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International Law and its Relationship to Trade, Environment and Sovereignty

Doktorarbeit / Dissertation 2012 108 Seiten

Jura - Europarecht, Völkerrecht, Internationales Privatrecht

Leseprobe

Contents

CHAPTER 1
BACKGROUND OF THE STUDY
1.1 INTRODUCTION
1.2. STATEMENT OF THE PROBLEM/RESEARCH PROBLEM
1.3. SIGNIFICANCE OR JUSTIFICATION OF THE STUDY
1.4. OBJECTIVES OF THE STUDY
1.5. HYPOTHESIS/ RESEARCH QUESTIONS
1.6. SCOPE
1.7 THEORETICAL OR CONCEPTUAL FRAMEWORK

CHAPTER 2
LITERATURE REVIEW
2.1 Clarifying ‘’regimes’’ and ‘’ norms’’.
2.2 What are Norms?
2.3 Changes of regimes’ rules are not changes in their norms.
2.4 Trade and Environmental Regimes
2.5 The limits of cooperation between trade and environmental regimes
2.6 Interdisciplinary relations between international law, sovereignty and trade
2.7 The WTO’s Historical Background
2.8 Functions and structure of the WTO
2.9 Multilateral Environment Agreements in Practice
2.10 Principles of International Environmental Law and State Sovereignty
2.11 The Changing Structure of International Law: Sovereignty Transformed

CHAPTER 3
METHODOLOGY/ MATERIALS AND METHODS
3.1 Introduction
3.2 Methodology
3.3 Methods
3.4 Research Design and Data Collection

CHAPTER 4
PRESENTATION OF FINDINGS
4.1 Examples of classic WTO- MEA vis a vis Sovereignty Conflicts
4.2 Comparison of risk assessment of the WTO and the Biosafety protection on Sovereignty of Nations
4.3 The relationship between the WTO’s use of Precautionary Approach and the Cartagena Protocol on Biosafety

CHAPTER 5
SUMMARY, CONCLUSIONS AND RECOMMENDATIONS
5.1 Summary
5.2 Conclusion

REFRENCES

CHAPTER 1

BACKGROUND OF THE STUDY

1.1 INTRODUCTION

We must spare no effort to free all of humanity, and above all our children and grandchildren, from the threat of living on a planet irredeemably spoilt by human activities, and whose resources would no longer be sufficient for their needs (United Nations Millennium Declaration, GA Res. 55/2).

Since the increasing pressure on ‘’ fair trade’’ emphasized by massive street demonstrations at the 1999 Ministerial Conference in Seattle, the World Trade Organization( WTO) has had to face new objectives raised by political, religious and ideological interests, labor, animal and women’s right. The environmental issue has moved beyond local and even national boundaries into the foreign policy debate, since actions in one country have had adverse environmental effects on another. As a consequence, public interests has intensified, in the light of high profile trade and environmental concerns that extends into some of these new sensitive areas such as the role of science in risk assessment, the conservation of endangered species, the cross border movement of genetically modified organisms( GMOs) and measures to protect public health.

Economists, lawyers and environmentalists have called for international agreements, which abrogate national sovereignty and delegate foreign policy to international agreements. Trade and environmental issues have come to the forefront of foreign policy, challenging and reshaping traditional interactions between trade and environment. Varieties of demands on the growing lists of trade and environmental issues have driven international treaties and agreements, which seem to have high costs with low benefits or ‘’ a chilling effect’’ (Conca, 2000).

Due to new problems and demands, the density of international institutions has risen in the new world order. With increasing numbers of international treaties and organizations, different international norms have become more intrusive on each other. This proposal seeks to study’’ international law and its relationship to trade, environment and sovereignty, with focus on Cartagena Protocol on Biosafety’’ as a case study to ‘’evaluate a principle research question: what are the contradictions between different approaches towards the environment of the WTO and multilateral environmental agreement (MEAs)? The aim of the case study is to find general contradictions between the WTO and MEAs and to analyze the overlap issues between different sets of multilateral agreements. The biosafety issue is not a unique phenomenon in international relations any more, biotechnology has become a vast area of current and potential commercial application involving environmental protection and sustainable development. An interaction between the WTO and Biosafety areas that would not normally be considered part of the traditional trade policy. The biosafety issue also draws on several different sets of international standard treaties and international laws, becoming one of the contemporary jurisprudential problems between trade and environmental regimes. Thus, biosafety issue is a good example used to find some new trends about trade and environmental regimes complex (Raustiala, Kal& Victor, 2003).

