Neoliberlism and Nature

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Neoliberalism and Nature: The Case of the WTO

Author(s): Elaine Hartwick and Richard Peet

Source: Annals of the American Academy of Political and Social Science, Vol. 590, Rethinking

Sustainable Development, (Nov., 2003), pp. 188-211

Published by: Sage Publications, Inc. in association with the American Academy of Political

and Social Science

Stable URL: http://www.jstor.org/stable/3658552

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Neoliberalismand Nature:The Case ofthe WTO

ByELAINE HARTWICK

andRICHARD PEET

Political pressures exerted by environmental move-ments haveforcedgovernmentsotherwisecommittedtoneoliberalpolicies to findreconciliatorypolicy positionsbetween two contradictorypolitical imperatives-eco-nomic growthand environmentalprotection. This arti-cle exploressome ideologicalmeansof reconciliation,aswith notions of sustainabledevelopment,which appearto bridgethe impassabledivide,and some of the institu-tional means for dealingwith contradiction,as with thedisplacement of political power upward, away fromelected nationalgovernmentsand toward internationalagreements and nonelected global governance institu-tions. Through these two strategic maneuvers, theauthorsargue,environmentalconcernhas been ideolog-ically and institutionallyincorporated into the globalneoliberalhegemony of the late twentieth century.Theglobal capitalist economy can grow, if not with clearenvironmental conscience, then with one effectivelyassuaged.This process of neoliberal deflection is illus-tratedusingthe case of the GeneralAgreementon Tar-iffs andTradeand the World TradeOrganization.Keywords: environmentalagreements;growth; deol-ogy;neoliberalism;WTO

Neoliberalism is grounded in a system ofeconomic, social, and political ideals thatare right-wing versions of the modern, post-Enlightenment themes of rationality, democ-racy, and individual freedom. In the late eigh-teenth and early nineteenth centuries, classicaleconomics, developed on behalf of the progres-sive, liberal, industrial bourgeoisie, outlined atheory of the optimizing efforts of self-interestedentrepreneurs, efficiently coordinated by self-regulating markets, to produce the economicgrowth underlying the dominance of theEuropean peoples. Neoclassical economicsElaine Hartwick teaches geography at FraminghamState Universityand is interested in commoditychainsand the global economy.Richard Peet teachesgeographyat ClarkUniversityandis interested in global governance and critiques ofneoliberal economicpolicy and neoconservativeforeignpolicy. His book Unholy Trinitywas published by ZedPress in August 2003.DOI: 10.1177/0002716203256721

ANNALS, AAPSS, 590, November2003


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NEOLIBERALISMAND NATURE

rethoughthese principlesof economicmodernism n termsof a set of terms-price,cost,margins,andequilibrium- thatprovedamenable o mathematization,makingneoclassicaleconomics the nearest socialscientificequivalent o physicsandthereby endingtrutheffects to eventhe most casualstatementmadeby pro-fessionaleconomists.Butequilibrium tatementsprovedeasier to compile n theeconomicimaginationhan to construct n economicreality.So fora while, eco-nomicsreluctantly bandonedpuremarketdeterminationor limitedstateregula-tion of stillprivately wnedproductionduring heKeynesiannterludeof thepost-warperiod.Then,in the 1970s,widespreadproblemsof stagflationwere deemedbeyondthe reachof Keynesian iscalpolicy,andin the early1980s(withthe elec-tionsof MargaretThatcher n BritainandRonaldReagan n the UnitedStates),nineteenth-centuryiberalismwasrevived naright-wing ersionof neoliberalism.As with earlier liberal positions in classical and neoclassical economics,neoliberalism ees marketsasoptimally fficient meansof organizing conomies.State ntervention, specially n social-democraticorms,disturbs he natural en-dencyforcompetition,specialization, nd tradeto generateeconomicgrowth.Soneoliberaleconomicpolicies favor an outward-oriented,xporteconomy, orga-nizedentirely hroughmarkets,alongwithprivatization,radeliberalization, ndlimitedstatebudgetdeficits.Thisset of policiesbecamethe standardrecipe,the"Washington onsensus," ppliedby globalgovernancenstitutionso supplicantcountries,regardlessof nationalor culturalcircumstance Peet 2002).Yetpopularconcernmountedconcerning he efficacyof neoliberalgrowth nsolving hedevelopmentproblemsof ThirdWorldcountries.Andatthesametime,concern continued to be expressedabout the disastrouseffects of unlimited,unregulated conomicgrowthonglobalandregionalnatural nvironments.Greenpartiesreceivedmodestelectoralsupportnsomeof theformer ocialdemocraciesofWesternEurope,environmentalprotestsmergedwithmovements or socialjus-tice, and distressover the destructionof endangeredspeciesandthe disappear-ance of tropicalrainforests became conventionalpublicopinionin many, f notmost,advancedcapitalist ountries.Thepoliticalpressuresexertedby widespreadenvironmentalmovements orcedgovernmentso findreconciliatory olicyposi-tions between two contradictorypolitical imperatives-economic growth andenvironmentalprotection.In this article,we exploresome ideologicalmeansofreconciliation,as with the notions of sustainabledevelopment,whichappeartobridge he impassabledivide,andsomeof the institutionalmeansfordealingwithcontradiction,as with the displacementof politicalpower upwardawayfromelected national governments and toward international agreements andnonelectedglobal governance nstitutions.Throughthese two strategicmaneu-vers,we argue,environmental oncern has been ideologicallyandinstitutionallyincorporatednto the globalneoliberalhegemonyof the late twentiethcentury.The global capitalisteconomy can grow,if not with clear environmentalcon-science,then withoneeffectivelyassuaged.We illustratehisprocessof neoliberaldeflection by using the case of the GeneralAgreementon Tariffsand Trade(GATT)and the WorldTradeOrganizationWTO).

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GATT/WTOAt the end of World War II, several new global organizations were formed byinternational agreement among nation-states. The imperative behind these agree-ments was exclusively a concern about economic and political stabilityin the after-math of the depression of the 1930s. Little attention was paid to the natural envi-ronment at the time, although questions of natural resources were sometimesraised, usuallyas the material bases for sustaining postwareconomic growth. In theeconomic realm, the idea initiallywas to establish three main international institu-tions: an International Monetary Fund, an International Bank for Reconstructionand Development (later called the World Bank), and an International Trade Orga-nization that would regulate trade as a necessary complement to the other twoorganizations. The United States wanted a trade organization to be formed that

Theglobalcapitalisteconomy angrow,if notwith clearenvironmentalonscience,thenwithoneeffectively ssuaged.

would free up interchanges in the specific interest of large, exporting corporations,but with a market-oriented, deregulated international economy more generally inmind. "The world that was imagined was the kind of world Americans wanted"(Wilcox 1949, 24). As the main source of funds for the reconstruction of Europe inthe post-World WarII period, and as the world'smost powerful economy, an emer-gent United States exerted considerable political pressure charting the eventualcourse of trade agreements (Hoekman and Kostecki 1995, 2-3). Four preliminaryconferences on trade were convened under United Nations auspices: a "Prepara-tory Committee" meeting in London in 1946; a "Drafting Committee" meeting atLake Success, New York, in 1947; a Geneva Conference later in 1947; and aHavanaConference between November 1947 and March 1948. The Geneva Con-ference produced an interim measure, known asthe General Agreement on TariffsandTrade,that became the main international basis for managingtrade in the post-warperiod when proposals in Havana to found aregulatoryorganization, the Inter-national Trade Organization, foundered in the U.S. Congress (Loree 1950, 2).GATT regulated trade in goods (i.e., physical commodities) using agreed-on,liberal principles of trade liberalization, equal market access, reciprocity, nondis-crimination, and transparency.The basic idea behind GATT was to eliminate pro-

