fisheries addressed part of the international
tragedy of the commons. However, this development has not always led to
sustainable management of fish populations within EEZs, largely because of
domestic politics. In some cases, the fishing industry dominates the decision-
making process for managing fisheries, which has meant that many coastal
states continue to engage in EEZ fishing beyond biologically desirable levels
(Swing 2003, p. 141).26 Moreover, some fishing fleets have increased as
governments have continued to subsidize the construction of vessels (Carr and
Scheiber 2002, p. 56).
Straddling stocks, migratory stocks, and international waters The privatiza-
tion of coastal waters could not fully solve the international fisheries problem:
international waters were still a commons. Straddling stocks (whose range
covers both EEZs and the high seas) and migratory stocks of fish do not limit
themselves to EEZ boundaries (Picard 1996, p. 329).27 Together, these fish
stocks account for approximately 10 per cent of the world’s food supply
(Barston 1995, p. 159). In the 1980s, regional organizations such as the
International Convention on the Conservation of Atlantic Tunas (ICCAT), the
North Atlantic Fisheries Organisation (NAFO), and the Commission for the
Conservation of Antarctic Marine Living Resources (CCAMLR) tried but
failed to secure the necessary participation among all fishing parties to coop-
erate in managing high seas fisheries (Carr and Scheiber 2002, p. 52; Warner-
Kramer 2004, pp. 511–22). In the same period, many ships re-flagged in states
with open registries that were not parties to UNCLOS III in order to avoid
control by jurisdictions that subjected their vessels to stricter regulations (Carr
and Scheiber 2002, p. 60).28 These conditions reflected and perpetuated the
498 Research handbook in international economic law
26 For instance, fishing industry interests serve on regional regulatory councils
in which they possess full voting rights (Carr and Scheiber 2002, p. 58). In the United
States from 1990–2001, commercial fishing interests constituted 49 per cent of the
membership on regional councils, recreation fishing interests constituted 33 per cent,
and all other industry interests constituted 17 per cent (Okey 2003, p. 193). In the EU,
the fishing industry managed to reduce the scientists’ recommended 85 per cent cut in
fishing quotas to a much more politically palatable 60 per cent cut (Carr and Sheiber
2002, p. 45).
27 For instance, the pacific salmon spends most of its formative years within the
EEZ and then spends most of its adult life outside the reach of any EEZ, except to
reproduce (Ardia 1998, pp. 538–9).
28 US tuna fishermen escaped restrictions designed to protect dolphins by re-
flagging in countries such as Costa Rica, which did not require such measures (Carr
and Sheiber 2002, p. 61). Overall, the practice of flag state responsibility and the
pathology in which each state had an interest in extracting as much of the
resource as possible.
These emerging problems compelled participants in the 1992 UN
Conference on Environment and Development (the Rio Summit) to call for an
international conference to address straddling and highly migratory fish stocks
in Agenda 21, Chapter 17. A 1994 report of the United Nations Food and
Agricultural Organization (FAO) stressed the urgency of the issue, reporting
that 14 of the 20 existing stocks of commercial tuna were dangerously
depleted and that straddling fish stocks had been decreasing precipitously
since 1989 (Vigneron 1998, pp. 582–4).
By the early 1990s, the tension between pro-access deep-water fishing
nations and more pro-conservation coastal states resulted in many coastal
states taking unilateral actions to restrict access to areas that affected their fish
stocks. Canada, Chile, Colombia, Peru, Argentina and Mexico made claims to
extend their jurisdiction beyond their UNCLOS III-recognized EEZs
(Vigneron 1998, p. 585). These moves signaled that coastal states could
further expand their EEZs and further restrict access to their coastal stocks
unless fishing nations agreed to regulate the fishing of straddling and migra-
tory stocks in international waters.
On 29 January 1993, the UN General Assembly agreed to convene an inter-
governmental conference on straddling and migratory stocks. During the
negotiations, the participants divided themselves into two main groups, the
coastal states and the distant-water fishing states. Although the United States
belonged to the coastal state club, it sought a balance that would advance
conservation and protect high-seas fishing interests.
The distant-water fishing states, which had a vested interest in maintaining
freedom of the high seas, wanted a non-binding legal instrument with a narrow
scope. Many of these states contended that any binding agreement would
violate the principle of freedom of the high seas articulated in Article 87 of
UNCLOS III. Participants in this group included China, Estonia, Japan,
Poland, Thailand, the EU, and the Ukraine (Vigneron 1998, pp. 596–7).
The coastal states consisted of four active subgroups, all of which sought a
legally binding agreement to at least better monitor high-seas fishing activities
(Vigneron 1998, p. 597). The first active group, the ‘extreme coastal states’
International environmental law 499
absence of any binding guidelines have led to the increased popularity of ‘open
registries’( defined by the United Nations Conference on Trade and Development as a
registry where less than 10 per cent of ships are owned by nationals of that flag state).
The number of open registry states increased from 11 in 1980 to 32 in 2003. Few of
these states were part of any regional conservation organization. Panama is the lone
open registry state to have enacted legislation covering standards set forth by the
International Labour Organisation for work in the fisheries sector (Warner-Kramer
2004, pp. 500–01)
group, led by Chile, Ecuador, Peru, and Colombia, advocated the doctrine of
the ‘presencial sea’ doctrine, which would have validated their exclusive
rights over resources beyond the internationally recognized EEZ (Barston
1995, p. 161). This group argued that such an extension of territorial rights
was necessary for the maintenance of the eco-system of the territorial waters
of these states (Picard 1996, p. 340).
A second group of activist states that included Canada, Argentina, and
Norway took a more restrained approach, advocating a right to control strad-
dling stocks in areas adjacent to their EEZs. However, this group also devel-
oped a common position with the extreme coastal states to advocate an
expanded zone subject to inspection and a right of a state to enact its own
measures in its EEZ absent any consensus in a regional organization over
minimum standards (Barston 1995, p. 160–61).
A third group, of moderate reformers, consisted of Australia and New
Zealand. These states focused on improving the current measures instead of
reformulating the boundaries of the EEZ. They advocated the establishment of
a scientific data collection system and an increase in the responsibilities of flag
states to monitor their vessels (Vigneron 1998, p. 596).
A fourth position was taken by the United States government, which faced
domestic pressures from both a strong fishing industry and a strong pro-
conservation lobby, forcing it to seek a compromise. The fishing lobby’s
aforementioned political influence provided a strong voice in favor of ensur-
ing that the freedom of the high seas remained, especially in the plentiful
‘Peanut Hole’ in the Sea of Okhtosk. On the pro-conservation side, environ-
mental groups had organized a consumers’ boycott against tuna caught in
driftnets because these methods also resulted in the suffocation of dolphins. In
1990, major American tuna processing companies responded to consumer
demand by severing their business relationships with fishermen whose meth-
ods were unsafe for dolphins and attaching a ‘dolphin-safe’ label to canned
tuna. That same year, Congress prohibited the sale of any tuna that failed to
meet the dolphin-safe standard. The United States had also introduced a
United Nations resolution that banned driftnet fishing on the high seas,29 and
amended the Magnuson-Stevens Fishery Conservation Management Act to
ban the importation of products from states whose ships use large-scale drift-
net fishing methods.30 In the same period, beginning in the mid-1980s, US
shrimp trawler fishermen were required to carry turtle excluder devices
500 Research handbook in international economic law
29 Following introduction of this resolution, Japan, Korea, and Taiwan all aban-
doned their driftnet fishing practices (Carr and Sheiber 2002, p. 65).
30 In 1990, the United States imposed an embargo on imports of Mexican tuna.
This action was subject to a series of GATT dispute settlement challenges, which the
US government lost. See discussion below, at pp. ___–___.
(TEDs) to prevent turtles from drowning in their nets. Because US fishermen
believed that these methods placed them at a competitive disadvantage, they
collaborated with environmental groups to compel Congress to embargo
shrimp imports by states whose vessels did not use TEDs.31 Thus, the US
sought to promote conservation but not at the expense of its own opportunities
on the high seas (Vigneron 1998, p. 596; Carr and Scheiber 2002, pp. 63–6;
Ardia 1998, p. 563 ).
The coastal states quickly established and maintained a unified front.
Immediately after the establishment of the Conference on Straddling Fish
Stocks and High Migratory Fish Stocks, Canada hosted a meeting in which the
coastal states coordinated their positions (Vigneron 1998, p. 595). This unity,
combined with leverage derived from their control over EEZ fishing, allowed
the coastal states to pressure the distant-water fishing states to adopt measures
that would restrict their high-seas fishing activity despite UNCLOS’
pronouncement of the freedom of the high seas.
The result was the 1995 United Nations Agreement on the Implementation
of the Provisions of the UN Law of the Sea of 10 December 1982 Relating to
Conservation and Management of Straddling Fish Stocks and High Migratory
Fish Stocks (the Fish Stocks Agreement). The Fish Stocks Agreement
managed to extend jurisdiction over high seas to areas that are ‘compatible and
coherent’ with the protection of certain straddling and migratory stocks
(Wolfrum et al. 2000, p. 240). The final agreement is asymmetric in the sense
that it strikes a balance favored by coastal states and places greater restrictions
on fishing than was preferred by distant-water fishing states. There is no
evidence that coastal states made side-payments to induce commitment by
distant-water fishing states. Under Article 7-2(a), distant-water fishing states
are bound to not take actions on the high seas that would undermine conser-
vation measures enacted by coastal states. By contrast, Article 7-2(b) merely
requires coastal states to take previous high seas measures into consideration
when they formulate their own conservation and management measures
(Vigneron 1998, pp. 598–9).
The agreement stipulates that regional organizations will coordinate
management policies for the high seas. Article 8(3) provides that states must
either join a regional organization or agree to abide by the conservation
measures established by that organization. Article 8(4) excludes states that are
not members of the relevant regional fishing organization from fishing for the
relevant fishing resources. Where there is no existing regional organization,
International environmental law 501
31 In 1998, the WTO invalidated US administration of the law but later ruled that
subsequent administration efforts were WTO-consistent. See discussion below at pp.
___–___.
Article 8(5) states that ‘relevant coastal states and states fishing on the high
seas for such stock . . . shall cooperate to establish such an organization’. The
coastal states also managed to obtain detailed clauses regarding mandating
transparency for non-governmental organizations. The distant-water fishing
states succeeded in leaving the regional organizations with some autonomy to
set their own standards, even though the coastal states favored using their
leverage at the talks to secure as many minimum international standards as
possible. However, the lack of a firm mandate for the standards in regional
organizations was not important to the US government, because the access to
its market provides enough leverage to dominate regional organizations
(Vigernon 1998, pp. 599–600; Wolfrum et al. 2000, pp. 240–41).
To facilitate compliance, the agreement provides for increased information
collection and increased inspection powers for regional organizations to miti-
gate the effects of lax flag-state enforcement. It also increases the duties of
flag states. Article 14 obligates states to provide comprehensive data relevant
to straddling stocks and migratory fisheries. Article 21 allows any member of
a regional organization to inspect any vessel belonging to another party-state
(whether or not the flag state is a member of the particular regional organiza-
tion) that is located within the regional organization’s territory for the purpose
of ensuring compliance. Article 18 contains numerous requirements for the
licensing and regulation of vessels flying that country’s flag. Article 33 limits
the contravening behavior of non-parties by stating that all parties have the
obligation to ‘deter the activities of vessels flying the flag of the non-parties
which undermine the effective implementation of this Agreement’. As of 13
August 2004, there were 52 signatories to the Fish Stocks Agreement, includ-
ing the European Union and the United States, but many distant-water fishing
states – including Japan and China – had not ratified the Agreement.