The concern over the status of the environment, and the effect its deterioration ultimately will have on humanity, are increasingly present in contemporary international discourse regarding natural resources. As a result of decades with unlimited unsustainable development mankind as a whole are now faced with the side effect of this development (UN, 2000) and in order for humanity to continually be able to rely on ecosystem services, they have come to take for granted, there is need to change this unsustainable development to sustainable development.

Multilateral trade and environmental agreements each have a role to play in achieving a sustainable future. For example, the WTO supports environmental concerns through the imposition of technical barriers, whereas MEAs, which contain trade measures, protect the environment through trade restrictions. The former has the goal of attaining economic welfare by the use of non-discrimination principle, whereas the latter protects the environment by the global governance principle, especially in developing countries. However, the WTO has expanded its reach compared with the General Agreement on Tariff and Trade (GATT). Many issues that used not to be considered as in the domain of trade policy are being dealt with by the WTO. There has been an increasing overlap between trade rules and rules relating to the environment and coherent processes between these two rules have been slow.

It is complicated and problematic to achieve both trade and environmental regimes’ goals, because their successes have been sustained by two different sets of principles, norms, rules and policy making procedures (Krasner, 1983). The empirical study of this dissertation focuses on the relationship between the WTO and the Cartagena Protocol on Biosafety, which is characterized by three conjectures about the dynamics of the regime complex.

Firstly, since the post war period, the overlapping problems between international agreements have risen because of the density of international institutions. Problems of the relationship between the WTO and MEAs have been discussed but causes of problems have not been investigated clearly because of the regimes’ complicated rules driven by their contradictory norms.

Secondly, the slow progress in the coherence processes between the WTO and MEAs has mostly resulted from the problems of negotiation within the WTO. There are two main strategies to clarify the relationship between trade and environmental regimes: the top down and bottom up approaches. The strategies also reflect the dynamics of contemporary international relations which seem to shift from top down to bottom up system.

Thirdly, WTO jurisprudence has influenced the negotiation of new environmental agreements. Reflecting the legalization of international organizations, the relationship between the WTO and MEAs is mainly driven by efforts to resolve legal inconsistency between overlapping rules developed in different norms. Thus international relations can’t ignore the evolution of international law.

There have been many trade or environment specialists in the studies of international relations or international law. International law scholars concentrate on detailed jurisdictional matters; on the other hand, international relations scholars focus on policy making procedures. However, it is important that the analyses of cross over issues take into account both sides of the studies. Also, the implications of increasing international institutional problems need to be analyzed by detailed judicial perspectives and also by broad spectrum studies of international relations. Some of the relationships are as presented below.

Multilateral Trading Agreements (MTAs) versus Multilateral Environmental Agreements (MEAs)

The traditional conception of an international regime has developed/ adapted to a new global order. The Trans boundary character of environmental protection and the challenge of liberalization in trade oblige both trade and environmental regimes to become involved in multilateral structures, which are possibly designed to address trade and the environment together. However, multilateral trade and environmental agreements sometimes play inconsistence roles because trade and environmental regimes have established different sets of agreements in achieving their goals. Also, those agreements are developed by various levels of motivation and purposes; hence they facilitate different scope and obligations.

This proposal seeks to study both sides of trade and environmental regimes’ perspectives. It will also address classical discussions of problems between trade and environmental regimes and sovereignty, and the ideas of a sustainable relationship. Finally, the proposal will explain the trend in the development of the WTO, MEAs and state sovereignty relationships.

Trade liberalization The constitution of the WTO will always shape world economies for decades to come, and can also have important influences on many non-economic goals, including vital issues of maintaining peace in the world( Jackson, 1998).

