The interface between trade and environmental protection is vast and interesting, and will inevitably be the focus of much debate in the next few years as nations address the issue of how international environmental agreements containing trade sanctions ought to interact with global trade policies. While the General Agreement on Tariffs and Trade (GATT) does not govern or regulate trade directly, it does regulate the statutory and administrative rules which restrict or distort trade between GATT contracting parties. Environmental agreements containing trade sanctions which restrict or distort trade, will thereby be vulnerable to challenges from GATT contracting parties on the grounds that they violate trade provisions under GATT. This note focuses on the fact that present and future multilateral environmental agreements may be found GATT-inconsistent due to their restraints on trade. At present, the status of environmental agreements is unclear because, while there are GATT decisions illustrating how unilateral trade actions with environmental purposes will be treated by GATT, there are as yet no GATT Panel decisions on multilateral environmental agreements (MEAs) to indicate how they will be treated. Given the present interpretation of environmental exceptions under GATT, however, a strong argument may be made that MEAs would likely be found GATT-inconsistent. The EC has therefore proposed a collective interpretation of a GATT clause that would clarify the status of MEAs under GATT. This note argues that the European Community's proposed collective interpretation presents a unique opportunity for GATT contracting parties to codify support for MEAs, and provide guidance in avoiding GATT-inconsistencies in future MEAs. Most importantly, GATT contracting parties have an opportunity to ensure that the overly restrictive criteria established in previous GATT Panel decisions, regarding unilateral environmental actions, are not applied to MEAs.
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Bob Kapanen, "The EC Proposal to Modify the GATT/Environment Interface" (1994) 3 Dal J Leg Stud 217.