Bridging the Gap between Northern NGOs and Southern Sovereigns in the Trade-Environment Debate: The Pursuit of Democratic Dispute Settlements in the WTO under the Rio Principles

Ecology Law Quarterly, Aug 2018

Maki Tanaka

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Bridging the Gap between Northern NGOs and Southern Sovereigns in the Trade-Environment Debate: The Pursuit of Democratic Dispute Settlements in the WTO under the Rio Principles

Bridging the Gap between Northern NGOs and Southern Sovereigns in the Trade-Environment Debate: The Pursuit of Democratic Dispute Settlements in the W TO under the Rio Principles Maki Tanaka Follow this and additional works at: http://scholarship.law.berkeley.edu/elq Recommended Citation Maki Tanaka, Bridging the Gap between Northern NGOs and Southern Sovereigns in the Trade-Environment Debate: The Pursuit of Democratic Dispute Settlements in the WTO under the Rio Principles, 30 Ecology L. Q. 113 (2003). Available at: http://scholarship.law.berkeley.edu/elq/vol30/iss1/3 - Article 3 Bridging the Gap Between Northern NGOs and Southern Sovereigns in the Trade-Environment Debate: The Pursuit of Democratic Dispute Settlements in the WTO Under the Rio Principles Maki Tanaka* CONTENTS Introd uction .................................................................................................. 115 I. Background: Why Does the Participation of Northern NGOs Through Amicus Briefs Encounter Strong Opposition from Southern Sovereigns? ......................................... . .. .. . .. .. .. . .. .. .. .. . .. . .. .. . 120 A. Fundamental Tensions Between Northern Environmental Values and Southern Developmental Values ........................ 120 1. Northern Environmental Values Shaped Under A dvanced Industrialism ...................................................... 2. Southern Developmental Values Structured Under C olonialism .......................................................................... 121 123 Copyright © 2003 by the Regents ofthe University ofCalifornia * Senior Articles Editor, American University International Law Review, Volume 18. J.D. Candidate, May 2003, American University Washington College of Law; M.A., Political Science, 2000, University of Mississippi; B.A., Russian Studies, 1993, Tokyo University of Foreign Studies. I would first like to thank Professors Padideh Ala'i and Daniel D. Bradlow for their helpful comments and insights on earlier drafts. I also extend my gratitude to Articles Editor Andrea Ruiz-Esquide for her thoughtful suggestions, the ELQ staff for their tireless editing, and my colleagues at the AUILR, in particular John Lawley and Michael T. Haas, for their invaluable assistance in earlier drafts. Special gratitude is owed to Professor Charles H. Brower, II of the University of Mississippi, who sparked my interest in trade and the environment and provided me with continuous encouragement. All remaining errors are mine and the opinions expressed herein are based on my own research and work experience as an international outreach intern at the Earth Day Network, Seattle in the summer of 1999. B. Conflicts Between Northern Interests in Transnational Environmental Issues and Southern Interests in Autonomous and Equitable Economic Relations ................. 125 1. Northern Attempts to Preserve Global Commons and Southern Efforts to Defend Permanent Sovereignty over N atural Resources ...................................................... 126 2. Northern Concerns About the Race to the Bottom and Southern Concerns About Disguised Protectionism ....................................................................... 129 C. Northern Pursuit of Participatory Democracy and Southern Pursuit of Representational Democracy ................ 132 1. Northern Activism to Entrench Public Participation in Global Policym aking ........................................................... 135 2. Southern Predicaments to Realize Fair Representation in International Decision-Making .......... 138 II. Analysis: Rules and Practices Governing Participation of Southern Sovereigns and Northern NGOs in WTO Dispute Settlem ent Proceedings .................................................................... 144 A. Southern Sovereigns' Right to Fair Dispute Resolution ...... 145 1. WTO Members' Rights as Primary and Third Parties in D ispute Settlements ........................................................ 146 2. Southern Sovereigns' Practical Difficulties and the Relative Importance of Third-Party Rights ..................... 150 B. NGOs' Amicus Brief Submissions Based on the Participatory Principle of the Rio Declaration ...................... 158 1. Sustainable Development as a Basis of Public Participation in WTO Dispute Settlements ...................... 159 2. Evolution of Ad Hoc Amicus Brief Procedures Through Appellate Body's Rulings ................................... 160 C. Procedural Deficiencies that Reinforce the Existing Tensions Between Northern NGOs and Southern Sovereigns ................................................................................... 163 1. Northern NGOs' Pressure to Ensure Participation Without Formal Rules Governing Amicus Briefs ........... 163 2. Southern Sovereigns' Reaction to Secure Balanced National Representation Under Procedural Uncertainty .......................................................................... 165 III. Recommendation: How Can the WTO Increase Participation of Both Southern Sovereigns and Northern NGOs in Dispute Settlem ents? ....................................................................................... 168 A. Rio Declaration as Guiding Principles in Restoring the WTO Dispute Settlement Mechanism .................................... 169 B. Enhanced Third-Party Rights to Promote Active Intervention by Southern Sovereigns ...................................... 173 INTRODUCTION In December 1999, massive street demonstrations blocked the Seattle Ministerial Conference of the World Trade Organization ("WTO") calling for increased public participation and the inclusion of "new issues," such as the environment and labor rights, in multilateral trade negotiations.1 On the other side, developing country members of the WTO officially protested the exclusion of their representatives from key negotiations and resisted considering "new issues" until their developmental concerns were addressed.2 Two years after the controversy in Seattle, environmental issues remained matters of contention between the North and the South3 at the Doha Ministerial Conference. Ultimately, a compromise was reached between the two 1. See Davis P. Goodman, The WTO in Seattle: Did We Lose a Battle or the War?: The View from the FrontLines, 13 WORLD TRADE 38 (2000) (describing mass protests that caused the cancellation of the first day of the Seattle Conference in 1999); Citizens' Groups: The NonGovernmental Order: Will NGOs Democratise, or Merely Disrupt, Global Governance, ECONOMIST, Dec 11, 1999, at 20 (1999) [hereinafter The Non-Governmental Order] (discussing labor-environmental coalitions in protest movements at the Seattle Ministerial Conference); see also Monica Araya, Lessons from the Stalemate in Seattle, 9 J. ENV'T & DEV. 183, 186 (2000) (considering that Seattle protesters indicated that they did not tolerate trade policymaking exclusively among trade officers within the WTO, which failed to offer sufficient participatory opportunities to NGOs). Although U.S.-based NGOs have been conspicuous in direct actions, NGOs in other countries have also played a leading role in campaigns against unrestricted trade liberalization. See, e.g., NGOs from 60 Countries Team Up to Halt Next WTO Round on EnvironmentalGrounds, INT'L ENV'T DAILY (BNA) (May 20, 1999) (reporting that Friends of the Earth ("FoE") in the United Kingdom led the coalition of 570 environmental groups from over sixty countries campaigning against the WTO). 2 See Goodman, supra note 1 (reporting that many developing country delegates rejected the inclusion of labor and environmental issues in trade negotiations); WTO Impasse Shows Global Trade Inequalities for Africa Recovery, FIN. GAZETrE, Jan. 13, 2000 [hereinafter WTO Impasse] (reporting statements made by African and Caribbean nations protesting the exclusion of their delegates), availableat Lexis-Nexis Academic Universe. 3. In this Comment, the South refers to developing and least-developed countries in Asia, Africa, and Latin America, most of which are former colonies and currently underdeveloped, while the North consists of advanced industrial democracies in Western Europe, the Americas, and Asia-Pacific. See Padideh Ala'i, The Legacy of GeographicalMorality and Colonialism:A HistoricalAssessment of the Current Crusade Against Corruption,33 VAND. J. TRANSNAT'L L. 877, 880 n.5 (2000); see also DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 276-77 (1998) (explaining that existing literature on international environmental issues uses the North-South dichotomy to represent the world divided by the persistent economic inequity, although the conventional geographical reference does not precisely capture the reality); Gregory C. Shaffer, The World Trade Organization Under Challenge: Democracy and the Law and Politicsof the WTO's Treatment of Trade and Environment Matters, 25 HARV. ENVTL. L. REV. 1, 2 n.4 (2001) (de-emphasizing the west/non-west dimension of the tradeenvironment debate). sides to launch a new round of global trade negotiations4 when the European Union, the strongest supporter of an environmental agenda, decided to negotiate on the reduction of trade-distortive agricultural subsidies, a measure advocated by many developing country members.' The Northern environmental community and Southern sovereigns still disagree about public participation in the WTO. In particular, the unsettled status and treatment of amicus curiae briefs submitted by nongovernmental organizations ("NGOs") 6 create dissatisfaction among both Northern NGOs and Southern sovereigns. Northern NGOs have advocated for direct public participation through amicus submissions, while Southern sovereigns have argued for national representation and have rejected nongovernmental amicus submissions. WTO members agreed to clarify and improve dispute settlement procedures at the Doha Conference, but its Ministerial Declaration did not explicitly refer to amicus procedures.7 Nevertheless, amicus submission has emerged as a salient North-South issue through exchanges between the European Union and India in the post-Doha negotiations on the reform of dispute settlement procedures.8 4. See WTO Ministerial Conference, Ministerial Declaration, WT/MIN(01)/DEC/W/1, para. 30 (Nov. 14, 2001), available at http://docsonline.wto.org/DDFDocuments/t/ WT/min0l/DECW1.doc. 5. See The Doha Round: Seeds Sown for Future Growth, ECONOMIST, Nov. 17, 2001, at 65; A Shoddy Farm Deal: Proponentsof CAP Reform Need to Do Better than This, FIN. TIMES (London), Oct. 28, 2002, at P26; see also WTO Ministerial Conference, supra note 4, paras. 1314, 31-35 (including the reduction of trade-distorting agricultural subsidies and the clarification of the relationship between trade and the environment in the agenda of the new trade round). 6. In this Comment, unless otherwise noted, NGOs refer to nongovernmental, nonprofit organizations that purport to represent values and interests associated with the public, rather than with business or the state. See Jacqueline Peel, Giving the Public a Voice in the Protectionof the Global Environment: Avenues for Participation by NGOs in Dispute Resolution at the European Court of Justice and World Trade Organization,12 COLO. J. INT'L ENVTL. L. & POL'Y 47, 48 (2001) (defining NGOs in terms of their nongovernmental, nonprofit status and their association with the public); Diane Otto, Nongovernmental Organizationsin the United Nations System: The Emerging Role of InternationalCivil Society, 18 HUM. RTS. Q. 107. 109, 112 (1996) (explaining that NGOs represent the public in their areas of expertise). Technically speaking, however, NGOs may include any non-state entity, for example corporations and trade associations, regardless of their profit oriented objectives and activities. Peel, supra, at 47-48. The WTO shares this latter view initsdefinition of NGOs. The constitutional instrument of the WTO refers to "non-governmental organizations concerned with matters related to those of the WTO," Marrakesh Agreement Establishing the World Trade Organization [hereinafter WTO Agreement], Apr. 15, 1994, art. V:2, LEGAL INSTRUMENTS -RESULTS OF THE URUGUAY ROUND vol. 1, 33 I.L.M. 1144 (1994); see also WTO, FINAL STATISTICS OF THE 2ND WTO MINISTERIAL CONFERENCE IN GENEVA (2001) (categorizing NGOs accredited in the Geneva Ministerial Conference into business, trade unions, and farmers, as well as environmental, developmental, and consumer groups), at http://www.wto.org/english/forums-e/ngo-el statgen-e.htm. 7. See WTO Ministerial Conference, supranote 4, para. 30. 8. See WTO Dispute Settlement Body ("DSB"), Contribution of the European Communities and Its Member States to the Improvement of the WTO Dispute Settlement Understanding, TN/DS/W/1, Annex, para. 10 (Mar. 13, 2002) [hereinafter EC's Proposals] The WTO first addressed the issue of nongovernmental amicus submissions in dispute panel proceedings in United States-Import Prohibitionsof Certain Shrimp and Shrimp Products ("Shrimp-Turtle"), commenced in 1997.1 India, Malaysia, Pakistan, and Thailand brought this case against the United States to challenge a unilateral import ban imposed on shrimp and shrimp products that failed to satisfy U.S. domestic environmental regulations." Northern environmentalists submitted amicus briefs to the panel to support the domestic environmental regulation that sought to effectuate the transboundary conservation of sea turtle species." In response, the Southern sovereigns requested that the panel disregard the NGOs' submissions because there were no explicit procedural rules covering unsolicited amicus briefs.1 2 The (proposing a procedural amendment to provide explicitly for non-governmental amicus submissions to panels and the Appellate Body), available at http://docsonline.wto.org/ ddfdocuments/t/tn/ds/wl.doc. In response, India expressed its concern about disadvantages to the developing country members and Southern NGOs in the proposed amicus procedures. See WTO DSB, India's Questions to the European Communities and Its Member States on Their ProposalRelating to Improvements of the DSU, TN/DS/W/5, para.31 (May 7, 2002) [hereinafter India's Questions], available at http://docsonline.wto.orglddfdocuments/t/tn/ds/w5.doc. The European Communities made a counterargument that the proposed amicus procedures are not biased toward developed-country members because Northern NGOs do not necessarily support the positions of their governments. See WTO, The European Communities' Replies to India's Questions, TN/DSJW!7, at 7 (May 30, 2002) [hereinafter EC's Replies], available at http://docsonline.wto.org/ddfdocuments/t/tn/ds/w7.doc. The United States also attempted to raise the issue of amicus procedures in the post-Doha negotiations, although taking a more cautious position. See WTO DSB, Contribution of the United States to the Improvement of the Dispute Settlement Understandingof the WTO Related to Transparency:Communicationfrom the United States, TN/DS/W13, at 3 (Aug. 22, 2002) [hereinafter U.S. Contribution]("Members may wish to consider whether it would be helpful to propose guideline procedures for handling amicus curiae submissions to address those procedural concerns that have been raised by Members, panels, and the Appellate Body."), available at http://docsonline wto.org/ ddfdocuments/t/tn/ds/w13.doc. On the other hand, Taiwan shared India's concern about the prejudicial effect of the amicus procedures proposed by the European Communities. See WTO DSB,Contributionby the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu to the Doha Mandated Review of the Dispute Settlement Understanding(DSU), TN/DS/W/25, at 2, para. 1:2 (Nov. 27, 2002) [hereinafter Taiwan's Contribution], available at http://docsonline.wto.org/ddfdocuments/t/tn/ds/w25.doc (last visited Jan. 3, 2003). 9. See WTO Panel Report on United States-Import Prohibitions of Certain Shrimp and Shrimp Products, WT/DS58/R (May 15, 1998) [hereinafter Panel Report on Shrimp-Turtle], available at http://docsonline.wto.org/ddfdocuments/t/wt/ds/58R00.wpf; WTO Appellate Body Report on United States-Import Prohibitions of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Oct. 12, 1998) [hereinafter Appellate Report on Shrimp-Turtle], available at http:l/docsonline.wto.orglddfdocuments/t/wt/ds/58ABR.doc. 10. See Panel Report on Shrimp-Turtle, supranote 9,paras. 1.1-1.3, 2.7-2.10 (dealing with United States' import ban on shrimp and shrimp products from India, Malaysia, Pakistan, and Thailand that were harvested by vessels without using turtle excluder devices). 11. See Panel Report on Shrimp-Turtle, supra note 9, para. 3.129. The Center for Marine Conservation ("CMC") and the Center for International Environmental Law ("CIEL") jointly submitted an amicus brief while the World Wide Fund for Nature ("WFN") filed an independent amicus brief. See id. 12. See id. paras. 