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
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
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
Introd uction ..................................................................................................
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
A dvanced Industrialism ......................................................
Developmental Values Structured
C olonialism ..........................................................................
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
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
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
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/
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
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
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/
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.
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
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
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
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
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.'
Northern Environmental Values Shaped UnderAdvanced
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
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
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
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
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
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
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
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
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
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
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
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."
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
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
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
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
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
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
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
Enhanced Third-PartyRights to PromoteActive Intervention by
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
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
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
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.
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
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
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
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
FormalAmicus BriefProceduresto FacilitateBroaderPublicInput
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 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
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
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
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
Article 18.2 of the DSU provides for possible public access only to
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
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
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
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
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
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
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 .