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TABLE 1ARTICLE XX OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE

Subjectto the requirementthat such measures are not appliedin a mannerthat would consti-tute a means of arbitrary r unjustifiablediscriminationbetween countrieswhere the sameconditionsprevail,or a disguisedrestrictionon international rade,nothingin this agreementshall be construed to prevent the adoptionor enforcement by anycontractingpartyofmeasures1. necessaryto protect public morals;2. necessaryto protect human, animal,or plant life or health;3. necessaryto secure compliancewith lawsor regulationsthat are not inconsistentwiththe provisionsof this agreement, includingthe protection of patents, trademarks,andcopyrights,and the preventionof deceptive practices;4. relatingto the productsof prisonlabor;5. imposed for protectingnationaltreasuresof artistic,historic,or archaeologicalvalue;or6. relatingto the conservationof exhaustiblenaturalresourcesif such measuresare madeeffective in conjunctionwith restrictions on domestic productionor consumption.SOURCE:MultilateralsProjectof the Fletcher Schoolof Law andDiplomacy,TuftsUniversity(see http://fletcher.tufts.edu/multi/texts/BH209.txt).

tectionismanddiscrimination,llowing he trade ngoods(butnotyet services) oflowsmoothly romone country o another,withoutdisruptionordistortion, up-posedlypermittingall countriesto achieve larger output levels and ultimatelyincreasing the level of economic growth everywhere. GATT, in other words,attempted to resurrect the classicallyliberal free trade principles of the nineteenthcentury,but with an appeal to the twentieth century, Keynesian-social-democraticnotion that growth was universally beneficial in terms of producing better stan-dards of living for the general populace. Thus, the basic purpose of GATT wasstated asraising livingstandards,ensuring full employment, increasing real incomeand effective demand, and assuring the full use of the resources of the world byexpanding the production and exchange of goods through reducing tariffs andother barriers to trade. To this end, GATT laid out thirty-eight articles of agree-ment regulating the conditions of trade among member countries. Under articleXX,it provided exceptions to what otherwise amounted to a set of free tradeprinci-ples for governmental measures necessary to protect human, animal, or plant lifeor health or were related to the conservation of exhaustible natural resources (ifsuch measures were made in conjunction with restrictions on domestic productionor consumption) (see Table 1). However, issues of human rights, cultural integrity,human and animal health, and the conservation of natural resources, covered byarticle XX, were generally ignored by GATT until recently.The penultimate GATT trade negotiations, the Uruguay Round, lasting from1986 to 1994, signified a new phase in world trading history within a new era ofneoliberal globalization. This last round attempted to eliminate export subsidies onagriculturalgoods and textiles and dealt with nontariffbarriers,technical aspects oftrade, and trade-related investment and intellectual property rights issues. The

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Uruguay Round also established the WTO as the enforcing organization. Theagreement finalizing the Uruguay Round was signed in the Moroccan city ofMarrakeshin 1994 and was, for the most part, approved routinely by the legisla-tures of most member countries. Under the WTO, ministerial meetings have sub-sequently been held at Singapore in 1996, Geneva in 1998, Seattle in 1999, andDoha, Qatar,in 2001 (Dunkley 1997).The WTO structureis headed by a MinisterialConference meeting at least onceevery two years. Below this is the General Council, normally made up of tradeambassadors and heads of delegations, but sometimes with officials sent by mem-ber counties to meetings held several times a year at the Geneva headquarters ofthe WTO. Some member countries participate in an Appellate Body, various Dis-pute Settlement panels, the Textiles Monitoring Body, and several plurilateralcommittees. Numerous specialized committees, working groups, andworkingpar-ties deal with individual agreements and other areas, such as the environment,development, membership application, and regional trade agreements. Otherworking groups deal with the relations between trade and investment, the interac-tion between trade and competition policy, and transparencyin government pro-curement. The WTO Secretariat, based in Geneva, has around five hundred staffmembers and is headed by a director-general and a deputy director-general. Thecurrent director of the WTO is Mike Moore, formerly a member of the New Zea-land Labour Government, which came to power in 1984 (Kelsey 1995). That gov-ernment, led by Prime Minister David Lange and Finance Minister RogerDouglas, introduced a radicalprogram of neoliberal restructuringthat devastatedthe New Zealand welfare state system, previously the finest in the world (tax-sup-ported free health care, education, etc.). The 144 members of the WTO, as of early2002, account for 90 percent of world trade. Thirtyother countries are negotiatingmembership. Two-thirds of WTO members are developing nations, although thedescriptions "developed" and "developing" are self-designations. The WTO'sannualbudget of about U.S.$78 million comes from dues paid by member nations.As with voting, dues are based on a country'sshare of world trade, with the UnitedStates contributing the largest amount.

Tradeandthe Environment:Argumentsfrom the WTO

The WTO exists for the purpose of liberalizingtrade across national boundaries."Liberalizing"means removing governmental restrictions on the free movementof goods and services. "Restrictions on trade"mayinclude national or internationalregulations that protect the environment, ensure food quality,and safeguard pub-lic health. What happens when the WTO'simperative for freeing trade comes intoconflict with the need to regulate the economy for reasons of environmental pro-tection, in an age of burgeoning production, massive consumption, and the preva-lence of powerful technologies?

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The WTO insists that it is not an antienvironmental organization. It points to"several references to the environment" in the organization'sprovisions as witharticle XX outlined above, dealing with "General Exceptions." Then too, the pre-amble to the MarrakeshAgreement says that the purpose of the WTO is to expandmember countries' production and trade in goods and services while "allowingforthe optimal use of the world'sresources in accordance with the objective of sustain-able development, seeking to both protect and preserve the environment and toenhance the means for doing so in a manner consistent with their respective needsand concerns at different levels of economic development." The WTO also refersto the Agreement on Technical Barriers to Trade and the Agreement on Sanitaryand Phytosanitary Measures, two closely linked health and safety agreementsemerging from the Uruguay Round, as evidence of its environmental concern.In addition, the WTO says that it has long-established special committees deal-ing with trade and environmental issues. In 1971, the GATTCouncil of Represen-tatives agreed to set up a Group on Environmental Measures and InternationalTrade that would meet at the request of GATT members. However, no countryasked for it to convene until 1991. A somewhat more active group, the Committeeon Trade and Environment, came into existence along with the WTO in 1995. Itsmandate istoidentifyherelationshipetween rademeasuresndenvironmental easuresnordertopromote ustainabledevelopment;omakeappropriateecommendationsnwhetheranymodificationsftheprovisionsfthe multilateraltradingystemarerequired,om-patiblewiththeopen,equitable ndnon-discriminatoryatureof thesystem.