3.129, 7.7. panel concluded that it lacked authority to accept unsolicited nongovernmental amicus briefs. 3 The Appellate Body ultimately reversed the panel's ruling on this issue and held that the NGOs' amicus briefs were acceptable in panel proceedings, although it upheld the panel's conclusion that the U.S. import ban was unjustifiable. 4 In 2000, Malaysia sought recourse against the United States alleging that the United State's modified environmental regulation did not conform to the panel's rulings and recommendations in Shrimp-Turtle because it failed to lift the unilateral import ban immediately." India and Thailand actively intervened in the recourse panel as third parties, generally supporting Malaysia's contentions. 6 Northern NGOs led several transnational coalitions in submitting amicus briefs to prevent the complete invalidation of the sea-turtle conservation measure.t 7 In reaction, Malaysia, together with Mexico participating as a third party, argued against the panel's acceptance of NGOs' amicus briefs despite the Appellate Body's previous holding."8 13. See id. para. 7.8. 14. See Appellate Report on Shrimp-Turtle, supra note 9, para. 187. 15. See WTO Panel Report on United States-Import Prohibitions of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 by Malaysia, WT/DS58/RW, para. 1.4 (June 15, 2001) [hereinafter Panel Report on Shrimp-Turtle: Recourse by Malaysia], available at http://docsonline.wto.org/ddfdocuments/wt/ds/58RW.doc; WTO Appellate Body Report on United States- Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21 .5 of the DSU by Malaysia, WTIDS58IAB/RW (Oct. 22, 2001) [hereinafter Appellate Report on Shrimp-Turtle: Recourse by Malaysia], available at http://docsonline.wto.org/ ddfdocuments/t/wt/dsl58ABRW.doc. 16. See Panel Report on Shrimp-Turtle: Recourse by Malaysia, supra note 15, paras. 1.5, 4.64, 4.110 (reporting that India, Pakistan, and Thailand reserved third-party rights and that India and Thailand agreed with Malaysia in calling for the removal of the U.S. unilateral import prohibition in their presentations). 17. See id. paras. 3.5, 3.6. The EarthJustice Legal Defense Fund filed an amicus brief on behalf of the Turtle Island Restoration Network, the Humane Society of the United States, the American Society for the Prevention of Cruelty to Animals, Defenders of Wildlife, and the Fiscalia del Medio Ambiente (Chile). See id. para. 3.5. The National Wildlife Foundation submitted another amicus brief on behalf of the Center for Marine Conservation, Centro Ecoceanos. Defenders of Wildlife. Friends of the Earth, Kenya Sea Turtle Committee, Marine Turtle Preservation Group of India, Natural Resources Defense Council, Operation Kachhapa, Project Swarajya, and Visakha Society for Prevention of Cruelty to Animals. See id. para. 3.6. 18. See id. paras. 3.8, 3.9, 3.15 (reporting that Malaysia maintained that the panel lacked authority to accept or consider amicus briefs and requested the panel to "exercise extreme caution" in dealing with NGOs' unsolicited amicus briefs). Mexico also stressed that the panel's authority was limited only to solicited nongovernmental submissions. See id. para. 4.87. Nevertheless, the recourse panel found the National Wildlife Foundation's amicus brief admissible because their brief was attached to the U.S. submission as integral part. See id. para. 5.16. Malaysia did not raise this issue on appeal. Appellate Report on Shrimp-Turtle: Recourseby Malaysia, supra note 15, paras. 12-26. As to substantive issues, the recourse panel rejected Malaysia's contention that the modified U.S. domestic environmental regulation failed to conform to the Appellate Body's rulings in Shrimp-Turtle. See Panel Report on Shrimp-Turtle: Recourse by Malaysia, supra note 15, para. 6.1. The Appellate Body upheld the panel's This Comment argues that procedural rules should be revised to clarify amicus procedures and to enhance third-party rights in order to facilitate participation of both Northern NGOs and Southern sovereigns in WTO dispute settlements. In international trade-environment disputes, each side speaks for distinct public values and interests that reflect different historical experiences and existing disparities in socioeconomic development. 9 Northern NGOs' amicus briefs have conveyed transnational environmental concerns that are not adequately channeled through national representatives. 0 However, merely encouraging nongovernmental amicus submissions would result in further overrepresentation of Northern values and interests, without addressing existing disadvantages faced by Southern sovereigns to represent their own constituencies in dispute settlement proceedings.2 To better understand the major controversies regarding amicus briefs, Part I explains the factors that have produced the underlying tensions between the two sides in international trade-environment disputes. This section compares Northern environmental values and interests shaped under advanced industrialism22 with Southern developmental values and trade interests molded by the legacy of colonialism. 3 This section also contrasts the Northern pursuit of conclusion. See Appellate Report on Shrimp-Turtle: Recourse by Malaysia,supra note 15, paras. 153-54. 19. See Shaffer, supra note 3, at 47; see also MARC WILLIAMS, THE ENVIRONMENTAL SOCIAL MOVEMENTS AND WORLD TRADE ORGANIZATION (1998) (noting the distinction between Northern and Southern environmental NGOs that reflect different value structures), at http://www.ciaonet.org/conf/wimOl/index.html. 20. See supra note 17 (describing the transnational coalitions led by Northern NGOs that submitted amicus briefs to the recourse panel in Shrimp-Turtle); see also Padideh Ala'i, Judicial Lobbying at the WTO: The Debate over the Use ofAmicus Curiae Briefs and the U.S. Experience, 24 FORDHAM INT'L L.J. 62, 82 n.123 (2000) (noting that the American Public Health Association and the Australian Centre of Environmental Law filed applications for leave to submit amicus briefs to the Appellate Body concerning the French ban on Canadian products containing asbestos). 21. See Claude E. Barfield, Free Trade, Sovereignty, Democracy: The Future of the World Trade Organization,2 CHI. J. INT'L L. 403,413 (2001). 22. See DANIEL BELL, THE COMING OF POST-INDUSTRIAL SOCIETY: A VENTURE IN SOCIAL FORECASTING 15 (1973) (defining a postindustrial society, in which the tertiary sector constitutes more than half of the labor force). This section applies modernization theories with the core thesis that industrialization is associated with particular processes of sociopolitical transformation. See RONALD INGLEHART, MODERNIZATION AND POSTMODERNIZATION: CULTURAL, ECONOMIC. AND POLITICAL CHANGE IN43 SOCIETIES 8-9 (1997). 23. The author is aware that public values vary within the South according to differing histories, social traditions, and political cultures. See Benjamin J. Richardson, Environmental Law in PostcolonialSocieties: Straddling the Local-InstitutionalSpectrum, 11 COLO. J. INT'L ENVTL. L. & POL'Y 1, 7 (2000) (emphasizing the heterogeneity in global environmental problems and policy responses across developing countries while considering it inadequate to generalize Southern environmental perspectives simply as a result of transnational economic and political influence or colonial legacies). Nevertheless, as this Comment purports to fill the gap between the Northern and Southern public constituencies, it focuses on colonial factors and participatory democracy and the Southern quest for representational democracy in the WTO. Part II analyzes WTO dispute settlement rules to identify present procedural deficiencies. This section examines Southern sovereigns' difficulties with exercising rights in dispute settlements and highlights the importance of their third-party rights. It then investigates the evolution of amicus procedures through panel and appellate rulings and practices. Part II further explains how ad hoc amicus procedures ultimately foreclosed participatory opportunities for Northern NGOs without due process 4 while creating prejudice to the existing participatory rights of Southern sovereigns. To resolve the current impasse, Part III recommends both the enhancement of third-party rights in panel proceedings and the introduction of formal amicus procedures. To maintain a balance between the two sides, the principles of "common but differentiated responsibilities" 5 and public participation26 adopted in the Rio Declaration on Environment and Development must be utilized in revising the relevant rules of WTO dispute settlement procedures. In conclusion, this Comment calls for the adoption of these procedural revisions at the new round of trade negotiations, in order to attain fair accommodation of diverse public values and interests in international trade-environment disputes. I. BACKGROUND: WHY DOES THE PARTICIPATION OF NORTHERN NGOS THROUGH AMICUS BRIEFS ENCOUNTER STRONG OPPOSITION FROM SOUTHERN SOVEREIGNS? Southern sovereigns' opposition to amicus submissions by Northern environmental NGOs reflects the underlying tension between the two sides in the trade-environment debate. One source of tension lies in their different value structures. Northern NGOs support environmental values associated with nature conservation and environmental protection while political and economic stratifications in the existing international order that are essential to understanding the divergent values and interests between the opposing sides. 24. Although the Appellate Body has not yet employed the concept of due process with regard to nongovernmental submissions, it did utilize the same concept in granting enhanced third-party rights. See infra note 387 and accompanying text. 25. Rio Declaration on Environment and Development, U.N. GAOR, 47 Sess., Annex 1, Agenda Item 21, at 8,U.N. Doc. A/CONF. 151/26 (Vol. 1), princ. 7 (1992), reprintedin 31 I.L.M. 874, 878 (1992) [hereinafter Rio Declaration]("In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities."). 26. See id. princ. 10 ("Environmental issues are best handled with the participation of all concerned citizens, at the relevant level."). Southern sovereigns prioritize developmental values that include the utilization of natural resources and economic growth. 7 While the North has reached the stage of advanced industrialism with unprecedented affluence, most of the South still struggles for industrialization and economic development to alleviate mass poverty left under the legacy of colonialism. These socioeconomic disparities generally explain different value priorities between the North and the South.' 1. Northern Environmental Values Shaped UnderAdvanced Industrialism Despite cultural and regional differences, Northern environmentalists generally share a similar set of environmental values.29 They typically attach priority to nature conservation over the utilization of natural resources. ° While industrialization and economic growth have produced environmental deterioration, changes in the humanenvironment relationship have stimulated value shifts among the wealthier strata of the Northern public, people generally lacking involvement in direct consumption of natural resources.3' Nature conservation movements can be traced back to mid-Nineteenth century 27. See generally LESTER W. MILBRATH, ENVIRONMENTALISTS: VANGUARD FOR A NEW SOCIETY 26-28 (1984) (discussing value conflicts between preserving or utilizing nature and between prioritizing environmental protection or prioritizing economic growth). 28. See supra note 19. Because this section focuses on shifts in dominant social values under modernization, the subsequent discussion regarding public value priorities does not include indigenous peoples, who often maintain distinct communal values associated with their cultural heritages and ancestral territories. See HENRY STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT 1007 (1996). 29. See MILBRATH, supra note 27, at 26-28, 35 (identifying the new environmental paradigm shared by environmentalists in West Germany, England, and the United States). Within this universal framework, however, Northern environmentalists may exhibit some different characteristics shaped by local political cultures and local surroundings. See John C. Pierce et al., Vanguardsand Rearguardsin EnvironmentalPolitics:A Comparisonof Activists in Japan and the United States, 18 COMP. POL. STUD. 419, 442-43 (1986) (observing the penetration of environmentally-oriented values among Japanese environmental leaders akin to their U.S. counterparts, although suggesting some cultural differences in organizational structure and strategies). 30. See MILBRATH, supranote 27, at 16-18. 31. See PHILLIP W. SUTTON, EXPLAINING ENVIRONMENTALISM: IN SEARCH OF A NEW SOCIAL MOVEMENT 87-89 (2000) (noting that shifts in public attitudes toward nature preservation resulted from the separation of social life and production from the natural surroundings and from the reduction of fear about unknown natural forces that encouraged aesthetic appreciation of nature); Joseph W. Meeker, Red, White, and Black in the National Parks,in ON INTERPRETATION: SOCIOLOGY FOR INTERPRETERS OF NATURAL AND CULTURAL HISTORY 127, 128 (Gary E. Machlis & Donald R. Field eds., 1984) (noting that people tend to exhibit stronger love of nature where humans perceive themselves as independent from nature); see also R. Prosser, Societal Change and the Growth in Alternative Tourism, in ECOTOURISM: A SUSTAINABLE OPTION? 19 (Erlet Cater & Gwen Lowman eds., 1994) (discussing the trend in popular natural tourism in which the wealthier strata enjoy a new natural tourist spot discovered by an explorer and cultivated by students, a trend later followed by the middle class). England after the Industrial Revolution, where local notables created nature conservation groups." As society attained advanced industrialization, the majority of the labor force shifted to service sectors that do not involve direct consumption of natural resources,33 while increased leisure time and improved transportation popularized natural tourism.' Under these conditions, nature conservation increasingly gained public support. Between the 1960s and 1990s, major nature conservation NGOs increased membership more than tenfold on both sides of the Atlantic." Rapid economic growth produced the conditions for value shifts supportive of environmental activism.36 According to the theory of postmaterialism,37 those who have satisfied their basic needs under prevailing affluence in advanced industrial societies put less emphasis on materialist values including economic growth, security, and social order. In turn, they develop quality-of-life concerns that attach more importance to postmaterialist values, such as self-expression, meaningful work, and aesthetics.' Notably, public support for environmental protection persists regardless of the improved conditions in the 32. See SUTTON, supra note 31, at 90-91, 96-97. In the United States, John Muir led the Yosemite park movement and established the Sierra Club in 1882. See LISA M. BENTON & JOHN RENNIE SHORT, ENVIRONMENTAL DISCOURSE AND PRACTICE 67-69 (1999). In Japan, the first national trust movement took place in 1964 in an affluent, urban, historic community to prevent destructive housing development under rapid economic growth. See Keikichi Kihara, The Emerging National Trust Movement, in ENVIRONMENTAL POLICY IN JAPAN 379, 38142 (Shigeto Tsuru & Helmut Weidner eds., 1989). 33. See BELL, supra note 22 (defining postindustrial society in which the tertiary sector accounts for more than half of the labor force); see also SUTTON, supranote 31, at 9 (explaining that the labor force in manufacturing sectors declines while that of service sectors increases in advanced industrial societies). 34. See BELL, supra note 22, at 456 (discussing that postindustrialism brings about "leisure society"); see also Meeker, supra note 31, at 128 (noting that people tend to find nature as a refuge from urban life and feel "personal sanctity" in natural surroundings, and thus recognize a strong need for nature conservation). 35. In the United States, for example, the National Audubon Society increased its membership from 41,000 to 600,000 between 1962 and 1991. See BENTON & SHORT, supranote 32, at 113. The Wilderness Society also grew from 27,000 to 350.000 between 1964 and 1991. See id. In the United Kingdom, the National Trust had 159,000 members in 1967 and reached 2,000,000 in October 1990. SUTTON, supra note 31, at 123. Similarly, the Royal Society for the Protection of Birds expanded its membership from 25,000 to over 1,000,000 by 2000. Id. 36. See Donald E. Blake, Personal Values and Environmental Attitudes, in CITIZEN POLITICS: RESEARCH AND THEORY IN CANADIAN POLITICAL BEHAVIOR 126, 128 (Joanna Everitt & Brenda O'Neil eds., 2002). 37. See INGLEHART, supra note 22, at 33-107 (explaining the key theses in the theory of postmaterialism in which individual's value priorities are a reflection of socioeconomic conditions while value shifts require long-term adjustment through socialization processes). 