To date, the results of the Agreement have been mixed. The Agreement
failed to address an important source of the overfishing problem: fish subsi-
dies regimes among developed states. Fish subsidies have favored the contin-
ued growth of the fishing industry to over 4 million boats despite stagnant
yields (Eichenberg and Shapson 2004, p. 590). Experts estimate that subsidies
account for as much as 20–25 per cent of the commercial fishing industry’s
annual revenues (Schorr 1999, p. 144). Although Pacific Rim nations have
made this a priority trade issue, the United States and EU have historically
opposed addressing fisheries subsidies within the WTO regime.
In addition, the increased number of open registries threatens to diminish
the effectiveness of the agreement. Because none of the 32 open registry states
have signed any of the major international agreements on high seas activity,
the increase in vessels flying the flags of these states is seen by some as an
ominous sign (Warner-Kramer 2004, p. 501).
Nonetheless, the Fish Stocks Agreement has produced some positive
502 Research handbook in international economic law
results for an area once believed to be impossible to regulate. In recent years,
there has been a ‘perceptible slowing’ of the trend towards fisheries depletion
(Carr and Scheiber 2002, p. 77). In 2000, pursuant to the Agreement, 25
Pacific states, including the United States, concluded a regulatory regime for
the Pacific: the Convention on the Conservation and Management of Highly
Migratory Fish Stocks in the Western and Central Pacific Ocean. Article 9 of
this Convention entrusts a commission with the power to determine the
acceptable level of fishing and establish mechanisms to ensure cooperation. In
2002, pursuant to the Fish Stocks Agreement, the EU passed two relevant
regulations: Regulation EC No. 2371/2002 calls for multi-annual management
and recovery plans for fisheries, and Regulation EC No. 2347/2002 establishes
access requirements for deep sea waters designed to limit fishing efforts. By
the end of 2004, there were almost 30 international fishery organizations (Kiss
and Shelton 2004, pp. 404–7).
In short, the power of coastal states has established an international basis
for protection of global fisheries.
3. International agreements on air pollution and climate change
Initiatives to address global air pollution and climate change have resulted in
two significant agreements, the Montreal Protocol and the Kyoto Protocol.
The former agreement, which resulted from US-European coordination to use
side-payments (in the form of financial assistance) and coercion (in the form
of market leverage) to garner the support of developing countries, enjoys
nearly global adherence and has been effective at substantially reducing the
production and use of ozone-depleting substances. In contrast, the Kyoto
Protocol embodies an approach to stemming global climate change that has
split the world’s two most powerful economic actors, the United States and the
EU, so while the EU is a party to the agreement, the United States is not and
the regime is ineffective.
3.1. The Montreal Protocol
The ozone layer, a sheet of O3 molecules, furnishes protection against the
sun’s ultraviolet radiation and against increases in the temperature of the
stratosphere (Sands 2003, p. 343). Man-made emissions of inert gases, most
notably chlorofluorocarbons (CFCs) and halons, rise to the ozone layer where
ultraviolet rays break them down.32 The decomposition of these CFCs and
halons yield free chlorine and bromine, respectively, both of which erode the
International environmental law 503
32 CFCs are used commonly as refrigerants, air conditioner coolants, aerosol-
spray cans, styrofoam production (Sands 2003, p. 343), and solvents for cleaning elec-
tronic parts (Wettestad 2002, p. 156).
ozone layer. Scientists have shown that this erosion can cause harm to both
human health and marine organisms.
In the mid-1970s, two groups of American scientists connected the emis-
sions of CFCs with the erosion of the ozone layer. By the end of the 1970s,
this issue attracted enough attention to be placed on the agenda of the UNEP
and the World Meteorological Organization (Wettestad 2002, pp. 155–6). In
1985, the Vienna Convention for the Protection of the Ozone Layer was
concluded, establishing a duty to cooperate on legal, technical, and scientific
assessments,33 and providing for exchange of information34 (Kiss and Shelton
2004, p. 575). Article VIII provided the Conference of the Parties with the
right to adopt Protocols.
After the Vienna Convention, the UNEP and the World Health
Organization (WHO) published reports indicating serious dangers of contin-
ued trends in the production of CFCs (Kiss and Shelton 2004, p. 575). In 1987,
the parties gathered in Montreal to sign a protocol that would be repeatedly
amended to become increasingly stringent. The 1987 version stipulated that
industrial countries would reduce their CFC emissions by 50 per cent by 1998
and halt halon production by 1992 (Kiss and Shelton 2004, p. 576). The
Protocol entered into force on 1 January 1989. Article 7 of the Protocol consti-
tuted a compliance regime built on transparency alone: parties must report on
production, imports, and exports of all controlled substances (Sands 2003, p.
356).
At the time of the first meeting of the parties in May 1989, new informa-
tion indicated that ozone depletion was two to three times worse than previ-
ously thought. By the 1990 London Conference, the United States had
succeeded in persuading the EC to declare it would eliminate CFCs by 2000
and would join the United States in agreeing to provide financial assistance to
developed countries in order to support their compliance. India received a
side-payment, commonly valued in India at $40 million, to agree to phase out
the use of certain CFCs (Herring 1998). In 1992, the parties advanced the dates
for industrial countries to eliminate halons (by 1994), CFCs (by 1996), methyl
chloroform, and carbon tetrachloride. By 1996, the parties had agreed to elim-
inate methyl bromide production in industrialized countries by 2010, an expe-
dited elimination of HCFCs in industrial countries, and their elimination in
developing countries by 2040 (Kiss and Shelton 2004, pp. 576–7; Wettestad
2002, p. 159).
504 Research handbook in international economic law
33 See Annex I and Article II of Vienna Convention for the Protection of the
Ozone Layer, 26 ILM 1529 (1985).
34 See Annex II and Article IV of Vienna Convention for the Protection of the
Ozone Layer, 26 ILM 1529 (1985).
In 1999, the Protocol’s member-states strengthened the compliance regime
by banning the importation and exportation of restricted products listed in
Annex C from both member and non-member states. In 2001, the member-
states passed a measure that requires them to request that private industry
cover costs of the potential harm caused to ozone by new substances (Kiss and
Shelton 2004, p. 578).
As a result of US–EU coordinated use of carrots and sticks to bring the
world on board, the Montreal Protocol has been one of international environ-
mental law’s greatest global successes. From 1988–95, the annual production
of the most menacing ozone-depleting substance, CFCs, had decreased by 76
per cent (Kiss and Shelton 2004, p. 579).
3.2. Division among the powerful: climate change and the Kyoto Protocol
Global warming is a climate trend that describes the trapping of the sun’s radi-
ation in the atmosphere by the emission of greenhouse gases (GHGs),35 which
has resulted in an increase of the global temperature over the decade of the
1990s of 0.5–0.9 degrees Celsius (Breidenrich et al. 1998, p. 315, fn. 3;
Oberthur and Ott 1999, pp. 6–7; Victor 2001, p. 10).36 Since the industrial
revolution, the atmospheric concentration of carbon dioxide has increased by
almost 30 per cent (Oberthur and Ott 1999, p. 7). This increase can be attrib-
uted largely to human activities, particularly the use of fossil fuels37 to provide
electricity and to power engines. The resulting warming trend has strength-
ened to the point that the decade of the 1990s was the warmest period in the
last two millennia.38 The continued acceleration of this warming trend39
would likely precipitate negative changes in weather patterns, leading to
increased desertification, disease, and floods. The Intergovernmental Panel on
International environmental law 505
35 Greenhouse gases include carbon dioxide, nitrous oxide, methane, sulfur
hexafluoride, hydrofluorocarbons and perfluorocarbons. Carbon dioxide emissions
alone account for 70–72 per cent of the greenhouse effect and comprised 82 per cent
of the GHG emissions by industrialized countries in the early 1990s (Breidenrich et al.
1998, p. 315, fn. 3; Oberthur and Ott 1999, pp. 6–7).
36 For a brief summary of skeptical views on the certainty of global warming,
see Murkowski 2000, pp. 347–8.
37 The main fossil fuels are oil, coal, and gas, all of which emit carbon dioxide.
38 The increase in temperature is all the more impressive because there was a
period of global cooling from 1945–70 that may be attributed to the dimming of the sun
or an increase in aerosol production resulting from volcanic and industrial activity
(Victor 2004, p. 10).
39 A recent study, sponsored group of scientific experts on the United Nations-
sponsored Intergovernmental Panel on Climate Change (IPCC), projected that current
emission trends mean a likely increase in the global mean temperature in between 1.4
and 5.8 degrees Celsius by 2100 (Browne 2004, p. 22).
Climate Change (IPCC) concluded that it is necessary to reduce human emis-
sions by 60 per cent from their 1990 levels to avoid worsening the atmospheric
concentrations of GHGs (Houghton et al. 1990, p. xxxvi).
Early multilateral efforts to address global warming Multilateral efforts to
control climate change began in 1988, when the UNEP created the IPCC to
assess trends in climate change. In 1992, the IPCC’s above-mentioned find-
ings regarding the need for sharp emissions reductions led to the United
Nations Framework Convention on Climate Change (UNFCCC).40 The 155
participants called for stabilizing the level of GHG concentrations in the
atmosphere. The Convention urged all the countries listed in Annex I (mostly
developed countries)41 to take actions to limit human-induced GHG emis-
sions. In April 1995, the UNFCCC signatories signed the Berlin Mandate,
which stipulated that the Annex I countries would ‘elaborate policies and
measures, as well as set quantified limitation and other reduction objectives
within specified timeframes’ such that they would bring GHG emissions back
to their 1990 levels.42 In December 1995, the IPCC’s Second Assessment
Report emphasized the need for action by declaring ‘the balance of evidence
suggests that there is a discernible human influence on global climate’ and that
states could adopt measures to combat this trend.
The Kyoto negotiations In December 1997, representatives of over 160
states gathered in Kyoto, Japan to commit to halting human-induced climate
change. Almost from the outset, the United States and a handful of other coun-
tries were isolated by the EU, former Eastern Bloc countries, and developing
countries, which demanded a formula whereby most of the costs of GHG
emissions reduction would be borne by the United States and a handful of
other smaller developed countries. Under that formula, which was putatively
consistent with the Berlin Mandate, 1990 was to be used as the base year for
establishing maintenance and reduction commitments.
In 1990, the European Union accounted for 24.2 per cent of the carbon
dioxide emissions from industrialized countries (Oberthur and Ott 1999, pp.
15–16).43 At that time, these emissions had been expected to increase another
5–6 per cent by 2010. However, by the time of the Kyoto negotiations in 1996,
506 Research handbook in international economic law
40 United Nations Framework Convention on Climate Change, 31 ILM 849
(1992) (entered into force 21 March 1994) (hereafter UNFCCC).
41 The Annex I group is commonly referred to as the ‘developed countries’ and
includes members of the OECD and some states located in the former Eastern Bloc.
42 FCCC Conference of the Parties, 1st Sess., UN Doc. FCCC/CP/
1995/7/Add.1, Decision 1/CP.1 (6 June 1995).
43 This amounted to 15–16 per cent of the global emissions of carbon dioxide.
the reunification of Germany and the privatization of the British energy indus-
try had led to respective emissions reductions of 10 per cent and 5 per cent
from their base year levels.44 The EU’s dependence on imported fossil fuels
also created a strong incentive to adopt conservation measures. Furthermore,
EU industry was not an impediment: the protocol figured to benefit a large
portion of European industries that had already undertaken commitments to
reduce emissions.45 The business community generally supported further
reduction commitments as long as they were also applied to other industrial-
ized countries. The fact that Green Parties had achieved parliamentary repre-
sentation in over two-thirds of the EU member-states indicated public support
for environmental measures (Oberthur and Ott 1999, p. 16). These environ-
mentally favorable circumstances enabled the European Union to adopt an
ambitious negotiating position that called for a mandatory 15 per cent reduc-
tion of 1990 emissions levels by 2010. Although the EU requested permission
for ‘internal differentiation’, a scheme whereby different EU Member States
could commit themselves to different levels of reductions as long as the EU as
a whole met its assigned target, it did not support this policy outside the EU.46
The EU proposed that developing countries should not undertake any new
commitments (Schroder 2001, pp. 32–3).
