INTERNATIONAL TRADE AND ENVIRONMENTAL PROTECTION: REVISITING HARDIN’S “TRAGEDY OF THE COMMONS”

Twenty-eight years after the emergence of the World Trade Organisation (WTO) regime, the trade-environmental protection relationship seems to have achieved some harmonisation from an initial chequered one, though not without some forms of lopsided balancing of the variables. This work explores the relationship between international trade and the environment, revealing whether the competing values are balanced. The methodology adopted is doctrinal, with a comparative and analytical approach involving desk and library research. The work is bifurcated into six parts, commencing with an introduction in the first: the second flesh out international environmental agreements relevant to the trade-environment interaction. The third part examines principles of international environmental law. The paper reflects unilateral trade measures in the fourth part. The fifth part takes stock of WTO jurisprudence. While considerable efforts have been made to mainstream environmental protection into trade objectives through the WTO jurisprudence, there remain some forms of market failures, making the trade-environment relationship lopsided, with inadequate attention given to the environment, which brings to fore the need to revisit David Hunter‟s metaphoric invisible elbow destroying the common goods created by an invisible hand.


INTRODUCTION
, through their concept of "ecological economics", described the trade-environment relationship with many metaphors, one of which is Hardin"s "Tragedy of the Commons".The gist of this analogy is that the interaction between trade and the environment rendered the latter degraded significantly in the absence of laws governing their interface. 1wenty-eight years after the emergence of the World Trade Organisation (WTO) regime 2 , the trade-environmental protection relationship (the focus of this work) seems to have achieved some degree of harmonisation 3 from an initial chequered and loggerheaded one, 4 though not without some forms of lopsided balancing 5 of the variables that predictably favours some interests over others in the manner described in the "tragedy of the commons." 6This work aims to explore the relationship between international trade and the environment through community lenses of the WTO regime and international environmental laws and in the process reveal whether the competing values are balanced or not.

