Norms, Institutions and Social Learning - An Explanation for Weak Policy Integration in the WTO's Committee on Trade and Envrionment

7/31/2019 Norms, Institutions and Social Learning - An Explanation for Weak Policy Integration in the WTO's Committee on Tr

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Norms, Institutions and Social Learning Melissa Gabler

Norms, Institutions and Social Learning:

An Explanation for Weak Policy

Integration in the WTOs Committee on

Trade and Environment

Melissa Gabler*

Introduction

This article explores the Committee on Trade and Environment (CTE) of theWorld Trade Organization (WTO) to determine why actors efforts to integrateenvironmental norms in trade governance have resulted in weak policy out-comes. At the 1992 United Nations Conference on Environment and Develop-ment (UNCED), states made a commitment to adopt environmental policy in-

tegration (EPI), involving institutional changes to promote dialogue acrosssectors and levels of governance to reconcile norms in policy formulation. In re-sponse, WTO members established the CTE in 19941995 to consider issuessuch as eco-labeling and the relationship between WTO rules and multilateralenvironmental agreements (MEAs). Over the past fteen years, however, therehas been little progress in the deliberations, which have produced minimal re-sults. Trade-regime outputs stress the positive interactions or win-win op-portunities in the trade-environment nexus, yet ignore norm contradictions andmarginalize environmental ideas. For example, CTE reports acknowledge cer-

tain complementary objectives between the WTO and MEAs, but subordinateMEAs trade-related environmental measures (TREMS) to trade obligations.Similarly, the Doha Ministerial Declaration mandates the CTE Special Sessions(CTESS) to enhance the mutual supportiveness of MEAs TREMS with WTOrules, yet veers away from discussions of potential disputes and norm hierar-chy.1 Consequently, trade-environment conicts are neither addressed frankly

* I am grateful for comments received on an early draft at the Annual Meeting of the CanadianPolitical Science Association. I also wish to thank William D. Coleman, Steven Bernstein, MarkSproule-Jones, Jordi Dez, Craig Johnson, Candace Johnson, and the anonymous reviewers fortheir thoughtful and valuable feedback on this work. I acknowledge support from the SocialSciences and Humanities Research Council of Canada, McMaster University, the Institute onGlobalization and the Human Condition, and the University of Guelph.

1. WTO 2001; and ICTSD 2008.

Global Environmental Politics 10:2, May 2010 2010 by the Massachusetts Institute of Technology


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nor resolved, and inconsistency and ineffectiveness plague domestic implemen-tation and international negotiations. It remains an open question whether theTREMS of certain MEAs will be challenged in the WTO.

To explain the CTEs poor performance, I offer a social learning-theoreticaccount of EPI. Policy integration refers to changes to the norms that constitutevarious policy outcomes and result from different forms of learning. Althoughscholars recognize that learning about norms matters for policy change, scholar-ship has been criticized for neglect of theory.2 Supranational and national stud-ies of learning and EPI stress that varied results depend upon normative, institu-tional, and agent-specic factors.3 However, EPI scholars fail to clearly specifyeither analytical frameworks for norms or theory to guide empirical investiga-tions of how they matter. Only recently in International Relations (IR) and Eu-

ropean Union (EU) studies have constructivists theorized when, how, and whynorm-induced learning and policy change occurs, specifying actors and mecha-nisms inuencing change and conditions under which they operate.4 EPI stud-ies require theory that can describe and explain policy and structural changesresulting when actors identities and interests are transformed through delibera-tion and learning.

In this article, I present a framework for analyzing norms and examine theconditions under which they shape learning-induced policy change. I further in-troduce a middle-range, social learning theory for policy integration as hypothe-

ses that can be explored in empirical cases. By examining the CTE from 1995 tothe 1996 Singapore Ministerial Conference, I then argue that low levels of bothcompatibility between trade and environment norms and institutional capacityfor learning contributed to what I refer to as simple learning and weak integra-tion.

