This is especially important as the international system adopts new multilateral agreements that use trade measures to influence state behavior. Multilateral agreements are playing an ever-increasing role in the international system and in particular, the number of multilateral environmental agreements (MEA’s) has increased steadily over the years. Currently, there exist over one hundred and eighty MEA’s, and of these at least twenty contain measures that affect or incorporate trade measures (Brack, 1996). It is true that multilateral agreements can be difficult to negotiate, certainly more so than unilateral or bilateral agreements, however, if negotiation and acceptance of the multilateral agreement is successful, multilateral agreements can be more useful and accomplish a great deal more than the corresponding unilateral agreements.
There is, however, some disagreement on the ability of MEA’s to be successfully negotiated in the international system. As Daniel Esty points out numerous times, there is no international organization with a mandate equal in scope to that of the WTO or similar organization equipped to establish and enforce a set of international rules to protect the environment (Esty, 1994). Without an established international organization to represent the environmental protection regime and codify its rules, MEA’s are much more difficult to initiate and approve, as there is no specific organization to provide a forum for such action. Although Esty agrees that in principle, multilateral agreements are to be preferred to unilateral agreements due to their broad level of support, he argues that due to the lack of existing institutional structures for international environmental policymaking, unilateral action is necessary (Esty, 1994).
Others argue that the international system is successful in facilitating negotiations on said agreements, although their negotiation and acceptance will take more time to work out due to the complexity of the system and the need to reach some sort of consensus. Such arguments point to three of the most important and successful MEA’s as a source and example of success in negotiating multilateral agreements; the Basel Convention on Hazardous Wastes, the Conventional on International Trade in Endangered Species (CITES), and the Montreal Protocol on Ozone-Depleting Substances. These three agreements each have a broad mandate of support within the international system, and each agreement has achieved a certain level of success in reaching the goals set forth in their negotiation. It is argued then, that due to the absence of an institutional framework or organization capable of creating or enforcing international environmental law, it is the further negotiation of MEA’s which provides a basis for international agreements on the environment, and an increasingly prominent part of the international system (Brack, 1996).
The argument over whether MEA’s can truly be successful in providing the international system with a set of accepted international environmental rules is further complicated by the fact that with respect to existing rules enforced by international organizations such as the WTO, there is no codified set of agreements or rules on the interpretation or acceptance of MEA’s. This is one of the largest issues needing clarification and a change in WTO and international trade policy. Apart from that, it is becoming obvious that the negotiation of MEA’s is becoming exceedingly difficult with respect to broader environmental problems. All one needs to do is observe the gridlock and failure in negotiations of the Kyoto Protocol to realize how difficult creating a Multilateral Environmental Agreement can be.
The Kyoto Protocol is a MEA created to attempt to limit and reduce the amount of greenhouse gas emissions produced by human society, such as carbon dioxide (CO2) and methane (CH4). The Kyoto Protocol establishes different levels of restrictions for states depending on their level of development, with the great majority of restrictions placed on Annex I (developed) countries. These states must achieve real reductions in greenhouse gas emissions of between twenty to forty percent by the years 2008-2012 (Brack, 2000). Yet the Kyoto Protocol has not yet been accepted by all of the negotiating states, most conspicuously, the United States. The reason for this lack of acceptance and implementation is that there is a great deal of disagreement over the use of "flexibility mechanisms" designed to reduce a state’s levels of emissions through international cooperation. These difficulties arise due to the widespread use of greenhouse gases, from manufacturing and energy use, to transportation and agriculture. Some states, such as the US, are loathe to reduce the amount of emissions produced at home and are therefore seeking to include such measures as international trade of emissions, carbon storage, and clean development strategies to the Kyoto Protocol (Brack, 2000).
These measures are being challenged by a group of states, including many developing countries, that believe such "flexibility mechanisms" will allow developed states that already produce a large proportion of the world’s greenhouse gases, to shirk their responsibility and therefore continue to emit high levels of greenhouse gases. Other states, including those of the European Union, oppose the use of these measures doe to the subsequent creation of an international market in greenhouse gases, which would have consequences for not only the international economy, but of the emissions monitoring system. In the fall of 2000, the negotiations over these measures were again stalled between the US and EU’s disagreement over this matter.
One reason for the difficulties in resolving the greenhouse gas reductions issue is the broad scope of measures and products that would be affected by the restriction policies. When the Kyoto Protocol is contrasted with the Montreal Protocol, which is often heralded as an example of success in the negotiation of MEA’s, it is obvious that the nature of the substance that is restricted has a corresponding influence over the success of negotiations.
In October 1995, one hundred and fifty states ratified the Montreal Protocol on Substances that Deplete the Ozone Layer. As one of the most effective MEA’s, with almost universal participation, the Montreal Protocol contains measures that act to reduce amounts of ozone-depleting substances (ODS) as well as the progressive development of more stringent control measures in response to increases in scientific knowledge (Brack, 1996). One of the reasons for the success in gaining international cooperation for the Montreal Protocol is the fact that the substances that deplete the ozone layer, primarily chlorofluorocarbons (CFC’s) are relatively limited in their use. In addition, technology produced ready substitutes for CFC use, and the reduction processes were set to make reduction easy for states to achieve. This is one of the main reasons for success of the Montreal Protocol and explains the difficulty in the Kyoto Protocol, as substitutes for emissions of greenhouse gases, especially carbon dioxide, would need to be widespread and are difficult to implement.
