- See North American Free Trade Agreement, Canadian Environmental Review, October 1992.
- US—Restrictions on Imports of Tuna, GATT Dispute Settlement Panel Report, 16 August 1991 (1991) 30 ILM 1594.
- K G Beacham, “International Trade and the Environment: Implications of the General Agreement on Tariffs and Trade for the Future of Environmental Protection Efforts” (1992) 3 Colo J Int'l Envt L & Pol 655.
- The best known treaties of this type are aimed at control of trade in endangered species (CITES), elimination of chloroflurocarbon emissions to protect the ozone layer. (Montreal Protocol), and control of international trade in toxic and hazardous waste (Basel Convention). These agreements are discussed below.
- See p J Schoenbaum, “AGORA: Trade and Environment” (1992) 86 American Journal of International Law 701, at 719 ff.
- NAFTA, Art 104.
- Ibid, see discussion in I McConnell, “NAFTA: Trading Natural Resources and Protecting the Environment”, Draft, 1993.
- GATT Secretariat, Trade and Environment, in International Trade, 1990–91 (1992) 4 World Trade Materials 37 at 51.
- 16 September 1987, 26 ILM 1541 (In force, 1 January 1989).
- Chloroflurocarbons, halons, carbon tetrachloride and methyl chloroform.
- Montreal Protocol, Art 4.
- See A Enders and A Porges “Successful Conventions and Conventional Success: Saving the Ozone Layer” 131 at 141, in K Anderson and R Blackhurse (eds), The Greening of World Trade Issues (1992).
- Greenhouse gases include CO2, methane, water vapour, nitrous oxides, ozone, CFCs, and halons. Energy activities, particularly fossil fuel burning, produces significant quantities of CO2 and nitrous oxides. Ozone is produced by reactions involving pollutants such as nitrous oxides, generated mainly by fuel combustion. Some methane is also produced, principally by natural gas industry activities. CO2 emissions are thought to presently be responsible for just over 50 per cent of the greenhouse effect. Fossil fuel burning produces about 75 per cent of total atmospheric CO2 emissions. Combustion of fossil fuel and biomass accounts for a combined 65–75 per cent of atmospheric emissions of nitrous oxides. Methane, resulting from distribution and use of fuels, mainly natural gas, is thought to amount to 10–30 per cent of total methane emissions. See OECD—Energy and the Environment—Policy Overview, IEA/CRD (89) 34 (Ed Revision), November 1989 at 38–39.
- Enders and Porges, Supra, note 12.
- Id at 142.
- Washington, 3 March 1973 (1973) 12 ILM 1088.
- Id, Art II(1).
- Id, Art II(2).
- Id, Art II(3).
- Id, Art III.
- Ibid.
- 1973, 16 USC § §1531–1534 (1988).
- In J O Saunders, at 384. In Saunders (ed) The Legal Challenge of Sustainable Development (Calgary: Carswell, 1990).
- Id, at 383.
- The 1983 International Tropical Timber Agreement, which expires 31 March 1994, promotes research and reforestation and management projects.
- Supra, note 8 at 28.
- This characterisation is adopted by the GATT secretariat, Id, at 29.
- 22 March 1989 (1989) 28 ILM 657 (entry into force; May 1992). Canada, but not the US, has signed this Treaty.
- Id, Preamble.
- Id, Article 1, 2(1) and Annexes I & II.
- See Elisa J Grammer, Environmental Issues in Gas Distribution and Transmission at 6–8 (July 1988). If PCBs enter pipeline systems they can be carried into interconnected systems and produce major cleanup and disposal problems and costs. A case of this kind resulted in a 1987 settlement agreement involving a $15 million civil penalty and over $400 million of cleanup costs between Texas Eastern Gas Pipeline Company and the US Environmental Protection Agency—cited by Grammer, Ibid.
- OECD, Environmental Effects of Electricity Generation, Paris, 1985 at 73.
- Basel Convention, Annexes I-III, 28 ILM 678–81.
- Id, Art 4(5).
- By Canada, Denmark, Norway, the United States, and Russia, 15 November 1973, TIAS No 8049, in force 26 May 1976.
- K G Beacham, Supra, note 3 at 674.
- Id, Art 5. Russia is the only part not also party to the GATT.
- Beacham, Supra, note 3 at 674; S Lyster, International Wildlife Law at 55 (1985).
- I McConnell, “NAFTA: Trading Natural Resources and Protecting the Environment”, in (1994) JERL 1, p 151.
- NAFTA, Article 104.1.
- Id, Article 104.2.
- Particularly the Tuna-Dolphin Panel Report, Supra, note 2, in view of the “least inconsistent” alternative means criterion in NAFTA. Article 104.1.
- McConnell, Supra, note 39 at 22. This is contemplated by p M McDorman in “the 1991 US-Mexico GATT Panel Report on Tuna and Dolphin: Implications for Trade and Environment Conflicts” (1992), 17 NCJ Int'l L & Com Req 461 at 482.
- 23 May 1969 (1969) 8 ILM 679.
- Id, Art 30, 41.
- Technically, there are a series of GATT treaties representing each successive round of multilateral trade negotiations.
- Supra, note 45, Art 41.
- Montreal Protocol, Art 4.
- Id, Art 4(2).
- Id, Art 4(3).
- Id, Art 4(4). The validity of this provision appears questionable in view of the conclusion of the GATT Panel in the Tuna-Dolphin case, Supra, note 2, that the national treatment standards applies to products so that discrimination on the basis of different production processes cannot be justified.
- Id, Art 2.
- Adjustments and Amendments to the Montreal Protocol, adopted at London, 29 June 1990, Annex II. Art 2 replacing Art 2(5) (the original limited tradeable quota system). The Protocol as amended is reprinted in International Law and Global Climate Change.
- See Endus and Porges, Supra, note 12 at 135.
- GATT, Art 1(1).
- Id, Art III.
- Id, Art XI.
- See World Meteorological Organisation, Scientific Assessment of Stratospheric Ozone, Vol I, Geneva: WHO, 1989.
- And thus fit the condition established by Tuna-Dolphin Panel Decision, Supra, note 2, that extra jurisdictional measures to protect life and health cannot be justified under Art XX.
- GATT, Art XX.
- This was the advice given by a GATT Legal Advisor to the Montreal Protocol Negotiations: Report of the Ad Hoc Workgroup in the work of its Third Session, at 18 UNEP/WG Doc. 172/2, 8 May 1987, at 18.
- Tuna-Dolphin Panel Report, Supra, note 2 at 1620.
- A Enders and A Porges, Supra, note 12 at 135.
- Which may fit more easily within GATT Art XI (1).
- A Enders and A Porges, Supra, note 12 at 134.
- Supra, note 62.
- Supra, note 2.
- Ibid.
- Ibid.
- McDorman, Supra, note 43 at 484.
- See Schoenbaum, Supra, note 5, at 720.
- Basel Convention, Supra, note 28, Art 4(5); GATT, Art XI(1).
- GATT, Art I.
- Thus running afoul of the Tuna-Dolphin panel's (supra, note 2) limitation of Article XX(b) to jurisdictional measures.
- Basel Convention, Art 4(1)(a).
- See Beacham, Supra, note 3, at 673.
- Report of GATT Working Group on Export of Domestically Prohibited Goods and Other Hazardous Substances and draft decision, GATT Doc L/6872, 2 July 1991; See Schoenbaum, Supra, note 5 at 725.
Journal of Energy & Natural Resources Law
Volume 12, 1994 - Issue 1: International Energy Trade