To develop this argument, I propose that identifying normative frames,which ultimately constitute policies, is useful for assessing levels of compatibil-ity and changes made in learning processes. Second, I describe two conditionsthat determine whether and when learning about frames produces policy inte-

gration: rst, perceptions of (in)compatibility between principles and norms;and second, the institutional capacities of the policy environments for learning.Finally, I suggest that different integrative changes to policies occur through dif-ferent types of learning that happen in distinct policy environments underdifferent amounts of normative conict and institutional capacity. Specically, Ihypothesize that various styles of learning, which are dependent upon particu-lar levels of normative compatibility and institutional capacity, explain resultingforms of policy integration. These styles of learning may take place within a sin-gle policy community, or across multiple communities. Within single commu-

nities, I distinguish between simple and complex learning. Across communities,

Melissa Gabler 81

2. Checkel 1998.3. Lenschow 2002. For a review of EPI literature see Persson 2004.4. Checkel 2003; and Checkel 2005.


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I differentiate between conictual and reciprocal learning. I also differentiatesocial learning from strategic calculation and coercion.

In investigating the hypotheses, the study uses narrative explanation and

process tracing. I describe the methods and techniques below. The WTO is thehard, supranational case of EPI for a social learning argument; in a larger, most-different-systems comparative study of which this work is a part, I contrast itwith the EU.5 I selected the WTO and EU for comparison on the basis of varia-tion in the initial conditions or independent variables : normative frame com-patibility and institutional capacity for learning. I exploited this variation to in-form the hypotheses, but the goals for this article are modest: to describe theCTEs Singapore negotiations and its rst report on the WTO-MEA relationshipand to explain the outcome, that is, why the dog didnt bark.6 Few constructiv-

ists tackle these hard cases, despite their importance to theory development.Using the analytical framework, I then detail the international environ-ment and trade frames and assess their compatibility. Next, I tell the CTEs story,exploring how well the social learning conditions and mechanisms explain theevents and weak EPI. I nd that low perceived compatibility between trade andenvironment normative frames and low institutional capacity supported pre-dominantly simple learning, leading to the weak outcome. Neither complex/reciprocal learning, nor the WTOs traditional incentive-based bargaining andpower dynamics, prospered under these conditions to produce a different re-

sult. Further, I examine the prospects for EPI in the CTE and CTESS in the DohaRound. Currently, the WTO is at a crossroads with EPI. On the one hand, insti-tutional capacity for complex/reciprocal learning has increased in the CTE topotentially provide discursive opportunities for resolving norm conicts. Onthe other hand, CTESS institutional developments run counter to the buildingof capacity for learning and integration. I argue that until EPI becomes centralto WTO governance and actors remedy the normative and institutional condi-tions that inhibit learning, the possibilities for stronger integration are limited.

Theorizing Social Learning and EPI

Normative Frames, Compatibility, and Change

Constructivists argue that national and supranational actors identities and in-terests are inuenced by prevailing social ideas resulting in institutional andpolicy change. They focus on what ideas are (their ontology or content andstructure), how they operate (their meanings and capacities), and how they in-teract (compatibility or t) and change through communications (framing).7

82 Norms, Institutions and Social Learning

5. Gabler 2006.6. By this phrase, Checkel refers to those cases where [the majority of] state[s] identities/

interests, in the presence of a norm, do not [substantially] change. Checkel 1998, 339.7. Goldstein and Keohane 1993; Schn and Rein 1994; Finnemore and Sikkink 1998; Wendt

1999; Bernstein 2001; Barnett and Finnemore 2004; and Hoffmann 2005.