In its statement of the basic principles guiding its work, the Committee on Tradeand Environment points out that the WTO is not an environmental protectionagency and that its competency for coordinating policy in this area is limited toaspects of environmental policies related to trade. However, this competency doesinclude looking at how trade policy can "benefit the environment." The committeesays that the WTO is interested in building a "constructive relationship"betweentrade and environmental concerns to promote sustainable development. TheWTO Secretariat has organized a series of regional seminars on trade and environ-ment for government officials, the objective being "to raise awareness on the link-ages between trade, environment and sustainable development, and to enhancethe dialogue among policy-makers from different ministries in WTO member gov-ernments." The WTO also holds symposia on trade, environment, and sustainabledevelopment in Geneva, which involve senior trade and environment officialstogether with representatives of selected nongovernmental organizations.The basic argument propagated by GATTand the WTO is that increased tradebenefits the environment. As expressed by the GATTSecretariat, expanding tradeand increasing marketaccess has led to largerper capita incomes that, in turn, pro-vided more resources to "contain environmental damage." If the average citizencould also be convinced of the need to devote more material and human resourcesto achieving a better environment as incomes rise, the growth of per capita income

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ultimately leads to increased expenditures on the environment. A country with astagnant economy, by contrast, tends to spend less on improving the environment.Furthermore, new technologies often first appear in countries at the frontier ofenvironmental regulation, and products embodying these technologies have to beexported if other countries are to catch up. Similarly,trade can help consumersmake environmentally beneficial choices-for instance, imports of low-sulphurcoal could discourage the use of domestic high-sulphur coal. Trade in recycled

Thebasic argumentpropagatedby GATTandthe WTO is that ... expandingtrade and

increasingmarketaccess has led to larger percapita incomesthat, in turn, providedmoreresources to "containenvironmentaldamage."

inputs could help countries economize on resource use. Even so, GATT/WTOadmits, trade liberalization could worsen particularenvironmental problems in theabsence of appropriate domestic environmental policies. Indeed, conceivably, anexpansion of trade could produce negative environmental effects that outweighthe conventional benefits from open markets (increased specialization, more com-petition, and so forth), resulting in an overall decline in nationalwelfare. However,this is possible only if a country lacks a domestic environmental policy thatreflected its environmental values and priorities. If such proves to be the case, themost effective action is to concentrate on introducing appropriate environmentalpolicies, rather than forgoing trade liberalization or attempting to fine-tune inter-ventionist trade policies. Manipulatingtradepolicies is not only costly,in terms of aless efficient international division of labor,but also ineffective in dealing with theabsence of appropriate environmental policies (GATT Secretariat 1992).

MainstreamingEnvironmentalismIn March 1999, anticipating the Seattle Ministerial meetings later in the year,

and realizingthat environmental opposition was on the rise, the WTO sponsored ahigh-level symposium on trade and environment. By this time, the WTO wasspeaking in terms of the "synergies between trade liberalization, environmentalprotection, sustained economic growth and sustainable development," with com-

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munication nd nteractionbetween the tradeandenvironmental communities."RenatoRuggiero,outgoingdirector-general,aidthattheWTOwasanallyof sus-tainabledevelopmentand that the trade and environmentalcommunitieshadcommonobjectives-strong, rule-basedtradingregimesandstrongandeffectiveenvironmentalregimes.These commonobjectives,he said,couldnot be attainedthroughunilateralism,discriminatory ctions,or protectionismbut had to bereachedthroughglobalconsensuson all environmentalssuesandgiving his con-sensusastrongernstitutional oice. TheRt.Hon. SirLeonBrittanQC,vicepresi-dent of the EuropeanCommission,who had suggestedthe idea of a high-levelmeetingon trade andenvironment,bringing ogethertop-levelpolicymakers o"push he TradeandEnvironmentdebateforward,"aidthat the debateon therelationship etween tradeandenvironment adbecome"boggeddown ntechni-calities"but thatunderlying he genuine complexitieswere a limitednumberofissuesthatcould be resolvedby elevatingthe level of debateandopeningit up.Whiletherewere extremists n both sides of the argument,abroadconsensusanda balancedapproach ouldbe achievedbetween traditionalree-traders, uchashimself,whononethelesssawthe importancen today'sworldof accommodatingenvironmental oncerns n tradepolicy,andenvironmentalists ho sawthat theirobjectives ouldbestbe achievedby incorporatinghemin thatsystem n areason-ablewayrather hanpursuingprotectionistpolicies.He advocated ollowing heEuropeanUnion'sapproach hroughcommitment o the conceptof sustainabledevelopmenthighlightedby the EarthSummit n Rioin 1992,where 178 stateshad committedthemselvesto sustainabledevelopment.In particular, e advo-catedusingMultilateral nvironmentalAgreements MEAs)asthe commonbase,agreed obyasmanystatesaspossible,fortacklingparticularnvironmentalprob-lems,including he protectionof globalresourcesand,of course,animalwelfare.MEAswere clearlypreferable o unilateralaction,whichwouldoften rightly allfoul of WTO rules. It was infinitelybetter,he said, to have an internationallyagreed-onapproach n accommodatingegitimateenvironmentaloncerns nthemultilateraltrading ystem hanto allow hese concerns obe reflected ninconsis-tent,unilateralmeasures.Also,to havelegitimacy,he trading ystemhad to havethe supportandunderstanding f all,expertsandnonexperts.The Seattlemeet-ingsof theWTOshouldsetanoverallguideline: hattheobjectiveof the New Mil-lenniumRound, hesetofnegotiationshatwassupposed ofollow,was toproducea sustainableoutcome. Ministersshould, in the jargon,he said, "mainstreamsustainability."inally,a statement sent to the symposiumby Bill Clinton,thenpresidentof the United States,expressed hope for an international onsensusbehindpoliciesthatpromotedfree trade andopen marketswhileprotecting heglobalenvironment.He saidthatmoremustbe done to ensurethatspiritedeco-nomiccompetitionamongnationsneverbecamea raceto the bottom.We shouldbe levelingenvironmentalprotectionsup, not down,he said. Internationalraderuleshad to be supportive f nationalpoliciesthatprovidedhighlevelsof environ-mentalprotectionandeffectiveenforcement(WTO1999).

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Towarda Win-Win SolutionA new WTO Secretariatreport on trade and environment, the longest and mostsophisticated of all, was released in 1999, again just before the Seattle meetings.The report argued that there was no basis for the "sweeping generalizations"oftenheard in the public debate, arguing that trade was either good or bad for the envi-ronment. Instead, the environmental repercussions of trade were "theoreticallyambiguous"because they depended on three interactingfactors: (1) trade-inducedchanges in industrial composition, and hence the pollution intensity of nationaloutput, (2) changes in the overall scale of economic activity,and (3) changes in pro-duction technology. The net outcome was, therefore, aprioriundeterminable. Thereal-worldlinkagesbetween trade and environment were a little of both. However,the report continued, "win-win"outcomescould be assured through well-designedpolicies in both the trade and the environmental fields. Most environmental prob-lems resulted from polluting production processes, certain kinds of consumption,and the disposal of waste products-trade as such was rarelythe root cause of envi-ronmental degradation, except for pollution associated with the transportation ofgoods.The key question addressed by the 1999 report on trade and environment wasthis: is economic growth, driven by trade, part of the environmental problem orpart of the solution? The WTO Secretariat report gave a complicated answer. On

the whole, it argued that low incomes were one reason that environmental protec-tion lagged in many countries. Countries living on the margin might not be able toset aside resources for pollution abatement, nor did many think they should sacri-fice their growth prospects to help solve global pollution problems caused in largepart by the consuming lifestyles of richercountries. So if povertywere at the core ofthe pollution problem, economic growth would be part of the solution-this wasbecause growth allowed countries to shift gears from immediate concerns to long-run sustainabilityissues. Here the report referred to the notion of an Environmen-tal Kuznets Curve (EKC)-the idea of an inverted-U-shaped pollution path takenby countries undergoing economic growth, so pollution increased at early stagesbut decreased after a certain income level had been reached. Trade entered intothis debate for several reasons: trade was one cylinder that propelled the engine ofgrowth; trade might affect the shape and relevance of the EKC; competitive pres-sures might prevent environmental standards from being upgraded; and growthdriven by liberalization of the world economy might then prevent the onset ofmechanisms that could generate an EKC. So economic growth might be partof thesolution, but primarilyfor local pollution problems, as with urban air pollution orsome types of freshwater pollutants, but not for other important indicators, aswithpollutants of a more global nature, notably emissions of carbon dioxide. In otherwords, economic growth, while perhaps necessary, was not sufficient to reverseenvironmental degradation. National accountability, good governance, and a dem-ocratic political process could be underestimated in this regard-governmentsthat were not held accountable for their actions, or rather inactions in this case,

