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ADDRESSING ENVIRONMENTAL CONCERNS THROUGH TRADE: A CASE FOR EXTRATERRITORIALITY?

Published online by Cambridge University Press:  04 January 2016

Barbara Cooreman
Barbara Cooreman*
Affiliation:
PhD-Fellow at Europa Institute, Leiden University, [email protected].
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Abstract

In the absence of stringent and coordinated international action, States might seek alternatives to promote environmental protection unilaterally. Trade measures may be tools to promote environmental protection in other countries through the means of trade restrictions based on the process and production methods of a good (PPMs), but can they be used to protect global environmental concerns? PPMs are considered to be controversial because of their extraterritorial character. Inspired by other fields of law where an extraterritorial application of laws is accepted, such as competition law and international human rights law, this paper proposes a systematic approach to assess the acceptability of extraterritorial trade measures with an environmental objective within the scope of the general exceptions of the GATT. This contribution purports to answer whether the WTO forms a stumbling block for States to address global environmental concerns through trade.

Keywords

effects doctrineenvironmentextraterritorialityWTO
Type
Shorter Articles and Notes
Information
International & Comparative Law Quarterly , Volume 65 , Issue 1 , January 2016 , pp. 229 - 248
Copyright
Copyright © British Institute of International and Comparative Law 2016 

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References

1 WTO, Appellate Body (AB) Report, United States–Import Prohibition of Certain Shrimp and Shrimp Products (1998) WT/DS58/AB/R. Even though US–Shrimp was the first case before the WTO AB, the unadopted GATT Panel reports GATT, GATT Panel, United States–Restrictions on Imports of Tuna (Mexico) (1991) DS21/R; GATT, GATT panel, United States Restrictions on Imports of Tuna (EEC) (1994) DS29/R, dealt with a similar measure.

2 WTO, AB Report, US–Shrimp (1998) para 133.

3 WTO, AB Report, European Communities–Measures Prohibiting the Importation and Marketing of Seal Products (2014) WT/DS401/AB/R, para 5.173.

4 For an overview of the debate on PPMs, see inter alia OECD, ‘Processes and Production Methods (PPMs): Conceptual Framework and Considerations On Use of PPM-based Trade Measures, Organisation for Economic Cooperation and Development’ (1997); Jansen, B and Lugard, M, ‘Some Considerations on Trade Barriers Erected for Non-Economic Reasons and WTO Obligations’ (1999) 2(3) JIEL 530CrossRefGoogle Scholar; Howse, R and Regan, D, ‘The Product/Process Distinction – An Illusory Basis for Disciplining “Unilateralism” in Trade Policy’ (2000) 11(2) EJIL 249CrossRefGoogle Scholar; Charnovitz, S, ‘The Law of Environmental “PPMs” in the WTO: Debunking the Myth of Illegality’ (2002) 27(1) YaleJIntlL 59Google Scholar ; P Van den Bossche, N Schrijver and G Faber, Unilateral Measures Addressing Non-Trade Concerns: A Study on WTO Consistency, Relevance of other International Agreements, Economic Effectiveness and Impact on Developing Countries of Measures concerning Non-Product-Related Processes and Production Methods (Ministry of Foreign Affairs of The Netherlands 2007); Horn, H and Mavroidis, PC, ‘The Permissible Reach of National Environmental Policies’ (2008) 42(6) JWT 1107Google Scholar; CR Conrad, Processes and Production Methods (PPMs) in WTO Law: Interfacing Trade and Social Goals International Trade and Economic Law (Cambridge University Press 2011).