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Ideas can provide actors with understandings of their identities/interests (theyconstitute them). They can also shape the possibilities for policy formation;the capacities or framings of ideas facilitate or constrain policy change. Finally,

ideas can make behavioral claims on actors and outcomes; they cause actorsto behave in certain ways or inuence them to make changes to policies/institu-tions.8 These assumptions follow from a mutually constitutive ontology andpermit an open epistemology (including the use of standard (positivist) meth-ods alongside interpretive methods).9

This middle ground constructivist study focuses on social learning as thesource of policy integration.10 Learning implies actors improved understandingof alternative ideas, reected in changes to frames that underlie identities, inter-ests, policies, and institutions.11 When investigating ideas, I identifynormative

frames: the principles and norms that govern behavior and practices in particu-lar policy or issue areas.12 Principles are beliefs of fact, causality or rectitude.13

Standards for behavior constitute norms.14 Standards of validityare normative cri-teria for evaluating and adjudicating between principles/norms. To varying ex-tents, these components are embodied in domestic and international law andpolicies, and embedded in governance institutions.

Principles/norms are arranged as central, secondary, or peripheral in im-portance to a frames underlying purpose. Salience is related to the extent towhich actors intersubjectively agree on the status and meaning of principles/

norms. Principles/norms generally enjoy either low or contested acceptance(norm emergence or norm cascades) or high intersubjective agreement(norm institutionalization).15 Discovering the degree of salience and agree-ment that actors attribute to principles/norms offers insight into their degrees offrame compatibility and susceptibility to change. Principles/norms are highlycompatible if they are mutually included as priorities in frames and, if actorsconvincingly frame mutually benecial or harmless connections. Conversely,principles/norms are highly incompatible if they are mutually excluded or con-tested in frames and if actors have difculty establishing convincing, mutually

supportive connections. Social learning processes produce changes to framesand to levels of compatibility. If conicting principles/norms from distinctframes enjoy high intersubjective agreement among different actors, obstaclesto framing are high (but not impossible). Alternatively, learning about princi-ples/norms is increasingly possible when intersubjective agreement is low orunstable. Table 1 summarizes low and high normative frame compatibility. Table 2presents normative change scenarios between two frames. I call the varying

Melissa Gabler 83

8. Yee 1996.9. Adler 1997, 335, cited in Bernstein 2001:23.

10. Adler 1997.11. Schn and Rein 1994; and Wendt 1999.12. Krasner 1983; and Surel 2000.13. Krasner 1983, 2.14. Krasner 1983, 2.15. Finnemore and Sikkink 1998, 895.


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frame transformations, which ultimately constitute policy changes, levels ofpolicy integration. If social learning and frame change do not occur, outcomeswill not be integrated (given initial low compatibility). If social learning takesplace, frame change is more likely, enhancing the prospects for stronger levels ofintegration.

Social Learning and Policy Integration

Building on this framework, I classify four ideal-types of social learning andpolicy integration, summarized in Figure 1. I distinguish two forms of learningthat occur within a policy community and two that occur across communities. Idene policy communities as supranational, state-based, and nonstate actorsinterested in and dealing with policy problems.16 In both institutional environ-ments, social interactions about new norms might produce signicant changesto actors identities/interestswhat I term complex learning when it occurswithin a policy community and reciprocal learning when it occurs across two ormore communities. Alternately, such substantial changes may not occur, which


16. Coleman and Perl 1999, 696.

Table 1

Normative Frame Compatibility

Low Compatibility High Compatibility

Inclusiveness/

Exclusiveness

The salient principles/norms ofone frame are primarily ex-cluded in the other

The salient principles/norms ofone frame are primarily in-cluded in the other

Causal Connections The salient principles/norms ofone frame appear to have pri-marily adverse or uncertain ef-fects on the others

The salient principles/norms ofone frame appear to have pri-marily benecial or no effectson the others

Salience Rankings of principles/normsin one frame marginalize thepriorities of the other

Rankings of principles/normsin one frame accommodate thepriorities of the other

Standards of

Validity

The standards of validity of oneframe are excluded, or includedbut marginalized, in the other

The standards of validity of oneframe are included and moreequally prioritized in the other

Intersubjective

Agreement

Salient components from theframes that are in conict enjoyhigh intersubjective agreement

Salient components from theframes that are compatible en-joy high intersubjective agree-

ment


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I refer to as simple learning when within a community and conictual learningwhen across communities. In complex and reciprocal learning, actors seek a rea-soned consensus and are open to preference change driven by problem-solvingand persuasion.17 In simple and conictual learning, in contrast, actors posi-tions remain mostly xed on extant frames during distinct, non-reective com-munications; they are not open to be persuaded by the better argument.18 Ulti-mately, I relate the types of learning (the mechanisms19) and levels of policyintegration (the outcomes) to varying normative frame compatibility and insti-tutional capacity conditions.