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might fail to upgrade environmental polices. Good governance was also needed atthe international level-the Montreal Protocol and the Kyoto Agreement werecited as examples. The growing number of MEAs (currently216 in number) mightbe a further indication of a trend in that direction. Initiative might have to shiftfrom the national to the supranationallevel, as with the shift to the central level infederal states in the 1970s to overcome environmental policy foot-dragging at thelocal level. The cooperative model of the WTO, based on legal rights and obliga-tions, could potentially serve as a model for a new global architecture of environ-mental cooperation. Meanwhile, even within its current mandate, the report con-cluded, the WTO could do a few important things for the environment. The mostobvious contribution would be to address remaining trade barriers on environ-mental goods and services to reduce the costs of investing in clean production tech-nologies and environmental management systems. Another contribution would beto seek reductions in government subsidies that harm the environment, includingenergy, agriculture, and fishing subsidies. In short, trade was really not the issue,norwas economic growth. The issue was how to reinvent environmental polices inan ever more integrated world economy so as to ensure that we live within ecologi-cal limits. The wayforward,it seemed, was to strengthen the mechanisms and insti-tutions for multilateral environmental cooperation, just as countries, fifty yearsago, had decided that it was to their benefit to cooperate on trade matters by form-ing GATT (Nordstr6m and Vaughan 1992).

Tradeand the Environment:Arguments againstthe WTO

This last report, effectively summarizing the current WTO position on trade,environment, and sustainable development, will be the immediate object of ourcritique. As we have seen, GATTwas founded on the claim that liberalizing tradeleads to higher growth, largerincomes, and more consumption. Indeed, "changeinthe scale of economic activity" n anupwarddirection is the main benefit the WTOclaims that its activities bring to the broad mass of the world'spopulation. But thiscreates a dilemma for the WTO when it comes to the effects of production on theenvironment. For if, indeed, the GATT/WTO trading system generates growth,and growth is accompanied by pollution, then the system championed by the WTOgenerates pollution. That is, the trade and growth policies of the WTO can be heldaccountable for the environmental degradation. This is particularlythe case whenthe increased international competitiveness favored by a neoliberalized WTOtrading system reduces the political and economic ability of member countries toenvironmentally regulate production. The argument is so compelling that theWTO, through its 1999 report, for instance, has to address the relations betweentrade, growth, and environmental degradation previously so neglected that itscommittee on trade and environment had never met!

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whena sampleof only high-incomecountries s used-that is, the U-shaped ind-ingsoccuronlywhen a certainset of alreadydevelopedcountries s carefully ho-sen (Sternand Common2001).Andevena casualglanceat the datademonstratesone undeniable act aboutenvironmentalpollution:he maincauseof pollution snotpopulationpressure,as claimedbyMalthusianorganizationsuchastheWorldResourcesInstitute(itselfin desperateneed of deconstructive ritique),noris itthe povertycited by the WTO.Instead,the advancedcountriesspend more onenvironmentalprograms xactlybecausetheir affluence s thebasiccauseof envi-ronmentalproblems.Takeonekeyindicatorn anareaofpollution-carbon diox-ide emissions-mentioned prominentlybythe WTO.Thehighincomecountries,with 15percentof theworld'spopulation,generate(within heirborders)47 per-cent ofglobalemissionsbecause, or eachperson, welvetonsof carbondioxideareemittedannually; owever, he low-incomecountriesoftheworld,with40percentof theworld'spopulation,generate11percentof emissionsbecause,for eachper-son,one tonofcarbondioxide s emitted.Andfurthermore,ountriesfollowinganexport-orientedndustrialization odel ofgrowth ike that advocatedbytheWTO(i.e.,producing xportsdestined or the markets fthe richcountries) howrapidlyincreasingevelsofcarbondioxideemissions-so the"uppermiddle ncomecoun-tries,"with 9.6 percentof the world'speople, generate12 percent of emissionsbecause,foreachperson,fivetons of carbonare released(WorldBank2001,278-79, 292-93). In brief,the single,mostprominentcauseof global pollution s thesameprocessof trade-oriented, lobal ndustrializationhat the WTOwantsfur-ther to deregulate hrough iberalization.Inthe secondellipse,the WTOclaimsthatdespitethe increased nternationalcompetitivenessbrought on by the liberalizationof trade, governmentscan,throughmultilateralagreement, mplementeffective environmental egulations.This shuntsresponsibilityor environmentaldestructionawayfrom liberalizedtradeandplacestheonussquarely ngovernmental ndintergovernmentalolicy.(Notice alsothat these are alwaysclean-up policiesrather han the preventativepoliciesthat wouldcontraveneneoliberalderegulation.) t alsosubstitutesvaguewishfulthinking orconcretepoliticalaction.In thisregard, he WTO favors heversionof "sustainabledevelopment" roclaimedbythe Declarationon Environ-ment andDevelopmentat the United NationsConferenceon EnvironmentandDevelopment n Rio de Janeiron 1992,aconference n which GATTactivelypar-ticipated.The keypositionestablishedby the Rio Declaration,summarizedbyprinciplenumber7, says,"States hallcooperate n aspiritofglobalpartnershipoconserve,protectandrestore the healthandintegrityof the Earth's cosystem."Thedeclarationgoes on to suggestthat to achievesustainabledevelopmentandahigherqualityof life forallpeople,"states houldreduceandeliminateunsustain-able patternsof productionand consumptionand promoteappropriatedemo-graphicpolicies."Underprinciple12,theRio Declarationollows hedirect ead ofGATTby adding hat

States houldcooperateopromote supportivendopen nternationalconomic ystemthatwould ead to economicgrowthand sustainable evelopmentn all countries,o

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betteraddress he problems f environmentalegradation. radepolicymeasuresorenvironmentalpurposes houldnot constitute meansof arbitraryrunjustifiableis-criminationradisguisedestrictionn nternationalrade.Unilateralctionsodealwithenvironmentalchallengesoutside hejurisdiction f the importing ountry houldbeavoided.Environmentalmeasuresaddressingransboundaryr globalenvironmentalproblemshould, s faraspossible,bebasedonan nternationalonsensus.ConsortiumforInternationalarthScienceInformation etwork1992)Thus, the Rio Declaration sets up a fine ideal in the form of a loose, malleableobjective defined by that term for all reasons, "sustainabledevelopment." Yet thedeclaration advocates "cooperationin good faith and in a spiritof partnership"withthe means for carryingthis out left for "the further development of internationallaw in the field of sustainable development"-that is, means of implementation areto be worked out some time in the future. In the declaration, population growthfeatures prominently as the basic cause of environmental pollution rather thaneconomic growth or overconsumption. And further still, GATTmanaged to insertits own position into the declaration in one of its few more exact statements, thenotion that unilateral trade action should not be used to address environmentalproblems, but instead, measures must be based on "internationalconsensus"-should that, one day, maybe, if we all work together, perhaps occur!In terms of reducing pollution through MEAs, the WTO mentions the MontrealProtocol and the Kyoto Accords. The Montreal Protocol on Substances thatDeplete the Ozone Layer, agreed on in 1987 after "rigorousnegotiations," sets the"elimination"of ozone-depleting substances as its "finalobjective"and was ratifiedby countries accounting for 82 percent of world consumption. The Kyoto treaty,signed by 100 countries in 1997, mandatingthat the United States and other indus-trialized nations "finda way"by the year 2012 to reduce greenhouse gas emissionsby between 5 percent and 7 percent of 1990 levels, is often described as "the onlypractical measure we have to tackle climate change." In November 2001, 160countries signed an accord requiring emissions of carbon dioxide to be reduced byan average of 5.2 percent of the 1990 level by 2012. Yet the accords were specifi-cally rejected by the G. W. Bush administration in March2001 on the grounds thatthey damaged the American economy, excusing developing countries fromdecreasing emissions, while the scientific evidence on global warming remainedunclear. (The United States, with 4.6 percent of the world'spopulation, accountsfor 23 percent of global carbon dioxide emissions.) Instead, in early 2002, theBush administration announced a set of voluntary measures and tax incentivesaimed at reducing carbon dioxide and other greenhouse gas emissions based on the"common-sense idea that sustainable economic growth is the key to environmentalprogress because it is growth that provides the resources for investment in cleantechnologies." Under a cap-and-trade approach, the U.S. government will setmandatorylimits on emissions of three pollutants while establishing a new marketin which major polluters can purchase credits from nonpolluting companiestoward meeting their pollution targets. The idea is to allow pollution to increase,but at a slower rate than economic growth. And all this is so despite the fact thatAmericans see global warming as a serious problem, believing three to one that