INTERNATIONAL ENVIRONMENTAL AGREEMENTS
Though fragmentation is an existential challenge in international law 7 , the comparative marginal 8 and fragmented nature of international environmental law 9 works hardship in identifying norms, rights, duties and obligations 10 at stake in the field.This is unlike other areas of law with a harmonised legal system 11 .A mention of International Environmental Law of non-migratory species that were hitherto limited to national regulation due to state sovereignty, just as it closes the North-South debate about the treatment of biological diversity as a "Common heritage of humankind" by viewing same as "common concern of humankind"; a term that accommodates both Global North"s and South"s concerns of conservation and benefit sharing of biodiversity resources. 23Its innovative introduction of concepts such as biodiversity, genetic resources and biotechnology, benefit sharing, ecosystem, and traditional knowledge epitomised its progressive nature. 24he CBD is, however, bedevilled with the challenge of being a framework with weak obligations that can only bark and not bite. 25This is reflected in its employment of broad concepts that elude clarity. 26A case in point here is its employment of the term; "common concern of humankind" to replace "common heritage of humankind", which, though settled the North-South debate, potentially creates a weaker obligation on both Northern and Southern states to conserve biodiversity. 27The CBD, in this manner, has not only turned out to be a sword and a shield in the conservation crises but has also earned the reputation of a "soft law" 28 with uncertain obligations that have been said to reinforce its lack of prioritisation of objectives. 29he implication of the preceding is that the implementation of the CBD is subject to the discretion of political actors. 30Hence, the introduction of its two protocols, the Cartagena and Nagoya Protocols, with stronger normative obligations 31 , was purporting to be the game changer.This did not, however, turn out to be the case as the dispute enforcement mechanism of the CBD remained uninvoked 32 , leaving most of its provisions judicially unappreciated.
In short, the United States (US), which is often a party to most conservation disputes 33 , is not subject to the CBD system 34 ; impliedly, difficulties will always arise in adjudicating environmental law disputes arising from the CBD system concerning non-party states such as the US.This was the case in the EC-Biotech Products case 35 , where a substantive part of the dispute concerning the interaction of the Cartagena Protocol and the WTO agreements was left unaddressed by the WTO Dispute Resolution Body (DRB) because the US, Canada and Argentina, who were the complainant were not parties to the Protocol. 36.The CBD has achieved its ecocentric goal not through dispute resolutions, albeit desirable, but mostly through its Conference of Parties (COPs), which has adopted various mechanisms such as the Strategic Plan for Biodiversity 2011-2020 and the Aichi Targets to actualise its objectives. 37The question of whether the COP"s approach to implementing CBD is effective is beyond the scope of this work.However, its effectiveness needs to be researched, especially considering that COPs approaches through the Aichi Targets are more of garnishing the soft law obligations of the CBD rather than concretising them into hard laws.
The CITES, on the other hand, is not only stimulating for taking a bold step in listing species whose conservation is threatened by international trade but also for prohibiting or regulating their international trade as circumstances may demand. 38Thus, unlike the CBD with a holistic approach, the CITES is species-centred 39 .The CITES regulate trade in species once listed in any of its three Appendices.Appendix-I lists species threatened with extinction that may be further affected by trade. 40By implication, the species listed in Appendix-I can only be subject to international trade upon issuing import and export permits. 41With the exceptions of exchange among zoos, scientific exchange, and captive-bred species, 42 there is a complete ban on commercial trade in Appendix-I species. 43Unlike Appendix-I, Appendix-II regulates the international trade of listed species to ensure they are not over-exploited.As exemplified by the chequered history of the African elephant that was down-listed from Appendix-I to -II following the Southern-Eastern African countries divide and the Global North-Global South conservation-utilization debate 44 , most species are listed on Appendix-II where international trade is allowed but only regulated 45 .This questioned the status of CITES as a treaty designed to ban the international trade of endangered species 46 and raised concerns about its effectiveness in achieving this aim. 47Again, the priority of the CITES comes to the fore; trade objectives cum utility of species 48 as canvassed by the Southern African countries 49 , environmental protection and sustainability 50 as projected by the Eastern African countries and Global North NGOs 51 or hybridisation?Theoretically, the answer is tilted towards sustainability as canvassed by the Global North; in practice, the answer is utilisation and trade objectives, as exemplified in the overpopulation and down-listing of African elephants in Appendix-II.Except Appendix-I become populated like Appendix-II in the future, the case of the CITES is one where trade has trumped environmental concerns.
Questions have arisen as to which is the best approach: the CBD approach or the CITE approach?There is one common thread that crisscrosses both approaches; they are both fraught with political manipulation of COPs members.While the CBD can be politically manipulated with ease for its soft law nature, the CITES, though with more hardened obligations compared to the CBD is not immune from political manipulations as COPs members politically determine which of the species is to be listed and down-listed as have been witnessed about the African elephant.The primary aim of the CITES is trade; conservation only becomes paramount in cases of endangered species 52 ; hence it has been stated that at the time the CITES was negotiated, habitat loss wasn"t of international concern. 53By implication, the CITES favour trade objectives than environmental concerns.On the other hand, the CBD was negotiated when there was a yearning for global habitat protection.Thus, the CBD is more concerned with conservation than trade. 54The question of which approach is the best will therefore have to be answered in the context.Global North countries that have championed conservation, including animal rights, will easily take sides with the CBD.In contrast, Global South countries pursuing economic development will find solace in the CITES.Bowman (n 49) 233. 54The CBD is not immune from trade objectives as exemplified in the Nagoya Protocol which has access to genetic resources and fair, equitable sharing of benefits arising from their utilisation as its objectives.Article 1 Nagoya Protocol. 55Rajamani and Peel (n 26) 572.