5 The extraterritorial prescriptive effect of PPMs as they focus on the production process occurring outside the territory of the regulating State is not unlawful from a general international law perspective: rather than regulating conduct abroad, ‘extraterritorial’ trade measures affect or incentivize conduct abroad. Furthermore a measure needs to be ‘activated’ through market access. Scott refers to ‘measures giving rise to territorial extension’,  ‘triggered by a territorial connection but in applying the measure the regulator is required, as a matter of law, to take into account conduct or circumstances abroad’. See Scott, J, ‘Extraterritoriality and Territorial Extension in EU Law’ (2014) 62 AmJCompL 90Google Scholar. Regarding enforcement jurisdiction, the enforcement of trade measures occurs within the territory of the imposing member, likely at the border. See also E Vranes, Trade and the Environment: Fundamental Issues in International Law, WTO Law and Legal Theory (Oxford University Press 2009) 174. Despite this finding of lawfulness, npr-PPMs still trigger controversy. Can the objective of the measure create additional support for jurisdiction? Within the context of GATT law this question leads to art XX.

6 Npr-PPMs are not excluded from the scope of the WTO Agreements, with the exception of the SPS Agreement (Annex A), referring solely to health concerns within the territory of the regulating Member. When within the scope of the agreements, consistency of the npr-PPM with the substantive obligations of WTO law needs to be assessed. Most discussion has focused on whether npr-PPMs would be considered as a border measure under art XI GATT (as was the case in the non-adopted GATT US–Tuna cases, as well as not disputed by the US in US–Shrimp), or as an internal measure under art III GATT. Whether a measure is considered under art III or art XI can be of particular interest to npr-PPMs: under art XI a violation is automatically established, which is not the case under art III, where a measure is only inconsistent when discriminatory. Differentiation based on production methods may not be deemed discriminatory if the resulting products are unlike or if the differentiation is not deemed to be protective of domestic products. See also (n 4).

7 In this paper, extraterritoriality in these fields of law will only be discussed briefly. For the full discussion, see the author's (unpublished) doctoral thesis.

8 PC Mavroidis, ‘Reaching Out For Green Policies: National Environmental Policies in the WTO Legal Order’ (2014) EUI Working Paper RSCAS 2014/21, 9.

9 While not all WTO Members are parties to the VCLT, the AB has recognized the VCLT's rules on treaty interpretation (arts 31 and 32) as customary international law and its relevance for the interpretation of the WTO Agreements, thereby making them binding on all States. See WTO, AB Report, Japan—Taxes on Alcoholic Beverages II (1996) WT/DS8/AB/R [10].

10 Contrary to, for example, Annex A of the SPS Agreement that clearly refers to concerns within the territory of the regulating Member.

11 WTO, AB Report, US–Shrimp (1998) para 128.

12 Preamble Marrakesh Agreement.

13 The GATT was drafted by governments at the UN Conference on Trade and Development between 1946 and 1948. The Conference negotiated a Charter for the International Trade Organization, and the GATT was viewed as an interim agreement pending the implementation of the ITO Charter. The preparatory work of the ITO Charter is thus considered the preparatory work of the GATT. No references are made to a territorial limitation. See also Charnovitz, S, ‘The Moral Exception in Trade Policy’ (1998) 38 VAJIntlL 700Google Scholar.

14 The interpretation of environmental objectives is by definition evolutionary. See WTO, AB Report, US–Shrimp (1998) para 130.

15 ibid para 133.

16 Charnovitz introduced this distinction in Charnovitz (n 13) 695. Robert Hudec refers to the term ‘externally-directed’ in RE Hudec, ‘GATT Legal Restraints on the Use of Trade Measures against Foreign Environmental Practices’ in JN Bhagwati and RE Hudec (eds), Fair Trade and Harmonization: Prerequisites for Free Trade? vol 2 (The MIT Press 1996) 95–174.

17 See WTO, AB Report, Korea–Measures Affecting Imports of Fresh, Chilled and Frozen Beef  (2000) WT/DS161/AB/R; WTO, AB Report, European Communities–Measures Affecting Asbestos and Asbestos-Containing Products (2001) WT/DS135/AB/R; WTO, AB Report, Brazil–Measures Affecting Import of Retreaded Tyres (2007) WT/DS332/AB/R.

18 WTO, AB Report, Korea–Various Measures on Beef (2000) para 162. Whereas in Korea–Beef the AB dealt with art XX(d), this balancing test was brought into art XX(b) in EC–Asbestos.

