Macquarie Journal of International and Comparative Environmental Law
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Macquarie Journal of International and Comparative Environmental Law |
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SHAWKAT ALAM[*] AND RAFIQUL ISLAM[**]
Traditionally, economic growth and its ecological consequences have been separated from developmental thinking. Economic growth through trade, investment, transferring finance and capital is one of the major vehicles for development, particularly at the international level and in the affluent nations. However, rising world poverty, economic inequalities, and the depletion of finite and natural resources have challenged the traditional development paradigm and shifted the focus to the need for the integration of economy and ecology. It is recognised that the existing process of development, based on existing technologies, production, distribution and consumption patterns, is not sustainable for both the natural and the human environment.
The Brundtland Report, among the most influential development studies written in the late 1970s and early 1980s, has emphasized the need for a new development path, pointing out that many present developmental trends are leaving an increasing number of people poor and vulnerable as a result of environmental degradation.[1] The Brundtland Report has explicitly shown the vital links between the state of our natural environment and economic growth. It says:
We have in the more recent past been forced to face up to a sharp increase in economic interdependence among nations. We are now forced to accustom ourselves to an accelerating ecological interdependence among nations. Ecology and economy are becoming even more interwoven – locally, regionally, nationally and globally - into a seamless net of causes and effects.[2]
It also recognised the need for making the interaction between trade and the environment mutually supportive in order to promote sustainable development.
The Rio Declaration has recommended that ‘States should promote a supportive and open international economic system’, which would contribute to economic growth and sustainable development (Principle 12). Chapter 2 of Agenda 21 recommends a similar approach in regards to the relationship between trade and the environment. It states that the ‘development process will not gain momentum … if barriers restrict access to markets and if commodity prices and the terms of trade of developing countries remain depressed’ (paragraph 2.2). In essence, trade liberalisation and the environment should be mutually supportive. As both trade and the environment are equally important for sustainable development, there must be a process of integration between the two spheres.
However, the trade-environment debate is inextricably linked with the different perspectives of free traders and environmentalists, developed and developing countries. There are a wide range of differences between developed and developing countries as to how, and what strategies should be adopted to achieve the objectives of sustainable development. These differences are manifested in the principles and policies designed to achieve the objectives of sustainable development. At UNCED, the world community sought to strike a balance between trade and the environment by means of their relationship with development[3]. The UN suggested various principles, made recommendations and developed action plans with a view to developing a framework for trade-environment integration on a multilateral basis. Despite these understandings, the international community has done little to assist in the realisation of these principles ‘beyond mere pronouncements in the preambles of treaties and other documents’.[4] Developed and developing countries are still divided over the question of how to put existing principles and policies into practice. Developed countries have not accepted the responsibility of paying for the environmental degradation caused by them in the past. They resisted the normative status of the notion of common but differentiated responsibilities. As a result, the method for achieving sustainable development is still uncertain and remains unresolved.
This article examines the perspective of developing countries in the trade and environment debate. It identifies and illustrates the pressing issues for developing countries in the process of multilateral trade liberalisation, and its effect on the environment. It critically examines the extent to which free trade and environmental protection are either in conflict, or have the potential to achieve sustainable development. Consideration is given to the present inequalities between North-South trade, global economic injustices and their inescapable connection to free trade, and the link between the environment and development in the context of developing countries.
International trade as a source of wealth and welfare gains has always been considered one of the major vehicles of economic growth. In fact, the last two decades of the twentieth century have seen significant emphasis being placed on the development of world trade as an engine for economic growth and a key aspect of international economic development.
The following arguments outline the benefits that are often perceived to flow from free trade. Free trade and industrialisation bring liberalisation of the movements of goods, services, persons, capital and payments and prohibitions of restrictions on competition by the market participants. The liberalisation of trade by voluntary exchange of goods facilitates a country’s specialisation in favourable proportions. According to the principle of comparative production advantage,[5] a country can produce more of the goods in which it is relatively more efficient, and export them. Similarly, a country will import goods in which its comparative advantage is less. The Leutwiler Report describes the concept of comparative advantage in the following words:
Trade allows countries to concentrate on what they can do best. No two countries are exactly alike in natural resources, climate or work force. Those differences give such country a comparative advantage over the others in some products. Trade translates the individual advantages of many countries into maximum productivity for all. This is the classic theory of international trade. It is still valid today.[6]
Trade liberalisation benefits all trading partners by increasing global output and economic growth. The whole world gains from trade, and both sides of a trading partnership are at least as well off with some trade, compared with no trade.[7] Liberal trade therefore contributes to economic growth. Using comparative advantage trade brings about the highest possible welfare in the participating countries by facilitating specialization of production across national boundaries. Thus
free trade promotes a mutually profitable division of labour, greatly enhances the potential real national product of all nations, and makes possible higher standards of living all over the globe.[8]
It is argued that putting restrictions on trade through environmental regulation may offset the possibility of receiving international specialisation and its potential contribution to the protection of the environment. Sustainability of economic development requires the efficient use of resources, which is fostered, among other factors, by free trade and international competition.[9] In effect, the establishment of a free trade regime can serve as a catalyst for promoting and safeguarding the environment. Empirical research on the relationship between trade and the environment supports this view and affirms that trade and growth together can increase the stock of human capital and lower pollution.[10]
By opening markets particularly to exports from developing countries, and by keeping markets open through clear and enforceable rules, the global trading system is a natural ally of sustainable development.[11] Trade liberalisation can therefore be an important contributor to sustainable development, especially when implemented in conjunction with complementary environmental policies.[12] Consequently, striving for an open international trading system may be an important economic instrument for developing countries to effect their development and protect the global environment.[13]
The positive view of liberal trade, however, has been changing because of worsening regional and global environmental problems, and the resulting conflicts of trade and environmental interests. With the rapid increase of international trade and investment in the post war era, the degree of environmental degradation has become acute. As a result, environmentalists and those who are concerned with development have challenged the free trade positions.
Free trade is seen as substantially damaging to the environment as it does not include the total economic and environmental values of the natural resources in market transactions. The prices charged for non-renewable resources generally do not reflect the true scarcity and the need to replenish those resources, causing continuous and irreversible environmental degradation ranging from climate change and biological impoverishment to species extinction. This failure to encompass social costs may reflect the existence of spill-over effects, unpriced resources, absent or thin markets, excessively high transaction costs that discourage otherwise beneficial exchanges, lack of information, technical uncertainty, the public good nature of many environmental resources, or lack of property rights.[14]
Another aspect of this market failure is that it prevents future generations from participating in economic processes and bidding for environmental values, which violates the principle of intergenerational equity. Hence the prerequisite of sustainable development, which is that it must take into account of the interests of both present and future generations, is absent from market transactions.
