Whether or not a trade and environment dispute could be resolved in a balanced fashion does not depend only on the law that allows trade measures for environmental purposes to be used as a bona fide enforcement tool. Achieving the balance between trade and environmental considerations also depends on an institutional arrangement that reflects environmental sensitivity. What could make one dispute resolution forum more environmentally sensitive than another will be discussed below.
5.5.2.1. An Arbitrator or Mediator with Environmental Background
In a mediation process, it is not compulsory that a mediator should possess some relevant knowledge of the issues involved in a dispute. It is sufficient that the mediator has the skills to encourage the disputing parties to reach a mutual agreement. But in a dispute with a complex nature like a trade and environment dispute - which requires a careful consideration of intertwining issues of more or less equal importance - it is
preferable that the mediator has some interest and sound knowledge of both trade and environmental issues. Arguably, the more knowledgeable the mediator the better ability he has to understand and digest the issues so that he can guide the disputing parties in the right direction, i.e. to find a trade and environment equilibrium. And, where the mediator is required to act in an active role, the mediator who has a good grasp of the subject at hand would be able to rationally perform a complicated balancing act between the trade and environmental interests as well as the needs of the disputing parties.
In the DMS process, there would normally be one mediator in each case.
However, in the proposals of the EPG it was envisaged that there might be some circumstances where more than one mediator is needed. In such cases, a panel of three mediators could be formed. From the perspective of trade and environment dispute settlement, this could possibly mean that at least one of the mediators would come from each of the trade and environment domains. As a suggestion, the composition o f the panel of mediators should idealistically be one with a trade background, one with an environmental background, and one with both trade and environment backgrounds.
This composition would, in my view, provide a perfect combination for the resolution of a trade and environment dispute. It offers a balanced panel of qualified mediators from the two disciplines. Accordingly, the viewpoints from both trade and environment camps would be heard equally and well understood.
In the situation where one of the disputing parties is a developing country, the third mediator could be substituted with a mediator from a developing country - reiterating the WTO’s practice as provided for in Art. 8(10) of the DSU.86 The benefit of having a mediator from a developing country sitting in a panel is that he could at least represent a viewpoint of the developing country, who would have a different priority from the developed country, with a view to provide a balance in terms of bargaining power.
In comparison to the WTO’s panellists and Appellate Body so-called “judges”
who come from the domain of trade, e.g. trade experts or governmental representatives to the WTO, APEC could have a pool of mediators who come from diverse
86 This article articulates: “When a dispute is between a developing country Member and a developed country Member the panel shall, if the developing country Member so requests, include at least one panelist from a developing country Member”.
181
backgrounds. No affirmative requirements have yet been set by APEC as to what qualifications must a mediator have for the DMS process. It is a good opportunity for APEC to compile a list of mediators from a wide range of disciplines, including those of trade and environment. APEC arguably pursues a wider range of activities than the WTO. As discussed in the previous chapter, APEC has also commissioned several environmental work programmes among its other activities. The focus of APEC now is not solely trade co-operation as when it was originated in 1989. It also expands to cover issues such as environmental protection, competition policy, human resources development and sustainable development. Moreover, the APEC’s DMS is established in order to deal with matters outside the boundary of the WTO. It is foreseeable therefore that some environmentally qualified persons could be listed as APEC mediators.
In the Gasoline or Shrimp/Turtle disputes, while the trade measures satisfied the environment threshold, i.e. the first tier, they failed on both occasions to fulfil the conditions contained in the chapeau, i.e. the second tier. Even though it could not be said conclusively that the outcomes would have been different had the composition of the panels in these cases been a mixture of trade and environment panellists, it would at least have given a better impression to the environmental protagonists that the WTO was in fact environmentally sensitive. Moreover, by having an environmentalist in a panel, it might be possible to argue that more weight could be given to the environmental side o f the argument. As a result, the main focus of the dispute would not rest largely on trade considerations. Arguably, this would enhance the panel’s ability to reach a balanced decision as the panellists from trade and environmental disciplines will both be present during the deliberation process.