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carbon dioxide emissions help account for global warming, with two-thirds want-ing the president to find a way to reduce such emissions. In brief, the WTO placesresponsibility for environmental action on vague MEAs that, when specified interms of objectives such as limiting emissions to the already dangerous levelsreached in 1990, are rejected by trade- and growth-oriented administrations thatinstead use neoliberal notions of trading the right to pollute and voluntary compli-ance by industries. In other words, the WTO is a global growth machine, withinternational environmental policy as its conscientious disguise.

The WTO Dispute Settlement SystemBut we have saved the best for last. The WTO makes the audacious claim thatthe GATT/WTOagreements on trade, together with the WTO dispute settlementsystem, provide an effective model for enforceable international environmentalregulation. From this, the WTO miraculously emerges as a potential model of anenvironmental savior. Such a claim can be examined only through the practice ofan institution-in the sense that deeds speak more truthfully than claims. TheWTO's practice in this area occurs mainly through the settlement of disputesamong member governments about issues of trade and the environment. Briefly,the dispute settlement system is set in motion when member governments bringconflicts over trade, largelydifferent interpretations of the GATT/WTOArticles ofAgreement, to the WTO. Should consultation not result in a settlement, the WTO'sDispute Settlement Understanding requires the establishment of an investigativepanel, normally consisting of three persons of "appropriatebackground and expe-rience"proposed by the WTO Secretariat or the director-general, from countriesnot party to the dispute. Panel reports are adopted by the WTO Dispute Settle-ment Body (DSB) unless the DSB decides by consensus not to adopt the report orone of the parties notifies the DSB of its intention to appeal. Appeals are handledby a WTO Appellate Board made up of three of the seven (semipermanent) mem-bers of the WTO Appellate Body. Appeals are limited to issues of law covered in the

panel report and legal interpretations developed by the panel. The resulting reportis then adopted by the DSB and has to be unconditionally accepted by the disput-ing parties unless the DSB decides by consensus against its adoption. Once thepanel or Appellate Body report is adopted, the government found against has tonotify the WTO of its intentions for implementing the adopted recommendations.The DSB keeps the implementation under regular surveillance until the issue isresolved, with rules being set for compensation or the suspension of trade conces-sions in the event of nonimplementation.In DSB cases concerning trade and the environment, intergovernmental dis-putes have focused on article XX of the 1947 GATTagreement but have includedreferences to other articles (mainly articles III and XI [1] and [2]). These allowexceptions from the other articles of the agreement dealing with the rules govern-ing trade, for measures necessary to protect human, animal, or plant life or health(subsection b) and relating to the conservation of exhaustible natural resources

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THE ANNALS OF THE AMERICAN ACADEMY

(subsectiong), subject o the requirement hatthese measuresnot be applied n amanner hatwouldconstitutea meansof arbitraryrunjustifiable iscriminationbetweencountrieswherethe sameconditionsprevailor adisguisedrestriction ninternational rade.Table2 summarizes evencasesfromthe recordsof the DSBdealingwithenvironmentalssuesin the period1982through2001.When issuesessentiallyof free trade,on one hand,andenvironmentalregula-tion, on the other,have come into conflict,the GATT/WTOdisputesystemhasalways oundin favorof tradeandagainstenvironmentalregulation.Consistently,the principleof freeingtradefrom regulationsand restrictionshas been foundmoreimportanthanrestrictingrade ntheinterestsofenvironmentalregulation.Andthis is the systemthe WTOproposesforsettlingthe interminable ontrover-siesthatnecessarily risefromthetensions nherent ntheprincipleof sustainabledevelopment!Tradeandgrowthwin everytime-a "win-win"olution.

When ssuesessentiallyoffree trade,on onehand,andenvironmentalegulation, n theother,havecome ntoconflict, he GATT/WTOdisputesystemhasalways oundinfavoroftradeandagainstenvironmentalegulation.

There might be a partialexception. In an eighth environmentalcase, theShrimp-Turtlease, summarized n Table3, the WTOdisputesettlementsystemagainfound severaltimes in favorof trade. But in this case, the governmentrequestingan exception under articleXX, the United States, made extensiveefforts o complywith a series of findingsbythe WTO'spanelandAppellateBodythatwouldbe difficult oreplicate, speciallyundermoreconservative dministra-tions. Forexample,aregionalagreementbetweentwenty-four ountrieswasten-tativelyagreedoninKuantan,Malaysia,nJuly2000,dealingwith theconservationof sea turtles,with the United Statesactivelyparticipating.Moresignificantly,thepanel's indingcame aftermassiveenvironmentalriticism,npartbydemon-stratorsdressed as turtles,at the SeattleMinisterialmeetingof the WTOin late1999. Even so, this was a most tentativefindingfor articleXX: n its summation,thepanelnoted thatshouldanyone of itsconditionsceaseto be metinthe future,the recommendations f the DSB mightno longerbe compliedwith. In otherwords, n the historyof GATT/WTOdisputes, he WTOhastentativelyallowedasingleexception hatconservesenvironmental esourcesunderarticleXX, n this

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TABLE 2SEVEN ENVIRONMENTAL DISPUTES IN THE GENERAL AGREEMENTON TARIFFS AND TRADE (GATT)AND THE WORLD TRADE