19 WTO, AB Report, Korea–Various Measures on Beef (2000) para 163.

20 WTO, AB Report, Brazil–Retreaded Tyres (2007) para 151.

21 ibid para 178.

22 WTO, AB Report, United States–Standards for Reformulated and Conventional Gasoline (1996) WT/DS2/AB/R [20–22].

23 WTO, AB Report, US–Shrimp (1998) para 135.

24 The importance of the concern could refer to the importance of a concern to the regulating Member, but should equally include the importance to the broader membership as a measuring tool, especially where the environmental concern is located outside the jurisdiction of the regulating State.

25 See section II.B.2 and II.B.3 for elaboration.

26 See section II.C when discussing the nature of the concern.

27 WTO, Panel Report, European Communities–Measures Prohibiting the Importation and Marketing of Seal Products (2013) WT/DS401/R; WTO, AB Report (2014) EC–Seals.

28 The AB did mention the systemic importance of the jurisdictional scope of Article XX, however, could not examine the issue further as no arguments were made by the parties in this regard. See WTO, AB Report, EC–Seals (2014) para 5.173.

29 The public morals exception raises a number of questions regarding its territorial scope, the validity of public morals, the actual existence of a moral concern, whose concern it should be, necessity etc. Discussing these questions in detail would go beyond the scope of this contribution, but see eg Charnovitz (n 13); Marwell, J, ‘Trade and Morality: The WTO Public Morals Exception after Gambling’ (2006) 81 NYULRev 802Google Scholar; Diebold, N, ‘The Morals and Order Exceptions in WTO Law: Balancing the Toothless Tiger and the Undermining Mole’ (2008) 11(1) JIEL 43CrossRefGoogle Scholar; Wu, M, ‘Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals Clause Doctrine’ (2008) 33 YaleJIntlL 215Google Scholar. Note also that very strong consumer preferences could already influence the finding of likeness of products under art III GATT (if npr-PPMs would be taken into account under said article). If products would be deemed unlike based on consumer preferences, there would be no inconsistency with art III and no need for any further justification.

30 See for instance WTO, AB Report, US–Gasoline, 1996. The US Clean Air Act was adopted to improve air quality in the most polluted areas of the country by controlling toxic and other pollution caused by the combustion of gasoline manufactured in or imported into the US.

31 Purely inward-looking npr-PPMs are rare: examples could relate to soil or water pollution through production in neighboring territory. It is more likely though that the environmental effects are either related to the product (pr-PPM) or that a measure will address environmental concerns that have an impact both within and outside the territory of the regulating State.

32 The objective territoriality principle is one of the permissive principles to exercise jurisdiction under public international law, according to which jurisdiction is founded when any essential constituent element of a crime or act is consummated on the forum State's territory. See International Bar Association – Legal Practice Division: Report of the Task Force on Extraterritorial Jurisdiction (2008) 11; J Crawford, Brownlie's Principles of Public International Law (8th edn, Oxford University Press 2012) 458.

33 See (n 29).

34 WTO, AB Report, US–Shrimp (1998) para 133.

35 The EU and the US are best known for their extraterritorial application of competition law. See eg EU: Court of Justice of the European Union, Innolux v Commission, C-231/14P ECLI:EU:C:2015:451, 2015; General Court, Gencor v Commission, T-102/96 ECLI:EU:T:1999:65, 1999; Court of Justice of the European Union, Ahlström Osakeyhtiö and Others v Commission (Wood Pulp I), Joined cases 89, 104, 114, 116, 117, 125–129/85 ECLI:EU:C:1988:447, 1998; Court of Justice of the European Union, Imperial Chemical Industries Ltd. v Commission (Dyestuffs), case 48/69 ECLI:EU:C:1972:70, 1972; US: Sherman Act (1890) 15 U.S.C. sections 1–7; US v Aluminium Co of America, 148 F 2d 416 (2d Cir 1945) (‘Alcoa’); Hartford Fire Insurance v California, 509 US 764, 796 (1993). Apart from these examples, other countries such as Japan, Brazil, Israel, Singapore, China and India have adopted the effects doctrine in the context of competition law. The effects doctrine was also approved by the International Law Association as a principle of international law at its 55th Conference in 1972 and by L'Institut de Droit International stated during its session in 1977.