Developing countries are the most vulnerable, powerless, economically and socially marginalized in trade-environment interactions. Lavanya Rajamani has outlined a series of enduring perceptions at the root of the dissonance between the North and South on trade-environment issues.[15] Developing countries have been, and remain, deeply wary of the legitimacy of the movement on global trade and environmental policies that are pursued in isolation from the concerns of developing countries, and originating from the priorities of developed countries.[16] An understanding of the broader political and economic context of trade-environment issues is necessary in order to address the concerns of developing countries.
The development approach which has traditionally been pursued and applied through institutions like the International Monetary Fund (IMF), the World Bank and the World Trade Organisation (WTO) has worsened the real problems of developing countries. It has widened the existing gaps and inequalities between rich and poor countries. Developing countries, because of their marginalized position in the world economy, are perceived as vulnerable to external factors which are beyond their control and therefore economic decisions are made without their active participation.[17] Although the idea of free trade was originally designed to benefit both developed and developing countries, the global architecture of the free trade regime did not accommodate the interests and concerns of developing countries in the various rounds of multilateral trade negotiations. One of the objectives of the Uruguay Round of trade negotiations was to
bring about further liberalisation and expansion of world trade to the benefit of all countries, especially less-developed contracting parties, including the improvement of access to markets by the reduction and elimination of tariffs, quantitative restrictions and other non-tariff measures and obstacles …[18]
Unfortunately, the benefits of the international trading system shared by developing countries are not on parity with those enjoyed by developed countries. The majority of the populations in developing countries continue to live in conditions of poverty and hardship. There are also inequalities in the distribution of income. The 1998 United Nations Conference on Trade and Development report pointed out that:
The difference in per capita incomes between the countries with the poorest 20 per cent of the world’s population (a group that consists mainly of LDCs) and the richest 20 per cent has widened … and that many of the LDCs are becoming further marginalised from the mainstream of the world economy.[19]
The world community has a shared challenge and responsibility to facilitate the integration of developing countries into the world economy. The ongoing trade expansion should be a vehicle of economic growth for developing countries. Trade can be an important means of achieving sustainable and equitable development; however, such development is only possible when the needs and concerns of developing countries are recognised and translated into an operational programme for implementation.
It is timely to consider the opportunities and challenges of translating the reality of a globalising and interdependent world economy into a sustained improvement in the standard of living in the world’s least developed economies.[20]
The benefits of the Uruguay Round Agreements are contingent upon the implementation of obligations and commitments by participating nations.
Part IV of General Agreement on Tariffs and Trade (GATT) and the decision of 28 November 1979 of the Contracting parties provided that the principle of differential and more favourable treatment to be accorded to developing and least developed countries.[21] While outlining the general principles governing negotiations, the GATT Punta Del Este Ministerial Declaration of 20 September 1986[22] stated that
the developed countries do not expect reciprocity for commitments made by them in trade negotiations to reduce or remove tariffs and other barriers to the trade of developing countries … Developed contracting parties shall therefore not seek, neither shall less-developed contracting parties be required to make, concessions that are inconsistent with the latter’s development, financial and trade needs.[23]
However, the above concessions granted to developing and least developed countries were subsequently eliminated by the Uruguay Round Agreements. Most of the concessions provided to developing countries as a result of these Agreements were designed either to provide a grace period for developing countries to comply with the requirements of the Agreements, or to take protective measures to safeguard their interests.[24] It was argued that free trade would lead to the most efficient and profitable use of national production factors, an increase national income and foreign exchange earnings, attract foreign private capital and thus stimulate Southern development.[25] This rationale did not translate into action for developing countries. Such countries had high expectations and were prepared to take on fully-fledged commitments in exchange for the promises of developed countries in the Uruguay Rounds. However, with a few exceptions, developing countries did not benefit as much as expected. The GATT agreement was limited to trade involving manufactured goods but the Uruguay Round added agriculture, trade in services and intellectual property rights.
An analysis of the Uruguay Round negotiations reveals that the overall objective and purpose of the negotiations was not in developing countries’ favour. A World Bank and Organisation for Economic Cooperation and Development (OECD) study evaluating the WTO agreements estimates that of the US$213 billion overall expected gain, US$142 billion will accrue to the North, US$37 billion to China and US$21 billion to ‘upper income Asia’. Africa alone is expected to suffer a loss of US$2.6 billion.[26] According to the former chair of the Group of 77, Ambassador Luis Jaramillo of Colombia, the industrialized countries, which make up 20 per cent of GATT membership, will appropriate 70 per cent of the additional income.[27] Developing countries stress that the Uruguay Round and its implementation process did little to improve market access for their exports of goods and services, particularly to the markets of developed countries.[28]
For many developing countries, the new WTO rules have been imbalanced in several important development-related areas such as the protection of intellectual property rights and the use of industrial subsidies. They also feel that the special and differential treatment accorded them by the WTO agreements has been inadequate and needs revision.[29] In light of the exclusivity of the final negotiations, many concerns remain about the effects of the WTO agreements upon some developing countries and the uneven distribution of economic benefits between the North and the South. Some developing countries view the trade-environment debate as yet another route by which the North might achieve economic domination through protectionism.[30] Against this backdrop, developing countries distrust the agenda of developed countries with regard to the trade and environment linkage. They consider the link as a disguise for protectionist motives designed to keep out imports from countries which have a better competitive edge and a greater comparative advantage.[31]
The Uruguay Round made provisions for technical and financial assistance to be made available to developing countries and provided GSP facilities to some developing countries.[32] However, these provisions are being flouted by developed countries, and fail to help or alleviate the trade problems of developing countries, given that most of the benefits of the Uruguay Round are accrued by developed countries.
Developing countries argue that improved access to the Northern market would help them to move toward sustainable development. In the Uruguay Round negotiations, developed countries struck a deal with developing countries in which the North would open up their markets in areas of particular export interest to developing countries. This essentially required a reduction of import restrictions, a reduction of export subsidies and the provision of production subsidies. Developing countries were also accorded a GSP benefit. To date, promises in the areas of agriculture and textiles (where developing countries have the comparative advantage) and the provisions on special and differential treatment have turned out to be largely empty boxes.