38. See id. at 77-78, 108-09; see also Ronald Inglehart, Public Support for Environmental Protection:Objective Problemsand Subjective Values in 43 Societies, 28 POL. SCI. & POL. 57, 57 (1995). environment. 9 According to the 1990-1993 World Values Survey, Nordics, who show the strongest postmaterialist orientation, exhibit the highest support of environmental protection among forty-three countries including developed and developing nations, although they currently enjoy the world's cleanest air and water.4" Southern Developmental Values Structured Under Colonialism While environmental values have prevailed among affluent Northern communities through their internal processes of modernization, developmental values penetrated in Southern sovereigns through the processes of colonization and economic dependence on the North.41 Centuries of colonization and its legacies have significantly affected the life and surroundings of local people in former colonies.42 Colonial forces massively exploited raw materials in colonies to supply the production of export commodities to their home countries.43 While the North absorbed the natural wealth," the South was left with environmental depletion and an impoverished population. Decolonization, in many instances, merely 39. See Inglehart, supra note 38, at 57; see, e.g., Blake, supra note 36, at 126, 128 (noting that the Canadian public maintain concerns about the quality of the environment despite improvements in air and water quality and solid waste disposal). In the United States, public support for stronger environmental measures increased in the 1980s and has remained strong since, although governmental actions reduced major environmental pollutants in the 1980s. See EDWARD P. WEBER, PLURALISM BY THE RULES: CONFLICT AND COOPERATION IN ENVIRONMENTAL REGULATION 48-49 (1998); U.S. ENVTL. PROT. AGENCY, AMBIENT CONCENTRATIONS OF SELECTED AIR QUALITY INDICATORS, 1983-1992 (demonstrating reductions in six air pollutants between 1983 and 1992), available at http://www.epa.gov/ceiswebl/ceishome/ceisdocs/usguide/O58a.txt (last visited June 8, 2002); U.S. ENVTL. PROT. AGENCY, TOXIC RELEASES AND TRANSFERS, 1988-1991 (showing decreases in most of indicators in the toxic releases and transfers inventory), available at http://www.epa.govlceiswebl/ceishome/ceisdocs/usguide/O58a.txt (last visited Jan. 31, 2003). 40. See Inglehart, supra note 38, at 57. 41. See BENTON & SHORT, supra note 32, at 29 (identifying the "commodification of nature" as one common characteristic of environmental discourse in Europe during the colonial era, where communal sanctions and taboos were superseded by market forces as primary determinants in human interactions with the environment). 42. Notably, at the 2002 World Summit on Sustainable Development ("WSSD"), participating states explicitly referred to "colonial and foreign occupation, which continue to adversely affect their economic and social development" in the occupied territories. World Summit on Sustainable Development, Plan of Implementation, para. 97 [hereinafter WSSD Plan of Implementation], at http://www.johannesburgsummit.orgthtml/documents/summit_docsl 2309_planfinal.htm (last visited Jan. 31, 2003). 43. See BENTON & SHORT, supra note 32, at 28; see also M. SORNARAJAH, THE INTERNATIONAL LAW ON FOREIGN INVESTMENT 31 (1994) (giving examples of mining agreements with long-term concessions in gold fields of Ghana and in ruby mines of Burma that could last for a hundred years). 44. See id. (stating that colonies are regarded as inexhaustible sources of minerals and raw materials in accordance with dominant mercantilist theories). recast the skewed economic relations despite political independence.45 The dominant forces and commercial interests occupied productive land and forests for the production of the primary commodities exported to the North, 4 while poor farmers were forced to sustain their lives on unfertile land and forests.4" Some developing countries enjoyed marked economic growth in the 1980s,4" facilitated by Northern multinationals' direct investment. 9 Foreign direct investment, however, in some instances produced intense environmental externalities, such as the Union Carbide's release of toxic gas in Bhopal, India, and the dumping of radioactive waste by a Japanese joint venture in Malaysia." As a result, the society at large lacked the conditions conducive to conservationism."1 Despite improved physical and material conditions in the population as a whole, mass poverty still prevails in the South. Currently, of the 4.6 billion people in the South, 2.8 billion live on less than two dollars a day. 2 45. See Samuel K. B. Asante, The Concept of Stability of Contractual Relations in the TransnationalInvestment Process,in LEGAL ASPECTS OF THE NEW INTERNATIONAL ECONOMIC ORDER 234, 244 (Kamal Hossain ed., 1980) (stating that developing countries could not repudiate disadvantageous agreements with colonial forces when they became politically independent); see also RAUL PREBISCH, CHANGE AND DEVELOPMENT -LATIN AMERICA'S GREAT TASK 155-56 (1971) (arguing that because international trade relations did not go through structural changes, developing countries had to depend on the "goodwill" of developed countries to remove trade barriers in Northern markets) 46. See WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT ("WCED"), OUR COMMON FUTURE 29-31 (1987). 47. See id. at 29-31; see also PREBISCH, supra note 45, at 5. 48. See JOAN E. SPERO & JEFFERY A. HART, THE POLITICS OF INTERNATIONAL ECONOMIC RELATIONS 203 (regarding Mexico as "the premier emerging market," where the Mexican economy recorded market economic growth between 1988 and 1992). In Asia, newly industrializing countries attained rapid export-led growth. See id. at 269. Between 1975 and 1999, annual average income increased in real terms by six percent in developing countries in East Asia and the Pacific. See UNITED NATIONS DEVELOPMENT PROGRAM ("UNDP"), HUMAN DEVELOPMENT REPORT 2001, at 10 (2001). 49. See Peggy Rodgers Kalas, InternationalEnvironmentalDisputeResolution and the Need for Access by Non-State Entities, 12 COLO. J. INT'L ENVTL. L. & POL'Y 191, 193 (2001) (stating that multinational corporations played a major role in transferring technology and providing international trade networks to developing countries). 50. See id. at 193 n.3. The Union Carbide accident claimed lives of 3,500 people and injured over 200,000 in Bhopal, India. Id. at 201. But see RONIE GARCIA-JOHNSON, EXPORTING ENVIRONMENTALISM: U.S. MULTINATIONAL CHEMICAL CORPORATIONS IN BRAZIL AND MEXICO (2000) (contending that U.S. chemical companies promote environmental norms and policies through their operations and business relations in Brazil and Mexico). 51. See Shaffer, supra note 3. at 66 (noting that Southern constituencies show far less attachment to nature conservation). However, a notable exception is Costa Rica, which is well recognized for its environmentally sustainable resource management. See James Salzman et al., Protecting Ecosystem Services: Science, Economics, and Law, 20 STAN. ENVTL. L.J. 309, 324 (regarding Costa Rica as a leader in protecting ecosystem services and explaining its national forest management system aiming to prevent deterioration of local ecosystem services). 52. See UNDP, supra note 48, at 9. Income disparity persists between the North and the South. In 1998, people in Latin America and the Caribbean, whose income were the highest in the South, earned only about a third of the high-income countries in the Organization for Economic Cooperation and Development ("OECD"). See id. at 16. Furthermore, in many Although environmental values are beginning to prevail among the wealthier urban South,53 economic conditions in the impoverished rural South are not conducive to the development of these quality-of-life concerns.54 Accordingly, even with the overall increase in their living standards, Southern constituencies generally emphasize materialist values including economic gains, security, and social order.55 The World Values Survey of 1990-1993 shows that materialist value priorities remain prevalent in Brazil, China, India, South Africa, South Korea, and Nigeria.56 As a result, developmental values shaped under colonialism still dominate Southern societies while environmental values have gained popularity under advanced industrialism in the North. B. Conflicts Between Northern Interests in TransnationalEnvironmental Issues and Southern Interests in Autonomous and EquitableEconomic Relations These different value priorities may not hinder a tactical alliance between Northern NGOs and Southern sovereigns as long as they can find a win-win situation regarding their interests in international trade and the environment. 57 In most instances, however, Northern instances, socioeconomic disparities have widened between rural and urban areas within the South. See id. at 13, 15. 53. See Uday Desai, Environment, Economic Growth, and Government, in ECOLOGICAL POLICY AND POLITICS IN DEVELOPING COUNTRIES: ECONOMIC GROWTH, DEMOCRACY, AND ENVIRONMENT 1, 16 (Uday Desai ed., 1998). 54. See supra note 52 and accompanying text. 55. See supra note 38 and accompanying text. 56. See RONALD INGLEHART ET AL., HUMAN VALUES AND BELIEFS: A CROSSCULTURAL SOURCE BOOK: POLITICAL, RELIGIOUS, SEXUAL, AND ECONOMIC NORMS IN 43 SOCIETIES, fig. V405 (1998) (showing that more than 35% of respondents to the survey supported materialist value priorities in Brazil, China, India, South Africa, South Korea, and Nigeria and less than 16% advocated for the same value priorities in ten advanced industrial democracies). Although the public in some developing countries shows strong support for environmental protection, its support may result from reactions to acute environmental problems caused by uncontrolled development. See Inglehart, supra note 38, at 58. 57. See, e.g., World Wildlife Federation ("WWF"), REPORT NO. 2: FROM THE WTO MINISTERIAL MEETING IN SEATTLE (1999) (reporting that WWF led the campaign against fisheries subsidies and called for WTO action, together with representatives from seven WTO members including the Philippines and Argentina) (on file with author). Both sides share a common interest in this issue because fisheries subsidies stimulate overfishing to deteriorate the marine environment, while traditional fishing communities in developing countries have a difficulty competing with subsidized Northern commercial fisheries for shrinking fisheries resources. See WWF, CAN THE WORLD TRADE ORGANISATION LIVE UP TO THE CHALLENGES OF A GLOBALIZING WORLD? 4-5 (2001). WWF continued campaigning for the elimination of fisheries subsidies while developing countries negotiated at the 2001 Doha Conference to bring about "win-win-win" opportunity among the environmental community, developing countries, and the WTO. See id. WTO, THE DOHA DECLARATION EXPLAINED, at http://www.wto.org/english/tratop e/ddae/dohaexplained_e.htm (last visited Nov. 22, 2002). The Doha Ministerial Declaration reflects their efforts by recognizing fisheries subsidies as part of the agenda of the global trade round. See WTO Ministerial Conference, supra note 4, para. 31. environmental NGOs and Southern sovereigns have been engaged in a zero-sum game because Northern NGOs have supported transboundary environmental interests by using trade measures that effectively undermine Southern interests in autonomous and equitable economic relations." 1. Northern Attempts to PreserveGlobal Commons and Southern Efforts to Defend PermanentSovereignty over NaturalResources Northern environmental NGOs tend to resort to unilateral trade sanctions in addressing the deterioration of global commons,59 where the international community maintains a collective interest through global environmental concerns.' Extra-jurisdictional environmental problems have been exacerbated as human activities and their consequences expansively cross national borders,61 but states do not have direct authority over environmentally harmful activities within the jurisdiction of another state.62 Although states have engaged in various multilateral environmental agreements ("MEAs"),63 NGOs perceive MEAs as inefficient because they involve prolonged negotiations among states with different social priorities. 6 Most MEAs also lack a mechanism to impose effective sanctions for non-compliance.65 Without direct influence on foreign governments, Northern NGOs resort to domestic trade measures to prompt international negotiation and compliance by foreign governments. 66 In particular, unilateral trade measures offer more direct, immediate, and easier solutions for Northern environmental NGOs in protecting endangered species in extra-jurisdictional habitats. 7 However, Northern unilateral trade measures have encountered strong resistance among Southern sovereigns, who have sought to shield further penetration of Northern influences and interests throughout the period after decolonization. 6' Since the 1950s, Southern sovereigns have attempted to restructure the existing skewed economic order.69 In 1962, they successfully persuaded Northern counterparts to adopt the United Nations ("U.N.") declaration that recognized permanent sovereignty over natural resources.7 ° Southern sovereigns have further claimed the creation of a new international economic order ("NIEO") to obtain economic autonomy from the North.7 Although Southern efforts brought about a U.N. declaration on this issue,72 they had little actual gain concerning the NIEO, especially regarding the treatment of transnational corporations." Southern sovereigns perceive that Northern NGOs have attempted to nullify their permanent sovereignty over natural resources by preserving Southern natural wealth as global commons through unilateral trade measures. In 1971, in response to the Northern initiative to internationalize environmental protection issues, Southern sovereigns collectively passed a U.N. resolution.7 ' The resolution emphasized the full respect for permanent sovereignty over natural resources while accusing the North of irresponsibility in causing industrial pollution.76 The Southern sovereigns' position was reflected in the Stockholm Declaration of the U.N. Conference on the Human Environment in 1972 and reiterated in the Rio Declaration in 1992 through provisions regarding sovereign rights to use natural resources pursuant to national environmental policy.77 The Rio Declaration also specifically refers to the avoidance of unilateral environmental measures.7 8 Despite the principles Economic Order, G.A. Res. 3202, U.N. GAOR, 6th Spec. Sess., Supp. No. 1, at 5, pmbl., U.N. Doc. A/9559 (1974); Charter of Economic Rights and Duties of States, G.A. Res. 3281, U.N. GAOR, 29th Sess., Supp. No. 31, at 52, U.N. Doc. A/9631 (1975) (stating that "it is a fundamental purpose of the present Charter to promote the establishment of the new international economic order"). 73. See MILAN BULAJI(, PRINCIPLES OF INTERNATIONAL DEVELOPMENT LAW: PROGRESSIVE DEVELOPMENT OF THE PRINCIPLES OF INTERNATIONAL LAW RELATING TO THE NEW INTERNATIONAL ECONOMIC ORDER 169-74 (2d ed. 1993) (explaining that developing countries attempted to introduce a U.N. Code of Conduct on Transnational Corporations that would give them power to regulate the conduct of transnational corporations); see also NIEO Declaration, supra note 72, para. 4(g) (calling for "[r]egulation and supervision of activities of transnational corporations"). Although the Code of Conduct was actively negotiated in the United Nations Commission on Transnational Corporations in the early 1980s, the negotiation was stalled by the late 1980s- See BULAJI t, supra, at 169-74. The Code has not yet reached at the final draft stage and the prospect for completion has not been encouraging, especially since the mid 1990s, when the Commission was dissolved and reorganized into a smaller unit within the United Nations Conference on Trade and Development. See BULAJI1, supra, at 173; ERIC KOLODNER, TRANSNATIONAL CORPORATIONS: IMPEDIMENTS OR CATALYSTS OF SOCIAL DEVELOPMENT?, OCCASIONAL PAPER NO. 5, Part 3 (1994), available at http://www.rrojasdatabank.org/op05-07.htm#P500_94310. 74. See HUNTER ET AL.. supra note 3. at 280-81. 75. Development and Environment, G.A. Res. 2849, U.N. GAOR., 26th Sess., Supp. No. 26, U.N. Doc. A/RES/2849 (1972). 76. See id. pmbl. 2. 77. See Stockholm Declaration of the United Nations Conference on the Human Environment,June 16, 1972. princ. 21, U.N. Doc. AJCONF.48114 & Corr. 1 (1972), reprintedin 11 I.L.M. 1416. 1420 (1972) (stressing the states' right to "exploit their own resources pursuant to their own environmental policies."). The Rio Declaration also includes an identical principle. Rio Declaration,supranote 25, princ. 2. 78. Rio Declaration, supra note 25, princ. 