36 Horn and Mavroidis (n 4) 1133. See also G Van Calster, International & EU Trade Law: The Environmental Challenge (Cameron May Publishing 2000) 214.

37 See Restatement of the Law (Third) on Foreign Relations Law of the United States (1986). See section 402 on general principles for extraterritorial jurisdiction and section 415 on antitrust law.

38 Whereas antitrust law often relies on clear de minimis thresholds before domestic law will be applied to foreign anticompetitive conduct, it is more difficult to establish similar environmental thresholds, as it is almost impossible to estimate the effect of eg one ton of CO2 emissions by a certain activity in a certain location on EU air quality.

39 In Alcoa (US v Aluminium Co of America, 148 F 2d 416 (2d Cir 1945) (‘Alcoa’)) the potential effects were sufficient, as long as the absence of actual effect was not shown. The US Department of Justice/Federal Trade Commission Guidelines also considers that potential harm can qualify as substantial effects in an antitrust context (Antitrust Enforcement Guidelines for International Operations, April 1995, section 3.121).

40 They can often not be specified by a few precisely determined variables, but may instead be driven by the interaction of changes taking place at very different temporal and/or spatial scales. See Cooney, R and Lang, ATF, ‘Taking Uncertainty Seriously: Adaptive Governance and International Trade’ (2007) 18(3) EJIL 523CrossRefGoogle Scholar .

41 Principle 15 of the Rio Declaration on Environment and Development (1992) provides that ‘in order to protect the environment, the precautionary principle shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’ See also among others T O'Riordan, J Cameron and A Jordan (eds), Reinterpreting The Precautionary Principle (Cameron May 2001); I Cheyne, ‘The Use of the Precautionary Principle in WTO Law and EC Law’ (2005) European Union Studies Association Biennial Conference 2005; Stevens, M, ‘The Precautionary Principle in the International Arena’ Sustainable Development Law & Policy 2(2) (2002) 13Google Scholar.

42 WTO, AB Report, European Communities–Measures Concerning Meat and Meat Products (Hormones) (1998) WT/DS26/AB/R, para 186. Within GATT, there is no reference to the precautionary principle. In EC–Hormones the AB recognized that that the principle found reflection in different provisions of the SPS, including art 5.7, but did not say whether the principle had crystallized as a general principle of law.

43 See by analogy a reasonableness or comity test as applied in international law and competition law to avoid conflict between the interests of two or more sovereign States in the exercise of extraterritorial jurisdiction. This requires a careful balancing act, whereby the interests of other countries need to be taken into account as much as possible.

44 See in this regard also the possible existence of environmental obligations erga omnes as discussed below, (n 60).

45 See section III.

46 Horn and Mavroidis (n 4) 1166.

47 See (n 29).

48 A distinction between the human rights context (the extraterritorial application of regional and international human rights treaties) and the trade-environment context is that international human rights obligations will apply when States exercise ‘effective control’ over territory outside their borders. The actual territorial State is at that point unable to ensure sufficient human rights protection in its territory due to lack of control. In an environmental context, a PPM would apply to all imported goods, without distinguishing between States that are unable to ensure a sufficiently high level of environmental protection, and States that are unwilling to ensure that level of protection. For a more comprehensive and in-depth analysis of extraterritoriality and human rights, see among others M Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford University Press 2011); F Coomans and R Künneman (eds), Cases and Concepts on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights (Intersentia 2012).

49 Scott (n 5) 89.

50 Respecting legal certainty and legal expectations where possible.

51 The political structures of WTO Members vary radically, from full democracies to authoritarian, non-democratic systems. Despite the political structure, it can still be expected that functioning governments represent the interests of their country. If there would be a public outcry, supported by civil society, without the government acting upon this, I submit that that could be an element to take into account in the contextual analysis, eg for failure to conclude an agreement. If international agreements cannot be concluded, but there is wide support by civil society, that support (claim, magnitude, etc.) should be considered.