Climate Change Treaties and Trade
The trade-environment relationship under the climate change regime could best be described as an "unequal legal battle" 56 .Illustratively, between 1750 and 2021, Greenhouse Gas (GHG) Emission has been reported to increase from 280 parts per million (ppm) to 418 ppm, with a further projection of 870-1100 ppm by the end of the 21st century if the use of fossil fuel is not nipped in the bud. 57Either it is as revealed in Billy V. Australia, Urgenda V. Netherland 58 , Juliana V. US, Milieudefensie v Shell, Earthlife Africa v. Minister for Environmental Affairs, Delgamuukw v. British Columbia, or Lliuya V. RWE AG, 59 the trade-environment relationship under climate change regime remain a David V. Goliath entanglement because, in pursuance of industrialisation and trade objectives, the G20 60 keep generating GHG Emissions 61 to the detriment of the environmental concerns of the vulnerable states who lack the financial capability for adaptation. 62limate Change negotiations were initiated by the United Nations General Assembly resolution 45/12 and culminated in adopting the 1992 United Nations Framework Convention on Climate Change (UNFCCC), which came into force on 21 st March 1994.63 The UNFCCC is fraught with different perspectives on measures that should be adopted to stabilise GHG emissions.64 While the developed and middle-income countries prefer a climate change regime that advances their economic objectives, the vulnerable states and developing countries desire environmental protection.Small Island Developing states such as the Maldives and Tuvalu, that are now at risk of losing their island to sea level rise 65 , want strict climate obligations as opposed to developed nations such as the US or members of the Organisation of Petroleum Exporting Countries (OPEC) who prefer not to be committed to a specific emission reduction for obvious trade benefits 66 .The trade objectives and environmental protection agitations that bedevilled the UNFCCC negotiation turned out to be more linear than cyclical, as there seems not to be a meeting point between both sides of the divide. Hoever, a compromise was reached 67 to make the UNFCCC a framework convention that postponed its main emission reduction objectives to the Kyoto protocol.68 Does this not make the UNFCCC a failed piece of legislation from the onset?Of what importance is a treaty that cannot commit its state members to its objectives?Isn"t a dead dog better than one alive yet cannot bite or bark?The UNFCCC could have been akin to this dog safe for its introduction of some principles such as the precautionary principle, common but differentiated responsibility, common concern of humankind, intergenerational equity, and sustainable development.69 The Kyoto Protocol was introduced due to the seeming failure of the UNFCCC to solve the global climate crisis. It approach was to develop stronger commitments to reducing GHG emissions to at least 5 per cent below 1990 70 for developed countries while leaving developing countries with their previous commitment under the UNFCCC.The Kyoto approach sees both developed and developing states complying with their emission reduction commitment in breach.While the US, Canada and Australia paid a deaf ear to the precautionary and common but differentiated responsibilities principles, 71 China and India seized the loophole in the Kyoto Protocol to increase their GHG emission for about two decades.72 The principles of "common concern of humankind" and intergenerational equity 73 were buried at the altar of trade and economic growth under the Kyoto regime; Abate referred to this as a "shameful reality."74 The Kyoto regime called for a serious compromise between developed and developing countries if the planet would not be overwhelmed by the global climate crises.With the US's rejection of the Kyoto Protocol in 2001, Canada"s withdrawal in 2012, and Japan and Russia"s refusal to be committed in its second phase 75 , the Paris Agreement became the next port of call.
The main objective of the Paris Agreement is to reduce the risks and impact of climate change by holding the global average temperature below 2 o C above pre-industrial levels and limiting it to 1.5 o C above the preindustrial level. 76The Paris Agreement sought to realise these lofty goals through the instrumentality of the nationally determined contributions ("NDCs"), which do not impose any emission reduction target on states but rather oblige them to self-determined their quota towards emission reduction. 77Was the Paris Agreement a success or failure?This question becomes pertinent, considering the Paris Agreement"s oversimplified approach of shifting the burden of emission reduction to the states through the NDC. 78While scholars such as Victor 79  success for being flexible enough to accommodate all interests, others such as Spash considered it a failure for upholding trade objectives above environmental concerns. 81Kahl and Weller agree that the Paris Agreement is confronted with a lack of legally binding obligations for employing a flexible approach. 82ne should agree with Abate, that the entire climate change regime under consideration begs the question rather than answer it, as the emission reduction targets themselves are now otiose considering emerging scientific climate change statistics. 83Vulnerable states and victims are now taking recourse to litigation as a way out.Billy V. Australia, Lliuya v. RWE are a few examples of such concluded and ongoing litigation.Vanuatu, for instance, since 2002, 84 has threatened to invoke the advisory opinion jurisdiction of the International Court of Justice (ICJ) for a climate judicial remedy.This agitation was repeated in 2022 during COP27 85 .All of these reinforce Abate"s conclusion that the current climate change regime is a failure because trade objectives have been allowed to trump environmental concerns; hence, the most vulnerable victims, such as Vanuatu, just like Oswald Mtshali"s poetic Boy on a swing, are keen on asking the ICJ: "When will I wear long trousers?Why was my father jailed?"

PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW
This part discusses principles of international environmental law that underpin the trade-environment relationship.Though not an exhaustive list 86 , three of such principles are pinpointed for discussion in this section: sustainable development, precautionary and the common but differentiated responsibility principle, partly for their ubiquitous nature and relevance to the scope of the work.

Sustainable Development
The principle of sustainable development has manifested its ubiquitous nature in different treaties and tribunal 87 Though doubtful, it has been stated that it is a principle that has attained the status of customary international law 88 .With an origin formally traced to the adoption of the Rio Declaration in the 1992 United Nations Conference on Environment and Development (UNCED) 89 , the principle of sustainable development seems to be neither an environmental chimaera nor a panacea, as it harmonised both environmental and trade variables as yin and yan necessary for the actualisation of a better immediate and future world as encapsulated in the 1987 Brundtland Report. 90Illustratively, the ICJ, in applying the principle of sustainable development in the Gabcikovo-Nagymaros case, held that the spirit and letter of the principle demand a reconciliation of both economic and environmental variables.In this manner, the ICJ refused to stop the operation of the Gabcikovo plant despite its obvious environmental consequences and only admonished the parties to find a satisfactory solution for releasing the appropriate volume of water into the main river. 91The WTO Appellate Body decision in the Shrimp/Turtle case was also on four with the ICJ decision, as it held that the principle integrates economic and social development and environmental protection, hence its application per Article XX(g) of the General Agreement on Trade and Tariff (GATT) to uphold the US conservation measures. 92way from the case law, the principle of sustainable development could easily be gleaned in different treaties.From the United Nations Convention on the Law of the Sea (UNCLOS) 93 to GATT, UNFCCC, CBD, and Nagoya Protocol, the principle of sustainable development make a bold statement on balancing trade and environmental concerns.This makes it apt to consider whether the principle has formally recognised the normative right to development.Again, the answer to this question throws a spanner into whatever harmonised answer the courts and tribunals have been trying to build with the principle of sustainable development.Not surprisingly, the US dissociated itself from any interpretation that could mean that the right to development has been given flesh and blood through the principle of sustainable development while Global South countries, especially African countries, already with a right to development in their normative regional statutes, fight back by ensuring that environmental objectives do not override their developmental goals in international 87 Philippe Sands and others (n 16) 218. 88 negotiations. 94The question that remained to be answered is how the US, a beneficiary of the normative interpretation of the principle of sustainable development in the Shrimp/Turtle case, suddenly changed the goalpost to argue that the principle is just a goal and does not amount to a right.Accepting the principle of sustainable development as a right to development by the US would have settled the Global North-South development and conservation debate under a harmonised system that balances both variables.Thus as stated by Abate, principle of sustainable development may be another "greenwashing" adopted by industrialised nations to achieve their capitalist selfish goal ostensibly. 95