ORGANIZATION, 1982 THROUGH 20011. United States-Prohibition of Importsof Tuna and Tuna Products from Canada,adopted on 22 February1982, BISD 29S/91An importprohibitionwas introducedby the United States after Canadaseized nine-teen fishingvessels and arrestedU.S. fishermen fishingfor albacoretuna,without autho-rization fromthe Canadiangovernment, in watersconsideredby Canadato be under itsjurisdiction.The United States did not recognize thisjurisdictionandintroduced animportprohibitionas a retaliationunder the FisheryConservationand ManagementAct.The panel found that the importprohibitionwas contrary o articleXI:1and not justifiedunder either article XI:2 or articleXX(g)of the GeneralAgreement.2. Canada-Measures Affecting Exportsof Unprocessed Herringand Salmon,adoptedon22 March1988, BISD 35S/98Under the 1976 CanadianFisheries Act, Canadamaintainedregulationsprohibitingthe exportationor sale for exportof certainunprocessed herringand salmon.The UnitedStatescomplainedthat these measures were inconsistentwith GeneralAgreementonTariffsand TradearticleXI. Canadaarguedthat the exportrestrictionswere partof asystem of fisheryresource managementaimed at preservingfish stocks andwere there-fore justified under articleXX(g).The panel found that the measuresmaintainedbyCanadawere contrary o GATTarticle XI:1 and not justified under either articleXI:2(b)or articleXX(g).3. Thailand-Restrictions on Importationof, and Internal Taxeson, Cigarettes,adopted on7 November 1990, BISD 37S/200Under its 1966 TobaccoAct, Thailandprohibitedthe importationof cigarettesandother tobacco preparationsbut authorizedthe sale of domestic cigarettes;moreover,cig-arettes were subjectto an excise tax,a business tax,and a municipaltax.The UnitedStates complainedthat the importrestrictionswere inconsistent with GATTarticleXI:1andwere not justified by articleXI:2(c)or by articleXX(b).The United States alsorequested the panel to find that the internaltaxeswere inconsistentwith GATTarticle111:2.Thailandargued,inter alia,that the importrestrictionswere justified under articleXX(b)because the governmenthad adoptedmeasuresthat could onlybe effective if cig-arette importswere prohibitedand because chemicals and other additivescontainedinU.S. cigarettes might make them more harmful than Thai cigarettes.The panel foundthat the importrestrictionswere inconsistentwith articleXI:1 and not justified underarticleX1:2(c).It furtherconcluded that the importrestrictionswere not necessarywithinthe meaningof articleXX(b).The internaltaxes were found to be consistentwitharticle 111:2.4. United States-Restrictions on Importsof Tuna,not adopted, circulated on 3 September1991, BISD 39S/155The MarineMammalProtectionAct requireda generalprohibitionof"taking"(harassment,hunting, capture, killing,or attemptthereof) and importation nto theUnited Statesof marinemammals,except with explicitauthorization.It governed in par-ticularthe takingof marine mammals incidental to harvestingyellowfin tuna in the East-ern TropicalPacificOcean, an area where dolphinsare known to swim above schools oftuna. Under the Marine Mammal ProtectionAct, the importationof commercialfish orproductsfrom fish caughtwith commercialfishing technology that resultsin the inciden-tal killingor incidental serious injuryof ocean mammalsin excess of U.S. standardswasprohibited. In particular, he importationof yellowfin tuna harvestedwith purse-seinenets in the EasternTropicalPacificOcean was prohibited(primarynationembargo)

(continued)

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TABLE 2 (continued)unless the competent U.S. authorities established that (1) the governmentof the harvest-ing countryhas a programregulatingtakingof marinemammalsthat is comparabletothat of the United States, and (2) the averagerate of incidentaltakingof marinemam-malsby vessels of the harvestingnation is comparableto the averagerate of such takingby U.S. vessels. The averageincidentaltakingrate (in terms of dolphinskilled each timethe purse-seine nets are set) for that country's una fleet must not exceed 1.25 times theaverage takingrate of U.S. vessels in the same period. Importsof tuna from countriespurchasingtuna from a country subject to the primarynationembargoare alsoprohib-ited (intermediarynation embargo).Mexicoclaimed that the import prohibitionon yellowfintuna and tuna productswasinconsistentwith articlesXI, XIII, and III of GATT.The United Statesrequested thepanel to find that the direct embargowas consistentwith articleIII or,in the alternative,was covered by articlesXX(b)andXX(g).The United States also arguedthat the inter-mediarynationembargowas consistentwith article III or,in the alternative,wasjustifiedby articleXX,paragraphs b), (d), and (g). The panel found that the import prohibitionunder the direct and the intermediaryembargoesdid not constitute internalregulationswithin the meaningof articleIII, was inconsistentwith articleXI:1,andwas not justifiedby articleXX,paragraphs b) and (g). Moreover, he intermediaryembargowas not justi-fied under articleXX(d).5. United States-Restrictions on Importsof Tuna(Son of Tuna-Dolphin),not adopted,circulatedon 16 June 1994, DS29/RThe EuropeanCommunitiesand the Netherlandscomplainedthatboth the primaryand the intermediarynationembargoes, enforced pursuantto the MarineMammalPro-tection Act, did not fall under article III, were inconsistentwith articleXI:1andwere notcovered by anyexceptions under article XX. The United Statesconsidered that the inter-mediarynationembargowas consistentwith GATTsince it was covered by articleXX,paragraphs g), (b), and (d) and that the primarynationembargodid not nullifyorimpair anybenefits accruingto the EuropeanCommunitiesor the Netherlandssince itdid not applyto these countries.The panel found that neither the primarynor the inter-mediarynationembargowas covered under articleIII, that both were contrary o articleXI:1 and not covered by the exceptions in articleXX(b), (g), or (d) of GATT.6. United States-Taxes on Automobiles,not adopted, circulatedon 11 October 1994,DS31/RThree U.S. measureson automobileswere under examination: he luxurytaxon auto-mobiles, the gas guzzlertaxon automobiles,and the CorporateAverageFuel Economyregulation(CAFE). The EnvironmentalExportCouncil complainedthat these measureswere inconsistent with GATTarticle III and could not be justified under articleXX(g)or(d). The United Statesconsidered that these measureswere consistentwith the GeneralAgreement.The panel found that both the luxury ax-applied to cars sold formore than$30,000-and the gas guzzler tax-applied to the sale of automobilesattaining ess than22.5 miles per gallon-were consistentwith article111:2of GATT.The CAFE regulationrequiredthe averagefuel economy for passengercarsmanufactured n the United Statesor sold by anyimporternot to fall below 27.5 miles per gallon. Companiesthat are bothimportersand domestic manufacturersmust calculateaveragefuel economy separatelyfor importedpassengerautomobilesand for those manufactureddomestically.The panelfound the CAFE regulationto be inconsistent with GATTarticle 111:4because the sepa-rate foreign fleet accountingdiscriminatedagainstforeign cars,and the fleet averagingdifferentiatedbetween imported and domestic cars on the basis of factorsrelatingtocontrol or ownershipof producersor importersratherthan on the basisof factorsdirectlyrelated to the productsas such. Similarly, he panel found that the separate

(continued)

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semipermanentmembers each servingforfouryears,withthe possibilityof onereappointment, processthatensuresGenevainsiderrepresentation.Accesstothe dispute settlement system is limited to WTO member governments.Nongovernmentalrganizations ave a limitedability oparticipatehroughamicicuriaebriefs,althoughpanelsoften refusetoconsider he contents.Panelsmayaskforexpertopinionson scientificandtechnicalmattersonanadhoc basis andhavebroaddiscretiononwhethertheyfollowtheadvicetheygetor whether o mentionthisadvice(StewartandKarpel2000). Inone assessment(Ragosta2000,9), thereis a "lackof seriousdemocratic ontrolson the DSB"becausetheviewsof adhocpanelistsandAppellateBodymembersbecomes nternational law" ithouteffec-tivemeans orlegislativentervention,while inaddition,open hearings,opendeci-sions,rightsof affectedparties obe heard,andmanyotherdemocraticproceduresareabsent.Finally,hepanelreportsondisputedcasesarelengthy egaldossiersofseveralhundredsof pageswithlongsummations f eachparty's rguments, hirdparty arguments,and expert opinions. Sometimes 20,000 to 40,000 pages ofrecordsareinvolved.Thepanelfindingsaresimilarlyengthy-100 single-spacedpagesinthe Shrimp-Turtlease.Theyarephrased n legalandtechnicallanguageaccessibleonlyto lawyersandexperts,makingpublicdiscussiondifficult.Andthisantidemocratic,egalistic,expert-dominated,losedsystem, heWTOsuggests, sideal forenforcing nternational nvironmentalagreements!