Within a policy community, policy integration advances when learning

Melissa Gabler 85

17. Nye 1987; Risse 2000, 7; Checkel 2003, 212; and Checkel 2005, 812.18. Nye 1987; Risse 2000; and Checkel 2005, 809 and 812.19. Mechanisms are processes connecting specied initial conditions to outcomes. Checkel 2006.

Table 2

Scenarios of Normative Frame Change*

No Policy Integration Policy Integration

Inclusiveness/

Exclusiveness

Continued or increased exclu-siveness of principles/norms

Greater inclusiveness; compati-ble connections stressed be-tween certain principles/norms(weak)

Causal

Connections

Connections between certainprinciples/norms remain in-compatible or uncertain

Connections between princi-ples/norms that previously ap-peared incompatible are con-vincingly framed to be more

compatible; stubborn contra-dictions are frankly recognized(moderate)

Salience Continued or increasedmarginalization of principles/norms

Rankings of principles/normschange to accommodate alter-native priorities better(moder-ate) or equally(strong)

Standards of

Validity

Ongoing exclusion or increased

marginalization of standards ofvalidity

Increased inclusiveness and ac-

ceptance of standards of valid-ity(strong)

Intersubjective

Agreement

No real change inintersubjective agreement onprinciples/norms in conict

Changes occur in intersubject-ive agreement on principles/norms that were previously inconict

* starting from low compatibility


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moves from simple to complex. No policy integration occurs when there is noclear logic of appropriateness or when a dominant frame governs and is thor-

oughly internalized.20

In the latter, the extant, institutionalized frame consti-tutes actors identities/interests and shapes outcomes.Simple learning may lead to weak policy integration. Actors acquire inde-


20. March and Olsen 1998.

Figure 1

Types of Social Learning and Policy Integration


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pendently new perspectives about alternative frames. Although enabling actorsto address and include compatible aspects of the new frame, there are no deepconstitutive effects. Simple learning is about actors accommodation of alterna-

tive norms, to improve the realization of identities/interests centered on an ex-tant frame. It results in instrumental identity reection and minor policychange, but no major change in interests. Risse suggests that many argumenta-tive processes begin as simple rhetorical actionwhere new norms are usedstrategically to justify extant interestsbut often evolve toward complex reason-ing.21

Complex learning, facilitated by higher levels of normative frame compati-bility, characterizes medium policy integration. Complex learning has deeper so-cialization and constitutive effects. Actors operating predominantly within their

policy communities question foundational norms (as institutional conditionsare not conducive to reciprocal learning). This confuses and complicates identi-ties and interests. In response, actors become open to constructive communica-tions about norm compatibilities and incompatibilities. This may lead to iden-tity adaptation and interest change, reected in moderate outcomes. Risseargues that taken-for-granted, norm-regulated behavior (the logic of appropri-ateness) changes under conducive normative and institutional conditions toconscious truth-seeking (the logic of arguing).22

Once two policy communities engage (as institutional conditions for joint

interactions become more conducive), policy integration increases when con-ictual interaction gives way to reciprocal learning. Here, two policy outcomesare likely. First, no policy integration may occur. Perceptions of norm conict incommunications result in defensive frame resistance. In conictual learning,actors identities/interests remain entrenched in extant, institutionalized frames.Hence, they react in joint interactions by primarily rejecting and resisting newnorm connections. This is evident in identity differentiation and no real interestchange. Consequently, outcomes reect intractability or uncertainty aboutnorms.