Precautionary and Common But Differentiated Responsibilities
The precautionary principle concern itself with anticipatory measures that need to be taken to avoid environmental harm where there is scientific uncertainty. 96The principle has received massive support from vulnerable victims of environmental damage, such as the Alliance of Small Island States (AOSIS). 97It has, however, been criticised for having a vague and unclear meaning with the potential to interfere with trade unjustly 98 , just as it has been seen to be in opposition to the cost-benefit analysis of environmental measures. 99Its traducers, mainly from the Global North, has refused to apply it as a climate solution mechanism on the ground that it has no bases in international law following the Corfu Chanel case 100 , where there was a known risk to other states. 101Regardless of the controversy surrounding the precautionary principle, it has gain recognisance in different environmental treaties such the CBD, UNFCCC, Cartegena Protocol, Agenda 21, among others.The ICJ in the Pulp Mills case made recourse to the precautionary principle as an interpretative aid, albeit limitedly. 102The WTO DSS has also had the opportunity to apply the precautionary principle in the Hormones and Biotech Product cases.In both instances, it refused to decide whether it is a principle of international law.Considering the controversy surrounding the principle, it will not be difficult to agree with Hunter et al., that the use of environmental insurance or bonds will be effective in implementing the precautionary principle. 103he principle of Common but Differentiated Responsibility (CBDR), as captured in Principle 7 of the Rio Declaration, is fallout of the general principle of equity in international law which, in the case of international environmental law recognises the significance of mainstreaming Global 94 Philippe Sands and others (n 16) 229. 95Randall S. Abate (n 69) 9. 96 Principle 15 of the Rio Declaration. 97Philippe Sands and others (n 16) 230. 98Philippe Sands and others (n 16). 99 South interests into the application of international environmental law by Global North countries. 104Its application in international environmental law has been justified by the Aristotelian postulation of treating dissimilar cases with different barometers 105 where different strokes apply to different folks.Apart from its integration into treaty law such as the UNFCCC, Kyoto Protocol 106 and Paris Agreement through the NDCs 107 , it has also been called in aid for judicial interpretation by the WTO in the Shrimp/Turtle dispute 108 .CBDR has been criticised for being another expression of the right to development that exacerbates the climate change crises. 109Thus, while India and China remain beneficiaries of the CBRD, it has not been of any benefit to other developing countries 110 .India and China have refused to lower their GHG emission because the US has not done the same by applying the CBRD.The question that should be asked is whether one wrong could justify another.Suppose countries of the Global North keep emitting GHG emissions to the detriment of Global South countries.What benefit is it for the Global South countries such as India and China to intensify GHG emissions?Until the CBRD become internally applicable between advanced developing countries and non-advanced developing countries in the Global South, it may be unconscionable for the Global South to keep blaming the Global North for global climate crises.

UNILATERAL TRADE MEASURES
Though environmental protection is not one of the main objectives of the WTO, it should be noted that the WTO system cannot operate without considering environmental interests 111 .Thus, the emergence of the WTO itself was followed by creating a Committee on Trade and the Environment (CTE), 112 just as the Marrakesh Agreement referred to environmental objects in its preamble.The practice has seen states adopting trade-related measures in pursuing environmental interests.This part explores trade measures such as unilateral trade measures and the environmental exceptions in GATT Article XX.
Owing to the concept of state sovereignty, states often frown at unilateral trade restrictions by other states.They do not hesitate to invoke legal processes against such unilateral trade measures.The Swordfish case, where the EU, for instance, not only commenced WTO proceedings against Chile for its restriction of Spanish fishing vessels from accessing its ports but also counterclaimed the UNCLOS proceedings commenced by Chile on the conflict over distant water fishing nations and coastal states and eventually settled the dispute through UNCLOS negotiation mechanism illustrate the extend states could go in kicking against unilateral trade restrictions. 113Similar reactions of this nature were also recorded in the EU-Faroe Islands Herring Stock Dispute at the WTO. 114One could continue in this manner and refer to other cases such as the US Gasoline Standards case, the Sea Product case, the Shrimp-Turtle Case and even the locus classicus dispute of Tuna/Dolphin, all of which shall be discussed fully in the next section and were provoked as a result of attempts to unilaterally restrict trade by one state which was considered by the other state as overreaching and extraterritorial.
While the GATT panel"s decision in the Tuna/Dolphin case seems stringent and non-accommodative of states" obligation to protect the environment and its citizens" public health, it has been argued by some scholars that the case creates room for product-related processes and production method as against non-product related product and processes. 115However, WTO jurisprudence has since made progress, thus rendering the Tuna/Dolphin case a bad law. 116Relying heavily on Article XX of GATT and considering the chapeau, which further limits the exceptions created therein, WTO Appellate Body has aligned itself with state unilateral trade restrictions, provided it could be justified under the exceptions and chapeau in Article XX.This was the attitude of the Appellate Body in the US Gasoline Standards and Shrimp-Turtle cases where respect for the Chapeau, good faith, and international environmental agreement was emphasised, respectively. 117Unlike the GATT panel in the Tuna/Dolphin case that neglected or declined to accommodate environmental concerns, WTO jurisprudence, especially through the Shrimp-Turtle case, now accommodates environmental variables through the exceptions enshrined in Article XX of GATT. 118