The WTO has become one of the most influential trade organizations in the field of global governance, which has engaged the daily lives of almost 150 sovereign states’ citizens (WTO, 2005). The WTO has extended the reach of trade rules and has developed them into regulatory structure. Thus, some governments and public interest groups have sought non trade related roles in WTO processes and others have demanded the WTO to undertake major reforms. The WTO has found itself at the centre of controversy in areas which are outside the domain of traditional trade policy. The WTO currently faces an unprecedented set of challenges such as the proliferation of unilateral and multilateral free trade agreements and the escalation of non-tariff forms of protectionism. Thus, some economists have given assessment of both the short term impact of the WTO and its ability to sustain the international trading system. For example, Hoekman and Kostecki (2001) focus on the WTO’s role as the primary organization through which trading nations manage their commercial interactions and the focal point for policy responses to the changing global trading environment.

They show these new trends in WTO Agreements with numerous examples used to illustrate the WTO perspective of managing broader issues. They also emphasize developing countries’ demand for greater accountability, access and balance of trade because these countries are often critical of the operation of the WTO System (ibid, pp, 479-485).

The successful implementation of the Uruguay Round Agreement extended the GATT rules to regulate the new areas, such as trade in agriculture, dispute settlement, intellectual property and services. However, there is a call for the WTO reforms for such problems as non-transparency and the lack of developing country participation. Sampson (2001) questions how wise policy makers can respond to the pressures falling on the WTO system and ensure the preservation of a trading system, which has brought non trade related issues into the international trading system.

Furthermore, the WTO covers some topics, which go beyond what is generally thought to be under a trade policy, through its dispute settlement procedures. The current criticisms of free trade are likely to focus on trade and environmental aspects of the WTO because they concern the WTO’s influence on the important implications for environmental protection. Shiva (2001), the environmentalist, states’’ that trade liberalization under WTO auspices unnecessarily leads to an environmentally harmful exploitation of natural and others. On the other hand, Oxley (2001) argues that the WTO hampers governments in pursuing environmentally friendly policies.

There have been criticisms about environmental harm coming from liberalization of trade. Environmentalists concern that the trade regime has encouraged over consumption to commodifying common pool resources. For example, eliminating tariffs in natural resources would dramatically increase their exploitation. It has been acknowledged that eliminating tariffs on wood products can dramatically increase logging, exacerbating deforestation in some of the world’s most sensitive forest( Global Exchange,2005). Trade liberalization has sometimes chilled MEAs to protect the environment. Environmentalists feel that rules of the trade regime are likely to be more influential than the MEAs; hence, exceptions to trade rules for environmental concerns have been minimal (Conca, Ken, 2005). Moreover, liberalization of trade has increased undercutting sustainable livelihoods for the poor. A large proportion of poor people work in the agricultural sector, where trade distortion are particularly high, and their agricultural industries are often monopolized by big multinational companies (Bouiet & Antoine, 2006).

Number of scholars have proposed ideas for the WTO reforms, for example, Chambers and Sampson have recommended a variety of possible ideas to defend criticisms of the WTO’s environment related policy, such as improving environmental labeling schemes and sanitary and phytosanitary standards under the WTO agreement. In contrast, Rao (2000) contends that the WTO needs to be reconceptualized as part of a set of international organizations contrived to govern the planet and its environment, although he states that it is not always true that environmental issues are better handled by the MEAs rather than under the WTO regimes.

Moreover, some scholars try to find a middle way, such as Bhagwati (1996) and Huder (1996) who discuss and analyze forms of trade and the environment policy harmonization. They have proposed that the trade regime co exists with social policies by analyzing domestic environmental regulations and their diversities.

However, the trade and environment issue cannot be discussed only by focusing on the structure and politics surrounding the WTO, but also by provisions of the various WTO Agreements and MEAs, and the WTO jurisprudence and its case laws. Many views have been advanced on this subject matter and no contentions have been resolved. For example, Robertson (2001) states that to avoid environmental risks, it is necessary to change national regulations to meet international standards through the WTO and to introduce non-economic issues such as environmental damage. However, due to insufficient information/ evidence of environmental problems, it is still too early to draw a conclusion. This research seeks to develop further and the various areas of the study.

Also, after decades of discussions, scholars still question how much the WTO can contribute to the sustainable coexistence of nations, and what role international trade and environment agreements should play in the protection of the environment, as well as in the achievement of social welfare (Sampson, et.al). The question points to one of the most difficult tasks in the global governance, how free trade can protect the environment without harming economic development.

