Greening the Red Herring - The WTO, Disputes and the Environment

Abstract

Multilateral environmental agreements (MEAs) are a relatively weak and fragmented governance system. MEAs will likely not be fit for addressing the environmental problems of the coming century. Using powerful non-environmental regimes has been suggested as an alternative way forward. The World Trade Organisation (WTO) is a powerful international organisation, largely due to its dispute settlement mechanism (DSM). Against an equivocal literature on the actual or potential pro or anti-environment effects of the WTO, this thesis adds a novel methodological contribution and distinct findings by creating and analysing a database of all environmental disputes in the WTO DSM. This thesis undertakes a systematic and thorough empirical review, rather than arguing at a general level or focusing on selected cases. In doing so, this thesis provides a novel and defensible definition of environmental cases under the DSM which are methodically investigated. Analysis of environmental disputes reveals a shoal of red herrings in terms of effective environmental policy. Environmental disputes have a low win rate, but not because they are being disadvantaged for being environmental. Environmental policies are found to be incompatible with WTO law because of specific legal issues separate from the environmental objective of such policies. Environmental cases have focused increasingly on renewable/alternative energy policy. Yet this has not changed how the DSM treats environmental content. The environmental objectives of policies remain separate from DSM rulings. Additionally, rulings against environmental policies only recommend policy amendments from states. The poor performance of environmental policy within the DSM is due to poor construction of policy by state level policymakers. The DSM and WTO are therefore red herrings in terms of effective environmental policy. The WTO and DSM are trade systems that have fulfilled their mandate, which is to highlight WTO-illegal trade policy. They are fit for purpose and would need infeasible fundamental amendments to more effectively address environmental matters. Focus on the DSM and WTO distracts from more pertinent and easily reformed issues like state level environmental policy or international environmental agreements. Further integration of state level policy, international environmental agreements, and the WTO is necessary to ensure effective trade-environment integrated policy. Failure to do so will result in continuously weak and fragmented international environmental policy. Show more