Pring, George W.

Sweitzer, Geoffrey

English

University of Denver

Denver Journal of International Law & Policy Volume 23 Number 1 Fall Article 10 May 2020 Freer Trade, Protected Environment: Balancing Trade Liberalization and Environmental Interests George W. Pring Geoffrey Sweitzer Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation George W. Pring, Freer Trade, Protected Environment: Balancing Trade Liberalization and Environmental Interests, 23 Denv. J. Int'l L. & Pol'y 227 (1994)(book review). This Book Review is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. Freer Trade, Protected Environment:Balancing Trade Liberalization andEnvironmental InterestsREVIEWED BY GEORGE W. PRING* AND GEOFFREY SWEITZER "°RUNGE, C. FORD, FREER TRADE, PROTECTED ENVIRONMENT:BALANCING TRADE LIBERALIZATION AND ENVIRONMENTALINTERESTS; Council On Foreign Relations Books, New York (1994);($17.95); ISBN 0-87609-154-0; 146 pp. (pbk.).Freedom in a commons brings ruin to all.Garret Hardin1Freer Trade, Protected Environment is the latest book on the "hot"international law topic of the 1990s - the interrelation of trade andthe environment. Does expanded free trade spell ruin or rescue for theglobal environment? Are economy and ecology incompatible? Is "sus-tainable trade" an oxymoron?While much has already been written on this important debate,2given its very formative stage, this slim volume is a valuable contri-bution. It is the outgrowth of the "Study Group on Trade and the Envi-ronment" convened by the Council on Foreign Relations3 and com-prised of "a wide cross section of interested professionals from both the* Professor of Law, University of Denver College of Law; J.D., University ofMichigan; B.A., Harvard College.** J.D. Candidate, 1995, University of Denver College of Law; B.S., Universityof Vermont.1. Garret Hardin, The Tragedy of the Commons, 162 SCIENCE 1243, 1244 (Dec.13, 1968), reprinted in ZYGMUNT PLATER, ROBERT H. ABRAMS & WILLIAM GOLDFARB,ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY 35 (1992).2. Good examples cited by the author include the U.S. Office of TechnologyAssessment, World Bank, and University of Michigan studies. C. FORD RUNGE,FREER TRADE, PROTECTED ENVIRONMENT: BALANCING TRADE LIBERALIZATION ANDENVIRONMENTAL INTERESTS xii (1994) [hereinafter FREER TRADE, PROTECTED ENVI-RONMENT]. Others include Robert Housman & Durwood Zaelke, Trade, Environment,and Sustainable Development: A Primer, 15 HASTINGS INTL & COMp. L. REV. 535(1992); Kevin C. Kennedy, Reforming U.S. Trade Policy to Protect the Global Envi-ronment: A Multilateral Approach, 18 HARv. ENvTL. L. REV. 185 (1994); Symposium:The Globalization of Law, Politics, and Markets: Implications for Domestic LawReform, 1 IND. J. OF GLOBAL LEGAL STUD. 273 (1994).3. Self-described on the flyleaf as "a nonprofit and nonpartisan organizationdevoted to promoting improved understanding of international affairs . . . [which]does not take any position on questions of foreign policy and has no affiliation with,and receives no funding from, the United States government."DENY. J. INT'L L. & POL'Yenvironment and trade communities."4 However, as its author,codirector of the Council study and a University of Minnesota professorof agricultural and applied economics, makes clear at the outset, thebook is "the author's alone" - not a report or consensus document ofthe obviously highly conflicted participants.5The goal of the book is to provide a "general analysis" of the in-sights of the year-long Council study and bridge the gap between theenvironmental and trade disciplines.' The book is expressly aimed "foran audience of interested but nonexpert readers,"7 and succeeds inmeeting that goal, unfortunately at some expense to its promised aimof writing at a "layperson" level.Free traders or environmental advocates looking for a book sup-porting one side of the debate over the other will not find it here. Pro-fessor Runge refrains from taking sides on the value of free trade ver-sus the environment or vice versa. Instead, he adopts the position thatfree trade and the environment are equally important and that a "doc-trine of balance" is required.8 As with much other writing of this type,the book asks more questions than it answers.The layout of Freer Trade, Protected Environment is simple andwell suited for its aim of educating the layperson. Unfortunately, aswill be discussed below, it assumes a fair amount of expertise, succeed-ing better at its goal of bridging the gap between two disciplines thanits goal of providing a "general analysis."The book is divided into three broad sections. The first of thesesections establishes a framework useful for those unfamiliar with thetopic. Chapter 1 discusses why environmentalists and free trade ex-perts are at odds; how and when this conflict arose; and how thecamps are currently divided, not only between environmentalists andfree-traders but also along "North-South" geopolitical lines. Chapter 2discusses the various perspectives - legal, economic, and environmen-tal - from which the debate can be analyzed.In the second section, specific cases and models are examined tohighlight some of the critical issues