The developing countries supported the European position, asserting that
they should not be required to make any reduction commitments as the Berlin
Mandate did not require them to agree to any reductions. Developing countries
comprise three-fourths of the world’s population and account for less than
one-third of all carbon dioxide emissions (Grubb et al. 1999, p. 113).
However, the lack of stringent air pollution standards in these countries and
their likely continued economic growth means that their total emissions will
surpass those of the developed countries by 2020 (Heller and Shukla 2003, p.
44).47 By the time of the Kyoto negotiations, the coalition of developing coun-
tries known as the Group of 77 consisted of 130 countries, and China, although
not a formal member, collaborated closely with it. A large subgroup of these
countries maintained a common negotiating position, arguing that they should
International environmental law 507
44 German reunification had led to the closure of many emission-intensive
industries in the eastern portion of the country. The British energy privatization led to
a shift from coal to gas which is not as emissions-intensive (Grubb et al. 1999, p. 81).
45 For instance, German industry had already committed itself to a 20 per cent
reduction in 1987 levels by 2005 (Schroder 2001, p. 50).
46 The plan permitted the EU’s poorest countries to significantly increase emis-
sions. For instance, Portugal was allocated a 40 per cent increase, Greece 30 per cent,
and Spain 17 per cent (Schroder 2001, pp. 33, fn.77, and 50).
47 China is expected to surpass the United States as the world’s top emitter of
greenhouse gases in 2020 (Oberthur and Ott 1999, p. 27).
be able to develop without need to address a problem they did not cause, and
that no developing country commitment should interfere with their sover-
eignty over their natural resources (Oberthur and Ott 1999, pp. 24–7). The G-
77 supported the EU’s proposal that called for 15 per cent reductions from
1990 levels among Annex I states and opposed all flexibility mechanisms that
would soften the economic costs of complying (Grubb 1999, pp. 58–9).
The states within the Former Eastern Bloc accounted for 17.4 per cent of
global emissions in 1990. The closure of many vastly inefficient and energy-
intensive enterprises had led to significant reductions in emission totals by
1997. Russia’s carbon dioxide emissions had fallen by 30 per cent since 1990.
Because these states were unlikely to approach their 1990 emission levels any
time in the near future, any agreement that used 1990 as the baseline year and
permitted emissions trading would allow these states to reap a financial wind-
fall. Russia could earn as much as $3 billion annually from selling emissions
credits. Hence, these countries also generally supported the EU position
(Oberthur and Ott 1999, p. 21; Yandle and Buck 2002, p. 223).
The United States, which accounted for 35 per cent of the total carbon diox-
ide emissions of industrialized countries in 1990 (Oberthur and Ott 1999, p.
18), found it impossible to agree to the formula supported by the EU and most
other countries. First, by the time of the 1995 negotiations, US emissions had
already increased significantly since 1990.48 Moreover, half of the emissions
in the United States were from products that had a life-expectancy of at least
25 years, meaning that reversing the upward trend in emissions by 2008 would
be impossible without seriously disrupting the economy. More broadly, the
low cost of cheap fossil fuels within the United States has led to an energy-
intensive lifestyle that has reduced the incentive for conservation. The exis-
tence of a large domestic fossil fuel industry created another loser from energy
conservation (Victor 2004, pp. 3–4; 30–37; Grubb et al. 1999, p. 31).
In 1997, as the Kyoto negotiations were approaching their conclusion, a
US domestic lobbying effort against the Kyoto formula began in earnest. A
business lobby consisting of fossil fuel and other industrial companies
launched a $13 million advertising campaign against the Kyoto Protocol,
arguing that it would leave the US companies at a competitive disadvantage
against developing countries. The industrial lobby also began to shadow the
US delegation at climate conferences (Schroder 2001, p. 48). Shortly before
conclusion of the Kyoto Protocol, the US Senate passed the Byrd-Hagel
Resolution by a 95–0 margin,49 making approval of any binding commit-
508 Research handbook in international economic law
48 At close of 1990s, US emissions were already 15 per cent above 1990 levels
and rising at 1.3 per cent annually (Victor 2004, pp. 3–4).
49 The Byrd-Resolution can be located at: S. Res. 98, 105th Cong. (1997).
ment on the United States dependent upon a reciprocally binding commit-
ment on developing countries.
These economic and political realities meant that the United States required
a more flexible approach to meeting any potential obligations. The United
States proposed a binding target to reduce emissions to 1990 levels by
2008–12, subject to flexibility mechanisms that would have provided alterna-
tive channels to gain emissions credits (Schroder 2001, p. 39; Grubb et al.
(1999), pp. 89–96, 133–6). The proposed flexibility mechanisms included a
joint implementation rule, a clean development mechanism that included an
emissions trading scheme, and credit for carbon sinks (natural resources that
recapture carbon from the atmosphere).50 Furthermore, the Byrd-Hagel
Resolution meant that the United States needed to secure some commitments
from developing countries.
The United States had formed an informal coalition with a group of other
developed countries consisting of Japan, Switzerland, Canada, Australia,
Norway, and New Zealand. The goals among members of this coalition,
known as JUSSCANZ, were not completely compatible, but these states were
all committed to avoiding unduly harsh reduction commitments. Together the
JUSSCANZ states accounted for 14.7 per cent of the carbon dioxide emissions
among developed countries in 1990 (Oberthur and Ott 1999, pp. 15–18, 21).
States were not the only participants in the negotiations. An estimated 250
NGOs were observers in Kyoto. Business NGOs lacked a monolithic position.
Although ‘gray’ groups that favored substantial flexibility were represented,
other business NGOs such as the World Business Council for Sustainable
Development and much of the insurance industry sided with environmental
interests. Although differences existed among the ‘green’ NGOs, these NGOs
remained committed to presenting a coordinated position. Representatives
from these groups formally intervened in negotiating sessions, attended infor-
mal contact group meetings, and gained access to diplomats. Environmental
NGOs also made strong efforts to involve the media by organizing press
conferences and providing background materials. In turn, these media reports
increased public support for an agreement (Oberthur and Ott 1999, pp. 31–2,
76; Carpenter 2001, p. 319).
International environmental law 509
50 Joint implementation would permit industrial countries to obtain credit for
implementing climate protection measures abroad in other Annex I countries. The
clean development mechanism would permit reductions for activities similar to joint
implementation in non-Annex I countries. Carbon sinks are processes such as refor-
estation, afforestation, and land-use changes that result in the recapture of carbon from
the atmosphere. Emissions trading is the process where a country that has not used its
emission allotment can sell its unused portion to a country that has exceeded its allot-
ment (Grubb et al. 1999, pp. 89–96, 131–2; Sands 2003, p. 374.)
Thus, the negotiating states involved found themselves under increased
public pressure to reach an agreement. The alliance between the European
Union, the countries in transition, and the developing countries capitalized on
the increased external pressure to present the United States with an agreement
that failed to meet the standards of the Byrd-Hagel Resolution. US represen-
tatives admitted that their fear of being held responsible for a failure in the
Kyoto negotiations compelled them to sign the agreement (Schroder 2001, p.
92). The agreement contained some flexibility mechanisms, most notably the
clean development mechanism, an emissions trading scheme that could take
pressure off the North’s pace of emissions reduction, and that could be seen as
a side-payment to the South by virtue of technology transfer provisions and
the likelihood of paying developing countries for emissions credits. Yet the
United States suffered fatal defeats on other issues in the Protocol. In order to
assure a 5 per cent global reduction in emissions by 2012, the agreement
provided that the United States would reduce its carbon dioxide emissions by
7 per cent of its 1990 levels, which would have required a 25 to 30 per cent
reduction in projected emissions levels (Schelling 2002, p. 3). While the EU
agreed to an 8 per cent reduction for itself, it was already within range of those
levels due to the above-mentioned changes in emissions among these
economies since 1990 (Yandle and Buck 2002, p. 221). Furthermore, the EU
was allowed to continue to pursue ‘internal differentiation’, but other states
were not permitted to do so. Developing countries have no reduction commit-
ments. The treaty was to enter into force upon the ratification of at least 55
countries including Annex I parties which collectively account for at least 55
per cent of the emissions among developing countries.51
Post-Kyoto negotiations and entry into force At the Hague Summit in
November 2000, the signatories gathered to discuss outstanding issues, espe-
cially those relating to flexibility mechanisms. Carbon sinks became the focus
of disagreement between the EU and United States. The United States
requested credits for 20 per cent of the 288 million tons of carbon dioxide that
its forests absorb annually. NGOs and the majority of developing countries
supported the EU’s stance of opposing significant crediting for carbon sinks.
(Yandle and Buck 2002, p. 221; Grubb and Yamin 2001, pp. 264, 271–2).
The failure to obtain more favorable terms for the use of flexibility mech-
anisms left the United States with a costly agreement. The US Department of
Energy reported that the implementation of the Kyoto Protocol would cause
US gas and electricity prices to increase by 53 per cent and 86 per cent, respec-
tively, by 2010 (Energy Information Administration 1998). Labor unions
510 Research handbook in international economic law
51 Kyoto Protocol, Art. 25.
opposed the agreement on the expectation that it would lead to job losses in
seven figures (Yandle and Buck 2002, pp. 202–3). In March 2001, President
George W. Bush cited the high costs of participation to justify US withdrawal
from the treaty process.
The remaining countries subsequently finalized outstanding details. Given
the requirement that the treaty’s signatories must account for at least 55 per
cent of the industrialized countries’ emissions for the treaty to enter into force,
the absence of the United States forced the EU to make concessions to both
Japan and Russia. In May 2004, the EU received a promise from Russia to
ratify the treaty in exchange for the EU’s endorsement of Russia’s attempt to
join the World Trade Organization. In late 2004, Russia ratified the treaty and
submitted its ratification documents to the United Nations, triggering the
Protocol’s entry into force in February 2005.
The resulting agreement will be of limited effectiveness, at best. Without
US participation, the deepest GHG reductions that can be expected by 2010
(compared to their 1990 levels) is a 2 per cent decline in the GHGs of parties
to the agreement – yet without commitments for developing countries, the
anticipated emissions growth in China and India alone will increase global
greenhouse emissions by 75 per cent by 2020. (Macher 2004, p. 17).
Moreover, as of the end of 2004, Canada, Japan, and most EU countries were
not on target to meet their obligations, and they were likely to acquire credits
from Russia through the Protocol’s emissions trading scheme rather than incur
the political costs of reducing emissions. Moreover, the Protocol lacks
enforcement mechanisms and clear sanctions for countries that fail to meet
their obligations (Victor 2001, p. 55). While the Kyoto Protocol has been used
by many NGOs and countries to critique US international environmental
policy, it is based on a politically divisive and unviable formula and it will not
be effective at achieving its purported objectives.
4. Trade and the environment52
Trade-environment issues have been part of the international law landscape
since at least as early at 1947, when US trade negotiators included in the draft
GATT a set of provisions intended to permit trade restrictions that would be
necessary to protect the environment. They moved toward the center of envi-
ronmentalist NGOs’ concerns in the late 1970s, when trade measures intended
to protect the environment were embedded in agreements such as CITES.