Environmental Protection

Tolber and Co. asserts that liberalization of sectors of the economy such as agriculture and health would make many goods and services available to the majority of the people. Finance liberalization erodes indigenous and diverse systems of agriculture, promoting environmental degradation and reducing nutritive standards.

Since the environmental issue is no longer entirely new in the economic debate environmental regimes have started enforcing trade restrictions for the acceptance of various environmental and social standards. As a result, some MEAs have been effective in preventing environmental degradation and efficient in saving bio diversity throughout the world.

On the other hand such actions have normally resulted in raising in the eco-protection of some countries, where relatively higher environmental standards, implicitly factor domestic firms or eco dumping in which some domestic producers are allegedly injured by Low environmental standard imports from an illegal unregulated suppliers. There have been heightened concern that countries can gain unfair trade advantages through sacrificing the environment, hence trade measures have been influenced by protectionist motives., Trade and environmental law specialists such as Stillwell and colleagues, propose “reforms of the global framework of economic law, policy and institutions in order to create a more balanced global economy which is environmentally sustainable and beneficial to all people in a more equitable way”( The WTO,2001)

According to UNEP and WTO survey, conducted way back in 2001, there have been 238 international agreements dealing with various environmental issues which are categorized as MEAs. 38 of MEAs contain trade measures which restrict trade in specific products, or allow importing counties to ban trade in particular circumstances (ibid)

There have been arguments that the ban can be likely to regulate trans boundary Movements of hazardous wastes to non-annex 11 countries, can compromise state sovereignty.

Developing countries often do not have the power to enforce an import and export ban, because enforcement of the ban seems to depend on the responsibility of exporting industrialized countries (BRIDGES, 2001). This case illustrates a common contradiction between trade and environment, vis-à-vis sovereignty of the states.

These jurisdictional arguments of the relationship between WTO and some MEAs.

The dynamics of the use of natural resources and trade liberalization have changed in the environment related issues with entry into force of the GATT Uruguay Round Agreement. The relationship between international trade law and environmental law ought to be synergistic and mutually supportive. However, in practice the two jurisdictions often contain incompatible provisions and avoiding clashes remains a controversial adhoc task.

The WTO perceives trade restrictions in one of the three ways: an import restriction, an export restriction, or a means of economic discrimination. The trade regime maintains three core principles (Art. 1: The most favored nation principles; Art.vi: The national treatment principle, Art. Xi: Prohibition on quantitative restrictions on imports and exports, which have been considered to be inconsistent with MEAs trade measures) to control trade which itself causes environment harm, to protect states from substances harmful to the domestic environment, or to support agreements to protect the global commons.

A situation of ambiguity in a WTO provision for other international environmental agreements may potentially increase conflicts between trade and environmental regimes (Brack, 1997).

The details jurisprudential aspect addresses the need to safeguard the effectiveness of current and future trade and environmental arguments and to ensure that both regimes alone cannot prescribe solutions to environmental problems (Arden, 1996).

The WTO approach is that all members should be treated equally, which is highlighted by its non-discrimination principle. Whereas the MEAs approach is that less developed countries should be given handicaps in order to have opportunities akin to those of developed countries.

Hence, the discussions of the relations between trade and environment regimes have illustrated that international environmental agreements cannot be effective without coordinating with trade regimes; equally multilateral trade agreements cannot ignore environmental impacts of sustaining free trade. This suggests that trade and environmental regimes need to respect each other rules. MEAs on one hand to select the appropriate measures for environmental protection and WTO on the other hand to counter protectionist abuse of trade measures. This division of rules shows what attempts have been made to accommodate both the WTO and MEAs in their overlapping area, and proposes how future trade, environmental and sovereignty regimes norms should reshape trade and environmental agreements. However, jurisdictional question still remains on whether trade liberalization, environmental protection and sovereignty can be produced together and whether these variables can avoid being contradicted.

Balancing the policies of liberalizing of international trade and policies of protecting the environment vis-à-vis sovereignty has been a center of debate in international relations. The debate in this area is often contentious because most resource rich developing countries claim that trade liberalization has caused environmental degradation (Kreinin, 1997). Environmentalists also argue that liberalized imports and exports make developing countries export their best natural wealth and import waste of international production (Shiva, et.al). On the other hand, some industrialized countries defend that trade institutions have worked on the principles of consensus and co-operation, incorporate scientific findings and respect the precautionary principles, and meet related criteria of efficiency and equity (Pauwelyn, 2004).