Second, strong policy integration may occur when normative frame compati-bility and institutional capacity conditions are conducive to reciprocal learning.Under enabling circumstances, different policy communities deliberate aboutframes, including norm hierarchy. Actors may reach agreement on a more bal-anced accommodation of norms or common standards of validity. Reciprocallearning results in identity internalization and interest change, mirrored instrong outcomes.

I differentiate the ideal-types of social learning from communicationsinuenced by overt coercion or strategic calculation/bargaining on the basis of

xed material preferences and incentives. When the latter mechanisms operatealone, there is no social learning, and norm incompatibilities are unlikely to be

Melissa Gabler 87

21. Risse 2000, 9.22. Risse 2000.


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addressed reciprocally and effectively.23 Real-world communications involveevolving or multiple interaction styles shaped by varying normative and institu-tional conditions. Thus, they neither resemble ideal-types exactly nor occur in

linear progression. Risse advises that the empirical question . . . is . . . whichmode captures more of the action in a given situation.24

Normative Frame Compatibility and Institutional Capacity for Learning

To understand when varying styles of social learning lead to particular levels ofpolicy integration, I postulate the compatibility of normative frames and thelevel of institutional capacity as scope conditions. Scope conditions are elabo-rated in hypotheses to answer questions of when and under what condi-

tions.25

I advance the following propositions that link normative and institu-tional conditions to integration outcomes through mechanisms of learning.26

The posited relationships are explicit in Figure 1.

Moderate to strong policy integration is likely to result from interactionsamong policy communities when institutional capacity for complex andreciprocal learning is high and perceived compatibility of normativeframes is high.

Weak policy integration is likely to result from simple learning among

policy communities when institutional capacity for complex and re-ciprocal learning is low and perceived compatibility of normative framesis low.

No real integration in policies is likely to result from conictual learningamong policy communities when perceived incompatibility of normativeframes is high, even if institutional capacity for reciprocal interactions israther supportive.

Collectively, these hypotheses constitute the social learning explanation for pol-

icy integration.First, I hypothesize that the level of (in)compatibility between normative

frames determines, in part, the type of learning and form of integration. Com-plex learning is increasingly likely under conditions of high ideational compati-bility because actors with fewer incompatible prior cognitive commitments aremore amenable to arguing and framing.27 Risse notes the importance of a com-mon lifeworld as an antecedent condition for truth-seeking behavior.28


23. Coleman and Gabler 2002, 503; and Checkel 2005, 809.

24. Risse 2000, 18.25. Checkel 2005.26. Checkel 2006, 363.27. Checkel 2005, 813.28. Risse-Kappen 1996, 70.


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Scharpf argues that as divergence between norms declines, the likelihood in-creases that actor interactions will evolve from instrumental bargaining to prob-lem-solving.29

Second, I suggest that the relationship between the level of normativeframe (in)compatibility and the type of learning is inuenced by institutionalfactors. If institutional conditions are sufcient to support complex learning,then even actors with conicting prior cognitive commitments could reframenorms to be less divergent. On the one hand, normative frame (in)compatibil-ity and contextual factors are crucial conditions that determine the likelihoodfor certain types of learning and integration. Risse hypothesizes that ideas andinstitutional structures can be more or less conducive to processes of delibera-tion and communication.30 On the other hand, certain types of learning lead

to actions that alter ideational and institutional conditions, changing possibili-ties for further interaction and integration. Risse suggests that communicativeaction and its daily practices [create and] reproduce the common lifeworld.31

March and Olsen add the observation that increasing interdependence, interac-tion, and communication lead to shared experiences and hence to sharedmeaning, to a convergence of expectations and policies, and to the developmentof common institutions.32

Building upon IR and EU studies, I advance contextual conditions that fa-cilitate or obstruct various forms of learning. Presented in Tables 3 and 4, I call

them low and high institutional capacity for complex and reciprocal learning. Table 3depicts four institutional conditions under which a policy community is moreopen to complex learning and stronger integration. Table 4 offers ve enablingconditions for learning between policy communities as high institutional capacityfor reciprocal learning. In the absence of high institutional capacity for complex/reciprocal communications, a social learning theory anticipates that policy de-liberations about norm conicts will produce weak outcomes at best.

