A new WTO paradigm of Progress and Reconciliation
Since the beginning of the 1920s we see the linkage between trade and environment. The progress of reconciliation has been furthered notably after the creation of the WTO. WTO Treaty series contributed a lot to give protection to the environment. The commitment of the WTO members in its different ministerial conferences also promoted the safeguard to the environment. The DSB has brought up significant supplementations to progress the reconciliation of trade and environment. Under the GATT regime in three cases (Superfund, Tuna 1 and Tuna II case), it was decided that international law outside the GATT was not relevant to the GATT panel and presently the approach has been completely changed, here the appropriate proposition would be the paradigm has been shifted. Regarding the territorial application of environmental measures the WTO panel came out from its predecessors.
Another important development for article XX was that the WTO Appellate Body cast aside some of the GATT and early WTO panel holdings that threaten the environmental exceptions unusable with the ostensible intention of saving the trading system. The Appellate Body is likely to depart from previous Appellate Body Report unlike Panel as the Appellate Body is a standing body of seven judges where panels are constituted individually (ad hoc) for each dispute settlement case. Steven Charnovitz in 1992 mentioned that a series of panels fabricated illogical reasons as to why Article XX could not be used. At the same time by reversing US Gasoline, US Shrimp and EC Asbestos panels, the appellate body not only corrected errant holdings but also sent a signal the public that the era of runaway panels on environmental matters was over.
One reason why WTO became the focal point of environmental regulation given by Hakan Nordstrom and Scott Vaughan is that, the WTO has an integrated adjudication mechanism backed by trade sanctions as the ultimate enforcement tool. The WTO is using the trade sanctions to enforce compliance mechanism with WTO obligations and which has changed the traditional view of rebalancing concessions. Edith Brown Weiss in an essay on ‘international compliance processes’ distinguishes three strategies for encouraging countries to comply with international environmental agreements: transparency method, positive incentives and coercive measures.
A new paradigm of reconciliation between trade and environment has started notably only after the creation of WTO. The gate of WTO seems to be open to other branches of international law. Art 3.2 of the DSU states that dispute settlement system serves to clarify the provisions of WTO agreements in accordance with the customary rules of interpretation of public international law. Panels and Appellate Body in many cases cited arts 31, 32 and 33 of Vienna Convention as a customary norm and which is relevant in WTO treaty interpretation.
Though GATT regime before the establishment of WTO was being considered as a self contained regime and it is no more in to the WTO regime. The appellate body in its first decision addressed that, GATT is not to be read in clinical isolation from public international law. One of the most interesting features of WTO jurisprudence has been the way the Appellate Body and panels are restoring to other treaties, customary international law, international decisions and arbitral judgements and the writings of publicists in order to render trade decisions.