Other international law specialists such as Petersman conclude that “International trade and environmental protection policies face similar problems of Political economy nature” and both regimes lend themselves to protectionist abuses because they involve powers to tax and restrict domestic policies and to redistribute income among levels (Petersman, 1995).

However, problems of trade and environmental regimes, and their legal instruments such as trade restrictions and sanctions may be similar. Nevertheless, the solutions may not be comparable between the two regimes because of different legal norms.

In conclusion, the studies of the relations between trade liberalization and environmental protection and sovereignty are still relatively new within International Law studies. Trade and environmental regimes have sovereignty currently in practice have been struggling with uncertainties of relationships in this proposed study. This study aimed to search for the common contradictions among the three variables of the dissertation. It focused on the WTO, MEA and cartegena protocol on Bio safety to investigate the question of the research. This study sought to avail some theoretical implications of the relationships of trade and non-trade issues. The existing literature is not sometimes consistent with real problems of trade and environmental issues, thus, the study will examine the relationships especially between the WTO and a new MEA. The Cartagena Protocol is one of the new and powerful MEAs in terms of trade implications. This study looked at different perspectives from the existing literature.

1.2. STATEMENT OF THE PROBLEM/RESEARCH PROBLEM

Sovereignty is the linchpin of global governance and is the main obstacle to achieving global governance. International trade agreements erode sovereignty.

Sovereignty permits nations to protect the environment, protect despots who violate human rights, justifies the removal of despots who violate human right, is a legal principle, is a political principle and at times it is not a principle at all. Sovereignty is a multi- faceted concept that appears capable of supporting virtually any argument in the field of international relations. Of course there is a debate over whether the rulings in the shrimp cases represents an instance of deference to intrusion upon national sovereignty (Sands, 2000), for example Sands characterizes the shrimp rulings as an example of the active role of courts in identifying the existence of norms where the international legislature has refrained from doing so, or to “fill in the gaps” of international law . He argues that the “new international judiciary” of permanent courts and tribunals that have been established in recent years have “in many instances shown itself unwillingly to defer to traditional conception of sovereignty and state power” (the WTO) judiciary representing but one example(Sand, 2002).

The creation of international judiciary means that states have given up “a degree of control in the making” of international law, since the line between interpretation and legislation can often be a hard one to draw. Howse on the other hand, urges that the shrimp ruling does not represent a case of judicial activisms but rather an example of difference to the national sovereignty of the United States in the absence of clear WTO rules prohibiting the use of trade measures to achieve international conservational objectives Robert Howse, 2002).

Others urge that sovereignty is not a meaningful concept (Lord McNair, 1961) and that the real issue is how to allocate decision making authority (Jackson, 1998). Nevertheless, the concept of state sovereignty is the starting points for the analysis of the allocation of the decision making proven under international laws. In the absence of customary or conventional rules of international law to the contrary state Sovereignty is the “default” position in terms of decision making authority.

However, sovereignty is an ambitious concept whose meaning and content is not sufficiently precise! Indeed it may not even qualify as a norm of international law because its content is not sufficiently precise. Nevertheless, it embodies the principle that one state does not have the jurisdiction to intervene in the internal affairs of another.

The key issue is that some of the MEA rulings permit the violation of the principle of non-intervention. The unilateral measure by one country represents an intrusion upon the sovereignty rights of other countries to regulate the activities of actors in international environmental resources and in their environments. Thus, a country can exceed the limits of its jurisdiction (by seeking to regulate activities of non-citizens outside its territory).

Whether one views the issue from the perspective of the importing or exporting country, what is at stake is where to draw the line when the jurisdictions of the state overlap. In the absence of clear agreements, this competition for jurisdiction over shared resources can be solved by the rule of law or the relative power of state. In adopting a substantial body of rules to govern trade relations, WTO members have opted for the former.

Casting the debates in terms of sovereignty clouds the issue. Nevertheless, more concrete expressions of the sovereignty concept can chart a course that promotes greater coherence between WTO law and the general body of international law.