It is worth noting that compliance with these provisions by developed countries would allay some of the fears of developing countries about the use of environmental measures as protectionist devices.[33] Developed countries have been, and are consistently maintaining exceptionally high trade barriers (both tariff and non-tariff) in areas of special interest to developing countries. Each year these barriers cost developing countries approximately US$100billion – twice the amount they receive in aid.[34] For manufactured goods, the tariffs facing exports from developing countries to high-income countries are on average four times higher than those facing exports from industrialized countries.[35] Between them, the United States (US) and the European Union (EU) have launched 234 anti-dumping cases against developing countries since the end of the Uruguay Round talks in 1994.[36]
Thus, although developed countries recognised the special conditions and needs of developing countries, they did not remove the restrictions agreed upon during the Uruguay Round, especially in agriculture and textiles, where many developing countries have a major stake.
Similarly, the Agreement on Agriculture committed industrialized countries to cutting subsidies to agriculture by 36 per cent and tariffs by a similar amount. In practice little progress has been made. Agriculture remains heavily protected by developed countries with high tariffs and heavy subsidies. The average tariff imposed by industrialized countries on agricultural goods from developing countries is close to 20 per cent, almost five times higher than the average tariff on all goods.[37]
In the case of textiles, developed countries agreed to progressively phase out the discriminatory regime of Multi-Fibre Agreement (MFA) in four stages by 2005. These commitments did not materialize. For example, the EU and the US should already have phased out around half of their MFA restrictions, but developing countries will still face quota restrictions on 80 per cent of their exports by 2004.[38] The average industrial-country tariff on textiles and clothing imports from developing countries is 11 per cent - three times higher than the average industrial tariff.[39] Bangladesh, one of 21 least developed countries, faces tariffs as high as 20 per cent on its key exports to the US and Canada.[40] These restrictions are undermining the efforts of developing countries to access the markets of developed countries, which is a pre-requisite if they are to address sustainable development.
The provisions for technical and financial assistance were made to enable developing countries to comply with WTO agreements, like the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TRIPs agreement has been seriously criticized as an attempt to protect the interests of developed countries, which has far-reaching consequences for the trading plight of developing countries.
Another area of concern for developing countries is agriculture. Developing countries, being primarily the producers and exporters of agricultural products, expected a lowering of tariffs on their goods to help them compete in the markets of developed countries. However, while the average tariffs on industrial goods have been reduced from 40 per cent to 4 per cent over the past 50 years, tariffs on agricultural goods have remained at around 40 per cent.[41] Agricultural production and exports are heavily subsidized and protected by developed countries which severely affects the market access of the products of developing countries which have a comparative advantage in agriculture. At present some US$300 billion a year is spent on providing subsidies to farmers in the developed world, and mainly in the EU, the US, and Japan.[42]
Agricultural subsidies, anti-dumping rules, unilateral trade measures and other tariff and non-tariff barriers used by developed countries reflect their unfair protectionist policies. These protectionist policies are detrimental to the needs and interests of developing countries. The frustration and tension of these countries is succinctly outlined by the joint declaration of the Group of 77, and China prior to the Doha Conference in November 2001:
We note that the Uruguay Round Agreements have not resulted, as promised, in greater market access to the developed countries’ markets for the exports of developing and least-developed countries. The continued existence in developed countries of tariff peaks, tariff escalations, and other non-tariff barriers such as arbitrary and complex rules of origin, technical barriers to trade, and sanitary and phytosanitary measures used for protectionist purposes, as well as abuse of the so-called trade remedies such as anti-dumping, countervailing duties and safeguard actions, particularly in sectors of interest for developing countries including textile and clothing, agriculture and other agro-industrial products, has had a serious negative impact on the trade and development prospects of the developing and least-developed countries and has prevented these countries from reaping the benefits of trade liberalisation.[43]
The interests and gains of developing countries could further be nullified through ‘back door’ excuses for renewed protectionism in the name of protection of the environment.[44] For developing countries, the protection of the environment is essentially linked with their economic development. They view environmental protection/sustainable development issues as the creation of the Northern countries and the result of the unequal trading relationship between the North and South. Alvaro Soto outlines the perception of developing countries in the following words:
Global environmental crisis and the socio-economic decline in the South are the interconnected results of an inequitable world order, unsustainable systems of consumption and production in the North and inappropriate development models in the South.[45]
Current patterns of trade and trade policies have been exerting an unsustainable pressure on the environment particularly in the impoverished resource sector of developing countries. As a result of colonial trade patterns, the primary commodities exported by developing countries for the goods and services of industrialized countries are constantly declining, resulting in tremendous income losses. Between 1980 and 1984, developing countries lost about US$55 billion in export earnings because of the fall in commodity prices, a blow felt most keenly in Latin America and Africa.[46] This disparity between the situations of developed and developing countries is forcing developing countries to export their natural resources to keep the balance of payments even. As a result, they are ruining their non-renewable resources by over-exploiting them. The unfair decline in commodity prices is contributing to debt crises and balance of payments deficits. Declining terms of trade are depriving developing countries of the finance necessary for sustainable development.
The income losses from commodity prices are also believed to pave the way for the transfer of real economic resources from the South to the North. Under the present system, many developing countries are converting their lands to the production of export crops. As a result, they are no longer self-reliant as they are no longer able to produce their own foods. This situation has resulted in instability of price and demand.
Developing countries believe that greater trading opportunities and the correction of past imbalances and gaps between North-South trade will help them to address their environmental concerns. The GATT Secretariat Trade and Environment Report 1992 has confirmed that economic growth enhanced by free trade would help protect the environment. Increases in per capita income, which are boosted by increased market access and expanding trade, provide more resources with which to contain environmental damage, finance pollution control and support remedial clean up.[47] Thus developing countries are not in a position to take environmental issues into account unless their own agenda of economic development is addressed. Such development requires additional financial resources, market access, technology transfer, international cooperation and capacity building to help developing countries mitigate their environmental problems. These countries argue that linkages between trade and environment should be examined in the broader context of sustainable development, which takes into account both the environment as well as the development aspects of human needs.[48]
The practice of using trade measures as environmental tools has created controversy among both trade supporters, and developing countries, which often condemn this measure as protectionist, extra jurisdictional, eco-imperial and unilateral. TREMS may be used as a ban on trade, as a tool pursuant to multilateral environmental agreements, or unilaterally by a developed country. Various GATT and WTO panel rulings on disputes employing trade sanctions for environmental purposes have fuelled this controversy.[49]
Pro-trade and developing countries fear that trade restrictions for environmental purposes could open the door to green protectionism. This fear derives its justification from the narrow borderline between environmental protection and environmental protectionism. As Rauscher noted,
green arguments can easily be abused to justify trade restrictions that are in reality only protectionist measures, and it is often difficult to discriminate between true and pretended environmentalism.[50]
The difficulties associated with drawing a borderline between environmental protection and environmental protectionism are also apparent in the case of process and product standards.[51] The present trading system does not take into account process and production methods (PPMs) in order to determine product standards.[52] Environmentalists are not only concerned with the product, but also with the method by which it is produced, used and disposed of. In a situation where consumption of imported goods causes environmental damage, environmentalists support the importing country’s authority to enforce its process standards on imported goods. In other words, the importing country allows member states to employ unilateral trade measures for environmental purposes even beyond its jurisdiction.[53] The motivation for environmentalists may be that they know that it is easier to garner support for trade restrictions, which are misleadingly seen as penalizing merely foreigners, as opposed to other kinds of domestically oriented environmental policies.[54]
Developing countries criticize this measure as green protectionism, which is discriminatory, and can give strong trading partners the leverage to impose their own environmental and social standards on others, thus impeding multilateral cooperation. To developing countries, trade measures without assistance in capacity building, technology transfer and finances will impede their move towards sustainable development. Consequently, they resist such environmental protection initiatives out of fear of having the environmental standards of strong countries unilaterally imposed upon them.