52 Charnovitz (n 4) 105; Bartels, L, ‘Article XX of GATT and the Problem of Extraterritorial Jurisdiction: The Case of Trade Measures for the Protection of Human Rights’ (2002) 36(2) JWT 391Google Scholar.

53 WTO, AB Report, Mexico–Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R (2006) para 56. If there is a conflict between the GATT/WTO and the other treaty in question, as a general rule the later treaty will prevail according to art 30 of the Vienna Convention on the Law of Treaties.

54 According to the AB, art 3.2 DSU supports that WTO law must be understood within the context of the broader body of international law, including multilateral environmental agreements. WTO, AB Report, US–Gasoline (1996) [30].

55 See for instance EU–Korea FTA art 13(6); L Cuyvers, ‘The Sustainable Development Clauses in Free Trade Agreements: An EU Perspective for ASEAN?’ (2013) UNU-CRIS Working Papers W-2013/10.

56 eg Convention on International Trade in Endangered Species 1973; The International Commission for the Conservation of Atlantic Tunas recommended that parties take non-discriminatory trade restrictive measures on specified fishery products from listed countries that are adjudged to be violating the Convention. See Resolution by ICCAT Concerning an Action Plan to Ensure Effectiveness of the Conservation Program for Atlantic Bluefin Tuna, 23 January, 1995 at <www.iccat.org>.

57 See eg Charney, J, ‘The Persistent Objector Rule and the Development of Customary International Law’ (1985) 56(1) BYBIL 1Google Scholar; Trachtman, JP, ‘Persistent Objectors, Cooperation, and the Utility of Customary International Law’ (2010) 21 DukeJComp&IntlL 221Google Scholar.

58 The best, if not the only, example is the 1982 United Nations Convention on the Law of the Sea (UNCLOS) which in part already codified existing customary law, and of which many norms now have the status of customary law as well, as non-parties to the treaty also follow many of the UNCLOS norms.

59 Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) (Judgment of 5 Feb) [1970] ICJ Rep 3.

60 See for instance the preamble of the Institut de Droit International, 2005 Krakow Resolution on Obligations and Rights Erga Omnes in International law, stating that ‘a wide consensus exists to the effect that (…) obligations relating to the environment of common spaces are examples of obligations reflecting those fundamental values’.

61 State practice to date only supports the development of erga omnes obligations in the context of human rights and humanitarian norms. C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005).

62 Examples include the Basel Convention on the Control of Transboundary Movements of Hazardous |Wastes and Their Disposal (22 March 1989, 28 ILM 649), requiring parties to prohibit imports of hazardous waste from non-parties (art 4.5); the Wellington Convention on Driftnets (24 November 1989, 29 ILM 1454, art 3(2)), stating that a Party may take measures consistent with international law to prohibit the importation of fish caught using a driftnet or the Anadromous Stocks Convention (11 February 1992, US Senate Treaty Doc 102–30, art III:3), directing parties to take appropriate measures to prevent trafficking in anadromous fish taken in violation of what is provided for in the convention.

63 Hudec (n 16) 124.

64 ibid 131.

65 eg Rio Declaration on Environment and Development (1992).

66 An interesting question in this regard is when a norm can be deemed to be shared internationally, and how specific should an international agreement be? Is it sufficient to share the concern (for instance global warming) or should also the prescribed standards (for instance emission limits, specific technologies, measurements techniques, etc) be agreed on internationally?

67 Regulation EU/995/2010.

68 Report of the United Nations on Environment and Development, Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests, A/CONF.151/26 (vol III), Annex III, 14 August 1992; Ministerial Declaration, Forest Law Enforcement and Governance East Asia Ministerial Conference, Bali September 2001, at 2. The EU Timber Regulation is particular in that it is not only based on international soft law norms, but also relies explicitly on the national law of the producing country to determine the legality of timber. As the producing country is not necessarily the exporting country to the target market, the soft law support is still relevant.