ConclusionWe mightnowoutlinethe relationshipbetweentwocentral,yet contradictory,positions ncontemporary eoliberalism:rade-led,unregulated conomicgrowthand state regulationof pollutionand other environmentalmpactsof economicgrowth.Economic growth produces the profitsand jobs that in turn provideincomes and consumption or all classesof economicactors.Hence, the forcesbehindgrowthareintegral o the neoliberaleconomicprocess.Butgrowth s alsointegral othepoliticalprocess,particularlyn thefollowingway:multinationalndlargenationalcorporationsncreasinglypaythe mountingexpensesof media-ledpoliticalcampaigns hat elect the leadershipof the democraticstates of all theadvancedcapitalist ountries.Thus,contemporary eoliberalisms structuredbyan alliance between the multinationalcorporationsand business, trade, andgrowth-oriented oliticalparties,whetherthese be of the Leftor Right,and thatconsiderablepartof the popular nterestconcernedaboutgrowthand employ-ment. All agree that the Keynesianregulatorypolicies of post-WorldWar IIextended sincethe 1960s to include environmental egulation, etard he centralgrowth mperative fthecapitalist ystem.Yet heenvironmental ontradictions f

unregulatedgrowthhavealso been producedby powerfulenvironmentalmove-mentsandconcernedpublicopinion.Wepropose, herefore, hatthepoliticalandeconomictensionsbetween growthandenvironmentaldegradationarerelievedthrougha numberof "strategies," term we use to implybothconscious nstitu-tional ntentionand alessconsciousprocessof searchingor a workableanswerby

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TABLE3WORLD TRADE ORGANIZATION (WTO)-THE SHRIMP-TURTLE CASE

United States-Import Prohibitionof Certain Shrimpand ShrimpProducts,adopted on 6November 1998, WT/DS58/AB/R (AppellateBody) and WT/DS58/R and RW (panelreports)Seven species of sea turtles are currentlyrecognized. Livingin subtropicaland tropicalareas, they migratebetween foragingand nesting grounds.Sea turtleshave beenadverselyaffected by human activity,directly (exploitationof their meat, shells, andeggs) or indirectly(incidentalcapturein fisheries, destructionof their habitats,pollutionof the oceans). The U.S. Endangered Species Act of 1973 lists as endangeredor threat-ened five species of sea turtles livingin U.S. waters andprohibitstheir take within theUnited States,within the U.S. territorialsea, and in the high seas. Pursuantto theEndangered Species Act, the United Statesrequiresthat U.S. shrimptrawlersuse turtleexcluder devices in their nets when fishingin areaswhere there is a significant ikelihoodof encounteringsea turtles. Section 609 of public law 101-102, enacted in 1989 by theUnited States,provides,inter alia,that shrimpharvested with technology that mayadverselyaffect certain sea turtles maynot be importedinto the United States unless theharvestingnation is certified to have a regulatoryprogramand an incidental take ratecomparableto that of the United States or that the particular ishingenvironmentof theharvestingnation does not pose a threat to sea turtles. In practice, countrieshavinganyof the five species of sea turtles within theirjurisdiction,and harvesting shrimpwithmechanicalmeans, must impose on their fishermen requirementscomparableto thoseborne by U.S. shrimpers,essentiallythe use of turtle excluderdevices at all times, if theywant to be certified and exportshrimpproductsto the United States.India, Malaysia,Pakistan,and Thailandcomplainedthat the prohibitionimposed bythe United States on the importationof certainshrimpand shrimp productswas con-trary o articlesI, III, and XI of The GeneralAgreement on Tariffsand Trade(GATT).In April1998, a panel set up to examinethis claim found that the U.S. measure at stakewas inconsistent with GATTarticleXI (generaleliminationof quantitativerestrictions)and could not be justified under GATTarticleXX(generalexceptions) because it consti-tuted "unjustifiablediscriminationbetween countries where the same conditionspre-vailed."The United States had maintainedthat section 609 fell within the exceptionunder articleXX(g)of GATTpermitting importrestrictionsrelatingto the conservationof an exhaustible naturalresources.The United States appealedthe panel findingsto theWTO Appellate Body.In October 1998, the Appellate Body found that the measureat stakequalifiedforprovisional ustificationunder articleXX(g)but failed to meet the requirementsof thechapeau (introductoryparagraph)of articleXXand therefore was not justified underarticle XX of GATT 1994. However,the AppellateBody added that GATTand all otherWTO agreements must be read in light of the preambleto the WTOAgreement,whichendorses sustainabledevelopment and environmentalprotection. In November 1998,the United Statesannouncedthat it would complywith the Appellate Body reportin amanner consistent with its firmcommitment to the protection of endangeredsea turtles.The United States and the other partiesto the dispute reached agreementon a thirteen-month complianceperiod, which ended in December 1999.At the Dispute Settlement Body meeting on 27 January2000, the United States statedthat it had implemented the Dispute Settlement Body'srulingsand recommendations.The United Statesnoted that it had issued revised guidelines implementing its Shrimp/Turtlelaw,which were intended to (1) introducegreater flexibility n consideringthecomparabilityof foreign programsand the U.S. programand (2) elaboratea timetableand proceduresfor certificationdecisions. The United States also noted that it had

(continued)

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TABLE3 (continued)undertaken and continued to undertakeefforts to initiatenegotiationswith the govern-ments of the IndianOcean region on the protectionof sea turtles in that region. Finally,the United States stated that it offered and continued to offer technical training n thedesign, construction,installation,and operationof turtle excluder devices to anygovern-ment that requested this training.On 12 October2000, Malaysia but not the other,originalcomplainants)requestedthe re-establishment of the originalpanel to examinewhether the United States had infact complied with the Appellate Body findings,consideringthat by not liftingtheimportprohibitionand not takingthe necessarymeasuresto allow the importationofcertain shrimpand shrimpproductsin an unrestrictivemanner,the United States hadfailed to complywith the recommendationsand rulingsof the Dispute Settlement Body.The originalpanel remet to considerthese issues. As partof its consideration,the panelreceived two submissionsfrom nongovernmentalorganizations: he EarthJustice LegalDefense Fund and the NationalWildlife Federation. Malaysiacontended that the paneldid not have the rightto accept, or consider,unsolicitedbriefs;the United States arguedthat the panel had the discretionto consider either or both of the submissionsfromnongovernmentalorganizationsand that the panel should exercise its discretionto con-sider the National Wildlife Federation submission.At the same time, however,theUnited States decided to attachthe NationalWildlife Federation brief to its own submis-sion in this case. The panel concluded that the NationalWildlife Federation submissionwas partof the submissions of the United States in this case and, as a result,was alreadypartof the record.The United States also arguedthat the AppellateBody had earlierconfirmed that itseffective importprohibitionwas provisionally ustified under GATTarticleXX(g)as ameasure relatingto the conservationof an exhaustiblenaturalresourcebut that theAppellate Body reportalso found that certainspecifically dentified aspects of the appli-cation of the U.S. measureamountedto unjustifiableor arbitrarydiscriminationunderthe chapeauof article XX.The United Statesclaimed that the steps it had takento com-ply in applyingsection 609 included revisedguidelines thatprovidemore flexibility ndecision making,enhanced due process protectionsfor exportingcountries,effortstonegotiate a sea turtle conservationagreement in the Indian Ocean region, and enhancedoffers of technical assistance.Malaysiaarguedthat the import prohibitioncontainedinsection 609, althoughprovisionally ustified under GATTarticleXX(g),was not justifiedunder article XXbecause it fails to meet the requirementsof the chapeauand that itshould be removed for the United States to bringthe measure into conformitywith itsobligationsunderthat agreement.The panel considered that the prohibitionfell within the "prohibitionsor restrictions,other than duties, taxes or other charges"maintainedby a member on the importationofa productfrom anothermember and violated articleXI:1of the GATT1994 but that sec-tion 609 of public law 101-162, as implemented by the Revised Guidelines of 8 July1999, and as appliedso farby the U.S. authorities,wasjustified under articleXXof theGATT 1994 as long as conditions, such as ongoing seriousgood faith efforts to reach amultilateralagreement, remainedsatisfied.The panel concluded that "theUnited Stateshas made a primafacie case that Section 609 is now appliedin a mannerthat no longerconstitutes a means of unjustifiableand arbitrarydiscrimination,as identified by theAppellate Bodyin its Report."