In its 1992 Report on Trade and Environment, the GATT Secretariat concluded that ‘where pollution has only local effects, environmental policies are a matter of preference … even when pollution crosses national boundaries, unilateral action is rarely justified’.[55] Despite this caution, the use of trade sanctions on the basis of PPM is gaining momentum. The 1999 Trade and Development Report of the UNCTAD, while criticizing the protectionist tendencies of developed countries, indicated that if the North lifted its protectionism, an extra US$700 billion of annual export earnings could be achieved in a relatively short time in a number of low technology and resource-based countries.[56] Developing countries thus reach the conclusion that the new protectionism, under the guise of environmentalism, is part of a ‘disturbing retreat to a mercantilist Fortress America and Fortress Europe’.[57]
From a conceptual and trade policy point of view, eco-labelling involves many complex issues, such as PPMs, the definition of international standards and equivalency. There have been attempts to determine international standards of products based on PPM. PPM-based labels may effectively provide consumers with information regarding whether a product is environmentally friendly. Eco-labelling involves standards relating to PPM. As long as eco-labelling remains voluntary, it does not cause a problem under the WTO. However, in paragraph 32 of the Doha Declaration, the Committee on Trade and Environment was instructed to address labelling requirements for environmental purposes. Invoking eco-labelling schemes and industrial benchmarks, the International Organisation for Standardisation (ISO) is believed to be designing a set of common standards for products. Although such labelling is not compulsory, it can have a significant impact upon the consumer’s selection of environmentally friendly products.
Developing countries are concerned that an increasing use of eco-labelling schemes will restrict their products from the markets of developed countries. Consumers of developed countries will base their choices on these eco-labels. At the same time, companies and governments might change their procurement policies based on the environmental requirements of PPM. Developing countries will predictably lack the clean technologies, financial resources and infrastructure to comply with the eco-labelling requirements of the importing country. Eco-labels have been effective in North America, shifting consumer preferences towards ‘dolphin-safe’ tuna fish, CFC-free air conditioners and the increasing use of recycled products.[58] Some more established schemes are Germany’s ‘Blue Angel’, Canada’s ‘Environmental Choice’ and Scandinavia’s ‘White Swan’.[59]
There has also been a proposal to extend the coverage of the Technical Barriers to Trade (TBT) and the Sanitary and Phytosanitary Measures (SPS) Agreements to include eco-labelling schemes with a view to harmonizing product standards. The criteria in eco-labelling schemes are determined by a national body rather than internationally and vary from product to product. As a result, it is difficult for exporters in developing countries to have sufficient information about, and advanced knowledge of the standards in order to comply with them. Thus product standards can be used as non-tariff barriers to the trade interests of developing countries. An example of the use of such non-tariff barriers is the imposition of a ban by the US on the export of unprocessed logs from US public lands in the Pacific Northwest.[60] Japan alleged that this measure was a thinly disguised non-tariff barrier. The ban does not satisfy any environmental objective, since it does not apply to processed wood products.[61] It will raise the price of exporting unprocessed wood to Japan (United States is the largest timber supplier to Japan) and thus encourage ailing US wood processing industries.[62]
Developing countries lack infrastructure, environmentally sound technology, finance and good governance to improve and enforce environmental standards and measures for the integration of trade and environment. Developing countries argue that the distribution of environmentally sound technologies would help them to comply with environmentally friendly PPMs. However, the social and economic adjustment costs of integration and the capacity of developing countries to bear that burden must be borne in mind when formulating policies with a view to achieving higher international standards.
Developing countries cannot participate effectively in the process of international standards setting. They cannot afford to send personnel to attend all of the consultative meetings. Nor do they have the technical knowledge or expertise required to participate actively. Yet they need representation in conjunction with sufficient expertise to be able to participate fully in international standard setting.
The fallacy of the environmental effectiveness of trade measures was that they did not pay heed to the concerns of developing countries and their inability to meet the stricter environmental norms set by the affluent North. Developing countries have been arguing for the necessary financial support and the transfer of environmentally friendly technology to enable them to develop their capacity to tackle environmental issues, but the commitments and promises of the North in this regard have not materialized.
While trade-related measures are gaining momentum in the policy considerations of different fora including the WTO Committee on Trade and Environment, the issues faced by developing countries are still not getting adequate attention. Issues such as safeguarding and further improving market access, controlling the export of domestically prohibited goods and promoting technology transfer appear to be receiving even less attention than previously.[63] Consequently the gap between rhetoric and reality is becoming wider day by day without any significant improvements in the capacity of developing countries to address environmental concerns.
For many developing countries, meeting the higher environmental standards set by the North will not facilitate sustainable development until the North changes its consumption patterns. At present, according to United Nations Development Program (UNDP) statistics, the 20 per cent of the world’s population who live in the North consume 80 per cent of the global natural resources and are responsible for 80 per cent of the pollution. The concerns of developing countries in this regard are echoed by an editorial piece in a leading Indian newspaper where environmentalist Suman Sahai asks:
Will the linkage with trade start only now or will it apply with retrospective effect? Will the damage to the environment inflicted over the last 50-100 years by the industrialized nations to bolster their production, enhance their trade and establish their mega economies also count in this linkage … ? Or will the calculations all be done for the post-industrialisation period that selectively target the norms of production in newly developing economies like those in Asia, Latin America and parts of Africa?[64]
For the South, an equitable trade-environment policy should take into account the cost of this over-consumption which is one of the major causes of environmental damage. The Northern countries should then take the burden of the necessary adjustments for unsustainable production and consumption patterns. It should not be the other way around.
