The Role Of Non-Wto Law In The Wto Dispute Settlement

The Role Of Non-Wto Law In The Wto Dispute Settlement

The Role of Non-WTO Law in the WTO Dispute Settlement

Roberto Antonio Valera
International Business Law

Introduction

Due to the proliferation and specialization of international regulations and organizations, public international law has become more fragmented. Inter-national environmental law, with around multilateral environmental agreements (MEAs), has not developed in the same forum as international human rights law, labor law or trade law, the latter being largely governed by the trade agreements under the umbrella of the World Trade Organization (WTO). This fragmentation of international law can lead to conflicts between norms. Since many MEAs use trade restrictions as a means to protect the environment, the risk for conflicts in the area of trade and environment is obvious. Furthermore, one of the criticisms against the WTO is that detrimental environmental effects of trade liberalization are not sufficiently taken into account. This has lead to a discussion about the role of the WTO in public international law and about the notion of the WTO as a ‘self-contained regime’. The question arises, how environmental concerns can be better taken into account within the framework of the WTO in order to liberalize world trade without compromising the environment.
While the WTO dispute settlement system provides the WTO adjudicating bodies with compulsory jurisdiction for all disputes under the WTO agreements, most MEAs only use negotiation and conciliation procedures as obligatory means to settle a dispute.5 As a consequence, the WTO adjudicating bodies are faced with disputes involving defenses based on a wide range of environmental concerns. Thus, the question arises to what extent they should take these defenses based on non-WTO law into consideration.
When examining the relationship between the WTO agreements and MEAs, biotechnology, described as being at the crossroads of trade and environment,6 is an interesting area for a thorough review....