|
|
Previous |Next |Title |Contents
This case study has examined the approach of the European Court and GATT
panels to the single issue in the trade/environment debate which has most
excited the wrath of environmentalists. This is concerned with the question of
whether (and in what circumstances) states may introduce restrictions on trade
which are predicated not upon the intrinsic environmental quality of the goods
themselves, but upon their manner of production and the negative environmental
consequences associated with this. This debate is often framed in the language
of extra-territoriality because trade restrictions reflecting concerns about
production processes are usually motivated by anxieties over environmental
impact, not in the state imposing the restriction, but in the territory of the
state from which the goods originate or (in the case of exports) for which they
are destined. More often today this debate is conceived in terms of a
distinction between product standards on the one hand, and process standards on
the other. The latter conception is useful. Framed in these terms, the issue
becomes one of the extent to which one state (State A) may restrict trade on
the basis of the failure of a trading partner (State B) to comply with either
its (State A's) domestic product standards or its (State A's) domestic process
standards. This characterization sheds light upon the question of why this
issue has proved more contentious in international law than in Community law.
Indeed, as noted above, in Community law the issue has not yet been resolved.
Put simply (no doubt too simply), the premises underpinning these two
legal orders have traditionally been distinct in terms of their approaches to
trade in goods. Whereas Community law is predicated upon the concept of 'mutual
recognition' of standards (subject to exceptions), the GATT rests upon a
foundation of 'national treatment' (again subject to exceptions). Nonetheless,
as seen above, the GATT effectively (de facto) departs from this
principle of national treatment, in favour of mutual recognition, when it comes
to the issue of the application of process standards. Hence the issue of
process standards implies, in the context of the GATT, a de facto
paradigm shift in terms of its foundational premise. While in certain respects
Community law might treat product and process standards differently, the
consequences of this are less pronounced in terms of the premises underlying
the system.
There are, of course, other reasons as to why this issue
has proved more contentious, and the debate more heated, in an international as
opposed to a Community context. Most obviously, the Community's enhanced
capacity for harmonization of standards, including those pertaining to
production process, is of crucial practical and conceptual significance in
easing the path from national treatment to mutual recognition. In areas such as
environmental policy and social policy, mutual recognition of process standards
in the Community operates against a backdrop of a shared regulatory framework
constituted at Community level. Nonetheless economic ideology and the
Community's 'legitimacy crisis' have combined to ensure that this framework is
partial in its coverage and increasingly flexible in its scope.
It
will be apparent that this debate about process standards is underpinned by a
broad range of considerations; environmental, economic and moral. Central to it
is the well-worn thesis that the capacity of states to regulate in areas such
as the environment is contingent, in practice, upon their capacity to demand
compliance with these standards on the part of their trading partners. The
reasons for this are conceived as economic in nature. This thesis rests upon
the assumption that social regulation, including environmental regulation,
imposes costs upon economic actors and that economic actors will re-locate (or
at least threaten to do so) where production can be more cheaply achieved in
another state, without threatening market access. It is no longer only the wind
which 'bloweth where it listeth'. This argument is captured by the concept of a
regulatory race towards the bottom. [56] This
thesis is less fashionable than it once was and certainly it has been applied,
by some, in a manner which is excessively deterministic and insufficiently
context specific. Nonetheless, it is a thesis which is hard to interrogate in
empirical terms as it is difficult, if not impossible, to ascertain the extent
to which social regulation is eschewed on the basis of competitiveness
concerns. In the Community at least the need to harmonize conditions of
competition continues to provide a (albeit contested) rationale for Community
level regulation. [57]
While this
debate has tended to be couched in the language of economics and the dangers
associated with a de-regulatory 'competition between rules', the cases under
discussion in this case study do not reflect exclusively, or arguably even
principally, economic or competitiveness concerns. Rather, they bear testimony
to the moral dimension of humankind's relationship with nature. In this, and in
so far as they reflect the diversity of human values and of the norms giving
expression to them, these cases pose a formidable challenge to international
trade. The Dutch government's ban on the marketing of dead red grouse speaks
not to economic realism but to an abhorrence of the practice of hunting wild
birds for commercial gain. The Compassion in World Farming case arose
against a backdrop of moral outrage as regards the functioning of the
veal-crates system. A United Kingdom ban on the export of live calves would
serve to prejudice rather than reinforce Britain's economic interests. For the
United States the 'incidental' capture of sea turtles is conceived as an issue
worthy of moral engagement, and no less so because the turtles concerned are
'foreign'.
In this, their moral dimension, the cases discussed above
appear to be quite distinct from that to be examined in the second case study
below. Here the trade restriction introduced is presented as having been
predicated upon the physical impact of the imported goods on the health of
consumers in the importing states. Nonetheless, in so far as physical impact is
not established, this case also returns us to the theme of 'right' and 'wrong'
in terms of production process, rather than 'good' or 'bad' in terms of
physical impact. It is a theme to which we will return in the conclusion of
this paper.
[56] See Poiares Maduro, M., We,
the court: the European Court of Justice and the European Economic Constitution
(Hart Publishing, 1997), chapter 4, for a discussion of the phenomenon of
'competition between rules'. Maduro cites much of the relevant literature
pertaining to this debate. See also, for an excellent overview of this debate,
and its empirical basis in a social policy context, Barnard, C., 'EC Social
Poliy' in Craig, P. & de Burca, G., The Evolution of EU Law (OUP,
forthcoming 1999).
[57] It is
significant that even the Treaty of Amsterdam Protocol on the Application of
the Principles of Subsidiarity and Proportionality recognizes this.
Previous |Next |Title |Contents