One matter both Protocols do use to achieve reduction in their respective substances is the use of trade provisions (Brack, 2000). It is in this area of implementation where the possibility of conflict with the WTO exists. The Montreal Protocol contains trade provisions that prevent the industrial migration to non-party states in order to escape controls on ODS, examples of which are broad and include such things as product labeling, total or partial bans on imports, permit trading, and in the case of a few countries, a ban on products with ODS production processes (Brack, 1996). This last ban in particular violates the trade principles of GATT, and similar actions taken or created under unilateral action have been ruled against by the Dispute Settlement Body of the WTO, for example, the Mexico/US Tuna-Dolphin dispute.
Those in favor of MEA’s claim that due to the broad international support for MEA’s, their use of trade measures will not necessarily cause conflict. The WTO’s Committee on Trade and the Environment (CTE) also says that working within these MEA’s is the best way to deal with international environmental problems, although the CTE also claims that agreements with trade provisions are not always the most effective and instead recommends technology transfer, financial assistance and similar policies (WTO, 2001). It therefore seems that the WTO, although not codifying its stance on MEA’s into the WTO code, gives its approval to the negotiation and use of MEA’s. However, the use of trade provisions is recommended only for those states that are signatories to a specific MEA.
This would conflict with policies established by the Montreal Protocol and other MEA’s that place trade restrictions on non-signatories as well as members of that particular MEA. To illustrate this possible conflict, an example taken from the Montreal Protocol is used. Article IV of the Montreal Protocol bans both the import and export of CFC’s and halons from non-signatories as well as imports of products containing or produced with CFC’s or halons (Uimonen & Whalley, 1997). Such a policy creates the use of discriminatory trade actions, because under some specific cases, import or export of CFC’s are allowed between member states of the Protocol. As such, this policy and similar ones found in the Basel Convention and Kyoto Protocol directly violate the non-discriminatory rules of the WTO code.
The WTO states its concern over possible conflicts that may arise from this policy, although so far no state has challenged the application of trade measures to non-signatories, if a conflict did arise the WTO would provide the only possible forum for settling the dispute, weakening the strength of the environmental argument slightly, although panels on environmental issues would be addressed by the WTO (WTO, 2001).
The WTO agrees that in order to prevent possible conflicts from arising, it would be beneficial to clearly negotiate and codify WTO policy with regard to MEA’s. As more and more MEA’s are created or broadened in scope, the potential impacts of trade measures increase greatly, so that the issue of dealing with non-signatories will be much larger and trade actions that result will be incompatible with international trade (Uimonen & Whalley, 1997). The scope of trade actions taken with regard to a carbon treaty such as the Kyoto Protocol would impact the international trading system far more than those actions taken under the Montreal Protocol due to the previously discussed range of carbon usage. With the amount of disagreement already existing on greenhouse gas issues, conflicts would almost assuredly develop.
One more problem with the use of MEA’s to achieve international environmental policy agreement exists. This is the possible problem of policy ineffectiveness due to proliferation of agreements and lack of consistency in negotiation and implementation of trade policy. It is argued that some measures are losing their effectiveness due to corruption of agreements, and those agreements that are expanding their scope are causing conflict with signatories, therefore too many and too complicated MEA’s will cause themselves to become ineffective (Brack, 1998). One reason for the proliferation and the lack of consistency in MEA’s returns to the fact that they are each negotiated independently, without the use of an international organization to facilitate consistent trade and environmental policy. It is argued that MEA’s should be negotiated under an international organization, while also taking into account WTO views, a method of negotiation that would bring together both trade and environmental specialists (Brack, 1998). By working together in this way, an effective and efficient method of reconciling trade issues with environmental protection could be achieved, and MEA’s will provide an internationally accepted set of rules for trade and environment action.
Despite the difficulties facing the negotiation and implementation of Multilateral Environmental Agreements, efforts to continue their negotiation should be continued for the simple reason that without an International Environmental Organization capable of creating or enforcing environmental law, MEA’s provide at least a basic level for states to negotiate and accept new environmental agreements. It is very unlikely that states will form a Global Environmental Organization similar in policy and strength to the WTO in the near future, and therefore, MEA’s provide nations with a chance to discuss environmental issues, particularly those with transboundary or global effects. Action should be taken to clarify the place of MEA’s within the current structure of the international system, as well as finding ways to facilitate their further negotiation, possibly with the assistance of existing organizations such as the WTO or United Nations Environmental Program (UNEP), in order to attempt to solve the discussed problems with MEA’s. Through the use of such improved MEA’s linkages between trade issues and the environment may be created that will work towards truly achieving sustainable development.
Copyright 2001 by Stacy Schumacher