Trade rights for the cutest

Environment, Human Rights and International Trade
April 19, 2002

On the eighth day God created Rio" - the slipping of the mountains into Guanabara Bay, the lush tropical vegetation and sweeping beaches. At the centre of this vista sits Botafogo, a bay with crystalline sands guarded by the Sugar Loaf Mountain. And yet this vision is unblemished only when viewed from afar. Botafogo's waters are too poisonous for swimming. Most of the original forestation has been replaced by the breeze blocks of the favelas .

Globalisation debates suggest global responsibilities for the Rio environment. These debates converge in the political identities they create, in which human beings are conceived as having common socio-biological identities. Reterritorialisations emerge in which local choice is seen as constrained if it is perceived as either violating the dignity of fellow human beings or common duties to future generations. But there is an acceptance of mutual responsibility. Almost none of the chemicals in Botafogo is "made in Brazil". On February 25, the Rio authorities announced an investigation into the discharging of oil by a British tanker into the bay. The favelisation of Rio has been almost exclusively caused by the rural exodus provoked by the transformation of Brazilian agriculture into a capital-intensive industry that maximises export earnings.

The central argument of this collection of essays edited by Francesco Francioni is that global civil society is too weak to regulate these conflicts. More central has been the development of a number of international legal institutions. Three themes emerge from this collection. The first is that the emerging transnational regime regulating trade and the environment acts primarily to reallocate authority between existing fields of government. Francioni's piece examines how trade/ environment conflicts in the World Trade Organisation, most notably the shrimp/turtle decision in which the United States banned imports that did not use turtle-safe technology, have allowed importing states to move from banning products because of the environmental effects in their territory to banning products whose production or harvesting has deleterious effects in the exporting state. The qualified vindication of this policy by the WTO moved the locus for determining the precise policy-mix to the US trade department rather than to international levels of decision-making.

A second theme is the weakness of the diffusive effects of international dispute-resolution bodies. The collection does not look at the European Union. The only example given of an international institution creating new substantive norms is in Riccardo Pavoni's article on the jurisprudence of the European Patent Office. This argues that the cost-benefit analysis of the EPO's onco-mouse decision, in which possible advances in cancer research were considered to outweigh ethical concerns in the granting of a patent over the transgenic mouse, is likely to have broader effects. Yet it fails to substantiate this or tell us why, if such analysis were used in future, it would be as a consequence of this decision.

The third theme is that new processes of interaction are emerging that are suffusing traditional responsibilities into networks that act according to new norms. The book's best piece, Simonetta Zarilli's analysis of the institutional regulation of international trade in genetically modified organisms, focuses on adoption of the 2000 Cartagena Protocol on Biosafety. This sets up a system of advance informed agreement, whereby any export of any living modified organism is dependent on presentation of a risk assessment and detailed information about the organism and its legal status. The importing state, by contrast, must give reasons based on risk assessment for any decision other than unconditional approval. Any approval must be communicated to a biosafety clearing house. A regime of mutual accountability has been established that will operate according to the precautionary principle.

As an exercise in juristic analysis of legal procedures, this collection is strong. The problem emerged when I looked across Botafogo and went to eat some "Chester". The beaches of Botafogo were determined by a landfill project 30 years ago. Chester, a transgenic cross of chicken and turkey, is the most popular meat in Brazil at Christmas. It makes a "turkey" affordable for the poor, and arguments about environmental risk are met with scorn in a city where 20 per cent of the beef is estimated to come from unsafe sources.

Humans contribute through their patterns of production and systems of knowledge to our ecology or our understandings of human rights. The debates are debates about reordering of the relationships between humans and things and of the relationships between humans. Insofar as these are moved to global or regional legal institutions, they involve a reallocation of responsibility for deciding who makes them and a choice that this takes place through the formal structures of law.

Thus, in the General Agreement on Trade and Tariffs' tuna/dolphin decision, the dispute settlement panel had to consider the legality of a US ban on Mexican tuna not caught in a dolphin-friendly manner. This involved a hierarchy being drawn between dolphins who were cute and worth protecting and tuna that tasted good and was therefore not. It also involved the right of the US to regulate Mexican fishing, as it was impracticable for the fishermen to have one net for exports and one for tuna for the domestic market.

To this, Federico Lenzerini, in his contribution on international trade and child labour standards, argues that importers must engage ethically as they are partially responsible for these conditions by providing the demand for the goods. Yet the only values used are those of the importer. We judge labour standards in textile industries according to western notions of the child, while neglecting, because the victims are not so enchanting, the oppressive slave and bonded-labour conditions that supply a large part of the world's commodity trade.

The trends discussed exacerbate this process through shifting decision-making further to the rich and the powerful. First-world patent offices or trade ministries under these visions increasingly have responsibility for determining the relationship between things and human beings in the third world. Moreover, they do so in the name of pious self-justification. The paradox of books such as this, which seek to give international law a human face, is that, because of their failure to engage with what they mean by the terms environment or human rights, they provide the intellectual support for such a discreditable and dishonest process.

Damian Chalmers is senior lecturer in law, London School of Economics.

Environment, Human Rights and International Trade

Editor - Francesco Francioni
ISBN - 84113 217 9
Publisher - Hart
Price - £40.00
Pages - 361

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