RESEARCH AND ANALYSIS

The conservation of natural resources in WTO law: the case of tropical forest resources

Telesphore Tekebeng Lele, University of Yaoundé II Soa, International Relations Institute of Cameroon (International Disputes)

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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. (1)

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 resources.

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 rules.

B. Institutions

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.

Notes:
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

 

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