69 I do not refer to unilaterally described policies, as that might be a common aspect of all measures seeking justification under Article XX. (WTO, AB Report, US–Shrimp (1998) para 121.) Unilaterally described policies can still find broader support in international law as the previously discussed categories demonstrate.

70 de Chazournes, L Boisson, ‘Unilateralism and Environmental Protection: Issues of Perception and Reality of Issues’ (2000) 11(2) EJIL 325Google Scholar.

71 In the context of competition law, ‘true conflict’ has been used when conduct complying with one State's regulation is in violation with another State's regulation. When one can comply with both without necessarily violating one set of regulations, there would be no true conflict. [Hartford Fire Ins. Co. v California, 509 US 764 (1993) (Scalia J, dissenting)] According to Regan and Howse, such true conflict is not very likely, as ‘not many countries require that shrimpers use turtle-unfriendly nets, or that cosmetics be tested on animals’. See Howse and Regan (n 4) 286.

72 Paolo Farah, ASIL/IEcLIG Conference paper Denver, November 2014. In that regard it will be interesting to read the forthcoming Panel Report WTO, Panel Report, European Union—Anti-Dumping Measures on Biodiesel from Argentina, WT/DS473, <Panel composed on 23 June 2014>.

73 WTO, AB Report, US–Shrimp (1998) para 119.

74 WTO, Panel Report, Brazil–Measures Affecting Import of Retreaded Tyres (2007) WT/DS332/R, para 7.107.

75 WTO, AB Report, US–Shrimp (1998) para 158.

76 Morgera, E, ‘The EU and Environmental Multilateralism: The Case of Access and Benefit-Sharing and the Need for a Good-Faith Test’ (2013–14) 16 CYLES 109Google Scholar.

77 Gaines, SE, ‘Processes and Production Methods: How to Produce Sound Policy for Environmental PPM-Based Trade Measures?’ (2002) 27(2) ColumJEnvtlL 431Google Scholar.

78 WTO, AB Report, US–Shrimp (1998) paras 161–164. Shrimp harvesting methods comparable in effectiveness to those required by the US were not accepted. This was proof to the AB that the measure in its application was more concerned with effectively influencing other WTO Members to adopt the same policy, rather than inquiring into the appropriateness of different comparable programs to protect the concern at issue.

79 WTO, AB Report, United States–Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia (2001) WT/DS58/AB/RW, para 144.

80 See Howse and Regan (n 4) 269. Charnovitz uses a similar distinction between ‘government-policy’ and ‘how-to’ restrictions. Charnovitz (n 4) 107. Government-policy-standards or country-based measures may be more efficient in inducing the participation of other countries in multilateral environmental agreements though. For an interesting discussion on the efficiency of these measures, see Chang, H, ‘An Economic Analysis of Trade Measures to Protect the Global Environment’ (1995) 83(6) Georgetown Law Journal 2131Google Scholar.

81 Marceau, G and Trachtman, JP, ‘The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade: A Map of the World Trade Organization Law of Domestic Regulation of Goods’ (2002) 36(5) JWT 844Google Scholar. Mutual recognition provisions can be found in the SPS Agreement arts 3 and 4, as well as in art 6 and Annex 3(D) of the TBT Agreement.

82 Nicolaidis, K and Shaffer, G, ‘Transnational Mutual Recognition Regimes: Governance Without Global Government’ (2005) 68 LCP 275Google Scholar.

83 A mutual recognition clause might lead to a violation of the MFN obligation, however, could be justified when complying with the conditions of art XX GATT.

84 Morgera (n 76) 121–3.

85 Scott, J and Rajamani, L, ‘EU Climate Change Unilateralism’ (2012) 23(2) EJIL 469CrossRefGoogle Scholar.

86 Scott, J, ‘The New EU “Extraterritoriality”’ 51 CMLRev (2014) 124Google Scholar.

87 The AB found art XX(g) to be applicable to the situation at hand and did not examine further the application of art XX(b) (WTO, AB Report, United States–Import Prohibition of Certain Shrimp and Shrimp Products (1998) WT/DS58/AB/R, para 129.) With regard to art XX(g), the AB referred to Appx 1 of CITES, in which all the seven recognized species of sea turtles were listed at the time.