MethodsThe argument developed here is part of a larger project that examines two trade-environment issues, eco-labeling and the WTO-MEA relationship, in the contextof a comparison between the General Agreement on Tariffs and Trade (GATT)/WTO and the European Community (EC)/EU. In this article I consider theCTEs work on the WTO and MEAs.33 First, I discern the capacities/compatibili-ties of frames that constitute interests/outcomes. Second, I perform narrative

Melissa Gabler 89

29. Scharpf 1989, 159.

30. Risse-Kappen 1996, 70.31. Risse 2000, 11.32. March and Olsen 1998, 959.33. The analysis covers the Group on Environmental Measures and International Trade (GEMIT)

(1971, 1991), sub-CTE (1994), CTE (1995) and CTESS (2001).


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Table

3

InstitutionalCapacityforComplexLearn

ing

Low

High

Openness

(Thedegreeof

exibilityinthepolicy

communitysboundaryrules)

Actorshaveunequalaccesstodiscussions

Thecommunityexhibitslowopennessin

deliberations

Boundaryrulesarelessexible/morerigid

Actorshavebalancedaccesstodiscussions

Thecommunityexhibitshighopen

nessin

deliberations

Boundaryrulesaremoreexible/relaxed

Density

(Theinterconn

ectednessofthepolicy

community,thedegreetowhichallpos-

siblerelationsarepresent;theregular-

izednatureofframeexchanges)

Linkagesamongcommunit

yactorsare

highlydispersed

Frameexchangesarelessfre

quent

Linkagesamongcommunityactors

are

highlyconnected

Frameexchangesaremorefrequent

Formality

(Thedegreeto

whichinteractionsin

thepolicycommunityareformalized)

Communityinteractionsareabsentoroc-

curpredominantlyinlessinstitutionalized

settings

Communityinteractionsoccurinh

ighlyin-

stitutio

nalized,formalsettings(withexplicit

rules),providingthestabilityneces

saryfor

additio

nalregularized,informalinteractions

Equality

(Thedegreeto

whichrelationsbetween

policycommun

ityactorsarenon-hier-

archical)

Theformal/informalinstitu

tionalrules

prescribepredominantlyhierarchicalrela-

tions

Thefor

mal/informalinstitutionalr

ulespre-

scribep

redominantlynon-hierarch

icalrela-

tions


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Melissa Gabler 91

Table 4

Institutional Capacity for Reciprocal Learning

Low High

Openness

(The degree of exibility in

the policy communities

boundary rules)

Policy communities actorshave unequal access toeach others discussions

The policy communitiesexhibit low degrees ofopenness in their delibera-tions

Boundary rules are less

exible/more rigid

Policy communities ac-tors have balanced accessto each others discussions

The policy communitiesexhibit high degrees ofopenness in their delibera-tions

Boundary rules are more

exible/relaxedDensity

(The degree to which the

policy communities are in-

terconnected through ac-

tual linkages (compared to

potential ties); the regular-

ized nature of frame ex-

changes)

Actual ties are less inclu-sive of all potential actors

Frame exchanges are lessfrequent

Actual ties are more inclu-sive of all potential actors

Frame exchanges are morefrequent

Formality

(The degree to which in-

teractions between the pol-

icy communities are for-

malized)

Linkages are absent orbased on informal ar-rangements inhibiting reg-ularized cross-communityinteractions

Linkages are formalized(based on explicit rules)enabling high informalityin regularized cross-community interactions

Equality

(The degree to which rela-

tions between the policy

communities are non-hierarchical)

