Natural resources are without a doubt an element to be reckoned with in
international trade relations as regulated today in the World Trade
Organization (WTO). Their relationship to one another is clear, with WTO
law seeking to regulate trade in natural resources. When applied to such
trade, liberalization and non discrimination, the core principle of the
WTO, are aimed at ensuring a fairer distribution of these resources
throughout the world.
Natural resources are understood to be the overall potential offered by
the natural environment, in particular in the fields of energy, mining,
forestry and water. They thus include fossil, plant, wildlife and
fishery resources, all of which are useful to mankind. They are
genuinely scarce resources, having been exploited abusively in a context
marked by trade liberalization in which no State is able to take steps
to protect them without heed to legal constraints.
These resources, especially forest resources, account for a significant
proportion of the GDP of the tropical developing countries possessing
them. At the same time they are a necessity for other countries which do
not have them and wish to purchase them. The issue here hinges entirely
on the extent to which their conservation is taken into account in
international trade. The question thus arises whether, in regulating
trade in these resources, WTO law pays sufficient heed to their
conservation? In other words, what effect does the regulation of trade
relations have on the conservation of tropical forest natural resources?
An analysis of the WTO's regulatory and institutional framework
indicates that the conservation of natural resources in international
trade relations appears to be satisfactory (I). This implies a
refocusing of the role the Organization is called upon to play in this
undertaking, the objective being the improvement of conservation (II).
I. Conservation of Natural Resources Appears Satisfactory
WTO's action for the conservation of natural resources reveals
noteworthy efforts, albeit somewhat dulled by practice.
A. Efforts have been noteworthy ...
The term “natural resources” appears twice in the GATT 1947: in Article XX(g) in the context of the exceptions relating to measures aimed at
protecting “exhaustible natural resources” and in Paragraph 1(a) of Ad
Article XVII (Annex I) which refers to “national natural resources”. By
referring to such measures the system recognizes that countries may take
steps to ensure the conservation of natural resources, whether plant or
fishery resources. Indeed, the Doha Ministerial Conference reiterated
this possibility by opting to include various environmental instruments.
Efforts are also evident at the institutional level. An organizational
framework for consideration of trade related environmental concerns has
been established in the form of the Committee on Trade and Environment
and the Committee on Trade and Development(2).
And what of practice?
B. ... Practice is wanting
The measures implemented to date have been confined to protection “after
the event”, meaning that they intervene at the processing and final
consumption stages(3) without tackling the conservation and protection of
the resources in their natural state.
Furthermore, the Dispute Settlement Body (DSB) in its case law narrows
the scope of the precautionary principle significantly. The DSB has
established clearly that there must be a rational or objective
relationship between the measure and the risk assessment(4). Such
precedents will apply mutatis mutandis in disputes about natural
The fear is that measures implemented with a view to conserving natural
resources could be deemed to offend against the established principles.
In forest certification, for example, the European Communities applies a
“legality” principle whereby only timber products exploited in
accordance with the rules of sustainable forest management (SFM) may
enter its market.
II. Improving the Conservation of Natural Resources
The WTO has a decisive role to play in this area and it is one that
should focus on the law and on institutions.
A. The law
There needs to be a closer match between rules on natural resource
conservation and the rules of international trade. It is not just a
question of establishing cooperation with the organizations competent in
environment matters; the implications of resource conservation for trade
need to be highlighted clearly, if necessary by embodying the measures
concerned in legal provisions.
The WTO should avoid lagging behind current practice by taking steps to
compile an inventory of natural resources in general and forest
resources in particular and identify the means of conserving them
through international trade. This might include the classification of
exhaustible resources, the introduction of measures to determine
tradable quantities and the definition of rules to differentiate between
sustainably exploited timber and timber exploited without regard for the
The WTO bodies that hear disputes relating directly or indirectly to
natural resources could be bolder in their rulings. This would enhance
the clarity of the relevant WTO rules. Yet it is precisely where they
should act as “dominant interpreter for the dominated interpreters” that
these bodies retreat.
They ought to be given sufficient authority in matters pertaining to the
conservation of natural resources. However, the reality is that they
seldom venture outside the scope of their competence as strictly
defined, namely determining whether or not the disputed measure complies
with the rules of international trade(5).
Moreover, the WTO is constantly preoccupied with preventing
environmental measures from constituting a forum of disguised protection
in international trade, or “ecoprotectionism”. This explains why it is
ambivalent about taking account of sustainable development, including SFM, in regulating international trade. By doing so it would secure its
role in the conservation of tropical forest ecosystems.
1. Ministerial Conference, Fourth Session,
Doha, 9 14 November 2001, document WT/MIN(01)/DEC/1 of 20 November 2001,
and the Preamble to the Marrakesh Agreement.
back to text
2. See the Decision on Trade and
Environment. back to text
3. See the Agreement on the Application of
Sanitary and Phytosanitary Measures and the Agreement on Technical
Barriers to Trade. back to text
4. See the following cases: the EC ban on
imports of hormone treated beef (European Communities — Measures
Concerning Meat and Meat Products (Hormones)), restrictions by Australia
on imports of salmon (Australia — Measures Affecting Importation of
Salmon), Japan's requirement for testing certain varieties of fruits
treated by fumigation (Japan — Measures Affecting Agricultural
Products), the restrictions imposed by Japan on imports of apples
because of fire blight (Japan — Measures Affecting the Importation of
Apples). back to text
5. See the various panel reports on this
matter. Case of the panel report adopted on 17 June 1987 (see document
L/6175 34 S/154). back to text
Feedback back to top
Please let us know your views on the submitted articles. Your comments
may take a few minutes to be displayed on the page. Accented characters
may not display correctly. By participating in this forum you are deemed
to have accepted the Rules for participation in WTO on-line forums.