in the sustainable trade debate.Chapter 3 examines the fundamental question whether trade liberal-4. FREER TRADE, PROTECTED ENVIRONMENT, supra note 2, at xi. The over 140listed participants come from U.S. environmental groups, academia, U.S. governmentagencies, the World Bank, media, corporations, and the legal profession. Id. at 118-122.5. Id. at xi; Professor Runge does credit his research assistants, FrangoisOrtalo-Magnd and Philip Vande Kamp, with co-authorship. A further disclaimer iscontained in a remarkably tepid and arms-length "Foreword" contributed by MichaelS. Smith, Chairman of the study. Id. at vii-ix.6. Id. at xii, 1-7.7. Id. at 7.8. Id.228 VOL. 23:1TRADE AND ENVIRONMENTAL INTERESTSization will lead to increased damage to the environment. Using theEuropean Union (EU) and North American Free Trade Agreement(NAFTA) as models, Professor Runge illustrates how the questiondefies broad generalization. As the EU experience shows, trade liberal-ization can not only harm the environment (e.g. the European trans-portation sector) but also enhance it (e.g. European agriculture).Chapter 4 examines two classic trade-environment clashes, theTuna-Dolphin Dispute' and the U.S.-Canada Fisheries Landing Dis-pute." These two cases are used to illustrate the key issues in sus-tainable trade: extraterritorial application of domestic environmentallaws, preemption of domestic laws by the General Agreement on Tar-iffs and Trade (GATT);" "product" vs. "process" distinctions in GATTexceptions; and trade protectionism disguised as environmental protec-tion. Chapter 5 explores the conflict between international environ-mental instruments and international trade instruments, focusing onthe Montreal Protocol 2 and its potentially serious conflicts with theGATT.Chapter Six is the third section and heart of the book. Based onthe lessons learned from the cases examined in section two, ProfessorRunge proposes possible solutions. This chapter is devoted almostexclusively to the merits of creating a World Environmental Organi-zation (WEO) to act as a counterweight to the World Trade Organiza-tion (WTO) of the GATT.Ironically, Freer Trade, Protected Environment attempts to harmo-nize environment and free trade by proposing impossible principles,followed by a remedy for their inevitable failure. Central to ProfessorRunge's thesis is the arguable proposition that environmental prob-lems are not likely to be solved by trade measures alone and that abetter solution involves a combination of both trade and environmentalpolicies. 3 To this end Professor Runge lays out "[flour principles of9. In 1991, Mexico successfully challenged the United States Marine MammalProtection Act. See "United States - Restrictions on Imports of Tuna." GAF Doc.No. DS2l/R Sept. 3, 1991. Although the GATT Council rendered a decision regardingthe challenge, commonly referred to as Tuna-Dolphin I, the decision has no directlegal effect as neither Mexico nor the United States asked the GATT Council toadopt it. For an extensive analysis of the Tuna-Dolphin I case, see Robert Housman& Durwood Zaelke, The Collision of the Environment and Trade: The GATT Tu-na/Dolphin Decision, 22 ENVTL. L. REP. 10268 (1992).10. See U.S.-Canada Binational Panel Final Report, 12 I.T.R.D. 1026-44 (Oct. 16,1989).11. General Agreement on Tariffs and Trade, opened for signature Oct. 30, 1947,61 Stat. A3, 55 U.N.T.S. 187.12. The Montreal Protocol on Substances that Deplete the Ozone Layer, adoptedand opened for signature Sept. 16, 1987, reprinted in 26 I.L.M. 1541 (1987Xenteredinto force Jan. 1, 1989).13. For a provocative, opposing viewpoint, urging the U.S. to "violate" GATT toprotect the environment, see Mary Ellen O'Connell, Using Trade to Enforce Interna.1994 229DENV. J. IN'L L. & POL'Ybalanced trade and environmental policies."14 The four principles areas follows: (1) perceived trade problems should be addressed usingtrade policies, and environmental problems with environmental poli-cies; (2) trade policies should aim to lower trade barriers while remain-ing environmentally neutral; (3) environmental policies should focus onenvironmental concerns while remaining trade neutral; and (4) nation-al governments should be encouraged to harmonize their trade andenvironmental policies. Failure to adhere to these principles, inRunge's analysis, is the reason for the conflicts in the cases profiled inchapters 4 and 5.Up to this point, Professor Runge appears to be widening the gapbetween trade and the environment, calling for their separation ratherthan attempting to draw them together. However, in chapter 6 hemeets this concern and remains true to the book's stated goal by con-ceding that in reality observing the Four Principles is often impossi-ble.'5 While not always the case, trade or environmental policies andinstruments will often impact each other intentionally or unintention-ally.Because of this, the author advocates an authoritative, new inter-national institution to work beside the GATT's World Trade Organiza-tion, operating across national governments to ensure that policiesimposing either type of burden are sufficiently tailored to minimizepotential challenges, if not