However, it was not until the late 1980s that trade-environment issues became
particularly potent in the United States and Europe (Esty 1994). At that time,
International environmental law 511
52 For elaboration of the points made in this Section, see Steinberg (1997 and
2002).
the EU adopted its Beef Hormones Directive,53 discussed below, based partly
on purported environmental and consumer concerns, leading to mobilization
of the US beef industry, which claimed protectionism. At the same time, a
series of GATT/WTO dispute settlement decisions relating to the environment
mobilized environmental NGOs, which were further energized by concerns
over the substance of agreements being negotiated in the GATT’s Uruguay
Round of trade negotiations.
After describing the core trade-environment issues, this section will
analyze the politics behind and outcome of two significant trade-environment
agreements, the Basel Convention and CITES, and then consider trade-envi-
ronment politics in the world’s three most important trade-related organiza-
tions – GATT/WTO, NAFTA, and the EU.
4.1. Core issues
Since the late 1980s, trade negotiators and environmentalists have considered
a host of trade-environment issues, including fisheries subsidies (discussed
above), tariffs on ‘green’ environmentally sound products (e.g., solar energy
products), and the impact of trade liberalization on the global scale of
consumption (Charnovitz 1994). However, the core of the debate has centered
on two sets of issues: the legality of using import restrictions to protect the
domestic environment, and the legality of using trade measures to influence
activity affecting the environment located outside the jurisdiction of the coun-
try employing the measures.
Domestic health, safety, and environmental protection International trade
organizations grapple with the tension between free trade and the desire of
national governments to maintain domestic health, safety, and environmental
standards. Environmentalists, consumer advocates, and labor unions often
argue that liberalization increases the threat posed by imports to domestic
health and safety standards, as imports with unsafe or dirty characteristics will
face fewer trade barriers. To what extent may a country restrict imports for
reasons related to protection of the environment within its territory?
Many who champion free trade are concerned that environmental regula-
tions on international trade may be protectionist measures dressed up as ‘envi-
ronmental’ measures. Such measures may garner domestic political support
from what have been called ‘Baptist-Bootlegger’ coalitions of environmental-
ists and protectionists (Yandle 1983; DeSombre 1995). Serious US govern-
512 Research handbook in international economic law
53 Council Directive 96/22/EC of 29 April 1996, concerning the Prohibition on
the Use in Stockfarming of Certain Substances Having a Hormonal or Thyrostatic
Action, 1996 OJL 125, 3.
ment attention has been focused on European trade measures that have been
supported by such coalitions. The EU’s Beef Hormones Directive, which bans
the European importation of beef from hormone-treated cattle, and the EU’s
de facto moratorium on the approval for sale of products containing geneti-
cally modified organisms (GMOs), are examples of such measures.
While protectionists often have a hand in measures like these, most govern-
ments want to be permitted to ban the importation of goods embodying stan-
dards that do not meet their chosen level of domestic environmental
protection, as well as products embodying untested chemicals or genetically
modified structures until they have completed scientific assessments of any
potential risks posed by those products. In addition, most governments want to
permit the eco-labeling of products so as to provide accurate and meaningful
information to consumers about the potential environmental impacts of the
products
Trade measures aimed at extrajurisdictional activity: endangered species,
foreign pollution, and the ‘race to the bottom’ At the same time, many
governments have expressed concern about activities affecting the environ-
ment that take place outside their jurisdiction. For example, several US
statutes54 and multilateral environmental agreements (MEAs) to which the
United States is a signatory55 are aimed at restoring populations of endangered
or threatened species, or managing populations of other species, that inhabit
territories outside the United States by means that affect the activities of
persons who are not US nationals. And some of those statutes and MEAs
require parties to impose import restrictions or prohibitions to achieve their
ends. Some commentators and activists are concerned about lax environmen-
tal standards in jurisdictions outside the United States, for moral reasons or
because of associated negative externalities. In addition, some fear that goods
will be increasingly produced in and imported from countries imposing less
stringent production and processing methods (PPMs)56 because ceteris
International environmental law 513
54 See, for example, African Elephant Conservation Act, Title II of the
Endangered Species Act Amendments of 1988, PL 100–478; Marine Mammal
Protection Act, 16 USC Sec. 1361 ff; Pelly Amendment to the Fisherman’s Protective
Act, PL 92-219 (1971); and Sec. 609 of PL 101-62 (1989) (generally prohibits imports
of shrimp or shrimp products ‘which have been harvested with commercial fishing
technology that may affect adversely such species of sea turtles’ protected under the
US Endangered Species Act).
55 For example, CITES, described beginning at p.
56 The OECD Secretariat defines PPM standards as standards that ‘specify crite-
ria for how a product is manufactured, harvested, or taken. They encompass emission
and effluent standards, certain performance or operations standards, and practices
prescribed for natural resource sectors. Terms such as “made with” “produced by” and
paribus goods are less expensive to produce under such conditions; many fear
that this could cause industrial flight to such countries and place downward
pressure on the stringency of environmental rules worldwide – a ‘race to the
bottom’ (Stewart 1977; Esty and Geradin 2001). Empirically, it has proven
difficult to confirm the hypothesis that firm locational decisions are affected
by the stringency of environmental measures or that there is, in fact, a race to
the bottom (Anderson and Kagan 1997). Nonetheless, many find the argument
theoretically compelling and some anecdotal evidence is consistent with the
hypothesis.
At the same time, sovereignty suggests that states have an exclusive legal
right to control activities within their own jurisdiction (Steinberg 2004). This
principle has been used to argue that a country may not restrict the importa-
tion of a product on the basis that it was made in a jurisdiction that requires
less stringent PPMs.57 Most developing country governments fear that afflu-
ent countries may use such extrajurisdictional measures to effectively coerce
them into raising their environmental standards to levels that will slow their
economic development.
4.2. The Basel Convention
A sui generis regime, the Basel Convention, exemplifies some of the tensions
inherent in trade regulation intended to help governments protect their domes-
tic environment. The transportation of toxic waste from one country to another
has been a common method of transferring the costs of pollution (Kiss and
Shelton 2004, pp. 606–7). Insofar as hazardous waste has been exported, it has
tended to move from developed to developing countries (Wolfrum et al. 2000,
p. 410). By 1990, 10 per cent of the waste generated in OECD countries was
transported across the border (Kiss and Shelton 2004, p. 607). The 1990s bore
witness to several accidents involving the illicit dumping of waste in develop-
ing countries (Sands 2003, p. 690).
In the mid-1980s, environmental NGOs from Europe and the United States
514 Research handbook in international economic law
“harvested by” signify a PPM standard . . . All PPM standards apply to the production
stage, i.e., before a product is placed on the market for sale. These standards specify
criteria for how a product is produced or processed. However, the PPM standard may
address the environmental effects of a product all during its life-cycle, i.e., effects
which may emerge when the product is produced, transported, consumed or used, and
disposed of’. Typology of Trade Measures Based on Environmental Product Standards
and PPM Standards: Note by the Secretariat, Joint Session of Trade and Environment
Experts, OECD Environment Directorate and Trade Directorate, COM/ENV/TD(93)89
(28–30 September 1993).
57 For example, this argument was advanced in ‘United States-Restrictions on
Imports of Tuna’, Report of the Panel, DS21/R (unadopted), dated 9 September 1991,
39S/155 (hereafter Tuna I).
joined some developing countries, largely from Africa, to advocate the
passage of a categorical ban on the international transport of hazardous waste
(Wolfrum et al. 2000, p. 413). However, some other developing countries
opposed such a ban, arguing that each sovereign state should be permitted to
decide whether to import hazardous waste – whether to take payment for the
import and bear the associated costs.
In 1989, broad international agreement was reached on the topic, when 116
states adopted the Basel Convention. The Convention defines hazardous waste
as any substance or material generated in any one of 18 ‘waste streams’ and
lists 26 substances that are hazardous regardless of whether they flow in a
waste stream (Wolfrum et al. 2000, p. 412). The Convention contains general
obligations to minimize both the generation of the relevant waste and its trans-
boundary movement, and permits exports of the covered materials only if the
exporting state lacks the capacity for environmentally sound disposal, the
waste is required as a raw material for recycling or recovery in the importing
state, or according to other criteria decided by the parties. The heart of the
agreement is a system of prior informed consent which stipulates that the
exporter must provide advance notification to the government of the import-
ing state and any transit state, transportation though a party-state requires its
permission, and the exporting country must accept the return of the waste if
requirements for transboundary movement of waste are not met. Article 11
allows for more stringent bilateral agreements as long as they are at least as
environmentally friendly as those terms in the Convention, and Articles 12 and
13 list detailed reporting requirements intended to foster compliance (Sands
2003, pp. 692–4).58 By 2000, 39 states had prohibited the importation into or
International environmental law 515
58 In December 1995, the parties to the Convention adopted Decision III/1. This
decision, which is also known as the Ban Amendment, would prohibit the exports of
hazardous waste from Annex VII countries (the EU and OECD states plus
Liechtenstein) to non-Annex VII countries for the purposes of final disposal and recy-
cling (Kiss and Shelton 2004, p. 609). This amendment will become effective after rati-
fication by three-quarters of the members present at the time that the amendment was
adopted. As of the end of 2004, about one-third (49) of the necessary ratifications had
been secured and the United States had not yet ratified the Amendment.
In 2002, the parties developed guidelines for a liability protocol, which would estab-
lish strict liability for any person in control of the hazardous waste ‘from the point
where the wastes are loaded on the means of transport in an area under national juris-
diction of the state of export’. Art. 5 of the Protocol allows the establishment of fault
liability in the event that intentional, reckless, or negligent acts or omissions lead to
violation of the Convention. This Protocol will enter into force after 20 countries have
ratified it. Currently, there are 13 signatories and three ratifications (Kiss and Shelton
2004, p. 610; Sands 2003, p. 925). The Secretariat’s list of signatories and ratifications
is available at http://www.basel.int/ratif/frsetmain.php#protocol. The United States has
neither signed nor ratified the Protocol.
transshipment through their territories of transboundary waste (Kiss and
Shelton 2004, p. 607).
4.3. Convention on International Trade in Endangered Species
CITES exemplifies many of the tensions inherent in a sui generis regime that
uses trade measures to combat extrajurisdictional activity that is environmen-
tally degrading. Some reputable scientists predict that up to 50 per cent of
species alive in 2000 will become extinct by the end of the 21st century. The
principal cause of this threat involves human activity that is destroying natural
habitats. However, some species are also threatened by human hunting for
their by-products such as hides, furs, and ivory. Experts appraise the likely
retail value of the commercial wildlife trade at close to $50 billion, much of it
in luxury goods such as fur coats (Reeve 2002, pp. 7–8; Kiss and Shelton
2004, p. 389).
International action to address the problem of species extinction began in
the 1950s, when it became apparent that international wildlife trade was
threatening wildlife populations (Curlier and Andresen 2002, p. 358). Initial
attempts to address this problem were made through regional treaties.59 In
1963, the General Assembly of the International Union for the Conservation
of Nature pressured states to adopt measures to restrict the trade in designated
species (Reeve 2002, p. 27). By the 1970s, states such as the United States and
United Kingdom had adopted national measures to restrict imports of animals
facing extinction,60 but the lack of an effective international regime rendered
their actions largely ineffective (Curlier and Andresen 2002, p. 359).
Establishment of the CITES regime At the 1972 Stockholm Conference on
the Human Environment, the state participants passed Resolution 99.3, which
called for a conference to create a convention concerning the ‘import, export,
and transit of certain species of wild animals and plants’. This led to a 1973
conference in Washington, DC, where approximately 80 states, including the
United States, met to negotiate an agreement to address the problem. By
December 1974, 56 states had signed CITES, which entered into force on 1
July 1975 (Curlier and Andresen 2002, p. 359; Kiss and Shelton 2004, p. 390).