The informal institutionalrules governing cross-community interactions

prescribe predominantlyhierarchical relations

The formal/informal insti-tutional rules governingcross-community interac-

tions prescribe predomi-nantly non-hierarchical re-lations

Institutional Integration

(The degree to which the

policy communities insti-

tutional arrangements and

venues are integrated; the

degree to which the policy

actors roles are integrated)

Institutional arrangementswith an integration orcross-sectoral remit are ab-sent to minimally present

Institutional venues areseparate/sector-specic

Actors roles are predomi-nantly sector-specic

Institutional arrangementswith an integration orcross-sectoral remit areprevalent

Institutional venues arecommon/ cross-sectoral

Actors roles are more inte-grated/cross-sectoral


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explanation34 and process tracing of the casual mechanisms to assess the hy-potheses.35 I operationalize the methods through qualitative analysis of legal/policy documents and interview transcripts.36

In the latter technique, I conducted 25 semi-structured interviews in June2001 with WTO Secretariat ofcials (4), CTE chairs and representatives (17) andobservers from international organizations (IOs) (4). Most interviewees wereselected because they had normative and institutional memories of the pre-and-post-Singapore CTE. Interviewees were probed about the meanings of princi-ples/norms and their changing identities/interests.37 However, most questionselicited aspects of the theoretical framework lacking from the documentary re-search. Interviewees were asked to characterize their evolving interactions in dif-ferent WTO/CTE settings. They were also asked what effects their interactions

had on outcomes and what conditions contributed to learning styles. Interviewswere recorded, transcribed verbatim, and analyzed qualitatively.38

Finally, interview and document analyses were checked against one an-other. Methodologically, the analysis is stronger pre-Doha: the interview tech-nique veries observations from the document analysis. (Re)interviewing post-Doha would increase the validity of the contemporary account. I take sole re-sponsibility for reliability.

Social Learning and EPI in the WTO: The Singapore Ministerial

Following the analytic and theoretical approaches, I explore the following ques-tions: How has EPI developed in the WTO/CTE? And why: what explains the ex-tent of EPI? I begin by presenting the normative frame of the 1992 UNCED. It isnecessary to discuss this historical context before analyzing EPI in the WTO.

Sustainable, Equitable Growth and Fair Trade

Principles of sustainable, equitable growth and fair trade provide the central fo-cus for the UNCED frame summarized in Table 5. State and nonstate actors par-ticipating in the UN Conference on the Human Environment in Stockholm(1972) and UNCED (1992), along with the report of the UN-sponsored WorldCommission on Environment and Development (1987) which introduced theconcept of sustainable development (SD), created the normative foundations.After these events, the UN Environment Program (UNEP) and Commission onSustainable Development (CSD) were established as the relevant institutions.


34. Narrative explanation connects conditions and events through time, ultimately conguring

them into a coherent explanation. Ruggie 1998, 94.35. Process tracing investigates the processes by which various initial conditions are translated into

outcomes. Wendt 1999, 86; and Checkel 2006.36. See Gabler 2006, Appendix 1 for questions used in document analysis.37. See Gabler 2006, Appendix 2 for the interview questions.38. Gabler 2006, Appendix 1.


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Collectively, the conferences produced seven outcomes: the 1972 Declaration onthe Human Environmentand Action Plan for the Human Environment, the 1992 RioDeclaration on Environment and Development, Agenda 21, a statement on forest

principles, the Convention on Biological Diversityand the Framework Convention onClimate Change. Although the latter two treaties are legally binding, the rest arenot.39 Our Common Future and the Earth Summit documents best espousethe current frame to guide states goals and actions. Moreover, as Rio5 andRio10 were summits of norm afrmation and implementation rather thanformulation, this frame remains relatively unchanged.40This is evidenced in the2002 Johannesburg Declaration on Sustainable Developmentand the World Summiton Sustainable Development Plan of Implementation.