12 ("Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided."). The WSSD Plan of Implementation also recommends that states "[t]ake steps with a view to the avoidance of and refrain from any unilateral measure.., that impedes the full achievement of economic and social development." WSSD Plan of Implementation, supra note 42, para. 96. articulated in these instruments, dissonance still persists between the two sides in several areas, such as forest management, protection of endangered species, and conservation of biological diversity.7 9 2. Northern ConcernsAbout the Race to the Bottom and Southern Concerns About Disguised Protectionism Environmentalists worry that the expansion of free trade could result in a "race to the bottom" to weaken domestic environmental regulations. 0 Northern environmentalists have sought to prevent irreparable harm with stringent environmental standards based on the precautionary principle of the Rio Declaration. 81 If national environmental standards were applied only to domestic production processes, industries would migrate into countries with loose environmental standards to take advantage of lower compliance costs.8" In response, Northern governments would relax national standards to attract investments,83 while "pollution havens" would emerge in the South.' Thus, Northern NGOs support the imposition of domestic environmental regulations on foreign producers, as well as on domestic 79. See supra notes 9-18 and accompanying text (discussing the Shrimp-Turtle disputes); see also ANS KOLK, FORESTS IN INTERNATIONAL ENVIRONMENTAL POLrricS: INTERNATIONAL ORGANISATIONS, NGOs AND THE BRAZILIAN AMAZON 159-60 (1996) (discussing that Southern sovereigns opposed adoption of a binding international forest agreement supported by the North because they perceived the Northern attempt at "supranational control" of Southern forests as an easy method of counteracting Northern carbon dioxide emissions); Fred Powledge, Patenting, Piracy, and the Global Commons, 51 BIOSCiENCE 273, 274 (2001) (explaining that Southern sovereigns, as they fought for permanent sovereignty over natural resources, claimed sovereign control over biological resources, which have been exploited by Northern companies and researchers without compensation). 80. See Neumayer, supra note 67, at 142. 81. Rio Declaration, supra note 25, princ. 15 ("Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as reason for postponing cost-effective measures to prevent environmental degradation."); see also GREENPEACE, supra note 59, at 9 12 (advocating preventive measures under the precautionary principle to ensure safe trade while demanding the WTO refrain from interfering with domestic applications of the precautionary principle); French, supra note 59, at 25-26 (reiterating the precautionary principle in discussing food safety controversies in traded goods, such as food additives, beef hormones, and genetically modified organisms). 82. See generallyMatthew A. Cole, Examining the EnvironmentalCase Against Free Trade, 33 J. WORLD TRADE 183, 190 (1999) (explaining that proponents of transnationally applicable standards often argue that nations with the lowest environmental standards would gain competitive advantage without harmonizing environmental standards internationally). 83. See Neumayer, supra note 67, at 142 (stating that environmentalists worry that states would become weary of raising environmental standards or even inclined to lower standards to avoid capital outflows); see also Cole, supra note 82, at 190 (explaining that advocates of transnationally-applicable standards are concerned that states, in competition, would undermine environmental standards of their rivals). 84. See Cole, supra note 83, at 190 (noting that environmentalists fear substantial environmental deterioration in pollution havens). producers, to ban imports of goods produced through unqualified processes." The South has been skeptical about Northern environmental standards that fail to include special and differential treatment for the South. In seeking the NIEO, Southern sovereigns have repeatedly demanded preferential treatment to rectify inequitable international economic relations.86 In 1966, Southern sovereigns introduced special and differential treatment provisions in the General Agreement on Tariffs and Trade ("GATT"). 7 In 1971, shortly before the Stockholm Conference, Southern sovereigns collectively demanded that industrialized countries "[a]void any adverse effects of environmental policies and measures on the economy of developing countries.., including international trade."' The Southern demands were ultimately incorporated in the Rio principles dealing with the special needs of the South,89 common but differentiated responsibilities,' and mutually supportive trade and environmental policies to attain sustainable development. 1 These principles are essentially reiterated in the preamble of the 1994 Agreement Establishing the World Trade 85. See Goodman, supra note 1 (reporting that environmental NGOs want to confirm that foreign producers are not benefited or encouraged because of "less than strict environmental rules and regulations."). However, the theory of race to the bottom has not been confirmed academically with coherent results of empirical studies. See Cole, supra note 82, at 190-91. In the manufacturing sector, normally, environmental compliance costs are a fraction of overall costs. See Neumayer, supra note 67, at 144. Moreover, several other factors affect transnational corporations' behavior. See id. (identifying factors that deter transnational corporations from migrating out of 'greener' countries, such as the risk of environmental liability, reputational harm, consumer pressure, and the expectation of future tougher environmental standards in the present pollution havens). On the other hand, a race to the bottom might occur where an environmental measure imposed relatively substantial compliance costs on production processes, especially in natural resource sectors. See id. at 143-44. 86. See Hossain, supra note 68, at 5-6 (explaining that developing countries sought affirmative actions to remedy disadvantageous conditions through NIEO instruments). 87. General Agreement on Tariffs and Trade, Oct. 30, 1947 [hereinafter GATT 1947], Protocol Amending the General Agreement to Introduce Part IV on Trade and Development and to Amend Annex I. Feb. 8, 1965, 17 U.S.T. 1977, 572 U.N.T.S. 320 (incorporating Article XXXVI into the GATT 1947 to provide non-reciprocal advantages to developing countries); see also Asoke Mukerji, Developing Countriesand the WTO: Issues of Implementation, 34 J. WORLD TRADE 33, 36 (2000) (stating that the GATT and the WTO allow developing countries to resort to exceptions to protect domestic industries because the promotion of development in such countries are consistent with WTO objectives). 88. Development and Environment,supra note 75, para. 6. 89. Rio Declaration,supra note 25, princ. 6 ("The special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority."). 90. See supra note 22. 91. See Rio Declaration,supra note 25, princ. 12 (urging states to cooperate in promoting "a supportive and open international economic system that would lead to economic growth and sustainable development in all countries to better address the problems of environmental degradation."). Organization ("WTO Agreement").' In particular, the South needs open and equitable market access to diversify export commodities and thereby promote balanced social development to reduce ecological stress.93 The North has maintained the skewed trade relations by using political and economic power to erect various trade barriers, which have effectively nullified preferential treatment offered to the South. To discourage exports from the South, the North has maintained high tariffs and used non-tariff barriers, such as bilateral orderly marketing arrangements and voluntary export restraints.94 Southern sovereigns have also perceived anti-dumping measures as Northern protectionist devices. Between July 1991 and June 1993, for example, U.S. anti-dumping measures were questioned in thirteen active GAT" cases, nine of which involved developing countries." Moreover, Northern agricultural subsidies have effectively undermined the competitiveness of Southern agricultural commodities. Agricultural subsidies provided by the United States, Europe, and Japan amount to four-fifths of the world's total.9 In 92. See WTO Agreement, supra note 6, pmbl. (considering the promotion of fair and nondiscriminatory international trade relations "in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development"). Moreover, "the benefits and costs of globalizations are unevenly distributed, with developing countries facing special difficulties in meeting this challenge." JohannesburgDeclarationon Sustainable Development, U.N. Doc. AIConf. 199/L.6/Rev.2, para. 14 (2002) [hereinafter Johannesburg Declaration]. Accordingly, the WSSD Plan of Implementation highlights the principle of common but differentiated responsibilities and reaffirms the need to "secure [developing countries'] share in the growth of world trade commensurate with the needs of their economic development" and to promote mutually supportive trade, environment, and development measures. WSSD Plan of Implementation, supra note 42, paras. 2, 84,91, 92. 93. See WCED, supra note 46, at 29. At the WSSD, the participating states explicitly acknowledged the need of trade diversification in commodity-dependent countries to promote sustainable resource management. See WSSD Plan of Implementation, supra note 42, para. 88. 94. See Ernest M. Hizon, Virtual Reality and Reality: The East Asian NICs and the Global Trading System, 5 ANN. SURV. INT'L & COMP. L. 81, 107 (1999); see also Tan Sri Ramon Navaratnam, Hypocrisy of Developed Nations Causes WTO Talks in Seattle to Fall Focus, STAR (Malaysia), Dec. 9, 1999, at 1 (calling for lowering customs duties imposed on labor-intensive export commodities, such as agricultural and textile products, from developing countries to realize free and fair international trade); WSSD Planof Implementation, supra note 42, para. 86 ("Aim to reduce or, as appropriate, eliminate tariffs on non-agricultural products, including the reduction or elimination of tariff peaks, high tariffs and tariff escalation, as well as non-tariff barriers, in particular on products of export interest to developing countries."). 95. See Hizon, supranote 94, at 107. Given the huge disparity in market power, Southern sovereigns are susceptible to a mere threat of imposing anti-dumping sanctions. See id. at 118; see also Goodman, supranote 1 (interviewing Costa Rican Minister Samuel Guzowski Rose who noted that the nation has difficulty playing a substantial role in international trade affairs because of its small population and size). 96. See Business Special, Patches of Light: Liberalising Agricultural Trade, ECONOMIST, June 9, 2001, at 69. The amount of agricultural subsidies annually provided within the OECD countries is more than Africa's entire GDP. See id. Although the North agreed to consider the elimination of agricultural subsidies in the 2001 Doha Ministerial Declaration, the United States' Procedures, 3 3 whereas experienced Northern NGOs submitted amicus briefs in dispute settlement proceedings without worrying about specific deadlines. With no formal rules providing for timetables of nongovernmental submissions, an NGO even submitted a revised brief well after the filing of the original brief as an attachment to the appellant's submission.334 Moreover, Southern sovereigns find that the Appellate Body has authorized NGOs to file written submissions at the appellate stage, although the DSU authorizes only those members who are the third parties in panel proceedings to make submissions to the Appellate Body as third participants.335 Moreover, Northern NGOs' attempts subsequently paved the way for amicus submissions by powerful Northern industrial associations336 and ultimately produced written amicus procedures,3 7 while the extremely stringent Additional Procedure apparently created bias against many Southern NGOs, as they record a lower success rate in filing timely applications. Under the Additional Procedure, which required application within eight days, the Appellate Body received only three 333. See supra notes 191,208, 207-210 and accompanying text. 334. Appellate Report on Shrimp-Turtle, supra note 14, paras. 8, 83 (recording that CIEL submitted the revised brief on August 3, 1998, eleven days after the United States' submission to the Appellate Body and only four days before the submission by the four appellees) . 335. See WTO General Council, supra note 327, para. 18 (reporting that Egypt, as the representative of the IGDC, maintained that "[i]ndividuals, NGOs, the business community and other interest groups would have the right to communicate their views in a case known to the appeal stage, while that very particular right was not even available to WTO members who were not a third party at the panel stage."); Raghavan, supra note 166 (stating that many developing countries accused the Appellate Body and some went on to say that it gave "rights exceeding those possessed by V/TO members who are not participants in the disputes"). 336. India recalled that when the PanelReport on U.S. -Copyright was adopted at the DSB, In the Shrimp case, the non-profit organisations had sought to intervene in the panel proceedings. In the UK Lead Bar case, a powerful business association had sought to intervene as well. Now a legal firm representing a business establishment directly interested in the outcome of the Panel's proceeding had submitted its brief. WTO DSB, supra note 210, para, 73; see also supra notes 303, 306-308 (discussing the U.S.Copyright, India-Cotton, U.S.-British Steel, and U.S.-Canadian Softwood Lumber cases that involve amicus briefs submitted from industrial groups). In addition, the Consuming Industries Trade Action Coalition ("CITAC") also attempted to file an amicus brief to the Appellate Body in the steel trade dispute between Poland and Thailand. See WTO Appellate Report on Thailand -Anti -Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/AB/R, para. 62 (Mar. 12, 2001). However, the Appellate Body ultimately decided to return the CITAC's amicus brief because of the strong intuition that CITAC obtained confidential information included in the Thailand's submission through the law firm retained by Poland, although the Appellate Body refrained from making a definitive finding on this issue. See id. paras. 64-65, 74-78. On the other hand, only one Southern industrial NGO thus far has had its independent amicus submission to a panel proceeding accepted in ECAsbestos. See supra note 105. Although eight Southern industrial entities filed amicus briefs in the appellate proceeding, the Appellate Body declined to accept their submissions together with five submissions by Northern entities, preferring to deal with amicus briefs under the Additional Procedure. See Appellate Report on EC-Asbestos, supra note 309, para. 53 & n.30. 337. See supra note 309 and accompanying text. timely applications from the South including Argentina, Korea, and India and eight from Northern NGOs, academics, and industrial associations.338 The Appellate Body also received six untimely applications including three from India and one each from Belgium, the United Kingdom, and the United States.33 9 Moreover, the WTO Secretariat circulated the Additional Procedure online among NGOs registered on its email list, which virtually extinguished opportunities of many Southern NGOs without computer access.4' As a result, Southern sovereigns expressed a strong concern about the apparent prejudice imposed on Southern NGOs by the Additional Procedure.4 ' Furthermore, Southern sovereigns perceived that the Appellate Body attempted to confer formal participatory rights to NGOs with the written Additional Procedure342 despite its repeated expression to the cases.343 contrary in previous This apparent shift created greater uncertainty among Southern sovereigns regarding the security of their rights because the Appellate Body filled a significant vacuum in the procedural rules without an "interpretation" or amendment adopted by the General Council.3" Thus, Southern sovereigns became a central force that called for a special meeting at the General Council, where they accused the Appellate Body of overreaching decisions and fiercely rejected NGOs' amicus brief submissions." Ill. RECOMMENDATION: HOW CAN THE WTO INCREASE PARTICIPATION OF BOTH SOUTHERN SOVEREIGNS AND NORTHERN NGOS IN DISPUTE SETTLEMENTS? To resolve the current impasse, procedural rules should be revised to include both the formalization of amicus procedures and the enhancement of third parties' rights. The balance between Southern 2003] sovereigns' participatory rights as third parties and Northern NGOs' participatory opportunities through amicus submissions should be carefully considered3 46 in order to promote representational fairness in WTO dispute settlements. The Rio principles of "common but differentiated responsibilities"3 4'7 and public participation3 48 provide useful guidance to accommodate competing demands of the two sides. Rio Declarationas Guiding Principlesin Restoring the WTO Dispute Settlement Mechanism As discussed, Northern environmental NGOs and Southern sovereigns purport to represent different public values and interests in international trade-environment disputes. 