The Western European countries, the United States, Canada, and Australia
dominated the negotiations. Almost all wildlife trade is imported by developed
516 Research handbook in international economic law
59 For example, Article 9 of the 1953 Western Hemisphere Convention, to which
the United States is a party, demands permits for the importation or exportation of any
protected species (Curlier and Andresen 2002, p. 358).
60 In 1964, the United Kingdom adopted the Animals Restriction of Importation
Act (Curlier and Andresen 2002, p. 358); in 1969, the United States adopted the
Endangered Species Conservation Act (Reeve 2002, p. 27).
countries from developing countries, imbuing the developed countries with
dominant market power in negotiations to regulate the trade. The United States
was influential enough that its draft text served as the working document for
the Conference (Kiss and Shelton 2004, p. 389; Curlier and Andresen 2002, p.
359; Reeve 2002, p. 28).
Terms of the Convention The Convention provides protection to species
based on the Appendix list on which they appear. Appendix I consists of ‘all
species threatened with extinction which are or may be affected by trade’.
Trade61 in ‘any recognizable part or derivative of a specimen of the listed plant
or animal’ is authorized only in exceptional circumstances.62
Appendix II includes ‘all species which although not necessarily threatened
with extinction may become so unless trade in specimens is subject to strict
regulation in order to avoid utilisation incompatible with their survival’.
Commercial trade of such species is permitted if it is not detrimental to the
survival of the species and the specimen was not obtained in violation of the
exporting state’s law. The importation of an Appendix II specimen only
requires the presentation of an export permit or re-export certificate (Kiss and
Shelton 2004, p. 391; Sands 2003, pp. 508–9).
Appendix III includes ‘all species which any party identifies as being
subject to regulation within its jurisdiction for the purpose of preventing or
restricting exploitation, and as needing the co-operation of other parties in the
control of trade’. Trade in such species requires an export permit from the
management authority in the exporting state, but the standard for issuance of
a permit is set solely by the exporting state (Sands 2003, p. 509).
The Convention also establishes a tracking system to monitor shipments
and facilitate compliance with the agreement. Article IV establishes quality
control standards for the issuance of permits and nomenclature to be used
(Reeves 2002, p. 33; Sands 2003, p. 514).
The Convention resolves the free-rider problem by requiring in Article X
International environmental law 517
61 Art. I(c) defines trade as ‘export, re-export, import, and introduction from the
sea’.
62 Article III permits the conferral of an export permit only if: (1) a scientific
authority of the exporting state has found that the export will not be detrimental to the
survival of the given species; (2) a Management Authority believes that the given spec-
imen was not procured in a manner that violates the given state’s protection for fauna
and flora; (3) the Management Authority must ensure that any living specimen must be
shipped in a manner that minimizes the harm as much as possible; and (4) the
Management Authority must be sure that the party in the importing country has
obtained the requisite permit. In addition, the importing state’s designated scientific
authority must assert that the importation is not detrimental to the survival of the
species.
that a party-state may import Appendix I or II species from a non-party state
only if the goods are accompanied by ‘comparable documentation’ issued by
‘competent authorities’ in the exporting state, certifying that the non-party
state has (1) made a non-detriment finding, and (2) the specimens in question
were not obtained illegally. In order to be deemed ‘competent’, scientific
authorities and institutions must be included in the Secretariat’s most recent
list of sanctioned non-state party authorities (Reeve 2002, pp. 34–5).63
The development and effectiveness of the CITES regime The CITES regime
now covers over 33,000 species of fauna and flora. The high-priority
Appendix I list has doubled since the Convention entered into force (Kiss and
Shelton 2004, p. 390).64 The CITES Secretariat has proven much stronger and
more independent than in most environmental regimes (Curlier and Andresen
2002, p. 367). CITES’s transparency and open access structure65 have allowed
conservation-oriented NGOs such as Trade Records Analysis of Flora and
Fauna in Commerce (TRAFFIC), the World Conservation Monitoring Center,
and the World Wildlife Federation to monitor compliance and enforcement
(Sands and Bedecarre 1990, p. 800). TRAFFIC is particularly influential as it
collects information on the illicit aspects of the wildlife trade and shares the
information with the Secretariat (Reeve 2002, p. 68).
CITES has been effective at establishing the basis for global management
of endangered species. Perhaps its most well-publicized success has been
reversing the rapid decline of African elephant populations, which in the
1980s were being hunted in unsustainable numbers in order to support a lucra-
tive ivory trade. By the late 1990s, following implementation of CITES rules,
African elephant populations were thriving in many countries. Indeed, some
African countries were experiencing elephant overpopulation problems, yet
518 Research handbook in international economic law
63 The CITES Convention contains three potentially important exceptions. First,
Article VII (2) allows a member-state’s management authority to issue a certificate that
exempts specimen ‘acquired before the provisions of the present Convention applied to
that specimen’. Second, parties have the right to register reservations either at the time
of ratification or by attaching an amendment to the appendix. Third, a party can regis-
ter its objections to the listing of an Appendix I or II species up to 90 days after the
specimen is added to the list; an objection to an Appendix III species can be listed at
any time. If a party registers an objection, it is treated as a non-party in matters concern-
ing the specimen in question.
64 Some of the more notable species on this list include the tiger, leopard, whale,
and various kinds of parrots (Kiss and Shelton 2004, pp. 389–90).
65 Art. XII empowers the Secretariat to obtain assistance from ‘suitable inter-
governmental or non-governmental, international, or national agencies or bodies tech-
nically qualified in protection, conservation, and management of wild fauna and flora’.
Art. XI (7) states that NGOs have the right to participate as observers at the meetings.
most developed country governments and even environmental NGOs seemed
so captured by popular public support for the plight of elephants that they
ignored scientific assessments calling for diminished protection (Kaempfer
and Lowenberg 1999; Kiss and Shelton 2004, pp. 395–6; Sands and Bedecarre
1990, pp. 806–16; Curlier and Andresen 2002, p. 370; Reeve 2002, pp. 81–8).
By contrast, issues that do not capture as much public attention have been
easier to address in a scientifically sound manner. For example, the crocodile
was the first instance of downgrading a species from Appendix I to Appendix
II. The sustainable use approach to management of the crocodile has led to a
constant population; in turn, illegal trade has dwindled (Curlier and Andresen
2002, p. 370).
4.4. International trade organizations
State power and interests on trade-environment issues explain the relative
environment-friendliness of trade rules in the world’s three most important
trade regimes – the WTO, European Union, and NAFTA. Process-tracing
shows that in all three organizations, richer countries have been the deman-
deurs of greener rules; richer countries have used access to their large
markets – threats to open or promises to close them – as a source of leverage
in trade-environment negotiations; and green trade rules have become more
salient in richer countries as integration has deepened. Thus, among the three
regimes, trade rules are most environment-friendly in the European Union
(because it has the deepest integration and market power has been concen-
trated in the large countries of northern Europe, most notably Germany),
moderately environment-friendly in the NAFTA context (where market
power is concentrated in the United States but where there is comparatively
moderate integration), and least environment-friendly in the GATT/WTO
(which has the least integration and the most diffuse market power structure)
(Steinberg 2002). There is nothing inherent in the concept of integration to
suggest that deepening integration will lead to more environment-friendly
rules; the correlation exists only because of the political dynamic – that envi-
ronment-friendly rules in a trade regime become more salient to powerful
states as integration deepens.
In each of the three regimes, rules on the environment are best seen as a
result of both side-payments and coercion. As indicated above, process-trac-
ing shows that within each trade regime powerful states used access to their
large markets as a source of leverage in demanding that poorer, weaker states
agree to rules that are more environment-friendly that they preferred.
Moreover, it is not clear that all states were made better off by accepting the
relevant package of rules: in particular, as argued below, some WTO countries
may have been made worse off than before by accepting the package of
Uruguay Round agreements.
International environmental law 519
Trade-environment issues in the GATT/WTO Trade-environment rules are
less well developed and less environment friendly in the GATT/WTO than in
some other trade organizations, such as the NAFTA and the EU.
Three sets of GATT/WTO rules are most relevant to defining the condi-
tions under which a green country can ban imports that threaten the main-
tenance of its chosen levels of domestic health, safety and environmental
protection. First, Article XX – the GATT’s ‘general exceptions’ – allows
import bans, discrimination against imports, and other deviations from the
GATT’s rules in specified circumstances, including some relating to the
conservation of exhaustible natural resources and some relating to human,
animal or plant life, health or safety. Second, the Uruguay Round
Agreement on the Application of Sanitary and Phytosanitary Measures
(SPS)66 covers measures relating to human, animal and plant health and
safety in agriculture, including, inter alia, pesticide and fungicide toler-
ances, and inspection rules for meat. Third, the Agreement on Technical
Barriers to Trade (TBT)67 was designed mainly to ensure that technical
standards and regulations not addressed by the SPS Agreement are not used
for protectionist purposes.
The general rule under the GATT, the SPS Agreement, and the TBT
Agreement is that each country may maintain regulations necessary to protect
domestic life and health, and conserve exhaustible natural resources, and may
determine for itself the level of risk it deems appropriate to embody in its prod-
uct standards.68 In general, the importation of products not meeting those stan-
dards may be prohibited. Each country may provisionally prohibit imports of
goods while national control, inspection and approval procedures (e.g., FDA
approval) are under way.69 These environment-friendly rules are qualified to
ensure that they are not used as disguised means of protectionism. Hence,
product standards that limit imports must be applied on a most-favored-nation
520 Research handbook in international economic law
66 The SPS Agreement was concluded as part of the Uruguay Round agricultural
negotiations and catalyzed primarily by EU-US rows over health and safety measures
relating to beef, wine, and other agricultural products. Agreement on the Application
of Sanitary and Phytosanitary Measures, 15 April 1994 (hereafter SPS Agreement).
67 The TBT Agreement is applied multilaterally through the Uruguay Round
Final Act. Agreement on Technical Barriers to Trade, 15 April 1994.
68 SPS Agreement, 15 April 1994, Arts. 2, 5, Agreement Establishing the World
Trade Organization, Annex 1A, in Final Act Embodying the Results of the Uruguay
Round of Multilateral Trade Negotiations, Marrakesh, 15 April 1994, p. 69 (hereafter
Final Act); Agreement on Technical Barriers to Trade, 15 April 1994, preamble, id. at
17; GATT (hereafter TBT Agreement). See also GATT Dispute Panel, Thailand –
Restrictions on Importation and Internal Taxes on Cigarettes, 7 November 1990,
GATT, BISD (37th Supp.) (1990), p. 200 (hereafter Thailand Cigarettes).
69 SPS Agreement, Art. 5.7 and Annex C; TBT Agreement, Arts. 2–4.
(MFN) basis,70 must be subject to national treatment disciplines,71 must not
‘arbitrarily or unjustifiably discriminate’ against imports,72 and must not be
‘more trade restrictive than necessary’73 to achieve the chosen level of envi-
ronmental protection.74 SPS measures either must conform with international
standards, guidelines or recommendations – in which case they are deemed
WTO-consistent – or must not be maintained ‘without sufficient scientific
evidence’ of a relationship to the harm to be avoided.75
This balance may be considered friendly to the environment within the
jurisdiction of a WTO member with relatively stringent environmental stan-
dards, inasmuch as members can generally ban imports that would undermine
their domestic environmental protection. However, qualifications of that right
may be used to attack the WTO legality of national environmental laws, as the
decision in the WTO Beef Hormones case76 has shown. Moreover, the
GATT/WTO approach will not likely increase environmental protection in
countries with relatively weak standards to the same extent that harmonization
at a high level of protection would.77 The net result of these GATT/WTO rules
will be maintenance of, but little improvement in, the level of global environ-
mental protection.
The GATT/WTO dispute settlement system has never fully condoned a chal-
lenged trade restriction aimed at extrajurisdictional environmental activity.