Malaysiamayappealthe panel's reportto the WTO Appellate Body.SOURCE: WTO SecretariatOverviewof the State-of-playof WTODisputes (2 May2001) (seehttp://docsonline.wto.org/gen);WTO United States-Import Prohibition of Certain Shrimpand Shrimp Products WT/DS58/RW, WT/DS58/23 2001 (see http://www.wto.org/english/news_e/news0l_e/dsb_21nov01 e.htm).

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genuinely concerned groups and individuals. The first strategyis the production ofconceptual devices employing appealing terms that appear to bridge the impass-able divide between growth and environment, as with the notion of "sustainabledevelopment." In this term, we suggest, "development"essentially means the eco-nomic growth that fuels ever-increasing consumption, the main marker of masshappiness and contentment in neoliberal societies. "Sustainable,"we think, hasnow to be understood ideologically, as the effects that the majorityof people can bepersuaded to find tolerable, as the necessary environmental consequences of aneven more necessary growth process. Sustainabilityin this sense has a number ofmeanings that range from keeping growth going using state intervention, throughswapping pollution rights in the market, to minimizing pollution effects so thatpublic concern does not result in organized political action (unorganized actioncan be dismissed as deranged anarchism). The second strategyinvolves a displace-ment of regulatory power upward to unelected and only partially responsibleglobal governance institutions. These relieve pressure on nation-states andprovidethe thin regulatorycontext for the smooth operation of global capitalism. This reg-ulatorycontext has to pretend reconciliation between global economic growth andglobal environmental destruction. Yetall global institutions are now dominated byneoliberal, trade-oriented, growth-based policy regimes. All have thereforelearned to turn a sympathetic eye on environmentalism: as Bill Clinton said, "Weshould be leveling environmental protections up, not down."Here the key phrasesare coined by the Rt. Hon. Sir Leon Brittan QC, vice president of the EuropeanCommission: broad consensus, a balanced approach, a reasonable way,that placeslegitimate environmental concerns within trade policy, through an internationallyagreed-on approach,with the use of MEAs;or in the single, summarizingterm thathe revealingly used, "mainstreaming sustainability."In this mainstreaming process, global governance institutions like the WTOplay increasingly significant roles. These involve the production, but more impor-tant the enforcement, of a global ideological framework, for membership in theWTO has now become essential for nation-states wishing to participate in theglobal community. Our examination of the GATT/WTO ideological apparatusreveals a fundamental commitment to trade-induced growth that denies the envi-ronmental consequences of growth. This denial is achieved through two mainmeans: by reversing the real position, so that trade-based growth solves, ratherthan causes, pollution and by appeal to environmental policy regimes establishedat the national or increasingly the multilateral level (MEAs). We suggest that the"tradesolves pollution" position may be undercut by the more compelling argu-ment that trade-induced growth is the main cause of pollution. Andwe suggest thatthe appeal to multilateral environmentalism is wishful thinking in that MEAs lackagreement and enforcement governance institutions with anything like the powerexerted by the WTO. At this point, we examined the WTO's most audacious strate-gic gambit, the claim that its dispute settlement system, mainly used to adjudicateinternation quarreling over trade matters, provides exactly the required enforce-ment mechanism for deciding international differences over issues of global envi-ronmental regulation. We found the WTO dispute settlement system to be a secre-

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tive practice that finds consistently against environmental restrictions on thefreedom of trade. Yet again, however, we also suggest that massive opposition tothe WTO, particularlyat the Seattle ministerialmeeting in 1999, mayhave resultedin the one partialfinding forthe environment by the WTO'sdispute settlement sys-tem. On this note, we make the following political conclusion. The contradictionsembedded in terms such as "sustainable development" can be employed in theinterests of environmental protection through a combination of radical politicalinterpretation and mass political action. In terms of interpretation, the meaning of"sustainable"can be directed through critique of its use by organizations like theWTO toward its radical extreme-zero environmental damage. Likewise, themeaning of"development" can be turned from consumptive growthto the satisfac-tion of basic human needs. And political action, as we have seen especially since1999, has to be directed at the new global centers of institutional power, the WorldBank, the International Monetary Fund, the WTO, and the World EconomicForum, in massive efforts to make them recognize the more radical meanings ofsustainability and to draw public attention to their limited, dangerous usage ofterms like this. In such a radicalpolitical action, therefore, we need to combine twotypes of counterforce: the thousands of protestors willing to face systematic vio-lence by the police and military protecting the existing global order and the hun-dreds of research institutions and nongovernmental organizations dedicated touncovering the sophisticated lies that global governance organizations persist intelling us.

ReferencesConsortium for InternationalEarth Science InformationNetwork,EnvironmentalTreatiesand ResourceIndicators,1992.TheRiodeclarationon environmentanddevelopment.New York:Consortium orInter-nationalEarthScience Information Network.Dunkley,G. 1997. Thefree trade adventure:The WTO,the UruguayRoundand globalism. London:ZedBooks.GATTSecretariat.1992. Tradeandthe environment.InInternational rade1990-1991. Vol.1. Geneva:Gen-eralAgreement on Tariffsand Trade.Harbaugh,W, A. Levinson,and D. Wilson.2000. Reexamining he empiricalevidence for an environmentalKuznetz curve.Workingpaper no. w7711, NBER, Washington,DC.Hoekman, B., and M. Kostecki. 1995. The political economyof the world trading system:From GATT oWTO. Oxford,UK:OxfordUniversityPress.Kelsey, J. 1995. Economicfundamentalism:The New Zealandexperiment-A world modelfor structuraladjustment?London: Pluto.Loree,RobertF.1950.Positionofthe NationalForeignTradeCouncilwith respect o theHavanaCharterforan InternationalTradeOrganization.New York:NationalForeign TradeCouncil.Nordstrom, Hakan,and ScottVaughan.1992. Tradeand environment.WTO specialstudies trade andenvi-ronment number4. Geneva:World TradeOrganization.Peet, R.2002. Ideology,discourse andthe geographyof hegemony:From socialist o neoliberaldevelopment

in post-apartheidSouth Africa.Antipode31:1.Ragosta,J.A. 2000. Unmasking he WTO:Access to the DSB system.Paperpresentedat the FirstFiftyYearsof the WTO Conference, Georgetown UniversityLawCenter,Washington,DC, 20-21 January.Stern,D. I., and M. S.Common.2001. Is there an environmentalKuznetz curveforsulfur?Journalof Envi-ronmentalEconomics and Management41:162-78.

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Stewart,T.P.,andA.A. Karpel.2000. Review of the disputesettlement understanding:Operationof panels.Paperpresented at the First FiftyYearsof the WTO Conference, GeorgetownUniversityLawCenter,Washington,DC, 20-21 JanuaryWilcox,C. 1949.A charterfor world trade. New York:Macmillan.WorldBank.2001. Worlddevelopmentreport.Washington,DC: WorldBank.WorldTradeOrganization WTO).1999. International nstitutefor SustainableDevelopment reporton theWTO'shigh-level symposiumon trade and environment, Geneva, 15-16 March 1999. Available fromhttp://wto.org/english/tratop_e/envir_e/sumhlenv.htm.

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