The conservation of exhaustible natural resources constitutes a prominent linkage and one of the ongoing debates in the relationship between trade liberalization and environmental sustainability. Indeed, the recognition of this linkage was embodied as an important exception to the rules of the GATT, which justifies a violating measure related “to the conservation of exhaustible natural resources”. The trade dispute settlement tribunals have remarkable experience in handling debates concerning the application of this crucial exception. However, the various decisions that were held in these debates have not yet examined the application of the exception to the interaction between trade and the conservation of oil as an exhaustible natural resource. This paper argues that the decisions of the dispute settlement systems of the GATT and WTO have limited and narrowed the scope of conserving exhaustible natural resources within the trade regime and, most probably, they would restrict the protection of oil resources in any future dispute. This paper will examine the various decisions relating to the tensions between trade and the conservation of exhaustible natural resources. It will demonstrate that the GATT and WTO tribunals focused the discussion of conserving exhaustible natural resources on the exceptions and not on the rules, and that they narrowed the application of the trade exception. It is most likely that this approach will limit the protection of any future oil-conserving measure.
See British PetroleumBP Energy Outlook 2030 (London: BP2012) at p. 81 available at http://www.bp.com/liveassets/bp_internet/globalbp/STAGING/global_assets/downloads/O/2012_2030_energy_outlook_booklet.pdf.
See T. Schoenbaum“International Trade and Protection of the Environment: The Continuing Search for Reconciliation”American Journal of International Law91 268 (1997); Goyal A. The WTO and International Environmental Law: Towards a Conciliation (Oxford University Press 2006); Schwartz R. and Shaw S. “Trade and Environment in the WTO – State of Play” Journal of World Trade Vol. 36 No. 1 pp. 129-154 (2002).
See David A. Wirth“International Trade Agreements: Vehicles for Regulatory Reform?”U. Chi. Legal F.331(1997) at p. 336 (arguing that both subsections (b) and (g) of Article XX were “interpreted rather restrictively”); S. Gaines “The WTO’s Reading of the GATT Article XX Chapeau: A Disguised Restriction on Environmental Measures” 22 U. Pa. J. Int’l Econ. L. 739 (2001) at pp. 743-744 (explaining the ineffective applicability of Article XX(g) to environmental measures).