International environmental law 521
70 SPS Agreement, Art. 2.3; TBT Agreement, Art. 2.1.
71 SPS Agreement, Art. 2.3; TBT Agreement, Art. 2.1.
72 SPS Agreement, Art. 2.3; TBT Agreement, preamble.
73 SPS Agreement, Art. 2.2; TBT Agreement, Art. 2.2. The SPS Agreement uses
the word ‘necessary’, while the TBT Agreement uses the word ‘required’. See also
GATT, Art. XX; Thailand Cigarettes.
74 A footnote in the SPS Agreement clarifies the meaning of this language: to
challenge an import restriction successfully under this language, the challenging party
must show that another measure that would achieve the same level of protection is
‘reasonably available’ and would be ‘significantly less restrictive to trade’. SPS
Agreement at n. 3.
75 SPS Agreement, Art. 2.2.
76 ‘European Communities – Measures Concerning Meat and Meat Products
(Hormones), Report of the Appellate Body’, adopted on 13 February 1998, WTO Doc.
WT/DS26/AB/R, WT/DS48/AB/R.
77 The GATT/WTO approach may nonetheless result in some upward harmo-
nization via two means. First, the SPS Agreement regards conformity to international
standards as GATT-consistent, creating an incentive for poor countries that cannot
afford testing simply to default and choose the international standard, which is gener-
ally more stringent than current developing country standards. Second, the right of
wealthy green countries to ban imports that do not conform to their relatively stringent
standards is likely to create market pressures on developing countries to produce prod-
ucts for export that meet those higher standards. On this latter point, see David Vogel
(1995).
Developing countries have consistently opposed a right of importing countries
under the GATT to impose any trade restriction or duty surcharge on goods
produced in countries with less stringent PPMs. In addition, there has been no
agreement to harmonize PPMs at a high level of environmental protection.
GATT Article XX provides exceptions to the GATT’s liberal trade rules,
including actions necessary for the protection of human, animal or plant life or
health,78 or the conservation of exhaustible natural resources.79 Those provi-
sions were interpreted, in the Tuna II decision,80 to permit import restrictions
for the protection of health or exhaustible natural resources only within the
national jurisdiction of the importing party.81 That decision suggested that it
would be GATT-illegal to apply CITES to goods exported from a GATT
contracting party that was not a party to CITES. However, by 2005, less than
a dozen WTO members were not members of CITES, implying that any risk
of the WTO scuttling CITES is minimal (Reeves 2002, p. 314).
Moreover, the more recent and authoritative ‘Shrimp-Turtle’ Appellate
Body Report82 backed away from the Tuna II report’s stance on the jurisdic-
tional limitation of the relevant Article XX exception, representing a poten-
tially environment-friendly shift in GATT/WTO jurisprudence. The Appellate
Body expressly avoided a decision on the jurisdictional scope of Article
XX(g), instead analyzing several factors that must be considered in determin-
ing whether such import measures might be deemed WTO-illegal on grounds
that they were ‘arbitrary’ or unjustifiably ‘discriminatory’. The Appellate
Body ruled that the US shrimp-turtle law was WTO-inconsistent, and identi-
fied factors that limit the circumstances under which unilateral import
measures aimed at extrajurisdictional activity would be found WTO-legal.
Developing countries have cheered the resulting rules, fearing ‘eco-imperial-
ism’ by the United States and other relatively green countries. Nevertheless,
the United States was able to comply with the decision without lifting its
shrimp-turtle import ban and many view the Appellate Body’s standards for
successfully invoking Article XX as relatively easy to meet.
While not as environment-friendly as rules in the two other regimes exam-
ined below, it is hard to see how GATT/WTO rules would be as environment-
522 Research handbook in international economic law
78 GATT, Art. XX(b).
79 Id., Art. XX(g).
80 GATT Dispute Panel Report, United States – Restrictions on Imports of Tuna,
33 ILM 839 (1994) (hereafter Tuna II); see also WTO CTE Report.
81 See Schoenbaum (1997, pp. 279–8). See also WTO CTE Report (especially
para. 7).
82 ‘United States – Import Prohibition of Certain Shrimp and Shrimp Products,
Report of the Appellate Body’, WTO Doc. WT/DS58/AB/R, 12 October 1998
(herafter, “Shrimp-Turtle” Appellate Body Report’).
friendly as they are without European and US influence. Most developing
countries oppose or want to highly constrain environmental bases for restrict-
ing imports – whether to protect the domestic environment or advance global
environmental protection – whereas the EU and the United States have
favored more environment-friendly rules. The US wrote the early rules, which
became the GATT 1947, and presented them as a fait accompli to any coun-
try that wanted to join the regime. And in the Uruguay Round, the EC and the
United States fashioned the package of agreements to which all countries were
to adhere, then withdrew from the GATT 1947, presenting the developing
countries with a new fait accompli: sign onto the WTO rules or lose the formal
guarantee of access to the European and US markets. While the WTO agree-
ments are generally a package of Pareto-improving market-opening rules,
some of the agreements are not purely liberal, and some economists and devel-
oping country diplomats argue that the Uruguay Round package may have
made some developing countries worse off (Finger et al. 1999; Harrison et al.
1996; Goldin et al. 1993).
Trade-environment issues in the NAFTA and NAAEC The system of trade-
environment rules and institutions established by the NAFTA and the North
American Agreement on Environmental Cooperation (NAAEC)83 (herafter,
the ‘NAFTA/NAAEC system’) are more developed and environment friendly
than in the GATT/WTO.
The NAFTA rules on the use of trade measures to protect domestic human,
animal, plant, and environmental health and safety are similar to those in the
GATT/WTO. The NAFTA provisions on sanitary and phytosanitary measures
were adapted from nearly final versions of the Uruguay Round SPS
Agreement, described above. On technical barriers to trade, the NAFTA
parties expressly agreed to adhere to the GATT/WTO TBT Agreement84 –
again adopting the GATT/WTO approach. Both the NAFTA and the
GATT/WTO rules establish the right of a party to ban imports that in its view
do not meet the appropriate level of domestic health, safety and environmen-
tal protection, subject to some general tests intended to ensure that the restric-
tions are not a disguised means of trade protectionism.
Problems raised by extrajurisdictional activity are addressed more fully,
and in a more environment-friendly way, in the NAFTA/NAAEC system than
in the GATT/WTO. While the NAFTA/NAAEC system generally prohibits
International environmental law 523
83 North American Agreement on Environmental Cooperation, 17 December
1993, US-Can.-Mex., pt. V, 32 ILM 1480 (1993) (hereafter NAAEC).
84 North American Free Trade Agreement, 8, 11, 14, 17 December 1992, Art.
712.1, US-Can.-Mex., 32 ILM 289 (1993) (hereafter NAFTA), Art. 903.
import restrictions unless they are used to protect health or to conserve
exhaustible natural resources within the jurisdiction of the importing country,
in two circumstances the system permits import restrictions aimed at activities
taking place outside its jurisdiction. First, unlike the GATT/WTO, the
NAFTA expressly provides that import restrictions may be applied to enforce
specified multilateral environmental agreements (MEAs), such as CITES, the
Montreal Protocol, and the Basel Convention.
Second, and more significantly, the NAFTA/NAAEC system effectively
increased the stringency of applied PPMs in Mexico. At the time the NAFTA
was negotiated, reviews of Mexican PPMs suggested that, on the books, they
were generally equivalent to those in the United States; the bigger problem
was that Mexican PPMs were not enforced.85 The NAAEC resolves the prob-
lem by providing that a party government may have recourse to dispute settle-
ment to challenge another party’s ‘persistent pattern of failure to enforce’
domestic environmental measures; demonstration of such a pattern and the
failure to cure it gives rise to a monetary fine against the nonenforcing party
and, eventually, a right to trade retaliation if the pattern of failure to enforce is
not cured.86 The NAFTA also permits environmental NGOs to submit a
formal report ‘that a Party is failing to effectively enforce’ to specified trina-
tional authorities, which may then prepare a factual record on the issue; that
record may serve as a basis for further action by the parties on enforcement
matters.87 This set of solutions to problems associated with Mexican environ-
mental law enforcement appears to have been successful, facilitating a
substantial increase in the number of Mexican environmental enforcement
officers, the number of annual inspections, and the number of annual plant
closures due to noncompliance with Mexican environmental law.88 Mexico
strongly resisted this effective enforcement standard, but the Clinton adminis-
tration forced Mexico to accept it as a condition of concluding the NAFTA and
gaining preferential access to the US market.
Trade-environment issues in the EU The wealthier, greener, northern
European countries (Germany and Denmark, in particular) have insisted on
relatively high environmental standards at each step of deepening integra-
tion. Among trade organizations, the European Union maintains the most
524 Research handbook in international economic law
85 See Garvey (1995, p. 442); Patton (1994, p. 90); confidential interviews with
US government officials (from Office of the United States Trade Representative and
the Environmental Protection Agency) who negotiated NAFTA trade-environment
issues, Washington, DC (September 1994).
86 NAAEC, Arts. 14, 15.
87 Id.
88 Steinberg (1997, pp. 249–53).
well-developed and environment-friendly trade-environment rules and institu-
tions.
The European Union permits member-states to prohibit the import of
goods insofar as ‘necessary’ to meet the importing country’s chosen level
of environmental or health risk.89 This right is balanced against the princi-
ple of free trade. For example, such an import restriction must be main-
tained in a manner that provides for national treatment and MFN treatment,
and evidence that harm would result from nonapplication of the restriction
must be based on sound science.90 But the European Union also provides
for ‘harmonization’ or ‘approximation’ of member states’ environmental,
International environmental law 525
89 Consolidated Version of the Treaty on European Union, as amended by the
Treaty of Amsterdam, Done at Maastricht, Rome, and Amsterdam, 7 February 1992,
25 March 1957, and 2 October 1997, 37 ILM 56 (1998) (hereafter TEU), Art. 30. See
also Case 302/86, Commission v. Denmark, 1988 ECR 4607, 1 C.M.L.R. 619 (1989)
(Danish rules that certain beverages be sold only in recyclable bottles not inconsistent
with Treaty of Rome, despite effects on intra-Community trade) (hereafter Danish
Bottles case). An EU member state may also impose an import ban provisionally where
it has not yet established the level of risk it is willing to accept for a particular additive
or emission. Case 53/80, Officier van Justitie v. Koninklijke Kaasfabriek Eyssen
BV,1981 ECR 409, 2 CMLR 20 (1982) (European Court of Justice [ECJ] upheld Dutch
ban on the use of nisin in processed cheese until clear health risks were established for
maximum permissible intake) (hereafter Dutch Nisin case).
90 The European Union also has a rule suggesting that the import restriction
must be the least trade restrictive means necessary to effectuate the measure’s legiti-
mate purpose. See Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für
Branntwein, 1979 ECR 649 (German ban on French Cassis, on theory that French
Cassis was low in alcoholic content and so could confuse German consumers into
consuming too much alcohol, held inconsistent with Treaty of Rome) (hereafter Cassis
de Dijon case); Case 130/80, Criminal Proceedings Against Fabriek voor
Hoogwaardige Voedingsprodukten Kelderman BV, 1981 ECR 527 (Dutch ban on
French brioches held inconsistent with common market principles in the Treaty of
Rome). And the European Court of Justice has interpreted the rule as requiring ‘propor-
tionality’ – a balancing test between the trade restrictiveness of the measure and the
purpose of the measure. Cassis de Dijon case; Case 178/84, Commission v. Germany,
1987 ECR 1227, 1 CMLR 780 (1988) (German beer purity law, Reinheitsgebot, held
to interfere impermissibly with intra-Community trade) (hereafter German Beer case).