WTO JURISPRUDENCE
Though the current climate change regime, as reflected in the treaties discussed in part two of this work, is yet to be the subject of a direct dispute before the WTO DRS 119 , renewable energy cases decided by the WTO DRS will suffice in deducing the attitude of the WTO system towards future climate change disputes.The first such dispute is the case of the measures affecting the renewable energy generation sector and Canada, where the WTO Appellate Body held that renewable energy support measures by the Canadian government of Ontario province were a contravention of multilateral trade rules. 120The second such case is India v US, 121 where renewable energy support measures were also struck down by the WTO DRS.Though later successfully challenged the US support measures 122 , it should be noted that these rulings rejecting renewable energy measures were given with the invocation of the non-discriminatory principle of the WTO system against the use of local content requirements.This again reinforced the finding in part two of this work that trade objectives reign supreme for the climate change regime.
As noted earlier, the Tuna/Dolphin cases decided by the defunct GATT panels are now otiose, especially the part of the findings against the unilateral trade restriction pursuant to Article XX of GATT.Thus, in the Reformulated Gasoline Case, 123 the WTO Appellate body overruling the panel considered the US Gasoline measures that unilaterally interfered with Brazil and Venezuela"s trade interest as sufficient fulfilment of the requirement in Article XX(g) of GATT, thus paving the way for new reasoning that mainstream environmental concerns into trade measures using WTO laws; a departure from the tuna/Dolphin cases.
The facts and issues raised in the Shrimp/Turtle 124 cases are similar to those of the Tuna/Dolphin case.Here, the US applied its domestic conservation laws extraterritorially to activities carried out within the jurisdiction of India, Malaysia, Pakistan and Thailand and justified this unilateral trade restriction on the exceptions created in Article XX of GATT.The principle of sustainable development discussed in part three of this work was invoked by the Appellate Body in justifying the US unilateral measures pursuant to Article XX of GATT while also holding that the US measures were unjustifiably discriminatory under the chapeau to Article XX.The Shrimp/Turtle case is innovative for applying the principle of sustainable development and balancing the trade-environmental variables.
In the Asbestos case, 125 where Canada requested the WTO DRB to consider the legality of a French decree with the WTO Agreement, the Appellate Body rejected Canada"s three grounds of challenge to the Panel"s ruling.It held, among others, that France"s health protection measures purportedly restricting Canada"s trade objectives were necessary under Article XX(b) of GATT.On the hand, in the Brazil Retreaded Tyres Case 126 , the Appellate Body found that the Brazilian ban on the EU"s importation of re-treaded tyres did not satisfy the dictates of Article XX chapeau.

CONCLUDING REMARKS
The main finding of this work is that while considerable efforts have been made to mainstream environmental protection into trade objectives through the WTO jurisprudence, there remain some forms of market failures, making the trade-environment relationship lopsided, with inadequate attention given to the environment, which brings to fore the need to revisit David Hunter"s metaphoric invisible elbow destroying the common goods created by an invisible hand 127 .It is concluded that until there is a compromise between Global North and South, habitat and ecocentric-based approaches, conservationists and non-conservationists, where a pluralistic approach is agreed on, the future of the tradeenvironment relationship may remain troubled and uncertain. 128o funding was available for the research conducted for and writing of this paper.Therefore, acknowledging any support agency is not applicable in case of this research or the written work.However, informal support of institutional supervisors, colleagues and respondents is duly acknowledged.

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