88 WTO, AB Report, US–Shrimp (1998) para 133.

89 See eg EG Wilson et al., Why Healthy Oceans Need Sea Turtles: The Importance of Sea Turtles to Marine Ecosystems (2010) at <http://oceana.org/sites/default/files/reports/Why_Healthy_Oceans_Need_Sea_Turtles.pdf> 5.

90 Interview with Dr Jack Frazier, Smithsonian Institute, National Zoological Park, Conservation and Research Center, October 2015.

91 See (n 41).

92 Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973) Appendix I.

93 Convention on the Conservation of Migratory Species of Wild Animals (1979).

94 Inter-American Convention for the Protection and Conservation of Sea Turtles (1996). The parties to the Inter-American Convention were at the time apart from the US: Brazil, Costa Rica, Mexico, Nicaragua and Venezuela.

95 WTO, Panel Report, United States–Import Prohibitions of Certain Shrimp and Shrimp Products (1998) WT/DS58/R, para 7.56. WTO, AB Report, US–Shrimp (1998) paras 166–172.

96 See section III.

97 See in that regard David Singh Grewal's very interesting arguments on network power, arguing that sometimes in order to enjoy the benefits of globalization, one has no choice but to accept a specific set of dominant standards. There are not forced upon others, but if people want to access to network, their free choice over alternatives decreases (the ‘unfreedom of globalization’). He makes the distinction between ‘freedom to choose’—the freedom of choice without an acceptable alternative—from the ‘freedom to choose freely’—the freedom of choice over viable alternatives. See Grewal, DS, ‘Network Power and Globalization’ (2003) 17(2) Ethics & International Affairs 89CrossRefGoogle Scholar; DS Grewal, Network Power: The Social Dynamics of Globalization (Yale University Press 2008).

98 Bradford, A, ‘The Brussels Effect’ (2012) 107(1) NWULRev 50Google Scholar.

99 This question differs from whether the PPM in question actually brings about environmental improvement—as this would very much depend on the substantive obligations. See in that regard the very interesting study by Parker, RW, ‘The Use and Abuse of Trade Leverage to Protect the Global Commons: What We Can Learn From the Tuna–Dolphin Conflict’ (1999) 12(1) GeoIntlEnvtlLRev 1Google Scholar. In the light of protection of the global commons, trade leverage by powerful trading partners could offer a useful incentive to comply with environmental norms. He argues that the effectiveness of trade leverage is the degree to which it supports, and is supported by, effective environmental management approaches.

100 OECD, ‘Processes and Production Methods (PPMs): Conceptual Framework and Considerations On Use of PPM-based Trade Measures’ (1997) 30.

101 Gaines (n 77) 427.

102 F Francioni, ‘Extraterritorial Application of Environmental Law’ in KM Meessen, Extraterritorial Jurisdiction in Theory and Practice (Kluwer 1996) 122, 132. That duty could also be given form in light of the principle of common but differentiated responsibilities, see eg Scott, J, ‘The Geographical Scope of the EU's Climate Responsibilities’ (2015) 17(1) CYELS 92Google Scholar.

103 In contrast to those who are not willing. The challenge is how to measure and determine who belongs to which category.

104 Parker (n 99) 119.

105 OECD, Processes and Production Methods (PPMs): Conceptual Framework and Considerations On Use of PPM-based Trade Measures (1997) 32.

106 See in that regard the proposals made under earlier to rely on the precautionary principle.

107 Parker (n 99) 116. Hakimi, M, ‘Unfriendly Unilateralism’ (2014) 55(1) HarvIntlLJ 105Google Scholar.

108 Schoenbaum, TJ, ‘International Trade and Protection of the Environment: The Continuing Search for Reconciliation’ (1997) 91(2) AJIL 299CrossRefGoogle Scholar.