Jurisdictional competence is one manifestation of the concept of sovereignty. Another one is the equality of states. Article 1 of the UN declarations requires states to conduct trade relations in accordance with the principles of sovereign equality and non-interventions (United Nations, Resolution 2131). In the event of any consistency between the UN charter and other treaties, the former prevails (Article 103 Charter of United Nations). These principles constitute customary international law(Nicaragua v United States, 1986).

DSU Art. 3(2) require the interpretation of WTO agreements in accordance with the customary rules of interpretation of public international law, which incorporates these principles by reference. Thus, under international law, the exceptions in GATT Article xx must be interpreted and applied to conform to the principles of sovereignty equality and non-intervention.

As with the issue of sovereignty, there are two sides of the coin. From the perspective of exporting countries, particularly developing countries, the use of trade barriers to induce changes to their internal regulatory regime is an act of coercion that violates the non-intervention norm in international law (Thuo, 1996). From the perspective of the importing country that introduces trade barrier, or that makes market access conditional upon changes to the exporting country’s environmental policy, market access merely provides an economic incentive to protect the environment (WTO, ArticleXX). Since the effectiveness of this category of unilateral trade measures depends on market power, it is not surprising that developed countries tend not to view these measures as a form of economic coercion that violates the norm of non-intervention (Gathii). Regardless of the legal agreements on one side or the other, the intervention of such measures is clearly to intervene in the internal affairs of other states. However, under Vienna convention, Article 52, unlike the use of force, the use of economic coercion to induce states to enter into treaties does not void those treaties.

Even if one accepts the argument that common coercion does not violate sovereign equality or non-intervention, the fact remains that access to the right to use unilateral trade measures under Article xx depends on market power. Access to this right is thus conditional upon the size and level of development of WTO members, making such a legal right inconsistent with equality and fairness.

The trade obligations in the GATT should act as a means of preventing economically powerful states from using economic pressure to force weaker states to accept obligations they would otherwise not enter into. Thus, if a state does not wish to alter its domestic environmental policy or enter into a MEA, the use of trade sanctions as a method to compel states to do so could be counteracted by a complaint to the WTO.

Where a member accepts MEA obligations, the availability of recourse to the WTO to challenge economic coercion strengthens the validity of the MEA obligations by reducing the likelihood that they will be accepted under duress. Even though economic coercion would not void a treaty, the acceptance of obligations under duress undermines their legitimacy. In order to fortify the legitimacy and effectiveness of MEAs, unilateral trade sanctions imposed for the purpose of coercing a state to accept international obligations should be viewed as inconsistent with the principles of sovereign equality and non-intervention.

Multilateral trade and environmental agreements each have a role to play in achieving a sustainable future for example, the WTO supports environmental concerns through the imposition of technical barriers, whereas, MEAs which contain trade measures, protect the environment through trade restrictions. The former has the goal of attaining economic welfare by the use of “non discrimination” principle, whereas the latter protects the environment by the “global governance” principle, especially in developing countries. There has been an increasing overlap between trade rules and rules relating to the environment and coherent processes between these two rules have been slow. It is complicated and problematic to achieve all these interrelationships because their successes have been sustained by the different sets of principles, norms, rules and policy procedures. Due to these gaps, the proposal seeks to study these anomalies by focusing on the relationships among international law, trade and sovereignty, with focus on the Cartagena Protocol on Bio diversity, which is characterized by the above conjectures about the dynamics of the regime complex. The study will focus on three specific issues between the WTO, Sovereignty and the Cartagena Protocol on Bio diversity to support and answer the central question.

1.3. SIGNIFICANCE OR JUSTIFICATION OF THE STUDY

This study is very relevant and justified on the following grounds:

First, since the increasing pressure on “fair trade” emphasized by various street demonstrations at the various ministerial conferences, there is need to investigate how WTO has had to face new objectives raised by political, religious and ideological interests, labour, animal and women’s rights.

Secondly, the environmental issue has moved beyond local and even national boundaries into foreign policy debates since actions in one country have had adverse environmental effects on another. As a consequence, public interest have intensified, in the light of high profile trade and environmental concerns that extends into some new sensitive areas such as the role of finance in risk assessment, the conservation of endangered species, the cross border movement of genetically modified organisms and measures to protect public health. This study will address the key issues mentioned in this paragraph.