49 The Rio Declaration and Agenda 21 offer useful guidance in reconciling the competing demands of Northern NGOs and Southern sovereigns in the WTO dispute settlement mechanism. The Rio principles incorporate environmental and developmental concerns into a concept of sustainable development.350 The Rio instruments also attempt to make international trade and environmental protection mutually supportive."1 Moreover, the WTO has endorsed full implementation of Agenda 21 in attaining its institutional objective of sustainable development. 2 346. See WTO DSB, India's Questions, supra note 8, para. 30 (implying that amicus procedures should not confer legal rights to nongovernmental entities, which do not have standing in panel and appellate proceedings). India asked the European Communities to clarify the issue of distinction between amicus briefs and submissions from third parties. See id. para. 39. In reply, the European Communities generally agreed with India on this issue. See V/TO DSB, EC's Replies, supra note 8, at 7 (emphasizing that NGOs' amicus briefs and third-party rights are qualitatively different because NGOs merely enjoy "the possibility to submit a brief" without standing before the pane[ or the Appellate Body); see also Jose E. Alverez & Robert Howse, From Politicsto Technocracy-andBack Again: The Fateof the MultilateralTrading Regime, 96 AM. J. INT'L L. 94, 116 (2002) (cautioning that participatory opportunities through amicus submissions "should not be viewed as the first step toward private rights of action" while advocating greater nongovernmental involvement in dispute settlement proceedings). 347. See supra note 25. 348. See supra note 26. 349. See supra notes 29-99 and accompanying text. 350. See, e.g., Rio Declaration.supra note 25, princ. 3 ("The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations."); id. princ. 4 ("In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it."); see also JohannesburgDeclaration,supra note 92, para. 5 (recognizing "economic development, social development, and environmental protection" as "interdependent and mutually reinforcing pillars of sustainable development"); WSSD Plan of Implementation, supra note 42, paras. 1-5 (emphasizing international cooperation to integrate the above three pillars of sustainable development). 351. See supra note 91 and accompanying text; see also Agenda 21, supra note 288, paras. 2.1-2.22 (outlining strategies for sustainable development through mutually supportive trade and environmental measures). 352. Report on the Eighth Session, supra note 290, ch. 3,para. 6 (reporting that WTO's Director General proclaimed that the institution's objectives were "fully compatible with First, Southern sovereigns' concerns about relative disadvantages in their participatory rights should be addressed to recover a fair balance of representation between the North and the South.353 The Rio Declaration emphasizes common but differentiated responsibilities and takes account of the special needs of developing countries by emphasizing that the North has contributed greater environmental burdens to the world."4 Agenda 21 refers to an equitable multilateral trade regime that assists sustainable development. 5 Accordingly, special and differential treatment of Southern sovereigns should be reiterated in making procedural revisions to WTO dispute settlements." 6 To make the international trade regime more participatory and equitable and to facilitate sustainable development of the South through fair and efficient adjudication of trade disputes, the North should bear a greater burden. Second, NGOs' participation should be encouraged in accordance with Principle 10 of the Rio Declaration,3 7 which supports public participation not only at the local and national levels, but also at the international level, including judicial proceedings. 5 Public policy acquires legitimacy through participatory policymaking processes as well as fair decision-making processes. 9 If NGOs were continuously denied constructive participation in dispute settlements without due process, this denial would seriously undermine the legitimacy of the WTO and trigger powerful campaigns by mainstream NGOs' to abolish this apparently undemocratic trade institution. Agenda 21); see also WSSD Plan of Implementation, supra note 42, para. 133(a) (emphasizing the need for international organizations including the WTO to "promote effective and collective support to the implementation of Agenda 21 at all levels."). 353. See WSSD Plan of Implementation, supranote 42, para. 45.bis (urging states to "ensure the meaningful, effective and full participation of developing countries in multilateral trade negotiations by placing their needs and interests at the heart of the WTO work programme"); see also id. para. 4 (highlighting "full and effective participation of developing countries in global decision-making" to promote sustainable development). 354. See supranotes 25-89. 355. See Agenda 21, supranote 288, para. 2.5; see also WSSD Planof Implementation,supra note 42, para. 45 (stating that "[gllobalization should be fully inclusive and equitable" and seeking to promote equitable and non-discriminatory multilateral trading systems that "benefit all countries in the pursuit of sustainable development"). 356. See supra notes 87-93, 99 and accompanying text (discussing the need of equitable international trade relations for the South to promote its sustainable development and highlighting the importance of special and differential treatment to attain this goal). 357. See supra notes 26, 287-289 (discussing Rio Principle 10 and support for public participation in international trade policymaking based on Principle 10). 358. See id. 359. See supra note 101 and accompanying text. 360. See supra note 102 (explaining the difference between mainstream NGOs, which mostly seek to reform the WTO, and radical NGOs, which would prefer to abolish the WTO). 361. See CIEL, supra note 317 (reporting that Remi Parmentier, Greenpeace Political Director, stated that the WTO failed to learn "the lesson from Seattle" and "fuelled] concerns about the secretive way in which it makes decisions that impact on human lives and the As WTO members themselves have recognized, NGOs are vital actors in promoting public awareness and national debate in trade and the environment.36 2 At the international level, public preferences can be aggregated through various channels, most importantly through national representatives363 and NGOs' transnational coalitions.3" In WTO dispute settlement proceedings, national representatives participate as principal and third parties while NGOs' transnational coalitions submit amicus briefs as means for direct public participation. Southern NGOs can either support national governments as representatives of Southern public constituencies or enter into coalitions with Northern NGOs if they share priorities and strategic positions with each other. Southern NGOs that acquire capacity to represent their constituencies independently can submit their own amicus briefs. In this way, diversifying public values and interests in Southern societies can be channeled at the international level. Third, the multilateral quasi-judicial proceedings should be maintained under the DSU and the Working Procedures as tools to promote sustainable development. Both Agenda 21 and the DSU value a secure and predictable multilateral trade regime, in which the dispute environment" by arbitrarily denying nongovernmental amicus submissions); see also supranote 321 and accompanying text (noting environmental NGOs' criticisms regarding the Appellate Body's apparently baseless rejection of their request for leave to submit amicus briefs); cf. O'BRIEN ET AL, supra note 102, at 149-50, 222-23 (explaining that some influential NGOs are now considering abolishing the Committee on Trade and Environment, which has failed to yield tangible results in coordination of trade and environmental policy while preventing NGOs from acquiring the observer status they need in order to participate in the Committee). 362. See supra note 294. Indeed, in the heated national debate regarding the NAFTA, U.S. mainstream environmental NGOs not only identified potential environmental problems but also articulated acceptable options through public pronouncements and grassroots networks, leading to the creation of the North American Agreement on Environmental Cooperation as a side agreement to the NAFrA. See Mayer, supra note 102, ch. 6. 363. See Edwards, supra note 101, at 7 (recognizing democratic governments, whose positions are shaped by electorates and various interest groups, as the best representatives in international policymaking). In international tribunals, States have represented environmental interests as the parties to the dispute. See, e.g., Case Concerning Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 1 (Sept. 25) (involving conflicts between Hungarian ecological interests and Slovakian developmental interests where Hungary brought a suit against Slovakia seeking to halt Slovakia's unilateral construction and operation of Gabcikovo-Nagymaros Dam, which significantly reduced downstream water flow to Hungary); Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1905 (1941) (dealing with a transboundary air pollution dispute in which the United States sought damages and an injunctive relief against Canada on behalf of U.S. citizens affected by sulfur dioxide emissions from a smelter operating in Canada). 364. See Daniel C. Esty, Linkages and Governance:NGOs at the World Trade Organization, 19 U. PA. J. INT'L ECON. L. 709, 718 (1998) (stating that NGOs represent rich and diverse perspectives of civil society in a manner different from their governments); Goodman, supra note 1 (noting that NGOs have mostly addressed transnational issues in the trade-environment debate); PORTER, ET AL., supra note 146, at 65 (explaining that NGOs seek to effect international negotiations by lobbying and campaigns through transnational coalitions). For examples of successful transnational coalitions of NGOs, see supra note 152. settlement system is regarded as a "central element. '365 Moreover, the WTO dispute settlement mechanism could serve as a forum to facilitate cooperation and coordination in international trade and environmental policies. 3' For example, in the implementation stage of the Shrimp-Turtle rulings, as discussed, a regional sea turtle conservation framework has emerged through negotiations between the United States and shrimp harvesting countries in Southeast Asia. 7 Accordingly, the WTO should maintain the following major features in the current dispute settlement system: stringent timetables, confidentiality, preservation of existing rights and obligations, and the distinction between panel and appellate proceedings.368 Fourth, to maintain predictability and security, the subtle balance of decisional power between the DSB and the General Council should be strictly respected. Any ambiguity regarding amicus brief submissions and other matters pertinent to the members' participatory rights should be addressed at the General Council, not in the DSB through ad hoc measures and rulings.36 9 As discussed, the DSB has no authority to "interpret" WTO rules to change the existing rights and obligations of the WTO members.37 ° Because nongovernmental amicus submissions and extended third-party participation affect and modify the existing participatory rights of WTO members, the DSB should decline to consider these issues until the General Council introduces formal 365. DSU, supra note 176, art. 3.2; Agenda 21, supra note 288, para. 2.5: WSSD Plan of Implementation, supra note 42, para. 45(a) (recommending that states "[c]ontinue to promote open, equitable, rules-based, predictable and non-discriminatory multilateral trading and financial systems."). 366. See Andrew L. Strauss, From Gattzilla to the Green Giant: Winning the Environmental Battlefor the Soul of the World Trade Organization,19 U. PA. INT'L ECON, L. 769. 800-18 (1998) (arguing that environmentalists can use the WTO as a tool to facilitate the international harmonization of environmental standards by using the dispute settlement mechanism as an effective adjudicatory mechanism for policy coordination and by securing participation of developing countries). 367. See supra note 223 and accompanying text. While the original rulings in Shrimp-Turtle have enabled Pakistan to continue harvesting shrimps by obtaining technical assistance from the United States, the recourse rulings in Shrimp-Turtlehave ultimately allowed the United States to maintain an import ban on shrimp products from a country that refused to obtain certification. See Panel Report on Shrimp-Turtle: Recourse by Malaysia, supra note 15, para. 3.159; Appellate Report on Shrimp-Turtle:Recourse by Malaysia, supra note 15, paras. 153-54. 368. See supra notes 187, 190, 193, 196-197, 207-216 and accompanying text. 369. Barfield, supra note 21, at 413 (stating that the Appellate Body should not introduce amicus procedures "through the back door"); Charnovitz, supranote 124, at 214-15 (recognizing the belief of WTO members that it is the members themselves, not the Appellate Body, who should make a decision on the issue of amicus procedures and urging them to act promptly to create needed procedures); see also Duncan B. Hollis, Private Actors in Public International Law: Amicus Curiae and the Casefor the Retention of State Sovereignty, 25 B.C. INT'L & COMP. L. REV. 235, 243 (2002) (arguing that although various international tribunals have accepted amicus submissions, amicus submissions are contingent on the explicit consent of the member states in each tribunal). 370. See supra notes 218-219 and accompanying text. procedural rules.3 7' On the other hand, both Southern sovereigns and NGOs should be encouraged to utilize the existing provisions that explicitly address their concerns at every stage in dispute settlement proceedings. Enhanced Third-PartyRights to PromoteActive Intervention by Southern Sovereigns Article 6 of the Panel Working Procedures should be amended to allow participation of third parties throughout panel proceedings.172 This amendment would increase input from Southern sovereigns, particularly from smaller developing countries, which have difficulty participating as principal parties.373 The enhanced third-party rights should include the right to participate in the second meeting and the interim review meeting.3 74 The current provision authorizes input from third parties only during a session specifically allocated for hearings from third parties.3 75 This restriction limits input from third parties in panel proceedings. According to ShrimpTurtle, however, panel proceedings are designed to produce a "highquality panel report" with objective factual and legal findings, rulings, and recommendations, which require broad legal and factual information from stakeholders.376 Thus, the provision should be amended to eliminate the restriction on third party input. Actually, in the post-Doha negotiations, the European Communities have supported "the substantial enhancement" of third-party rights to allow participation by third parties at "any substantive meetings" in panel proceedings,377 but this formulation fails to extend enhanced third-party rights to the interim review stage.37 Third parties should be invited to the interim review process to express their concerns because, as discussed, the interim review is a vital step in shaping the panels' findings and reasonings, which might potentially affect third parties' interests in appellate proceedings and at the compliance stage.379 Accordingly, a third party should be able to submit a written request for extended third-party rights in the interim review as well as the second meeting." The enhanced third-party rights should be qualified by requiring principal parties' consent. Increased third party participation might put a burden on principal parties who need to consider third parties' submissions and respond to them. Moreover, active third party involvement might hinder the extensive discussion between the principal parties because of reduced confidentiality. 381 To address these issues, a principal party should be allowed to file an objection. Then, the panel should have discretion in deciding whether to grant the enhanced third-party rights. The Appellate Body has actually dealt with this issue in European Communities- Measures Concerning Meat and Meat Products ("EC-Hormone")382 and United States-Anti377. See WTO DSB, EC's Proposals,supra note 8, at 7 n.2, Annex, para. 9. The European Communities reiterated a proposal they jointly submitted to the Seattle Ministerial Conference. See WTO Ministerial Conference, Proposed Amendment of the Dispute Settlement Understanding: Communication from Canada, Costa Rica, Czech Republic, Ecuador, the European Communities and Its Member States, Hungary, Japan, Korea, New Zealand, Norway, Peru,Slovenia, Switzerland, Thailand, and Venezuela, WT/MIN(99)18, para. 17 (1999). 