The WTO Agreement on Subsidies and Countervailing Measures made provisions for non-actionable environmental subsidies as an incentive to environmental adaptation. However, there are claims of imbalance in the treatment of subsidies. Subsidies mostly used by developed countries (eg, for research and development and environmental adaptation) have been made non-actionable, or immune from counter-action. Meanwhile, subsidies normally used by developing countries for industrial upgrading, diversification, technological development, etc now constitute actionable disciplines.[65] The subsidies of developing countries should not be viewed as a tool of trade distortion, but rather as a means of development. They should not be subject to countervailing duties or counter-action.
The WTO General Agreement on Trade in Services (GATS) sets out multilateral principles and procedures for the regulation of trade in services. Services consist of a diverse range of human activities that include basic and professional services. They include activities such as healthcare, education, banking, finance, and insurance. They also include infrastructure services such as telecommunications, transportation, exploration and drilling, and construction. Article XIX of GATS introduced ‘appropriate flexibility for developing countries and LDCs in extending market access in line with their development situation’. GATS poses internal and external challenges for developing countries. Internally, developing countries will need to strengthen their domestic capacity to withstand the pressure from multinational service corporations. In addition, the regulatory capacity of developing countries will have to be increased to address the challenges of sustainable development. Externally, developing countries will face greater competition as a result of opening their markets up to big multinational corporations without having any power to control them. In its objective statement, GATS mentioned its desire to
facilitate the increasing participation of developing countries in trade in services and the expansion of their service exports including, inter-alia, through the strengthening of their domestic services capacity and its efficiency and competitiveness.[66]
Developing countries will certainly benefit from the strengthening of their domestic services capacity and from the liberalisation of market access in areas in which they have export interests. However, developing countries do not have the necessary institutions or the technological and financial bases to reap the maximum benefit from the strengthening and expansion of their involvement in international trade in services. They have serious shortcomings in preparing for trade negotiations and in formulating domestic policy reform measures.
Developing countries have voiced concern about the inclusion of services in the WTO, which is the result of the initiatives of developed countries. To this effect the WTO GATS includes provisions for the obligations of developed countries to help developing countries gain access to technology, and to undertake the liberalisation of market access in sectors of export interest to developing countries. However, this is an area in which developed countries have an absolute monopoly and consequently have reaped 100 per cent of the benefit of the agreement. Areas such as the movement of natural persons, in which developing countries have an interest saw no improvement. Similarly, the commitments made in GATT negotiations at Marrakesh by developed countries did not translate into action. It is argued that opening up the services sector in developing countries will benefit the giant multinational corporations (MNCs) in developed countries at the cost of the trading plight of developing countries. Developing countries need innovative technologies which will facilitate their integration into the global information network without negative effects on their economy.
The GATS provisions regarding the trade in services are linked to the environment. Economic and social developments rely upon the progressive development of service sectors in developing countries. Thus the liberalisation of trade in services can have both a direct and an indirect impact upon the environment. While some services, such as banking, finance, insurance, education, and health have little or no impact upon the environment, other services can have a direct and severe impact. Services of the latter type may involve exploration and drilling, transportation, construction and electricity generation. Opening up the markets of developing countries to MNCs can have a profound impact upon the environment. Unlike the GATT exceptions contained within Article XX, GATS does not provide any exceptions from the rules for the protection of exhaustible natural resources. This means governments will have a limited ability to protect the environment by regulating or restricting the acts of foreign corporations. Expansion of the scope of GATS is likely to bring about an increase in already substantial environmental damage. For example, oil exploration and drilling are already among the leading causes of forest destruction worldwide.[67] Similarly, garbage incineration and toxic waste dumping release substantial amounts of toxic chemicals into the environment.[68]
Commitments from developed countries in the areas of environmental services could provide developing countries with new market opportunities under GATS. Developing countries would have greater access to environmental services, and would therefore have the scope to improve their environmental services industry. In order to benefit from the liberalisation of trade in services, the domestic capacity of developing countries needs to be improved. Domestic infrastructure and regulatory regimes need to be developed and enforced to prevent anti-competitive and restrictive practices. Developing countries do not have an adequate regulatory framework with which to control multinational service corporations which are involved in providing services. Developing countries could impose preconditions or qualifications under which foreign private companies can operate.
These qualifications could focus on measures to ensure equity (e.g. maximum prices for consumers, percentage of profits that should be reinvested in the infrastructure) or capacitybuilding (e.g. technology and managerial know-how transfer, training of personnel), in conformity with articles IV and XIX of GATS.[69]
The WTO TRIPs Agreement[70] has increased the disparity and tension which currently exists between developed and developing countries. The TRIPs Agreement provides legal protection to intellectual property from imitation or copying through patents, copyrights, trademarks, geographical indications, industrial designs and trade secrets.
The TRIPs Agreement has proven to be a device designed to encourage monopolisation and other anti-competitive practices of the technologically developed Northern countries and MNCs. By protecting the needs and economic supremacy of developed countries, the TRIPs Agreement has made them the sole beneficiaries of the agreement. To many developing countries, an intellectual property protection mechanism translates into a blockade of the transfer of technology and a further impediment to economic development.[71] They argue that the transfer of technology and the dissemination of environmentally sound technologies (ESTs) would help them to move towards more environmentally friendly PPMs.
However, the majority of intellectual property rights are generated and owned by developed countries. As such they can reap the overwhelming share of benefits while the heavy burden of implementation lies with developing countries. Developed countries own almost all intellectual property; as a consequence developing countries do not have much to gain and do not enjoy any reciprocal benefit from the protection of intellectual property. In fact, they have lost a lot of flexibility in this matter as they cannot be selective in the protection of intellectual property, nor can they discriminate in favour of their domestic intellectual property if they have any.[72] Developing countries will lose as much or more from the TRIPS Agreement as they gain from the tariff agreement on manufactured items.[73] A former TRIPs negotiator, Arvind Subramanian, has estimated that the welfare loss for India alone could be US$1.3 billion, the Philippines $237 million, Indonesia $133 million and for Thailand up to $189 million.[74] The US on the other hand will gain enormously from the TRIPs Agreement, reaping 7.5 times as much as from all countries’ tariff liberalisation on manufactured items including its own liberalisation.[75]
The TRIPS Agreement has instituted what is basically a ‘one-size-fits-all’ system for intellectual property rights, in which the high minimum standards are set for all countries despite differing levels of development.[76] However, in the manufacturing sector the TRIPs Agreement may:
The protection of intellectual property rights (IPRs) through the TRIPS Agreement places developing countries in a disadvantageous situation in terms of access to technology, and/or the modernisation or upgrading of existing technology levels. This is ironic, given that the TRIPS Agreement recognised the special needs of developing countries to create their own technological base.[78] Article 7 of the TRIPs Agreement states that the protection of IPRs is not only intended to promote technological innovation, but the ‘transfer and dissemination of technology’.