Thirdly, trade, environmental issues and sovereignty have come to the forefront of foreign policy challenging and reshaping traditional interactions between trade and environment. It will be useful study to investigate the varieties of growing demands on the list of trade, environment and sovereignty issues that are driving the coming into force of many treaties and agreements, which seem to have high costs with low benefits or a “chilling effect. This would provide forum for actors to address the issues raised from the study.

Fourthly, due to new problems and demands, the density of international institutions has risen in the new world order. With increasing numbers of International treaties and organizations, different international norms have become more intrusive on each other. This study is justified in that it concentrates on trade, sovereignty and international law in the name of Cartagena Protocol on Bio diversity to analyze the situation in which these variables deal with the same issue differently.

Lastly, the study is justified in the sense that it will help to alert the various stakeholders on the contradictions among the issues of the research and the overlaps associated. The bio-safety issue is not a unique phenomenon in international law anymore; bio technology has become a vast area of current and potential commercial applications involving environmental protection and sustainable development. An interaction between WTO and bio-safety protocol over bio-safety illustrates why the WTO has moved on regulatory areas that would not normally be considered part of the traditional trade policy. It also draws on several different sets on international standard treaties and international law, becoming one of the contemporary jurisprudential problems between trade and environmental regimes. This, the study of bio-safety issue is a good example that will be used to find new trends about the trade and environmental regimes’ complex.

1.4. OBJECTIVES OF THE STUDY

The aim of this study is to find general contradictions among the WTO, MEAs and Sovereignty and to analyze the overlap issues between two different sets of multilateral agreements.

Specifically, the study seeks to undertake the following:

1. To analyze how the WTO and the Cartagena on Bio safety Agreements recognize like products and require identification of products;
2. To look at the examples of classic WTO – MEA vis-à-vis sovereignty conflict;
3. To study comparison of risk assessment of the WTO and the Bio safety protection on sovereignty of nations;
4. To evaluate the relationship between the WTO’s use of the precautionary approach;
5. Lastly to discover general inconsistencies between agreements of the WTO, MEAs and Sovereignty.

1.5. HYPOTHESIS/ RESEARCH QUESTIONS

The following Research Questions will guide the study:

1. How do the WTO and the Cartagena Protocol, on Bio safety agreements recognize like products and require the identification of products?
2. What are the classic examples of WTO – MEA visa-a-vis Sovereignty conflicts?
3. How does risk assessment of the WTO and the biosafety protection visa-a-vis sovereignty compare?
4. What are the relationships between WTO’s use of the precautionary principle and the Bio safety precautionary principle approaches?
5. What are the general inconsistences between agreements of the WTO, MEA and Sovereignty?

1.6. SCOPE

The empirical study of this proposal focuses on three specific issues between the WTO and the Cartagena Protocol on Bio safety to answer the key research questions in the section above. These relationships are characterized by the conjunctures about the dynamics as complex.

The study will focus on the overlapping problems between international agreements that have risen because of the density of international institutions. Problems of the relationship between the WTO and MEAs have been discussed but the causes of the problems have not been investigated clearly because of regimes’ complicated rules driven by their contradictory norms.

Also, the slow progress in the coherence process between the WTO and MEAs has mostly resulted from the negotiations with the WTO. It will look at the two strategies to clarify the relationship between trade and environmental regimes; the “top – down” and “bottom – up” approaches, that reflect the dynamics of contemporary international relations.

Likewise, the study will also focus on how WTO jurisprudence has influenced the negotiation of new environmental agreements. Reflecting the legalization of international organisations, exploration will be carried on the relationship between WTO and MEAs and how it is driven by efforts to resolve legal inconsistency between the overlapping rules developed in different norms.

It will also focus on detailed jurisdiction matters and policy making procedure, and will concentrate further on the analysis of crossover issues that take into account both sides of the subject matter. Likewise, the implication of increasing international institutional problems will be analysed by detailed jurisdictional perspectives and also by broad spectrum studies of international relations.

New international environmental treaties have been found to handle issues of scientific uncertainty concerning products that may possibly harm the environment genetic modifications is one of them. Technological development has allowed far-reaching techniques of genetic manipulation. As a result, genetically modified or related resources have been induced to create new trade rules for these new products.