378- See WTO DSB, EC's Proposals,supra note 8, at 7 n.2, Annex, para. 9 (denying third parties' right to access "any submission following the interim panel report"). The proposal purports to maintain the restrictive provision that allows only the principal parties to submit written comments after the issuance of the interim report while eliminating the provision for the interim review meeting from Article 15(2). See id. paras. 11, 12. The 1999 proposal includes an identical proposal. See ProposedAmendment, supra note 377, paras. 13, 14. 379. See supra notes 280-284 and accompanying text. 380. See WTO DSB, Jamaica's Contribution, supra note 372, para. 5 (recording Jamaica's proposal that a third party should submit a written request to obtain enhanced rights in accordance with guideline composed of a setof factors such as trade share of third parties, contribution to the economy, and existing legally binding agreements). 381. See generally supra notes 212-213 and accompanying text (explaining that the WTO dispute settlement rules are designed to maintain the subtle balance between the protection of confidentiality and broad participation in the dispute settlement). This section discusses confidentiality in a general sense, as panels could protect specific business confidential information by applying the Business Confidential Information ("BCI") Procedures adopted in the WTO Panel Report on Canada-Measures Affecting the Export of Civilian Aircraft, WT/DS70/R, Annexes I, II (Apr. 14, 1999) (providing for the BCI Procedure and "the Declaration of Non-Disclosure"); WTO Appellate Body Report on Canada-Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, para. 142 (Aug. 2, 1999) (upholding the use of the BCI Procedures in the panel although rejecting their adoption in the appellate proceedings). 382. Panel Report on EC-Hormone,supra note 298; Appellate Report on EC-Hormone, supra note 298. Dumping Act of 1996 ("U.S. -Anti-Dumping Act").3" In EC-Hormone, the Appellate Body upheld the panel's discretion to authorize the United States to participate in the second meeting in which scientific experts testified regarding the EC measures.3" The United States was a complaining party in a separate panel proceeding that dealt with the same EC measures.385 The European Communities objected that enhanced third-party rights would affect their rights of defense.3" The panel justified its decision based on due process because the United States needed to have opportunities similar to Canada in order to access to and comment on scientific experts' opinion.387 Moreover, having a single scientific expert session was desirable to prevent unnecessary delay in dispute settlement proceedings.388 In U.S.-Anti-Dumping Act, the Appellate Body upheld the panel's rejection of enhanced third-party rights to the European Communities and Japan.389 The European Communities and Japan were complainants in separate panel proceedings that involved the same U.S. measures." The United States strongly argued against enhanced third-party rights.39' Unlike ECHormone, the panel found no due process concerns because the case did not involve detailed examination by experts and none of the parties agreed to hold proceedings concurrently.3" Applying the rationale in these cases, a panel should have discretion to grant enhanced rights to a third party based on due process even upon a principal party's objection. If principal parties make no objections, their silence should be interpreted as an implicit consent to the extended participation of the requesting third party. When a developing country requests the enhanced third-party rights, preferential treatment should be given.393 The panel should take account of the special needs of developing countries to obtain access to information and to have efficient dispute settlements because of their limited resources and expertise.394 Accordingly, the panel should presume the necessity of due process to grant the enhanced third-party rights to the requesting developing country.395 The objecting party may rebut this presumption if it can introduce the evidence to negate the necessity of due process. Exactly how far the extended participation by third parties in panel proceedings reaches should be determined from the rulings and practices in EC- Bananas (111).396 With the enhanced rights, a third party should be entitled to receive principal parties' written submissions for the second meeting,3" while the third party should not be required to file written submissions.398 At the second meeting, the third party should be allowed to "make a brief statement at a suitable moment"3'99 to highlight its concerns. The third party should also be able to submit additional written submissions.4"' However, the third party's additional submissions should be limited to the questions that were already posed during the first meeting to reduce the burden of information processing on the panel and on the principal parties."' Statements and additional written submissions made by the third party, if any, should be included in the interim report together with the principal parties' statements and submissions. Similar rules should be applied in the interim review process to allow the effective participation of third parties while maintaining the distinction between the principal parties' rights and the enhanced third394. See supranotes 227-234 and accompanying text. 395. Regardless of the preferential treatment, the BCI Procedures that protect specific business confidential information should cover the requesting developing-country third party throughout the panel procedures to prevent procedural abuses and loopholes. See WTO DSB, Taiwan's Contribution,supranote 8, at 3, para. II(c) (proposing that third parties with enhanced rights have "entitlement to receive all information and documents, except certain confidential business information designated as such by the disputing parties"); see also supra note 381 (discussing the BCI Procedures adopted in Canada-CivilianAir Craft). 396. See supra notes 262-273 and accompanying text. For the sake of clarification, the amended procedural rule should provide for the scope of the enhanced third-party rights as articulated below, although the adopted panel ruling in EC-Bananas (III) should guide subsequent decisions according to the Appellate Body's opinion in Japan-AlcoholBeverages. See supranote 303 and accompanying text. 397. See supranote 272 and accompanying text. 398. See supranote 271 and accompanying text; WTO DSB, supra note 372, para. 5. 399. Panel Report on EC-Rananas (III), supra note 262, para. 7.8. Jamaica's proposal apparently neglected this limited scope of the enhanced third-party rights allowed in ECBananas (III). See WTO DSB, Jamaica's Contribution,supra note 372, para. 5. On the other hand, Taiwan favors enhanced third-party participation completely without rights to make oral and written submission to avoid complexity and preserve judicial economy in the dispute settlement process. WTO DSB, Taiwan's Contribution,supra note 8, at 3-4, para. 11:2(d). This Comment attempts to balance concerns underlying in these extreme positions. 400. See id. 401. See supra note 273 and accompanying text. party rights4.1 2 Thus, the panel should issue the interim report to a third party with the enhanced rights to allow meaningful input. On the other hand, the third party should be able to submit a written comment only with regard to the questions raised by it at the first and second meetings. At the interim review meeting, the third party should be allowed to "make a brief statement at a suitable moment"4" 3 to further accentuate its concerns. In addition, all third parties should be authorized to review their arguments recorded in the interim report pursuant to the customary practice." In the final report, the panel should be required to include written comments and statements made by the third party, as well as by the principal parties, at the interim review meeting.' 5 Throughout panel proceedings, Southern sovereigns, not only as principal parties but also as third parties, should be encouraged to utilize Article 12.11 of the DSU to highlight their rights to special and differential treatment in disputed matters.' The continuous emphasis of special and differential treatment by many Southern sovereigns would, over time, promote the realization of those special and differential treatment provisions. 40 7 To clarify the timetable for third-party participation, the customary ten-day period for notification should be codified in the Panel Working Procedures.048 In the post-Doha negotiations, the European Communities proposed to provide for the ten-day period in the Article 10.2 of the DSU. 4 Because the DSU is a Multilateral Trade Agreement that cannot 402. See supra note 277 and accompanying text. 403. PanelReport on EC- Bananas(III), supranote 262, para. 7.8. 404. See supra note 275 and accompanying text. 405. See supra note 190 and accompanying text. In addition, Jamaica proposes that the third party with the enhanced rights should receive the decision concurrently with the principal parties. See WTO DSB, supranote 372, para. 5. 406. See DSU, supranote 176, art. 12.11. Where one or more of the parties is a developing county Member, the panel's report shall explicitly indicate the form in which account has been taken of relevant provisions on differential and more-favourable treatment for developing country Members... which have been raised by the developing country Member in the course of the dispute settlement procedures. Id. 407. See WTO, supra note 220, para. 7 (reporting Cuba's statement on behalf of G-77 that the special and differential provisions "need to be legally binding and must be operationalised and made enforceable"); Footer, supra note 242, at 97 (encouraging developing country members to use applicable DSU provisions in the course of dispute settlement proceedings to ensure the actual implementation of special and differential treatment provisions): see also Das, supra note 237 (stating that "developing countries have to take some actions on their own to utilize the system in a more effective way."). 408. See WTO DSB, Taiwan's Contribution, supra note 8, at 3, para. 11:2(b); see also supra notes 208, 210 and accompanying text (explaining that although the ten-day period for the thirdparty notification is not formally provided, it is strictly enforced). 409. WTO DSB, EC's Proposals,supra note 8, at 10, para. 8. particular panel,41 ° the be modified by a European Communities' proposal would completely eliminate the possibility of extension if a developing country member has difficulty with the stringent deadline. Instead, the ten-day period should be codified in the Working Procedures, which a panel could modify after it consulted with the principal parties.4" This arrangement could offer flexibility to allow broad participation by third parties while protecting the principal parties' rights to efficient dispute settlement. Additionally, the existing provision could better facilitate preparation of Southern sovereigns' submissions by providing extra time to make submissions. In fixing the timetable, Southern sovereigns should be encouraged to use Article 12.4 of the DSU to secure "sufficient time" in preparing their presentations at each stage of panel proceedings. 12 Flexibility in "sufficient time" provisions should allow a panel to balance the need of efficiency and equity in dispute settlements. In particular, a panel should use the India-Quantitative Restrictions case as a guideline to consider the scope of "sufficient time." In that case, the Appellate Body authorized the panel to balance India's difficulties resulting from administrative reforms and the stringent timeline under Article 12.10 of 413 the DSU. At the appellate level, on the other hand, relatively restricted intervention should be maintained to allow only third parties in the panel process to participate in appellate proceedings.4 14 The Appellate Body 410. See WTO Agreement, supra note 6, art. X:1 (providing for the amendment procedure for the Multilateral Trade Agreements in the Ministerial Conference). 411. See DSU, supra note 176, art. 12.1. 412. See DSU, supranote 176, art. 12.4 ("In determining the timetable for the panel process, the panel shall provide sufficient time for the parties to the dispute to prepare their submissions."). 413. See Panel Report on India- Quantitative Restrictions, supra note 244, para. 5.10 (upholding the panel's grant of an extra period of ten days to India for preparation of the first submission as the respondent, considering the recent administrative reorganization in the Indian government). The Appellate Body stressed the balance between the need of developing country members and the respect of the stringent schedule in the panel proceedings. See id. 414. See supra note 207 and accompanying text. Although the European Communities propose no modification regarding the rights of third participants in appellate proceedings, its proposal allows amicus submissions by non-party members in appellate proceedings. See WTO DSB, EC's Proposals,supra note 8, Annex, para. 10 (addressing amicus brief submissions by any natural or legal persons other than a principal or third party); WTO DSB, EC's Replies, supra note 8, at 7 (considering "minimal right for a Member or natural or legal person to file an amicus brief"). Moreover, the Appellate Body recently upheld its authority to receive an amicus brief from Morocco, which attempted to express its opinion at the appellate level without participating in the panel process despite objections from Peru as the appellee and Chile, Ecuador, and Canada as third participants. See Appellate Report on EC-Sardines.supra note 253, paras. 153-55, 157. Nevertheless, this Comment rejects amicus submissions by a member, as well as liberalization of intervention at the appellate level, on the same grounds as discussed below. See infra notes 415-418 and accompanying text. For more details of amicus submissions by a non-party member, see infra note 444. has the narrow task of reviewing legal issues.4"5 This limited task does not require outside information."6 The principal parties and third parties, who researched disputed matters and submitted their contentions, could highlight significant legal issues, which would efficiently assist the Appellate Body's legal rulings and recommendations. Moreover, if appellate proceedings were opened to any interested members without regard to participation in panel proceedings, many new parties might join at the appellate level to make new rules and "interpretations" through Appellate Body's decisions. 7 This intervention would seriously undermine the General Council's authority as the exclusive decisionmaking body.41 In appellate proceedings, Southern sovereigns, not only as principal parties but also as third parties, should not hesitate to take advantage of Rule 16(2) of the Appellate Working Procedure to request adjustment of the timetable in filing a submission or in preparing an oral presentation.419 This provision could accommodate their structural difficulties if the stringent timetable "would result in a manifest unfairness" "i]n exceptional circumstances."4" ' What constitutes such extreme circumstances for developing countries would evolve through invocation of the rule. In summary, these recommendations propose extended third-party rights in panel proceedings to effectuate the preferential rights of Southern sovereigns throughout the proceedings. In addition, Southern sovereigns should be encouraged to use existing provisions to obtain a flexible timetable, which would allow them to address their structural disadvantages while more fully participating in dispute settlements. 415. See supra note 193 and accompanying text. 416. See WTO General Council, supra note 327, para. 7 (reporting the statement of the representative of Uruguay that "the members of the Appellate Body had the capacity, knowledge and experience necessary to take the legal decisions incumbent upon them without any outside help."). 417. Cf Barfield, supra note 21, at 403 (noting the inherent tension between the highly efficient adjudicatory system and ineffective decision-making processes in the WTO, which create pressure to "legislate" through DSB's rulings and recommendations). This is the principal reason why this Comment rejects amicus submissions by non-party members. 41& Seesupra notes 218, 329 and accompanying text. 419. See Appellate WP, supra note 181, R.16(2) (stating that any principal and third parties/participants may request modification of a time table in "exceptional circumstances, where strict adherence to a time period set out in these Rules would result in a manifest unfairness"). 420. Id. FormalAmicus BriefProceduresto FacilitateBroaderPublicInput by NGOs To promote public input in dispute settlements, formal amicus procedures should be adopted to authorize NGOs42' to submit amicus briefs in panel and appellate proceedings. 