Article 67 obliges developed members to provide on request and on mutually agreed terms and conditions technical and financial assistance to developing countries. Article 66.2 obliges developed country members to provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least developed countries. However, several developing countries argue that the Agreement, and more specifically its implementation, does not necessarily promote the dissemination of environmentally sound technologies or the protection of bio-diversity. While the TRIPs Agreement goes out of its way to protect the interests of developed countries, their obligations in regard to technology transfer and the dissemination of environmentally sound technologies are weak, and in any case are being ignored. Thus, the developed countries are reaping all the benefits of the Agreement, and developing countries are shouldering almost all of the burden.
Also, the TRIPs Agreement favours the Northern model of industrial innovation. This is because, in order to get the protection of the Agreement, an invention must be new, involve an ‘inventive step’, and be capable of industrial application. However, the nature of invention by Southern farmers, and the means by which produce is improved and diversified, does not fit this Northern model of innovation.[79] Instead, the process is more informal, and communal in nature.[80] The result is that the intellectual property of Southern farmers does not fall within the scope of the TRIPS Agreement, and is therefore denied protection.
The overall effect of the lack of Southern IPRs protection and the absence of the transfer of technology to the South has been to enhance the North’s already dominant position in the technology stakes. The TRIPS Agreement, is, in essence an exercise in technological protectionism. Furthermore, the Agreement encourages Northern companies to enter developing countries, learn about their local knowledge, reproduce it in a laboratory, and patent it as their own idea. The result is that the local and indigenous populations of developing countries cannot use their own knowledge for their own people.
The overall affect of the TRIPS Agreement, therefore, will be to undermine the objective of sustainable development. It does not encourage improved access or dissemination of technology, it has negative impacts on community innovators and investment flows, and it inhibits the implementation of international agreements, such as the Convention on Biological Diversity.
The recent assessment of progress in the implementation of Agenda 21 by the United Nations General Assembly showed that little progress has been made on what Agenda 21 calls ‘implementation issues’ such as finance, access to environmentally-sound technologies and, perhaps to a lesser extent, capacity-building. Imbalances in the trade and environment agenda can only be addressed if sufficient attention is given to the development and implementation of such measures. Measures to achieve the objective of sustainable development – as established and recognised by international stakeholders in various UN agencies such as UNCTAD and the United Nations Environmental Program (UNEP), and as outlined in Agenda 21 should be implemented, taking into account the vulnerability of developing countries at the intersection of trade and environment.
Developing countries are concerned about the health and environmental effects of products which are prohibited in the developed, exporting country, and which no longer meet that country’s standards. As a result, domestic sale is strictly restricted. This does not prevent export to developing countries where importers do not have enough information about the prohibition in the exporting country’s domestic market and/or the risk that these products pose to the environment and public health. These products include pesticides, medicines, and other chemicals, to name only a few. In the absence of a multilateral convention, the main instrument regulating DPGs is the London Guidelines for the Exchange of Information on Chemicals in International Trade which provides guidelines and notification requirements about potentially toxic chemicals. However, the guidelines are not binding upon parties and non-chemical products are not referred to.
Developing countries do not have the required knowledge, capacity or infrastructure to control and monitor the imports of DPGs. Developing countries need to have resources and technological assistance in order to be able to identify DPGs and their risks. There is a need to examine whether existing instruments, such as the prior informed consent (PIC) procedure, are sufficient from the perspective of developing countries, in particular with regard to product coverage and procedures.[81] A definition of DPGs and comprehensive product coverage need to be established in order to address the existing gaps in relation to the export of DPGs.
Developing countries have expressed grave concerns over WTO negotiations based on environmental considerations. Inclusion and/or incorporation of environmental policies into the WTO Agreements will have a debilitating impact on the trade prospects of developing countries. For example, the use of trade measures related to process and production methods (PPM) has the potential to be used against developing countries for the protection of a developed country’s own market. This is an area which can be hijacked by protectionist national interests.
The agenda for trade negotiations reflects the attitude and inherent motives of developed countries with little or no input from developing countries. In the main, developing countries are trying to resist or oppose the many measures that go against the trade interests of developed countries, but they are being forced by the latter either to accept or accommodate the trade measures. Issues of particular concern are:[82]
Developing countries argue that the trade and environment agenda requires greater balance if progress is to be made.[83]
It is evident from the operation of various agreements, processes and institutional arrangements emerging from the trade and environment regimes that they do not encourage effective or necessary action for global sustainable development. Nor do they respond to the needs of developing countries with respect to their progress towards sustainable development. This situation has weakened the foundations of consensus and mutual understanding reached at Stockholm and at UNCED by the world community. It has led to a widening policy divide between the North and the South on the issue of sustainable development.[84] The mutual distrust between the North and the South is now more intense than ever and is threatening international cooperation on sustainable development.
An open, rules-based multilateral trading system is essential for the promotion of economic development in developing countries. The reality is that the existing trading system has weakened or impeded the economic growth of developing countries and has limited their ability to address sustainable development issues. The shortcomings of this system have resulted in a further widening of the economic gap between developed and developing countries. Economic growth and sustainable development for all – the very objective of the trading system – remains very much an ideal and a distant goal for developing countries.
If the above situation is prolonged, it might erode the legitimacy of the global economic system. Instead of bringing economic growth, the present colonial division of labour has left developing countries more economically dependent on developed countries. This situation has underscored the need for an urgent change of the ongoing situation. There must be measures (a) to create mutual trust between the South and the North in launching effective actions for sustainable development worldwide; (b) to address the inadequacies of the existing institutions in dealing with trade and the environment; and (c) to adjust the asymmetries and inequalities in the international trading system and its structural limitations.
