From Exception to Promotion

Re-Thinking the Relationship between International Trade and Environmental Law

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Author: Elena Cima
From Exception to Promotion: Re-Thinking the Relationship between International Trade and Environmental Law tells a new, unconventional story of the nexus between international trade and environmental law - a story in which the keyword is synergy rather than conflict, and where the trade regime was always meant for something greater than simply trade liberalization. This ‘something greater’ was peace in the first half of the 20th century. Today, it is sustainable development, environmental protection, and social inclusion. Environmental protection is therefore neither antithetical to the overarching purpose of the trading system nor simply a ‘non-trade’ issue to be incorporated within the trade regime, but rather part of its very nature and purpose. By telling this ‘untold’ story of the nexus, this book intends to raise historical awareness and open a constructive discussion on the future of the trade regime and of international economic law governance at large.
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Elena Cima, Ph.D, IHEID, is a Lecturer in International Energy Law at the University of Geneva. She has recently co-edited the book A Multifaceted Approach to Trade Liberalisation and Investment Protection in the Energy Sector (Brill, 2021) and has published in peer-reviewed journals.
Acknowledgments

List of Illustrations

Table of Cases

Table of Treaties and Legislations

Table of Documents

Abbreviations

1Introduction
 1 Vantage Points

 2 The Untold Story of the Trade/Environment Nexus
 2.1  Transcending the ‘Trade and …’ Debate

 2.2  The Importance of Historical Inquiry


 3 The Hidden Thread
 3.1  Trade Is a Means to an End

 3.2  The International Trade Regime Is Historically Contingent
 3.2.1 The Emergence of Free Trade thought—The 1850s

 3.2.2 Post-war Economic Reconstruction and the gatt

 3.2.3 The 1980s and the wto project

 3.2.4 A New Rationale?


 3.3  Individuals and Communities Contribute to Changes in Collective Ideas
 3.3.1 Right Conditions, Right Environment

 3.3.2 The Trade Policy Elite: The Creation of an Environment Un-Conducive to Learning and Change

 3.3.3 Making Learning Possible


 4 What Lies Ahead
 4.1  Choices

 4.2  A Cartography

 4.3  Structure of the Book


2First Came Economic Cooperation  The Genesis of the Nexus
 1 The Moral Value of Trade and the Need for International Trade Cooperation
 1.1  The Senator from Tennessee and the International Dimension of Trade Policy

 1.2  ‘When Goods Don’t Cross Borders, Soldiers Will’

 1.3  The Call for an International Trade Conference

 1.4  Anglo-American Trade Collaboration: The Atlantic Conference

 1.5  Anderson’s Circus

 1.6  Meade’s Multilateral Approach to Trade Agreements

 1.7  Havana


 2 International Cooperation to Protect Our Spaceship Earth
 2.1  The Utilitarian Approach to Environmental Protection

 2.2  “We Have Met the Enemy and He Is Us”

 2.3  Spaceship Earth

 2.4  The ‘Internationalist’ from Oak Lake

 2.5  On the Road to Stockholm


 3 The Environment as a Late-Comer
 3.1  Mr. Clean—The Senator from Maine

 3.2  The Commerce Clause and the Limits to Federal Environmental Law-Making

 3.3  The Economic Purpose of Early European Environmental Efforts

 3.4  The Environment Overlooked at Havana

 3.5  unep and The Organizational Challenge

 3.6  The Environment as an ‘Add-On’: The Origin of the Nexus


3The  Exception-Based Model
 1 The Environment Cornered in Exception Clauses
 1.1  The Environment Seen Through Free Trade Glasses

 1.2  Who’s Afraid of Environmental Measures?—Part i. Environmental Measures as Non-Tariff Barriers

 1.3  Who’s Afraid of Environmental Measures?—Part ii. The Harmonization Agenda

 1.4  The Exception to the Rule

 1.5  The Real Story of ‘Environmental’ Exceptions or ‘On How They Became Environmental’

 1.6  The Indeterminacy of Trade Law and the Neoliberal Turn


 2 Rivalry
 2.1  Dialogue of the Deaf

 2.2  Everyone for Themselves

 2.3  Between Two Fires

 2.4  Development First

 2.5  To Each His Own Fear

 2.6  Like Riding Bicycles


 3 How Exceptions Work: The Environment Upstaged
 3.1  A Clause to Prevent All Abuses

 3.2  A ‘Narrowly Defined’ Exception

 3.3  Who Bears the Risk of Non-Persuasion?

 3.4  Judges with Limited Mandate and Expertise

 3.5  Trade Liberalization First


4The Evolution of the Nexus The Quest for Balance
 1 The Need for Balance
 1.1  Lady Jackson

 1.2  Same Game, New Rules

 1.3  Which Takes Precedence, Environment or Development?

 1.4  Trade Too Can Harm the Environment

 1.5  Assessing Environmental Impacts

 1.6  Maquiladoras, Hazardous Waste, and the Pollution Haven Package

 1.7  This Is Not Solely an International Story


 2 Finding Balance
 2.1  Free Traders and Environmentalists: Together at Last

 2.2  The Committee on Trade and Environment: wto’s ‘Softer’ Version of Institutional Integration

 2.3  Seven ‘Faceless Foreign Judges’

 2.4  Finding Balance through Interpretation

 2.5  ftas and the Introduction of ‘Updated’ Exceptions

 2.6  An Exception and Nothing More


 3 Beyond Exceptions
 3.1  The (Not So) Thin Line between Exceptions and Exemptions

 3.2  The Right to Protect the Environment

 3.3  fta s’ Environmental Framework
 3.3.1 Environmental Principles

 3.3.2 Environmental Obligations

 3.3.3 Dispute Settlement


 3.4  The Road Ahead


5Can Trade Work for the Environment? The Promotion-Based Model
 1 Tables Have Turned
 1.1  The Instrumental Role of Trade

 1.2  A Global Green New Deal

 1.3  Trading Places: A Brief History of Means and Ends


 2 Negotiating Trade Rules with the Environment in Mind
 2.1  Plenty of Fish in the Sea?

 2.2  The Untapped Green Potential of the Subsides Agreement

 2.3  Three Ways to Protect the Environment

 2.4  Trade Sanctions and Forests Protection

 2.5  A New Kind of Environmental Bargain

 2.6  The EU’s Sustainable Commercial Policy

 2.7  From Exception to Promotion
 i

 ii

 iii


 3 The Power of Ideas
 3.1  From Weak to Strong Integration

 3.2  Watching the Seeds Grow

 3.3  The Development Factor

 3.4  It’s Not All About the Environment

 3.5  Two Birds with One Stone

 3.6  Missed Opportunities


6Conclusions
 1 Ideational Change

 2 Historical Contingency
 2.1  The gatt and Embedded Liberalism

 2.2  The wto and the Resurgence of Neoliberalism

 2.3  The 2030 Agenda and the Instrumental Role of Trade


 3 A New Trade Story
 3.1  One. The Trade Regime: Can’t Live Without It

 3.2  Two. Asking the Right Question

 3.3  Three. An Organizing Principle for the Trade Regime


Bibliography

Index

Academics and students interested in international trade and environmental law, as well as in the interface between different areas of international law.