22 The European Communities have expressed their support for a better framework for nongovernmental amicus submissions4. 3 For this purpose, however, the European Communities have attempted to introduce the contentious "two-stage approach" '24 adopted in the Additional Procedure in the EC-Asbestos case42 5 in both panel and appellate proceedings. According to the proposal they submitted during the post-Doha negotiations, NGOs must (1) file a request for leave to submit amicus briefs within fifteen days to the panel and within five days to the Appellate Body and (2) make effective amicus submissions within fifteen days to the panel and within three days to the Appellate Body after receipt of the notification by the DSB to grant leave.426 the The two-step approach is apparently unacceptable to the majority of WTO members as evidenced in the bitter criticisms against the Additional In the post-Doha negotiations, India has explicitly questioned the effectiveness of the two-step approach. 28 More importantly, the European Communities' proposal would reinforce the current underrepresentation of Southern constituencies because, as evidenced in the EC-Asbestos case,429 Southern NGOs would face 421. In this section, NGOs encompass a broad range of actors in accordance with the definition of NGOs adopted in the WTO. See supra note 3 (explaining the WTO's definition of NGOs, which includes economic interest groups as well as environmental, developmental, and consumer groups). This is because sustainable development envisions wide participation of stakeholders including business interests. See OXFAM GB, supra note 173, at 16; see also supra note 287 and accompanying text (explaining that Rio Principle 10 encourage participation of all stakeholders in environmental policymaking at the relevant level); Raustiala, supra note 101, at 567 (stating that the business community has a legitimate interest in the results of international rulemaking, including environmental treaty negotiations, that directly affect it). 422. See Charnovitz, supra note 124. at 214-15 (recommending the WTO establish amicus procedures for nongovernmental groups and individuals): Alvarez & Howse, supra note 346, at 115 (calling for amendments to the procedural rules to attain greater inclusiveness in WTO dispute settlements); AcTION AID ET AL., supra note 165, at 8 (requesting that WTO members create procedural rules governing amicus brief submissions as means of public participation). 423. See WTO DSB, EC's Proposals,supra note 8, at 7. 424. WTO DSB, EC's Replies,supra note 8, at 6. 425. See supranotes 311-313 and accompanying text. 426. WTO, Proposal,supra note 8,Annex, paras. 10.2, 10.5; see also WTO DSB, EC's Replies, supra note 8, at 6. 427. See supra notes 342-345 and accompanying text (explaining the strong negative opinions of Southern sovereigns regarding the Additional Procedure). 428. See WTO DSB, India's Questions, supra note 8, paras. 33, 37 (questioning the effectiveness of the European Communities' proposal in terms of criteria for and administration of the screening process). 429. See supranotes 338-341 and accompanying text. tremendous hurdles in complying with the extremely tight schedule of the two-stage process due to their difficulties in effective access to communication technologies and translation. 3 The overwhelming procedural hurdle is also repugnant to the purpose of the panel proceeding because, as discussed, broad factual and legal input is required to produce the "high-quality panel report" with objective factual 4 1 and legal assessments. 430. See supra note 168 and accompanying text. Actually, the digital divide is one of the reasons that Southern sovereigns gave for refusing amicus submissions under the Additional Procedure. See supra note 340 and accompanying text. Taiwan strongly opposed to the European Communities' proposal as follows: Our concern here is that only those Members that have well developed social resources such as think tanks, academic institutions and non-governmental agencies are likely to be called upon for information and technical advice .... To allow unsolicited amicus curiae submissions, and to systematize this in a new Article as proposed by the EU, would create a situation where those Members with the least social resources could be put at a disadvantage. WTO DSB, Taiwan's Contribution,supra note 8, at 2, para. 1:2(a) (citation omitted). However, Taiwan's generalized concern about nongovernmental amicus submissions seems exaggerated, as quite a few Southern NGOs attempted to submit amicus briefs in EC-Asbestos. See supranotes 336, 338 and accompanying text. 431. See supranotes 300, 376 and accompanying text. 432. See ACTION AID ET AL., supra note 165, at 8 (recommending that WTO members negotiate an interpretation or amendment to Article 13 of the DSU to authorize panels to accept unsolicited amicus briefs); see also supra notes 298-301 and accompanying text (discussing the Appellate Body's authorization of amicus submissions under Article 13.1 of the DSU in ShrimpTurtle). Amicus submissions under Shrimp-Turtle should be more acceptable than the Additional Procedure. See Panel Report on EC-Asbestos, supra note 105, para. 6.1(reporting that the panel in the same case apparently had no controversies about amicus submissions pursuant to Shrimp-Turtle, unlike amicus submissions in the appellate proceeding under the Additional Procedure); Appellate Report on EC-Sardines,supra note 252, para. 154 (recording that Peru expressly "welcomes non-Member submissions where they are attached to the submission of a WTO Member engaged in dispute settlement proceedings," which has been the case since Shrimp-Turtle). 433. See Panel WP, supra note 181, para. 12(b); see, e.g., WTO DSB, EC's Proposals,supra note 8, at 12, para. 10.7 (allowing the principal and third parties ten days to respond to the accepted amicus submissions). each panel and other relevant information should be published promptly to help NGOs' timely and effective amicus submissions." The WTO should clarify the treatment of nongovernmental amicus briefs.435 Panels and the Appellate Body should be able to reject amicus briefs, provided that they unequivocally disclose the specific reason for their rejection.436 This qualification would ensure fair treatment, a matter questioned in the appellate proceeding in the EC-Asbestos case.437 The panel and the Appellate Body should decline to address new issues raised by amicus submissions, but they should be able to consider NGOs' arguments that are not raised by the parties so long as such new arguments are found to be directly relevant to the covered issues.438 This arrangement is necessary to prohibit NGOs from enjoying greater participatory opportunities than third parties while permitting valuable input from the stakeholders. 439 The DSB should also ensure that amicus briefs accepted by the panel are transferred to the Appellate Body in accordance with Rule 25 of the Appellate Working Procedure."' First, pursuant to the existing practice, if a principal party attaches an amicus brief to its submission, it should be transferred to the Appellate Body in entirety.4" Second, accepted, unattached amicus briefs also should be transferred to the Appellate Body as "any other documentation submitted to the panel."" 2 The Appellate Body should accept amicus submissions only from those who already submitted briefs to the panel, applying the same 434. See supra note 197 (quoting Article 12.5 of the DSU that require parties to adhere to the deadlines set by the panel); see also WTO DSB, EC's Proposals,supra note 8, Annex, para. 7 (providing that the principal and third parties may take ten days to make comments on and respond to the filed amicus submissions). 435. See AcTION AID ET AL., supra note 165, at 8 (calling for formal aicus procedures that also precisely address the treatment of amicus submissions in panels and appellate proceedings). 436. See, e.g., PanelReport on U.S. - CanadianSoftwood Lumber, supranote 303, para. 7.2 (reporting that the panel rejected three additional amicus briefs because they were submitted after the preliminary meeting to consider the admissibility of the amicus brief filed timely by the Interior Alliance); Panel Report on EC-Asbestos, supra note 105, para. 6.4 (recording that the panel declined to accept an amicus brief submitted by the Only Nature Endures ("ONE") because it was filed "at a stage in the procedure when it could he no longer be taken into account."). ONE submitted its amicus brief seven months after the panel made a decision to consider the two amicus briefs that were incorporated into the EC's rebuttal submissions. See id. 437. See supra notes 319-321 and accompanying text. 438. See WTO DSB, EC's Replies, supranote 8, at 7. 439. See supranote 193 and accompanying text. 440. See Appellate WP, supra note 181, R.25 (providing for the transfer of the complete panel record to the Appellate Body for an appellate review). 441. See id. R.25(2)(i) (codifying the transfer of "written submissions, rebuttal submissions, and supporting evidence attached thereto" filed by the principal and third parties); see also supra note 299 and accompanying text (explaining that the Appellate Body recognized an attached amicus brief as "primafacie an integral part" of the party's submission). 442. Appellate WP, supra note 181, R.25(2)(iv). rationale regarding "third participants" in appellate proceedings." 3 Understandably, NGOs might be surprised by unexpected panel rulings and thus seek to make amicus submissions at the appellate level. Nevertheless, this practice is unacceptable because the Appellate Body should not offer greater participatory opportunities to NGOs than to third parties, which may not participate in appellate proceedings without being part of the panel proceedings.' On the other hand, so long as an NGO is named as a participant in the initial amicus submissions to the panel, the NGO should be allowed to submit an amicus brief to the Appellate Body with different coalition partners, as in Shrimp-Turtle."5 For appellate review, amicus procedures should be incorporated in Rule 24 of the Appellate Working Procedure.' To file amicus briefs, NGOs should be required to follow the strict deadline that allows the principal and third parties to have sufficient time for comments and response," 7 while the Appellate Body should immediately circulate the timetable to facilitate NGOs' timely submission. Moreover, the new rule should also require that NGOs make their submissions public because 443. See supra notes 414-417 and accompanying text (explaining that the Appellate Body does not need additional information from those who did not participate in the panel proceedings because the Appellate Body only reviews the issues of law raised at the panel level and the Appellate Body consists of authorities who can make a decision in international trade law and policy without help from additional legal arguments). 444. See supra notes 346, 413 and accompanying text. The Appellate Body recently reiterated its authority to accept amicus briefs from NGOs under Article 17.9 in accordance with U.S.-British Steel. See Appellate Report on EC-Sardines,supranote 252, para. 162. Moreover, the Appellate Body held that it has "legal authority to accept amicus briefs" from a WTO member because it "did not distinguish" between nongovernmental and governmental amicus submissions under Article 17.9. See id. The Appellate Body rejected Peru's argument regarding relative disadvantages to third participants because it differentiated its duty to accept and consider third participants' submissions from its discretion to deal with amicus submissions. See id. paras. 157, 162, 166, 168. In so doing, however, the Appellate Body neglected prejudicial effects on third participants who must observe stringent requirements under the DSU. See id. para. 154 (recording Peru's strong concern that the Appellate Body's acceptance of a WTO member's amicus brief would allow the member "to circumvent the DSU"). 445. See Appellate Report on Shrimp-Turtle, supra note 9, para. 79 (reporting that in the appellate proceeding, the CIEL-CMC coalition included five other NGOs that had not participated in the submission to the panel proceeding). 446. See supra note 203 and accompanying text (discussing the stringent timeline for third parties' submissions set forth in Rule 24 of the Appellate WP). 447. See Appellate WVP,supra note 181, R.26(2) (providing for a schedule for appellate proceedings with "precise dates for the filing of documents"); see also WTO DSB, EC's Proposals,supra note 8, Annex, para. 7 (proposing the ten-day period for the principal and third parties to make comments on and respond to the submitted amcus briefs); WTO General Council, supra note 327, para. 27 (recording Hong Kong's concern that the Additional Procedure "could create an impossible burden on developing country Members" because they have limited time and resources to comment on and respond to amicus submissions within a few days). Article 18.2 of the DSU provides for possible public access only to parties' submissions." The formalization of nongovernmental amicus submissions, as well as extended participation of third parties, would likely result in the proliferation of documents and statements to be processed and circulated among the parties and the panel. In fact, the DSB, a body without sufficient human and financial resources, is already overwhelmed by massive documents exchanged among parties. 9 Under these conditions, translation alone can take several months in dispute settlement proceedings.45 To avoid overwhelming the dispute settlement system, there should be a limit on the maximum length of amicus submissions.45 However, to operate the dispute settlement system fairly in a long term, WTO members should agree to increase the administrative staff of the WTO Secretariat that supports information and translation in dispute settlement documents, especially aiming to assist developing countries in their submissions. Taking account of disparities in the burden and ability of information processing4,5 the North should bear the increased costs of fair and informed dispute settlements. 3 Although some Northern NGOs demand to be present at panel hearings in addition to amicus brief submissions,454 NGOs should not be 448. See supra note 296 and accompanying text; see also Peel, supra note 6, at 70 (summarizing proposals for procedural reforms to allow NGOs' participation including the requirement of the publication of NGOs' submissions in dispute settlements). 449. See Terence P. Stewart et al., Opportunitiesin the WTO for IncreasedLiberalizationof Goods: Making Sure the Rules Work for All and That Special Needs Are Addressed, 24 FORDHAM INT'L L.J. 652, 670 (2000) (noting that the WTO has a limited budget to accommodate expanding translation demands). 450. Id. (stating that the date when the panel releases the final report to the parties and the date when the DSB circulates the report to the remaining WTO members can vary considerably due in part to the time needed for translation); see also Terence P. Stewart & Amy Ann Karpel, Part 1: Review of the Dispute Settlement Understanding(DSU): Operationof Panels,31 LAW & POL'Y INT'L BUS. 593, 599 (2000) (explaining that the DSB first releases the final report to the parties to the dispute, and then translates it into official WTO languages, namely English, French, and Spanish, to disclose to the remaining WTO members and the public). 451. See, e.g., WVTO DSB, EC's Proposals, supra note 8, at 12, para. 10 (6)(b) (proposing that amicus briefs "be concise and in no case longer than 20 typed pages, including any appendices"). 452. See supra notes 168, 227 and accompanying text (discussing the disparities in computer access and linguistic skills between the North and the South and Southern sovereigns' difficulty in collecting various data to support their claims in dispute settlements). 453. See WTO General Council, supra note 227, para. 17 (recording Pakistan's statement calling for "specific provisions in the ATO budget to assist developing countries meet the costs involved in the dispute settlement mechanism."). 