On the other hand, how these new technologies will affect human, animal and plant life. Moreover, even these newer bio-products such as products made out of using nanotechnology have already come onto the international market. Thus, this study proposal will provide important examples to analyze the major problems that exist within the coherence process between trade and environmental regimes and to conceptualize how trade and environmental issues can be governed in a more sustainable way.

In conclusion, the detailed case study of the relationship between the WTO and MEAs will aim to search for common contradictions between the two issues. Its scope will be on the relationship between the WTO and the Cartagena Protocol on Bio safety to investigate the questions of the study. It will explore some new trends of potential contradictions between trade and environmental regimes, and draw some theoretical implications of the relationship between trade and non-trade issues. Thus, this proposal will use different perspectives from the existing literature on the subject matter. It is expected that the study will be accomplished in the next eight months.

1.7 THEORETICAL OR CONCEPTUAL FRAMEWORK

The theoretical framework in this study is structured mainly by international relations and international law studies because the research question depends mainly on analysis of the problems of two different sets of multilateral agreements in the judicial and political dynamics of international relations. There are various groups of international relations theorists as well as studies of international institutions, regimes and theorists’ theories. However, this section only shows selected theories in accordance with the research questions.

Primarily, this study employed regime theory, which is used to conceptualize how trade and environmental regimes of different norms affect coherence between each other. Regime theorists aim to search for a degree of stability in the international system (Krasner, 1983). Thus, they are concerned with interactions in diverse areas such as environmental protection, human rights and new technologies. Regime theory focuses on cooperation among different actors in specified areas of international relations. International regimes are generally viewed as a set of “norms", "principles", “rules”, and “policy-making procedures” that affect states’ behavior in certain issue areas (ibid). Regime theories analyses how these four elements interrelate with each other during the regimes’ development process.

In addition, economics and sustainable development theories are important dimensions of this research, particularly to analyze the early stage of trade and environmental regimes, developments; how were trade and environment regimes established? Although shifting from the dominant neoclassical idea made linkages between economic growth and the environment, the scope for integrating environmental considerations into economic development has been slow. On the other hand, environmental regimes have struggled to achieve sustainable development theories to promote economic development. Thus, both concepts of neoclassical theory and sustainable development contribute to conceptualize two regimes’ differences from their origins.

Secondly, the study used neoliberal and national approaches to emphasize differences between trade and environmental regimes. Neoliberalists argue that hegemonic power is not always an important factor in international relations any more, and emphasize that national governments are not only the sources of International Corporation. This phenomenon has become obvious negotiation of the MEAs in which non state actors have also played an important part, on the other hand, nationalists’ explanations of international regimes focus on the distribution of knowledge which constitutes the identities, and shapes the preference as well as the perceived options of state actors (Checkel, 1998). Rationality means that states calculate the costs and benefits of alternative causes of action in order to maximize their interests, which can be seen in the WTO dispute cases. Thus, those two approaches are useful to analyze trade and environmental regimes’ different norms.

Moreover, cognitivists’ theoretical new support neoliberalists to explain environmental regimes because their concept shows how new science should be interpreted into international rules. Cognitivists approach changes in regimes as part of the learning process in a world where international relations are increasingly defined by technological and scientific challenges.

Cognitive factors are one of the keys to understanding the dynamics of the new trade and environment relationship. Thus, to explain international cooperation on challenges involving complexities and uncertainties of new environment issues, it needs to consider how two regimes have interpreted as well as would translate new phenomenon into their norms (Ruggie, 1998).

In addition, constructivists contend that not only are identities and interest of actors socially construed, but also that they share the stage with a whole host of other factors emanating from people as “cultural beings”. However, constructionists do not seem to develop a general theory of the social construction of reality. Nevertheless; constructionists’ thought may be useful to clarify the language of “norms” in this proposed study.

[...]

Details

Seiten
108
Jahr
2012
ISBN (eBook)
9783656379430
ISBN (Buch)
9783656380719
Dateigröße
922 KB
Sprache
Deutsch
Katalognummer
v210285
Note
Schlagworte
international relationship trade environment sovereignty

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Titel: International Law and its Relationship to Trade, Environment and Sovereignty