Certain specific action plans are imperative in order to accomplish these desired goals. The WTO needs to ensure transparency and procedural fairness in conducting trade negotiations. Developing countries must have a say in the extent and terms of future negotiations involving trade and the environment. The WTO must adopt an approach which involves the ‘integrated consideration of social, environmental and economic impacts, rather than their separate thematic treatment’.[85] Special and differential treatment for developing countries must be an integral part of future negotiations involving outstanding issues. The concerns expressed by developing countries in relation to the implementation issues of the WTO agreements (especially agriculture, textiles and anti-dumping) must be addressed before the environment is included on the trade negotiating agenda. Other issues raised by developing countries, such as financial and technical assistance, access to and transfer of technology and market access for non-agricultural products, must be addressed, taking into account the level of development of such countries and their developmental needs.
Overall, a development-oriented multilateral trading system can be a true instrument for sustainable development. This will mean that developing countries receive their due shares of economic benefits arising from the liberalization of their markets not only in words, promises and commitments, but also in reality and substance. Tangible progress in this venture warrants a new mindset in the North – a mindset which recognizes the concerns and interests of developing countries in the context of trade and environment issues. This remains a daunting challenge for the future.
[*] LLB (Hons), LLM, PhD Candidate and Tutor in Law, Macquarie University, Sydney Australia. Formerly Lecturer, Faculty of Law, Rajshahi University, Bangladesh and Lecturer in Law, Dhaka University, Bangladesh. The authors would like to thank anonymous referees for this journal for helpful comments on an earlier draft of this article.
[**] Professor of Law, Macquarie University, Sydney, Australia.
[1] G Brundtland, Our Common Future: The World Commission on Environment and Development (1987) 4.
[2] Ibid 5.
[3] Principle 3, 7 and 12 of the Rio Declaration on Environment and Development 1992 UNCED.
[4] Gregory F Maggio, ‘Inter/intra-generational Equity: Current Applications under International Law for Promoting the Sustainable Development of Natural Resources’ (1997) 4 Buffalo Environmental Law Journal 206, 220.
[5] Comparative advantage is considered to be the philosophy behind liberal trade. David Ricardo developed the theory of comparative advantage in 1817. It is the theoretical justification of the benefits of liberal trade.
[6] Leutwiler Report in Trade Policies for a Better Future: Proposals for Action, Geneva, GATT, 1985, cited in OECD, ‘Trade Principles and Concepts’ OECD Document (1995) 95 OCDE/GD 141, 18 (copy in file with author).
[7] Paul Krugman and Maurice Obstfeld, International Economics: Theory and Policy (5th ed, 2000) 11-13.
[8] Paul Samuelson, Economics (11th ed, 1989) cited in OECD, above n 6.
[9] P A G van Bergeijk, ‘International Trade and the Environmental Challenge’ (1991) 25(6) Journal of World Trade 105, 106.
[10] Theodore Panayotou, ‘Economic Growth and the Environment’ (Working Paper No 56, Centre for International Development, Harvard University, 2000) 76-77.
[11] Renato Ruggiero, Director General of WTO. (Speech delivered on the subject of sustainable development, Bonn, 9 December 1997) see for details (1997) 1(6) Bridges 7 (International Centre for Trade and Sustainable Development Newsletter).
[12] Kym Anderson and Jane Drake-Brockman, ‘The World Trade Organisation and the Environment’ in Ben Boer, Robert Fowler, Neil Gunningham (eds), Environmental Outlook No. 2: Law and Policy (1996) 149.
[13] Van Bergeijk, above n 9, 106.
[14] K Miranda and T R Muzondo, ‘Public Policy and the Environment’ (1991) 28(2) Finance and Development 25.
[15] Lavanya Rajamani, Developing Country Resistance to Linking Trade and Environment: the Perceptions of Inequity and the Politics of Autonomy (2000) < www.paot.org.mx/ centro/
internacional/LavanyaGETS.doc > 22 April 2005.
[16] For details of the perspective of developing countries on this issue, see generally, Kamal Nath, ‘Trade, Environment and Sustainable Development’ in V Jha, G Hewison and M Underhill (eds), Trade, Environment and Sustainable Development: A South Asian Perspective (1997) 15-20; M Shahin, ‘Developing Country Perspective’ in D Brack (ed), Trade and Environment: Conflict or Compatibility? (1998) 150-163; Adil Najam and Nick Robins, ‘Seizing the Future: the South, Sustainable Development and International Trade’ (2001) 77(1) International Affairs 49.
[17] Caroline Thomas, ‘Where is the Third World Now’ in Caroline Thomas (ed), Globalisation and the South (1997) 1.
[18] Uruguay Round Declaration (1986) 25 ILM 1624, paragraph A (i).
[19] UNCTAD/LDC (1998) (Overview) by the Secretary General of UNCTAD < http://www.unctad.org/Templates/webflyer.asp?docid=544&intItemID=2514&lang=1> 22 April, 2005.
[20] Ibid.
[21] The Declaration (1986) 25 ILM 1624, paragraph B (iv).
[22] The Declaration (1986) 25 ILM 1623.
[23] The Declaration (1986) 25 ILM 1625, paragraph B (v).
[24] GATT Art XVIII. For details see Surya P Subedi, ‘The Road from Doha: The Issues for the Development Round of the WTO and the Future of International Trade’ (2003) 52(2) International and Comparative Law Quarterly 425.
[25] Clair Wilcox, A Charter for World Trade (1949) 141.
[26] M Khor, ‘The South at the End of the Uruguay Round’ (1994) Third World Resurgence 38. Cited in Andrea C Durbin, ‘Trade and the Environment: the North-South Divide’ (1995) 37(7) Environment 16.
[27] Ibid
[28] For details see speech of Rubens Ricupero, Secretary-General, UNCTAD in Jagdish Bhagwati (ed), ‘The Next Trade Negotiating Round: Examining the Agenda for Seattle’ (proceedings of the Conference held at Columbia University, 23-24 July 1999).
[29] Ricupero, above n 28.
[30] Scott Vaughan, ‘Trade and Environment: Some North-South Considerations’ (1994) 27(3) Cornell International Law Journal 591, 600.
Khor, Asian Officials for Active Stance in Negotiations (1994), Third World Network <http://www.sunsonline.org/trade/process/towards/09130194.htm> at 22 April 2005, Asians Warn Against Misuse of New Trade Issues (1994) <http://www.sunsonline.org/trade/process/
towards/09070194.htm> 22 April 2005.
[32] The GSP (Generalised System of Preferences) is an arrangement under which preferential tariff treatment is granted by developed countries to manufactured and semi manufactured products of developing countries. The aim of this arrangement was to increase the export earnings of developing countries and help them to achieve economic growth and industrialisation.