454. See Peel, supra note 6, at 70. Environmentally-minded academics also criticize secrecy of the WTO dispute settlement and support open proceedings to allow NGOs' presence. See, e.g., Alvarez & Howse, supra note 346, at 115-16; Charnovitz, supra note 124, at 214-15; Esty, supra note 364, at 726-27. Apparently to appease the criticisms from their powerful constituencies, several Northern governments advocate for open hearings. See, e.g., WTO DSB, EC's Proposals,supra note 8, at 6 (contending that dispute settlement proceedings should be allowed to attend panel proceedings, considering the existing overwhelming disadvantages of Southern nongovernmental actors.4 55 While Northern NGOs could be present at the proceedings in Geneva and have the ability to use the media extensively to advocate for their positions, Southern nongovernmental actors would have few comparable resources.456 This disparity would likely reinforce current tendencies regarding the penetration of Northern values and interests in international policymaking.457 Moreover, if Northern NGOs desire to have access to parties' submissions, they should use the existing provisions." Article 18.2 of the DSU, although indirect and restrictive, still provides public access to parties' submissions by allowing a WTO member to disclose its own submissions and to obtain a non-confidential summary of another member's submissions.459 The WTO members should facilitate public access under this provision because it does not prejudice Southern NGOs, whose governments prefer to promote domestic public debate.4 open to the public at the discretion of the panel and the Appellate Body); WTO DSB, U.S. Contribution, supra note 8, at 2 ("The DSU should provide that the public may observe all substantive panel, Appellate Body and arbitration meetings with the parties except those portions dealing with confidential information... "). Although access to information is vital to meaningful public participation, it is important to make a distinction between participation issues including amicus submissions and transparency issues including open hearings and access to parties' submissions, as improved transparency does not necessarily guarantee increased public participation. See WTO General Council, supra note 327, paras. 71-72 (Canada's statement). 455. See supra notes 103, 340 (noting that Southern sovereigns are concerned that the current disadvantages faced by Southern NGOs would be amplified by formal amicus procedures). 456. See Shaffer, supra note 3, at 67 (stating that both Southern states and NGOs are skeptical about Northern NGOs' demands for "transparency," which would merely open opportunities for Northern groups to use the media to have influence on national representatives, the Secretariat, and dispute settlement panelists in the WTO); O'BRIEN ET AL, supra note 102, at 115 (explaining that environmental NGOs derive much of their influence from their extensive relationship with the media, using that relationship to disseminate information to the public and to humiliate states and international institutions). 457. See Shaffer, supranote 3, at 66-67. 458. See supra note 296 and accompanying text: see also WTO DSB. Taiwan's Contribution, supra note 8, at 2, para. 1:1 (objecting to public access to dispute settlement proceedings because "the dispute settlement mechanism was originally designed as 'government-to-government' process" and "was never conceived as a public process"). Taiwan further manifest the concern that public access to dispute settlement would affect "the efficiency and the integrity of the system itself," id. at 1, para. I; see also supra notes 196-197, 207-212, 368 and accompanying text (identifying confidentiality and efficiency of dispute settlement as core features of the WTO dispute settlement system, to which the WTO members attach importance). 459. See supra note 296 and accompanying text. 460. Developing countries constitute an overwhelming majority of the VTO members who endorsed the General Council's Guideline on NGOs, which provides the "closer consultation and cooperation with NGOs.. .at the national level where lies primary responsibility for taking into account the different elements of public interest.. on trade policy-making." See WTO, supra note 212, para. 6; see also WTO General Council, supra note 327, para. 38 (recording Instead of seeking increased influence, 4 1 Northern NGOs should cooperate with the WTO Secretariat to encourage Southern NGOs' greater involvement in dispute settlements. For example, Northern NGOs should work together with the WTO Secretariat to prepare and distribute toolkits at least in the three official languages with instructions on how to access information on dispute settlements and how to make amicus submissions in panel and appellate proceedings.462 To show their commitment to public participation and common but differentiated responsibilities, Northern governments should provide the funding and resources needed to carry out this project. On the other hand, Southern sovereigns should endeavor to promote actual input from Southern public constituencies through domestic trade policy processes, while Northern governments should offer necessary technical assistance to Southern state counterparts in instituting better public access to trade policymaking. 43 Lastly, amendments and interpretations regarding amicus briefs, together with enhancements in third-party rights, should be formally adopted at the decisional arena of the WTO. This formality is essential to make less precarious Southern sovereigns' interests and to promote balanced representation. To protect Southern sovereigns' interests, the Appellate Body should refrain from accepting NGOs' amicus briefs until India's view that domestic consultations with all stakeholders should shape governmental positions in dispute settlements). 461. See Raghavan, supra note 237 (arguing that "some of the Northern environmental NGOs have focused on their right to present briefs to dispute settlement panels and 'observe' and 'participate' in the process" while "the WTO secretariat, and the US and EU governments, have sought 'cosmetic' changes to cater to these groups."). 462. See Charnovitz, supra note 124, at 215; WTO, supra note 212, para. 4 (providing that "[t]he Secretariat should play a more active r6le in its indirect contacts with NGOs"); see also WTO General Council, supranote 327, para. 27 (recording Egypt's statement that the Appellate Body's invitation under the Additional Procedure "has only drawn the attention of a restricted group of NGOs, which happened to be subscribers of the Secretariat's NGO bulletin"); id. para. 66 (reporting Pakistan's concern that "there was clearly an inherent discrimination" when the Secretariat sent the invitation to nongovernmental groups on the WTO e-mailing list, which does not include many Southern NGOs that have no computer access). Northern NGOs could also provide Southern counterparts with legal and technical assistance, as well as support for information and translation, provided that they were able to avoid conflict of interest issues. See Charnovitz, supra,at 215. 463. See supra note 171 and accompanying text. See generally WSSD Plan of Implementation, supra note 42, para. 146.bis ("All countries.. should also foster full public participation in sustainable development policy formulation and implementation."); id. para. 148 (recommending that states support "efforts by all countries, particularly developing countries, as well as countries with economies in transition, to enhance national institutional arrangements for sustainable development" including the promotion of the participatory approach in the formulation of strategies and plans for sustainable development). Needless to say, Northern governments should also rectify their own trade policy processes often skewed toward dominant economic interests. See Torres, supra note 160, at 158-59 (recognizing that even Northern environmental NGOs have little or no effective channel to shape national policy options concerning international trade). the formal adoption of the procedural revisions.4" On the other hand, both Northern and Southern governments should act promptly at the General Council to introduce formal amicus procedures465 with the recognition that prolonged inaction could potentially destabilize the international trade regime by alienating reform-minded NGOs.4 6 In short, everybody in the WTO should learn the lesson from Seattle.467 CONCLUSION In the WTO, Northern environmental NGOs seek to promote participatory democracy to represent transnational environmental interests while Southern sovereigns pursue representational fairness to address the developmental concerns of historically disadvantaged Southern public constituencies. The ad hoc amicus procedures that have evolved through dispute settlements have reinforced existing tensions between Northern NGOs and Southern sovereigns in trade-environment disputes. Due to procedural uncertainty, Northern NGOs have been ultimately denied participation through amicus submissions without due process. At the same time, the discretionary amicus procedures have prejudiced Southern sovereigns' third-party rights by subjecting them to relatively stringent timelines and restrictions. In order to reconcile the gap between the two sides, procedural revisions are necessary to increase participation of both Northern NGOs and Southern sovereigns in WTO dispute settlements and to improve representational fairness among the WTO members. Thus, the WTO should formally revise the present dispute settlement procedures to include enhancements in third-party rights and clarifications in amicus procedures. Through the new global trade round launched in Doha, the WTO members should make agreements on these procedural revisions to 464. See Barfield, supra note 21, at 413; WTO General Council, supra note 327, para. 85 (recording Korea's statement that "acceptance of amicus briefs should be suspended pending further deliberations of the General Council" because amicus procedures "had important implications for the rights and obligations of Members."). 465. See WNTO General Council, supra note 327, paras. 103 (recording Australia's recognition that the issue of formal amicus procedures "required early action" at the General Council which has power to adopt procedural guidelines on amicus briefs). 466. See supra note 361 and accompanying text (reporting harsh criticism from major Northern NGOs that the WTO has failed to learn a lesson from Seattle by suddenly foreclosing their participatory opportunity through amicus submissions and giving an example of the Committee on Trade and Environment, where some mainstream organizations are now campaigning to abolish the Committee that failed to allow their participation); Symposium, supra note 320, at 158 (recording Steven Charnovitz's statement that inaction by the WTO on the issue of amicus briefs represents the "insularity of the WTO," which "undermines popular support for trade and the WTO" in the United States and in other nations). See generally O'BRIEN ET AL., supra note 102, at 230 (pointing out the possibility that NGOs may give up their relationship with international financial institutions including the WTO when NGOs feel that the institutions no longer serve their goals or merely pay lip-service to real policy change). 467. See supra notes 1-2, 129-129, 161-163 and accompanying text. 58. See Constantine Michalopoulos, Developing Country Strategies for the Millennium Round, 33 WORLD TRADE 1 , 18 ( 1999 ). 59. See , e.g., Hilary French, Challenging the WTO, 12 WORLD WATCH 22 , 25 ( 1999 ) (advocating states' rights to take unilateral measures to protect the extra-jurisdictional environment, such as "the atmosphere, the oceans, and other parts of the global commons"); GREENPEACE, SAFE TRADE IN THE 21ST CENTURY: THE DOHA EDITION 24 (Aug . 2001 ) (noting that Greenpeace has attempted to preserve global commons since the early days of its advocacy work in their policy proposals that support unilateral measures ), available at http://www.greenpeace.org/politics/wto/doha-report.pdf. 60. See HUNTER ET AL., supra note 3 , at 343. 61. See Claudio Grossman & Daniel D. Bradlow , Are We Being Propelled Towards a People-Centered TransnationalLegal Order?, 9 AM . U. J. INT'L L . & POL 'Y 1, 14 - 15 ( 1993 ) (discussing extra-jurisdictional issues in environmental protection with increasing transnational human activities). 62. See Rio Declaration, supra note 25 , princ. 2 (recognizing states' responsibility to control environmentally harmful activities only within "the limits of national jurisdiction."). 63. See Edith Brown Weiss, Understanding Compliance with InternationalEnvironmental Agreements: The Baker's Dozen Myths , 32 U. RICH. L. REV . 1555 , 1555 ( 1999 ) (noting that over a thousand multilateral legal instruments include some provisions regarding the environment ). 64. See , e.g., HUNTER ET AL., supra note 3 , at 215 ( giving examples of prolonged negotiations for international environmental agreements, such as the U.N. Convention on the Law of the Sea, which was concluded after ten years of negotiations, and the Montreal Protocol, which was concluded more than a decade after ozone depletion began to draw international attention ). 65. See Neil Craik, Recalcitrant Reality and Chosen Ideals: The Public Function of Settlement in InternationalEnvironmental Law , 10 GEO. INT'L ENVTL. L. REV . 551 , 573 ( 1998 ) (explaining that international environmental law tends to depend on "soft law" instruments that do not bind parties legally but provide for general principles and objectives to accommodate 338. See Appellate Report on EC-Asbestos,supra note 309, para. 56 & n.32. 339. See id. para. 55 & n.31. 340. See WTO General Council, supra note 327 , paras. 21 , 27 , 66 (reporting that Egypt, Hong-Kong, and Pakistan expressed concerns about disadvantages created by uneven computer access in NGOs' amicus submissions); id- para. 91 (including Jamaica's statement that "very few non-Members from developing countries would have become aware of this additional procedure"): id. para. 21 (recording India's statement that the Appellate Body's approach would add an even greater disadvantage to developing countries considering "the relative unpreparedness of their NGOs who had much less resources" ). 341. See id. 342. See supra notes 311 , 335 . 343. See supranote 299 . 344. Southern sovereigns worry that the Additional Procedure in EC-Asbestos would virtually set a precedent for future cases . See WTO General Council, supra note 327 , para. 20 ( Egypt's statement on behalf of the IGDC); id. para. 26 (Hong Kong's statement); see also supra note 329 and accompanying text (explaining the General Council's decisional authority regarding WTO Agreement and the Multilateral Trade Agreements including the DSU) . 345. WTO General Council, supra note 327 , para. 14 ( recording that Egypt, on behalf of the IGDC, stated that the issue of amicus briefs "was not a transparency issue but was about the Appellate Body crossing its limit" ). 371. See Barfield, supra note 21 , at 413 ( considering that the issue of amicus briefs is more than a question of procedure as NGOs with expertise and resources may overwhelm smaller developing countries). 372. See WTO DSB , Contribution by Jamaica to the Doha Mandated Review of the Dispute Settlement Understanding (DSU): Communication from Jamaica , TN/DS/W21, para. 5 ( Oct . 10 , 2002 ) [hereinafter Jamaica's Contribution] . In addition, Costa Rica also made a proposal on improvements in third-party rights (TN[DSIW/12), which was discussed but not yet made public . See WTO DSB , Third and Fourth Formal Meetings of the Special Session of the Dispute Settlement Body , TN/DS/3, para. 4 ( Oct . 2 , 2002 ). 373. See WTO DSB , Taiwan's Contribution, supra note 8 , at 2, para. 11 : 2 (supporting proposals for enhanced third-party rights "[g]iven that resource and monetary constraints often preclude small and developing Member countries from making full use of the system"); ACTION AID ET AL., supra note 165 , at 7 (urging WTO members to develop more inclusive rules and practices particularly with regard to developing countries). 374. See WTO DSB , Jamaica's Contribution, supra note 372, para. 5 (recording that Jamaica advocated for third-parties' participation in "all panel hearings" once enhanced third-party rights are granted); WTO DSB, Taiwan's Contribution, supra note 8 , at 3, para. 11 : 2(c) (proposing enhanced third-party rights including "presence at all meetings" ). 375. See supra note 199 and accompanying text . 376. See supra note 300 and accompanying text; see also OXFAM GB , supra note 173, at 19. 383. WTO Panel Report on United States- Anti-Dumping Act of 1916 , WT/DS/136/R ( Complaint by the European Communities) (Mar . 31, 2000 ), WT/DS/162IR (Complaint by Japan) (May 29, 2000 ); WTO Appellate Body Repoert on United States-Anti-Dumping Act of 1916 , WT/DS261AB/R, WT/DS48/AB/R (Jan. 16, 1998 ) [hereinafter Appellate Report on U.S. - Anti-Dumping Act ]. 384. See Appellate Report on EC- Hormone , supranote 298 , para. 154 . 385. See id. para. 1. 386. Id . para. 150 . 387. See id. para, 154; Panel Report on EC-Hormone, supra note 298, para. 8 .20 (Complaint by Canada). 388. See id. para. 153. 389. See Appellate Report on U.S. - Anti-Dumping Act , supranote 383 , para. 150 . 390. See id. para. 1. 391. See PanelReport on U.S. Anti-Dumping Act , supra note 383, para. 6 .30 (Complaint by Canada), para. 6 .30 (Complaint by Japan). 392. See Appellate Report on U.S. - Anti-Dumping Act , supra note 383 , para. 148; Panel Report on U.S. - Anti-Dumping Act , supra note 383, paras. 6.33-6 .34 (Complaint by Canada), paras. 6.33-6 .34 (Complaint by Japan). 393. See supra note 356 and accompanying text .


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Maki Tanaka. Bridging the Gap between Northern NGOs and Southern Sovereigns in the Trade-Environment Debate: The Pursuit of Democratic Dispute Settlements in the WTO under the Rio Principles, Ecology Law Quarterly, 2003,