5.5.2.2. An Involvement of Environmental Experts and NGOs
Environmental experts can come from several domains. They may come from government officials, environmentally instituted non-governmental organisations (NGOs) or a specifically created environmental organ within each trade institution.
Within the APEC’s framework, environmental expertise could be provided by officials from various working groups and committees dealing with environmental matters such as those already described in Chapter 4, for example: the Regional Energy Working
182
Group; the Marine Resources Conservation Working Group; the Industrial Science and Technology Working Group; and the Fisheries Working Group. Alternatively, the same kind of expertise might be provided by existing NGOs or other non-state actors in the Asia-Pacific region, for example Greenpeace (whose offices are situated in Japan, Australia and New Zealand),87 the Worldwide Fund for Nature (WWF)88 and the US- based Nature Conservancy (TNC).89
Under the realm of the WTO, environmental expertise so far can only come from outsider environmental experts. Experience of the WTO has shown that environmental experts from the NGOs cannot present their case during the WTO’s panel process. The only way their opinions could be heard is through written submissions in the form of amicus curiae brief. In the Shrimp/Turtle dispute, two NGOs - the Center for International Environmental Law and the WWF - had already provided an input for the panel from the environmental point of view. There should not be any doubt that such NGOs can indeed provide the panel with valuable environmental information that can assist the panel’s reasoning process. As their practice, the NGOs often keep abreast with the development in their particular field of interest, their up-to-date information could indeed help the panel’s awareness on the development in the field of environmental protection. For example, the NGOs’ opinions could shed light on the implications of the trade measure used in each case. Moreover, the NGOs’ information could help the panel come to a more even-handedly decided outcome by providing an offset against trade considerations which still remain dominant in the trade and environment dispute settlement process of the WTO.
Recently, the Appellate Body in the Shrimp/Turtle case ruled that the DSU did not prohibit the NGOs from submitting the amicus curiae briefs. But, whether or not they would be considered in the dispute settlement process, it still remained at the discretion of the panel. Indeed, this case shows that although the Appellate Body has opened the door for the future submission of environmental expert’s comments, it still remains cautious about allowing use of such information.
87 For further information about Greenpeace, see www.greenpeace.org.
88 See further, www.panda.org.wwf.
89 For more information, see www.tnc.org.
183
With regard to the participation of the NGOs in the dispute settlement process, the matter still remains contentious. Under the WTO regime, the NGOs are not recognised as having a locus standi, they are not allowed in the hearing stage of the dispute settlement process of the WTO. Apart from submitting written submissions as discussed above, the NGOs could make themselves heard only through the lobbying process as an alternative.
By contrast, the DMS process could involve more participation by environmental experts and NGOs. An expert in the DMS process could be the mediator himself or one of the delegates in the negotiating team which represents the disputing party. However, unlike other judicial or quasi-judicial tribunals, like the court or arbitration, it is unlikely that an environmental expert would be called as a witness during the DMS process as mediation is normally conducted privately. Nonetheless, an environmental expert or representatives from the relevant NGOs could consult with the mediator during the mediation process, i.e. when the mediator discusses in private with each of the disputing parties. Alternatively, environmental expertise could be provided during the mediation process by way of written submissions.
One drawback of the environmental expert issue, however, is that one must be careful in selecting what information could be provided and who could participate in the DMS process. This caution is necessary in order to prevent the DMS process being inundated with irrelevant and unnecessary information. This is because while NGOs are recognised as being able to play a pivotal role in the development of an APEC wide environmental agenda they can also be a nuisance.90 Where the expert is the mediator himself, there should be no problem in allowing his involvement during the mediation process. But where environmental expertise comes from other non-state actors or NGOs, it might be worthwhile considering a test to assess the legitimacy of the participation or involvement of those persons. Moreover, to help each party decide which information is to be used during the process, an exchange o f environmental expert’s opinions might be worth considering. What test is to be used will be discussed in Chapter 7 where some recommendations will be made.
90 Lyuba Zarsky, ‘APEC, Citizen Groups, and the Environment: Common Interests, Broad Agenda’, available from the Nautilus Institute for Security and Sustainable Development, Berkeley, California, 1995. (On file with author.)