Fractured/Earth

i read a very interesting paper this morning on the weaknesses of multilateral environmental agreements like CITES, the montreal protocol (think ozone) and the convention on biological diversity. as david humphreys, the author of forest politics and logjam, points out in a paper called public goods, neoliberalism and the crisis of deforestation (pdf), multilateral agreements view the commons as public goods. the trade laws see them as private goods. this, he says, reflects…

…a broader and more fundamental tension in global governance, namely between different international institutions operating largely in isolation from each other while promoting different, although not necessarily mutually exclusive, values and objectives. Examples include the conflict between the WTO and multilateral environmental agreements, and between international institutions promoting different notions of intellectual property rights.

and…

….where such conflicts occur, those institutions promoting neoliberal objectives will prevail.

that is mainly because trade law is stronger than environmental law (google here for something called disciplinary neoliberalism). in part because it is a great deal more cohesive than the pastiche of laws that comprise, say, the international forest regime. and in part because…

…where there is an inconsistency between two pieces of international law the most recent instrument, which has post-dated the older instrument, usually prevails. the WTO agreements post-date most multilateral environmental agreements, including the CBD.

the consequences are predictable. since…

…International trade law prohibits discrimination between “like products” on the basis of the process and production methods used in their manufacture, which means that states cannot discriminate between timber imports from sustainably-managed forests and those from unsustainable sources, such as clearfelled forests. Under international trade law the principle of equal market access for “like products” takes precedence over all other considerations, including environmental degradation. This fits with the neoliberal logic of removing barriers to international trade but acts against sustainable forest management.

CITES is one of the few multilateral environmental agreements to allow restrictions to international trade on environmental grounds. Another is the Montreal Protocol on ozone depletion, which aims to phase out the consumption and use of CFCs and other ozone depleting substances. However the compatibility of the trade restriction measures of CITES and the Montreal Protocol with the WTO agreements, which promote international trade liberalisation through the removal of tariff and non-tariff barriers, is unclear. Neither the WTO nor, before its creation in 1995, the General Agreement on Tariffs and Trade (GATT), have challenged the trade restrictions of a multilateral environmental agreement. Were a challenge to be made trade restrictions on environmental grounds could be ruled in breach of international trade law.

The CBD contains no trade restriction measures, although some issues have a trade related aspect, such as access and benefit sharing. The CBD stipulates that the convention “shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity” (article 22.1). This implies that the CBD could implement a trade restriction measure if not to do so would seriously damage or threaten biodiversity. But such a measure could be ruled WTO illegal. Where there is an inconsistency between two pieces of international law the most recent instrument, which has post-dated the older instrument, usually prevails. The WTO agreements post-date most multilateral environmental agreements, including the CBD.

need to understand all this in much more detail.