remove them entirely. This idea is suffi-ciently undeveloped in previous writings on this topic to make Profes-sor Runge's fairly detailed analysis quite interesting and valuable.Where previous writings speak generally about amending the GATT"sor expanding the GATT waivers, 7 Freer Trade, Protected Environ-ment proposes an unusually detailed and noteworthy institutional fix.How realistic it is, given the resistance of the U.S. and other nations tointernational authorities, is a serious question, but not one that shoulddeter us from considering its numerous advantages. Professor Runge's"WEO" should be particularly attractive to environmentalists, amongothers, as it completely rebuts the image that environmental concernsare secondary to economic ones, a problem with other proposed solu-tions based on tinkering within the GATT.His cure, however, is not without its price. By focusing on his"four principles" of balanced trade and environmental policies, much ofthe current relationship between international trade law and interna-tional Environmental Law: Implications for United States Law, 1 IND. J. OF GLOBALLEGAL STUD. 273 (1994).14. FREER TRADE, PROTECTED ENVIRONMENT, supra note 2, at 29.15. Runge calls their failure "unavoidable." Id. at 98.16. Kennedy, supra note 2; Eliza Patterson, International Trade and the Environ.ment: Institutional Solutions, 21 ENVTL. L. REP. 10599 (1991).17. Id.VOL. 23:1TRADE AND ENVIRONMENTAL INTERESTStional environment law is left out. By boldly attempting to bridge thegap, the author fails to give the reader much sense of the nature of thegap itself. Unlike international trade law, which has been meldedtogether over the years under comprehensive authorities like theGATT and NAFTA, international environmental law remains a loosepatchwork of unrelated instruments and institutions."8 Certainly, fewwould argue the international environmental regime has the bindingauthority and international respect commanded by the GATT.Further, Runge makes little mention of the historically secondaryrole that environmental problems have taken to economic concerns.Economic instruments, like the GATT, make little reference to environ-mental concerns; in contrast, the Stockholm and Rio Declarations andother environmental instruments focus quite centrally on economicconcerns, to the extent that "environmental protection" is now sub-sumed into "sustainable development." What makes omitting this rela-tionship all the more surprising is that Professor Runge's very propos-al would give international environmental law unprecedented paritywith the other, economic fields of international law.Another criticism of the book is its omission of other valuable casestudies. While the Tuna-Dolphin Dispute, the U.S.-Canada FisheriesLanding case, and the Montreal Protocol illustrate some of the currentproblems in the sustainable trade debate, other cases would providedepth and avenues for further investigation. For example, the GermanPackaging case19 and the Danish Bottle case' could provide valuableadditional insights on extrajurisdictional application of domestic lawsand the product-process distinction. Also, in addition to the MontrealProtocol, both CITIES21 and the Basel Convention2 harbor potential-ly unique conflicts with the GATT.None of this is intended to say that Freer Trade, Protected Envi-ronment is not a valuable learning tool. However, it is perhaps bettersuited for a more knowledgeable audience than for the "interested but18. For a glimpse of the volume and diversity of international environmentalinstruments, see George W. Pring & David L. Joeris, Book Review: Four Internation-al Environmental Law Collections, 4 COLO. J. OF INT'L ENVTL L. & POL. 422 (1993);for the latest of such collections, see LAXSHMAN GURuswAMY, GOEFFREY PALMER &BURNS H. WESTON, SUPPLEMENT OF BASIC DOCUMENTS TO INTERNATIONAL ENVIRON-MENT AND WORLD ORDER (1994).19. For a discussion of the German Packaging Ordinance, see Ray V. Hartwell &Lucas Bergkamp, Environmental Trade Barriers and International Competitiveness,24 ENvTL. L. REP. 10109 (1994).20. Commission v. Denmark, Case 302/86, 1988 E.C.R. 4607 (Judgement of Sept.20, 1988).21. Convention on International Trade in Endangered Species of Wild Flora andFauna, Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243.22. Basel Convention on the Control of Transboundary Movements of HazardousWastes and Their Disposal, Mar. 27, 1989, U.N. Doc. UNEP/I.G. 80/3 (1989), reprint-ed in 28 I.L.M. 657 (entered into force May 21, 1992)..1994 231232 DENV. J. INT'L L. & POLY VOL. 23:1nonexpert reader." Certainly, a layperson would come away with abasic understanding of the important issues in the debate. However,without an understanding of international environmental law, such areader could miss the bigger picture and be misled into thinking it hasdeveloped further than in truth it has. But, for those already fortifiedwith at least the basics of international environmental law, FreerTrade, Protected Environment makes a valuable contribution to under-standing and harmonizing the economic-environmental commons thatwe all must protect or ruin.

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