[33] J Veena and V Rene, Breaking the Deadlock: A Positive Agenda on Trade, Environment and Development? (1999) 13.
[34] ‘Eight Broken Promises: Why the WTO is Not Working For the World’s Poor’ Oxfam Briefing Paper 9 <http://www.oxfam.org.uk/what_we_do/issues/trade/bp09_8broken.htm> at 22 April 2005.
[35] Ibid.
[36] Ibid.
[37] Ibid.
[38] Ibid.
[39] Ibid.
[40] Ibid.
[41] Special Report, ‘Playing Games with Prosperity’ (2001) The Economist 26.
[42] Surya P Subedi, ‘The Road from Doha: The Issues for the Development Round of the WTO and the Future of International Trade’ (2003) 52 International and Comparative Law Quarterly 425, 430.
[43] WT/L/424 of 24 Oct 2001, para 6. Ibid.
[44] Ibid 440.
[45] Alvaro Soto, ‘The Global Environment: A Southern Perspective’ (1992) 47(4) International Journal 679.
[46] UNCTAD, Trade and Development Report 1986.
[47] GATT Law and the Environment: GATT Doc 1529 (1992).
[48] Rio Declaration on Environment and Development 1992 UNCED, 1992.
[49] See United States – Restrictions on Imports of Tuna: Report of the Panel, GATT BISD 39th Supp 155 (1993); United States– Restrictions on Imports of Tuna (II): Report of the Panel, GATT Doc DS29/R (1994) 33 ILM 839. United States – Prohibition of Shrimps and Certain Shrimp Products, WTO Doc WT/DS58/AB/R (98-000) (12 October 1998). United States – Standards for Reformulated and Conventional Gasoline, WTO Doc WT/DSS/AB/R (1996) 35 ILM 603.
[50] M Rauscher, International Trade, Factor Movements, and the Environment (1997) 3.
[51] Ibid.
[52] GATT jurisprudence distinguishes a product from its processing methods. For details on the conflict between production and processing methods see generally, William J Snape III and Naomi B Lefkovitz, ‘Searching for GATT’s Environmental Miranda: Are Process Standards Getting Due Process?’ (1994) 27 Cornell International Law Journal 777.
[53] A unilateral action can be defined as a nation’s use of its administrative and enforcement agencies to secure a policy goal set by its domestic political process. See Belinda Anderson, ‘Unilateral Trade Measures and Environmental Protection Policy’ (1993) 66 Temple Law Review 751.
[54] Patrick Low, ‘International Trade and the Environment: An Overview’ in Patrick Low (ed), International Trade and the Environment (World Bank Discussion Paper, Paper No 159, World Bank, Washington DC, 1992) (copy in file with author).
[55] GATT, above n 47, 2-6.
[56] UNCTAD Trade and Development Report 1999, UNCTAD 1999, 10.
[57] Carmelo Ruiz, ‘Green Protectionism: The North’s Latest Trade Weapon’ in Third World Network Features (1997). Cited in Lavanya Rajamani, Developing Country Resistance to Linking Trade and Environment: the Perceptions of Inequity and the Politics of Autonomy (2000) < www.paot.org.mx/centro/internacional/LavanyaGETS.doc >22 April 2005.
[58] Simon S C Tay, ‘International Trade and Environment in Asia: A Survey of the Issues’ (Monograph Commissioned for the Asia Conference on Trade and the Environment, 1996, 18).
[59] Ibid.
[60] Low, above n 54, 23.
[61] Ibid.
[62] Ibid.
[63] Veena and Rene, above n 33, 10.
[64] Suman Sahai, ‘An Open Letter to the WTO Chief’ The Hindu 29 May 1995. Cited in Lavanya Rajamani, above
n 16.
[65] Martin Khor (ed), The Multilateral Trading System: A Development Perspective (2001) Third World Network <http://www.twnside.org.sg/pos.htm> 22 April 2005.
[66] Preamble to the General Agreement on Trade in Services WTO Doc LT/UR/A-1B/S/1 (1994).
[67] A Disservice to the Earth: The Environmental Impact of the General Agreement On Trade in Services, Friends of the Earth Feature, <http://www.citizenstrade.org/pdf/services_foe_2pg.
pdf>22 April 2005.
[68] Ibid.
[69] Jolita Butkeviciene, GATS Negotiations and Issues for Consideration in the Area of Environmental Services from a Development Perspective UNEP-UNCTAD [31], <http://www.unep-unctad.org/cbtf/cbtf2/meetings/singapore/environmentalservices.doc
> 22 April 2005.
[70] The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) became effective on 1 January 1995. For details, see World Trade Organisation, ‘An Overview of the Agreement on Trade-Related Aspects of Intellectual Property Rights’ (1994) 33 ILM 81 [hereinafter TRIPS Agreement] <http://www.wto.org/english/trtop_e/trips_e.intel2_e.htm>.
[71] E Su, ‘The Winners and the Losers: The Agreement on Trade Related Aspects of Intellectual Property Rights and its Effects on Developing Countries’ (2000) 23 Houston Journal of International Law 169.
[72] Khor, above n 64.
[73] J M Finger, ‘Implementing the Uruguay Round Agreements: Problems for Developing Countries’ (2003) 24(9) The World Economy 1103.
[74] A Capling, Australia and the Global Trade System: From Havana to Seattle (2001) 200.
[75] Finger, above n 73, 1103.
[76] Khor, above n 64, Chapter Four.
[77] See ‘New Technologies and the Global Race for Knowledge’ – UNDP Human Development Report 1999, Chapter 2. Also Veena and Rene, above n 33, 15.
[78] Preamble to TRIPs Agreement.
[79] WWF, ‘The UN Biodiversity Convention and the WTO TRIPS Agreement’ (Discussion Paper, A World Wide Fund For Nature (WWF), June 1995) <http://www.panda.org/downloads/
policy/publicationlistmar04.pdf > 22 April 2005.
[80] Veena and Rene, above n 33, 15.
[81] Veena and Rene, above n 33, 19.
[82] Ibid 6.
[83] Ibid 10.
[84] The South Centre, The South, The North And Sustainable Development: The Continuity of Basic Issues, <http://www.southcentre.org/publications/conundrum/conundrum-03.htm#
divide> 22 April 2005.
[85] Briefing from Birdlife International on Trade and Environment Issues of the Doha Development Round <http://www.birdlifecapcampaign.org/political/pdf/Cancun_Policy_
Summary_BL.pdf> 22 April 2005.
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