It may be argued that this invites a determination by the ECJ as to the importance of
the measure’s purpose, effectively substituting the Court’s judgment about risk aver-
sion for that of national authorities. However, the ECJ has been careful about intruding
on national judgments in adjudicating disputes over import restrictions adopted for the
purposes of domestic health or environmental protection. For example, in some well-
known cases, the Court has upheld national laws apparently intended for these
purposes. Danish Bottles case; Dutch Nisin case. But it has struck down other national
laws that do not appear to have been legitimately so intended. German Beer case;
Cassis de Dijon case.
health and safety standards.91 As EU environmental measures92 must be
based on ‘a high level of protection’,93 the EU harmonization/approximation
process may be described as ‘upward harmonization’ (i.e., harmonization of
standards at a high level of environmental, health and safety protection).
Taken together, these approaches have led to more extensive cross-national
environment-friendly convergence on the domestic environmental protection
issue than in any other international organization.
The European Union goes further than any other international trade orga-
nization in addressing extrajurisdictional activities of concern to the greener
members. EU rules specifically permit some import bans directed at poor envi-
ronmental protection that is taking place outside a member-state’s jurisdiction.
For example, EU member-states are required to ban imports from other
member-states and from outside the Community of goods embodying animal
parts covered by CITES (plus all species of dolphin and cetacean products),
the EC fur seal ban (1983), and the EC whale ban (1981). In addition, under
526 Research handbook in international economic law
91 The European Union has engaged in a massive exercise in harmonization
of product additive and emission standards. These efforts began in the late 1960s, but
were not successful on a large scale until the exercise culminating in the Single
European Act (1987–92). By the end of 1992, the European Community had harmo-
nized or approximated 75 SPS measures and 18 other food law measures. (Baker &
McKenzie 1994). In addition, the Community had established harmonization of EC-
wide automobile emissions standards. See Dietrich (1996, p. 199).
92 That is, action taken under the TEU, Art. 147.
93 At Germany’s insistence, the Single European Act, the Maastricht Treaty, and
the Treaty of Amsterdam provide that harmonized or approximated standards (i.e.,
action taken under the TEU, Art. 95) and EU environmental measures (i.e., action taken
under the TEU, Art. 147(2)) are to be based on ‘a high level of protection’. TEU Arts.
95(3), 147(2). Moreover, at Germany’s and Denmark’s insistence, where Community
standards for purposes of completing the internal market are adopted only by ‘qualified
majority voting’ (i.e., where legislation is adopted by population-weighted voting by
member states in the Council, so that the legislation may become EU law despite the
objection of any particular member state), member states may maintain their own more
stringent standards (Kramer, 1987, p. 680). See also Vandermeersch (1987, pp.
417–19). TEU, Art. 95(4). See also Danish Bottles case.
And for all other Community environmental measures, member-states may maintain
or adopt their own more stringent standards. TEU, Art. 176. Each member-state must
permit imports of products from other member states that comply with unanimously
established Community standards. While harmonization or approximation measures
are sometimes phased in or provide for derogations by the poorest member-states, most
harmonization and approximation directives have required that the member-states
eventually meet standards that are as high as those then in place in Germany. Hence,
the EU exercise in upward harmonization or approximation of standards has generally
maintained domestic health and environmental protection within the greenest northern
European importing countries and simultaneously increased the stringency of pesticide,
fungicide, product additive and emissions standards in the dirtier European countries.
some directives the member-states are required to ban imports of goods from
outside the Community not produced in accordance with specified EU PPMs.
And at least one European Court of Justice (ECJ) decision suggests that a
member-state may maintain a national environmental rule that is more strin-
gent than EU or international standards and that bans the importation of goods
from other member-states, with the intention of protecting animal life outside
its border.94 Perhaps more significantly, the European Union has engaged in
an upward harmonization or approximation exercise of dozens of PPM stan-
dards and has adopted over 200 directives95 dealing with air, water, waste and
chemicals.96 Those exercises have been subject to the requirements that the
directives use a ‘high level of protection’ and member-states are generally
allowed to maintain more stringent standards.
5. Conclusions
It is easy to mistake international environmental challenges as simple coop-
eration problems among the world’s states with similar interests in protect-
ing the global environment. It may be tempting to think of most global
environmental problems, such as overfishing or global warming, as a
tragedy of the commons, a prisoners’ dilemma, or as negative externalities
that evade a Coasian solution because of collective action problems faced by
states. Such cooperation problems would usually be solved through interna-
tional agreements that establish focal points, credible commitments, infor-
mation systems for monitoring and verification of the commitments, and a
system of decentralized sanctions for enforcement. Some international
agreements appear to possess those attributes – such as regional agreements
governing land-based marine pollution – and so appear to confirm the analy-
sis. And many may view symmetrical Pareto-improvement among the
parties as the happy result.
International environmental law 527
94 Dicta in Dutch Red Grouse case, described in Environment Directorate and
Trade Directorate, Typology of Trade Measures Based on Environmental Product
Standards and PPM Standards, OECD Doc. COM/ENV/TD(93)89 (28–30 September
1993). For the Dutch Red Grouse case, see Case 169/89, Commission v. Netherlands,
1990 ECR 2143.
95 This is according to former European Environmental Commissioner Ritt
Bjerregaard’s interview in the journal, Europe. Fallesen and Guttman, 1996, pp. 26–7.
96 For example, each member-state must now limit emissions of nitrogen oxides
and sulfur dioxide in accordance with the Large Scale Combustion Directive; reduce
lead content in gasoline and offer unleaded gasoline in accordance with the EC emis-
sions directives; reduce water pollution in accordance with the water effluent directive;
control or restrict the use of chemical substances in accordance with EC chemicals
directives; and recycle a specified proportion of solid wastes in accordance with the
Solid Wastes Directive.
In fact, however, there is a wide range of state interests on most interna-
tional environmental problems – with some states favoring environmental
protection and some opposed – suggesting that what is at issue is more than a
cooperation problem. For example, as a general rule, richer is greener. This is
particularly clear in international trade negotiations: wealthier countries prefer
more environmental protection than poor ones. There are, of course, additional
divisions among countries, such as a split in fisheries management negotia-
tions between rich coastal states and rich distant-fishing states. Indeed, in all
of the negotiations analyzed in this chapter, there has been political tension
between states favoring stringent environmental protection and those that
don’t.
In this context, in some instances, side-payments have been used to facili-
tate agreement. For example, the United States and Europe provided some
developing countries with aid so that they could sign and comply with the
Montreal Protocol. Similarly, the Kyoto Protocol’s clean development mech-
anism, a form of emissions trading with developing countries, and provisions
on technology transfer, may be seen as side-payments by Europe to obtain
support for the agreement from many developing countries. Nonetheless, side-
payments may be eschewed by wealthier countries because they are expensive
and it is often politically unpopular to be seen to be paying countries to dimin-
ish their polluting activities. Moreover, coercion may be an option.
Hence, effective solutions to global environmental problems have often
required coercion of weaker, less environment-friendly states by powerful
greener states. For example, to the extent that international fisheries agreements
are now regulating global fishing, they have been largely imposed on distant-
fishing states by more environmentally conscious coastal states, which have
leveraged their local power over coastal fisheries to regulate both those fisheries
and straddling and migratory stocks. Similarly, the effectiveness of CITES and
the Montreal Protocol has resulted from the capacity of environment-friendly
states with rich markets to threaten to close them to specific products from less
environment-friendly markets. And in trade organizations, environment-
friendly rules have resulted only when richer, greener countries have used
their market power to bring them about. In only one issue area examined here,
LBMP, was agreement reached due exclusively to an apparent alignment of
similar environmental interests. Hence, most effective environmental agree-
ments are asymmetrical contracts between states resulting at least partly from
coercion.
Less effective regimes result when the power of environment-friendly
states is dispersed or the environmental interests of powerful states is divided.
Hence, for example, the Kyoto Protocol’s formula for addressing global
warming has divided the United States from the European Union, China, and
Russia, resulting in an agreement that will have little meaning. Similarly, fish-
528 Research handbook in international economic law
eries are most fully regulated in regions where there are powerful, environ-
ment-friendly states and least well-regulated in regions where there are not.
And of the world’s three main trade regimes, rules are least environment-
friendly in the GATT/WTO, where the power of environment-friendly states
is relatively dispersed.
References
Anderson, C. Leigh and Robert A. Kagan (1997), ‘Adversarial Legalism, Transaction Costs, and
the Industrial Flight Hypothesis’, BRIE Working Paper No. 93, Berkeley, California, Berkeley
Roundtable on the International Economy.
Ardia, David S. (1998), ‘Does the Emperor Have No Clothes? Enforcement of International Law
Protecting the Marine Environment’, Michigan Journal of International Law, 19(2), 497–568.
Baker & McKenzie (1994), Single European Market Reporter 29-1-4.
Barston, Ronald (1995), ‘United Nations Conference on Straddling and Highly Migratory Fish
Stocks’, Marine Policy, 19(2), 159–66.
Boulding, Kenneth (1963), The Organizational Revolution, New York: Harper.
Breidenich, Claire, Daniel Magraw and Anne Rowley (1998), ‘Current Development: The Kyoto
Protocol to the United Nations Framework on Climate Change’, American Journal of
International Law, 92(2), 315–31.
Browne, John (2004), ‘Beyond Kyoto’, Foreign Affairs, 83(4), 20–32.
Calabresi, Guido and A. Douglas Melamed (1972), ‘Property Rules, Liability Rules, and
Inalienability: One View of the Cathedral’, Harvard Law Review, 85(6), 1089–129.
Carpenter, Chad (2001), ‘Business, Green Groups, and the Media: The Role of Non-
Governmental Organizations in the Global Climate Change Debate’, International Affairs,
77(2), 313–28.
Carr, Christopher J. and Harry N. Scheiber (2002), ‘Dealing with a Resource Crisis: Regulatory
Regimes for Managing the World’s Marine Fisheries’, Stanford Environmental Law Journal,
21(1), 45–79.
Charnovitz, Steve (1994), ‘Free Trade, Fair Trade, Green Trade: Defogging the Debate’, Cornell
International Law Journal, 27(3), 459–525.
Coase, R. H. (1960), ‘The Problem of Social Cost’, The Journal of Law and Economics, 3(1),
1–44.
Curlier, Maaria and Steinar Andresen (2002), ‘International Trade in Endangered Species: The
CITES Regime’, in Edward L, Miles, Arild Underdal, Steiner Andreson, Jorgen Wettestad and
Jon Birger Skjaerseth (eds), Environmental Regime Effectiveness: Confronting Theory with
Evidence, London and Cambridge, MA: MIT Press.
Davidson, Mary (2002), ‘Note: Protecting Coral Reefs: the Principle National and International
Legal Instruments’, Harvard Environmental Law Review, 26(2), 499–546.
DeSombre, Elizabeth R. (1995), ‘Baptists and Bootleggers for the Environment: The Origins of
U.S. Unilateral Sanctions’, Journal of Environment and Development, 4(1), 53–75.
Dietrich, William F. (1996), ‘Harmonization of Automobile Emission Standards under
International Trade Agreements: Lessons from the European Union Applied to the WTO and
the NAFTA’, William and Mary Environmental Law and Policy Review, 20(2), 175–222.
Eichenberg, Tim and Mitchell Shapson (2004), ‘The Promise of Johannesburg: Fisheries and the
World Summit on Sustainable Development’, Golden Gate University Law Review, 34(3),
587–643.
Energy Information Administration (1998), Impacts of the Kyoto Protocol on U.S. Energy
Markets and Economic Activity, Washington, DC: US Department of Energy.
Esty, Daniel C. (1994), Greening the GATT, New York: Council on Foreign Relations Press.
