Acceso usuarios
Joel P. Trachtman
Free trade and national environmental protection measures are not always consistent. Yet, the parties to the WTO decided, and committed in WTO law, that even where a national environmental protection measure would otherwise violate a free trade rule of the GATT or GATS, the national environmental measure would generally be permitted, subject to certain conditions. It is important to recognize that member states of the WTO were serious both about allowing great flexibility for national environmental measures, and about establishing some conditions so that this flexibility is not abused. It is also important to recognize that, by establishing the WTO dispute settlement system, member states decided that WTO Panels, and the Appellate Body on appeal, would generally decide disputes about the scope of this flexibility.
In this article, I show how the WTO Appellate Body has, in several important instances, sought to avoid carrying out this responsibility, and has limited the scope of its analysis such that it cannot carry out this responsibility effectively. Sometimes, the Appellate Body has done so by exalting textualism over the broader context, object, and purpose of provisions of WTO law, and sometimes the Appellate Body has done so by the opposite of textualism: by accepting limits on the analysis carried out by Panels where those limits are not expressed in the WTO treaty, and are inconsistent with the plain terms of that treaty. This type of selective textualism is doctrinally incoherent, and can only be explained as a method of cloaking the exercise of discretion by judges of the Appellate Body. While this discretionary authority is best understood as granted by the WTO treaty, and so is not an abuse of judicial authority, the attempt to cloak its exercise in textualism results in incoherence, and a failure to articulate and legitimize the true bases for a decision.
The issues addressed in this article are critical for the future of the WTO, as well as for existing and proposed preferential trade agreements, such as the Trans-Pacific Partnership (which the United States has now abandoned) and the Transatlantic Trade and Investment Partnership (which, at the time of this writing, was threatened with abandonment by the United States). Indeed, the ability to effectively implement international measures addressing climate change depends on a coherent and appropriate jurisprudence of trade and environment in these agreements.
