MEAs in WTO Dispute Settlement Proceedings: Can They Become Applicable Law?

With the global community's growing awareness of the need for environmental protection, a significant number of multilateral environmental agreements (MEAs) have been created. Some among them mandate or allow the parties to impose trade-restrictive measures for environmental purposes, such as for regulating international trade in environmentally harmful products and endangered species, for eliminating economic incentives that encourage environmentally destructive activities, or for ensuring member compliance with and encouraging non-member accession to the MEAs. However, when a trade restrictive measure under a certain MEA is imposed by one World Trade Organization (WTO) member against another, it raises a question about consistency with relevant WTO agreements, regardless of whether the targeted WTO member is a party to the MEA. So far, no specific case concerning WTO consistency of a trade restrictive measure under an MEA has been brought to the WTO dispute settlement proceedings. However, such a case is quite likely to occur in the future with the increasing usage of the kinds of measures mentioned above. Based on this concern, the "relationship between existing WTO rules and specific trade obligations set out in MEAs" has been included in the agenda for the Doha Round negotiations under the WTO (Doha Development Agenda).



When such a case goes to the WTO dispute settlement proceedings, what status should be given to the MEA in question? Is it a valid scenario for WTO panels and the Appellate Body to give priority to a specific MEA over WTO agreements in accordance with the MEA's conflict of law rules or public international law, thereby confirming the WTO consistency of trade restrictive measures under that MEA? Academics have discussed at length whether MEAs and other non-WTO international law can become the applicable law in the WTO dispute settlement proceedings. This paper considers this problem by comparing and analyzing in detail the arguments of Joost Pauwelyn (Duke University Faculty of Law), who affirmatively answers this problem and of Joel Trachtman (The Fletcher School, Tufts University) who answers negatively. From the perspective of supporting the coherence of international law, this paper concludes by siding with Pauwelyn's argument.