Esty, Daniel C. and Damien Geradin (2001), ‘Regulatory Co-Opetition’, in Regulatory
Competition and Economic Integration: Comparative Perspectives, New York: Oxford
University Press.
Fallesen, Leif Beck and Robert J. Guttman (1996), ‘European Commissioner Ritt Bjerregaard
(Perspectives on Politics and the Environment)’, Europe, April, 26–7.
International environmental law 529
Finger, J. Michael, Ulrich Reincke and Adriana Castro (1999), ‘Market Access Bargaining in the
Uruguay Round: Rigid or Relaxed Reciptocity?’, World Bank Paper No. 2258, Washington,
DC, The World Bank.
Garvey, Jack I. (1995), ‘Trade Law and Quality of Life-Dispute Resolution under the NAFTA
Side Accords on Labor and the Environment’, American Journal of International Law, 89(2),
439–53.
Goldin, I., O. Knudsen and D. van der Mensbrugghe (1993), Trade Liberalization: Global
Economic Implications, Washington, DC: The World Bank.
Grubb, Michael, with Christian Vrolijk and Duncan Brack (1999), The Kyoto Protocol: A Guide
and Assessment, London and Washington, DC: Royal Institute of International Affairs,
Brookings Institution.
Grubb, Michael and F. Yamin (2000), ‘Climatic Collapse at the Hague: What Happened, Why,
and Where Do We Go From Here?’, International Affairs, 77(2), 261–76.
Grynberg, Roman (2003), ‘WTO Fisheries Subsidies Negotiations: Implications for Fisheries
Access Arrangements and Sustainable Management’, Marine Policy, 27(6), 499–511.
Guruswamy, Lakshman D., Geoffrey W. Palmer, Burns Weston and Jonathan C. Carlson (1999),
International Environmental Law and World Order: A Problem-Oriented Coursebook, St
Paul, MN: West Group.
Haas, Peter (1992), ‘Introduction: Epistemic Communities and International Policy
Coordination’, International Organization, 46(1), 1–35.
Harrison, Glenn W., Thomas F. Rutherford, and David G. Tarr (1996), ‘Quantifying the Uruguay
Round’, in Will Martin and L. Alan Winters (eds), The Uruguay Round and the Developing
Countries, Cambridge: Cambridge University Press, 216–52.
Heller, Thomas C. and P.R. Shukla (2003), ‘Development and Climate: Engaging Developing
Countries’, in Joseph E. Aldy, John Ashton, Richard Baron, Daniel Bodansky, Steve
Charnovitz, Elliot Diringer, Thomas C. Heller, Jonathan Pershing, P.R. Shukla, Laurence
Tubiana, Fernando Tudela and Xueman Wang (eds), Beyond Kyoto: Advancing the
International Effort Against Climate Change, Arlington, VA: Pew Center.
Herring, Ronald (with Erach Bharucha) (1998), ‘Embedded Capacities: India’s Compliance with
International Enviromental Accords’, in Edith Brown Weiss and Harold Jacobsen (eds),
Engaging Countries: Strengthening Compliance with International Environmental Accords,
Cambridge, MA: MIT Press.
Houghton, J.T., G.J. Jenkins and J.J. Ephraums (eds) (1990), World Meteorological
Organization/United Nations Environment Programme Intergovernmental Panel on Climate
Change: The Scientific Assessment, New York: United Nations Environmental Programme.
Hunter, David James Salzman and Durwood Zaelke (1998), International Environmental Law and
Policy, New York: Foundation Press.
Kaempfer, William H. and Anton D. Lowenberg (1999), ‘The Ivory Bandwagon: International
Transmission of Interest-Group Politics’, Independent Review, 4(2), 217–40.
Keck, Margaret and Kathryn Sikkink (1998), Activists Beyond Borders: Advocacy Networks in
International Politics, Ithaca, NY: Cornell University Press.
Keohane, Robert O. (1984), After Hegemony: Cooperation and Discord in the World Political
Economy, Princeton, NJ: Princeton University Press.
Keohane, Robert O. and Joseph S. Nye (1977), Power and Interdependence: World Politics in
Transition, Boston: Little Brown.
Kimball, Lee A. (1997), ‘Chapter 4 Question of International Law: Whither International
Institutional Arrangements to Support Ocean Law?’, Columbia Journal of Transnational Law,
36(1), 307–39.
Kiss, Alexandre and Dinah Shelton (2004), International Environmental Law, 3rd edn, Ardley,
NY: Transnational Publishers.
Kramer, Ludwig (1987), ‘The Single European Act and Environment Protection: Reflections on
Several New Provisions in Community Law’, Common Market Law Review, 24(4),
659–88.
Krasner, Stephen (1991), ‘Global Communications and National Power: Life on the Pareto
Frontier’, World Politics, 43 (April), 336–56.
Leopold, Aldo (1949), A Sand County Almanac, Oxford: Oxford University Press.
530 Research handbook in international economic law
Macher, Michael (2004), ‘Political Will is Needed to Deliver Kyoto’s Goal’, Financial Times, 18
October, 17.
Mensah, Thomas A. (1999), ‘The International Legal Regime for the Protection and Preservation
of the Marine Environment from Land-Based Sources of Pollution’, in Alan Boyle and David
Freestone (eds), International Law and Sustainable Development, Oxford: Oxford University
Press, 297–324.
Message from the President of the United States Transmitting the North American Free Trade
Agreement (1993), H.R. Doc No. 103–159.
Moravcsik, Andrew (1997), ‘Taking Preferences Seriously: A Liberal Theory of International
Politics’, International Organization, 51(4), 513–53.
Morrison, Fred L. and William Carroll Muffett (2000), ‘Basel Convention’, in Fred L. Morrison
and Rudiger Wolfrum (eds), International, Regional, and National Environmental Law,
Hague, London and Boston: Kluwer Law.
Murkowski, Frank (2000), ‘The Kyoto Protocol is Not the Answer to Climate Change’, Harvard
Journal on Legislation, 37(2), 345–68.
Oberthur, Sebastian and Hermann E. Ott (1999), The Kyoto Protocol: International Climate
Change for the 21st Century, Berlin and New York: Springer.
Okey, Thomas A (2003), ‘Membership of the Eight Regional Fishery Management Councils in
the United States: Are Special Interests Over-represented?’, Marine Policy, 27(3), 193–296.
Olsen, Mancur (1971), The Logic of Collective Action: Public Goods and the Theory of Groups,
Cambridge, MA: Harvard University Press.
Patton, Kevin W. (1994), ‘Dispute Resolution under the North American Commission on
Environmental Cooperation’, Duke Journal of Comparative and International Law, 87(1),
87–116.
Picard, M. Johanne (1996), ‘Comment: International Law of Fisheries and Small Developing
States: A Call to the Recognition of Regional Hegemony’, Texas International Law Journal,
31(2), 318–41.
Raustiala, Kal (2002), ‘Police Patrols, Fire Alarms, and Treaty Review Under the NAAEC’, in
John Knox and David Markell (eds), The North American Agreement on Environmental
Cooperation: An Assessment, Stanford: Stanford University Press.
Reeve, Rosalind (2002), Policing Trade in Endangered Species: The CITES Treaty and
Compliance, London: Earthscan.
Ring, David (1997), ‘Sustainability Dynamics: Land-Based Marine Pollution and the
Development Priorities in the Island-States of the Caribbean’, Columbia Journal of
Environmental Law, 22(1), 65–136.
Sands, Philippe (2003), Principles of International Environmental Law, 2nd edn, Cambridge:
Cambridge University Press.
Sands, Philippe J., and Albert R. Bedecarre (1990), ‘Convention on the International Trade in
Endangered Species: The Role of Public-Interest Non-Governmental Organizations in
Ensuring the Effective Enforcement of the Ivory Trade Ban’, Boston College Environmental
Affairs Law Review, 17(4), 799–822.
Schelling, Thomas (2002), ‘What Makes Greenhouse Sense’, Foreign Affairs, 81(3), 2–9.
Schoenbaum, Thomas J. (1997), ‘International Trade and Protection of the Environment: The
Continuing Search for Reconciliation,’ American Journal of International Law, 91(2), 268–313.
Schorr, David K. (1999), ‘Fishery Subsidies and the WTO’, in Gary P. Sampson and W. Bradnee
Chambers (eds), Trade, Environment, and the Millennium, Tokyo and New York: United
Nations University Press.
Schroder, Heike (2001), Negotiating the Kyoto Protocol, Piscataway, NJ: Transaction Publishers.
Schultz, Jennifer (1995), ‘The GATT/WTO Committee on Trade and the Environment-Toward
Environmental Reform’, American Journal of International Law, 89(2), 423–39.
Schumacher, Mary, Porter Hoagland and Arthur Gaines (1996), ‘Land-Based Marine Pollution in
the Caribbean: Incentives and Prospects for an Effective Regional Protocol’, Marine Policy,
20(2), 99–121.
Steinberg, Richard H. (1997), ‘Trade-Environment Negotiations in the EU, NAFTA, and WTO:
Regional Trajectories of Rule Development’, The American Journal of International Law,
91(2), 231–67.
International environmental law 531
Steinberg, Richard H. (2002), The Greening of Trade Law: International Trade Organizations
and Environmental Issues, Boulder, CO: Rowman & Littlefield.
Steinberg, Richard H. (2004), ‘Who Is Sovereign?’, Stanford Journal of International Law, 40(2),
329–45.
Stewart, Richard B. (1977), ‘Pyramids of Sacrifice? Problems of Federalism in Mandating State
Implementation of National Environmental Policy’, Yale Law Journal, 86(6), 1196–271.
Swing, John Temple (2003), ‘What Future for the Oceans?’, Foreign Affairs, 82(5), 139–53.
Vandermeersch, Dirk (1987), ‘The Single European Act and the Environmental Policy of the
European Economic Community’, Common Market Law Review, 12, 407–19.
Victor, David G. (2001), Collapse of the Kyoto Protocol and the Struggle to Slow Global
Warming, Princeton: Princeton University Press
Victor, David G. (2004), Climate Change: Debating America’s Policy Options, Washington, DC:
Brookings Institution.
Vigneron, Giselle (1998), ‘Compliance and International Environmental Agreements: A Case
Study of the 1995 United Nations Straddling Fish Stocks Agreement’, Georgetown
International Environmental Law Review, 10(2), 581–623.
Vogel, David (1995), Trading Up: Consumer and Environmental Regulation in a Global
Economy, Cambridge, MA: Harvard University Press.
Waltz, Kenneth N. (1979), Theory of International Politics, Menlo Park, CA: Addison-Wesley.
Warner-Kramer, Deirdre (2004), ‘Control Begins at Home: Tacking Flags of Convenience and
IUU Fishing’, Golden Gate University Law Review, 34(3), 497–529.
Wendt, Alexander (1999), Social Theory of International Politics, Cambridge: Cambridge
University Press.
Wettestad, Jorgen (2002), ‘The Vienna Convention and Montreal Protocol on Ozone Layer
Depletion’, in Miles et al. (2002), 149–72.
Wildavsky, Aaron (1988), Searching for Safety, New York: Transaction Publishing.
Wolfrum, Rudiger, Volker Roben, and Fred L. Morrison (2000), ‘Preservation of the Marine
Environment’, in Fred L. Morrison and Rudiger Wolfrum (eds), International, Regional, and
National Environmental Law, Hague, London and Boston: Kluwer Law.
Yandle, Bruce (1983), ‘Bootleggers and Baptists – The Education of a Regulatory Economist’,
Regulation, 7(3), 12–16.
Yandle, Bruce and Stuart Buck (2002), ‘Bootleggers, Baptists, and the Global Warming Battle’,
Harvard Environmental Law Review, 26(1), 177–229.
532 Research handbook in international economic law