Central to the frame is the principle that global economic growth should

be revived to eradicate absolute poverty, in accordance with the principle ofintragenerational equity and the norm of accelerated development.41 Priori-tizing economic growth, however, does not marginalize ideas about limitationsof the environments capacity to meet present and future needs such as theintergenerational equity principle.42 Hence, there must be equitable, sustainablechanges in the quality of growth, leading to the reduction and elimination ofboth the Souths impoverishment and the industrialized Norths unsustainableproduction and consumption patterns.43

First, the secondary principle of equity is stressed to qualify economic

growth and liberalized trade in order to promote a fairer global distribution ofwealth, development, and market access.44The view is that world trade expan-sion under the GATT in the 1970s and 1980s was neither reciprocal nor evenlyspread: only a limited number of developing countries [were] . . . capable ofachieving appreciable growth in . . . exports.45 Northern countries trade restric-tions and economic policies are seen as depressing and destabilizing the globaleconomy and harming the Souths development, poverty reduction, and self-reliance.46 For example, developed countries are called to make reciprocal reduc-tions in the support and protection of agricultural, manufacturing, and other

sectors.47

The frame also encourages peripherally the harmonization of stan-dards for environmental product and non-product related process and produc-tion methods (NPR PPMs) through multilateral bodies, to avoid a situation inwhich varying regulations would impair access for developing countries to in-dustrialized countries markets.48

Melissa Gabler 93

39. Some of these have subsequently entered the realm of hard law, via protocols.40. Pallemaerts 2003, 2.41. WCED 1987; and UN 1992b, Principles 1,3,5,6 and 12.42. UN 1992b, Principle 3.

43. UN 1992b, Principle 8.44. UN 1992a, Chapter 2.9a.45. UN 1992a, Chapter 2.8.46. WCED 1987.47. UN 1992a, 2.7.48. UN 1992b, Principle 11.


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Second, integral to sustainable growth are the central principles of envi-ronmental protection and the central/secondary norms of preventive action,transboundary harm prevention, and EPI.49 States are obligated to take domes-

tic regulatory action to prevent environmental harm. States are also responsiblefor ensur[ing] that activities within their jurisdiction or control do not causedamage to the environment of other states or of areas beyond the limits of na-tional jurisdiction.50 Multilateral action is seen as optimal to prevent trans-boundary harm and overcome free-riding/cheating.51

MEAs TREMS are envisaged as core policy instruments to help states solvetransboundary environmental problems. However, states have peripheral obli-gations to ensure that measures minimally impact trade.52 They should alsoavoid unilateral trade restrictions as means to address extra-jurisdictional envi-

ronmental challenges or offset cost differentials and competition dilemmas re-sulting from different environmental regulations.53 Instead, developed coun-tries should take positive measures to build capacity in developing countries toundertake environment and development programs and meet international ob-ligations.54 This secondary norm on resource and technology transfer stemsfrom the principle that developed and developing countries have common butdifferentiated responsibilities for the states of the global environment and econ-omy.55

Third, the frame addresses principles about the trade-environment rela-

tionship, informing integration norms in the Rio Declaration and Agenda 21. Onthe one hand, Agenda 21 states:

An open, multilateral trading system (MTS) makes possible a more efcientallocation and use of resources and thereby contributes to an increase inproduction and incomes and to lessening demands on the environment. Itthus provides additional resources needed for economic growth, develop-ment and improved environmental protection.56

This central view emphasizes compatibility between the goals/policies of liber-alized trade and environmental protection.On the other hand, Agenda 21 stresses that without a sound ecological ba-

sis, the resources needed to sustain growth and trade expansion will not beavailable.57 For example, the frame recognizes the negative consequences oftrade activities to human health and the environment.58 In this secondary view,


49. UN 1992b, Principles 14, 2, and 4.50. UN 1992b, Principle 2.51. UN 1992b, Principles 12 and 13.52. UN 1992a, Chapter 2.22c and 2.22f; and UN 1992b, Principle 12.

53. UN 1992a, Chapter 2.22e; and UN 1992b, Principle 12.54. UN 1992b, Principle 9; and UN 1992a, Chapter 2.22d.55. WCED 1987; and UN 1992b, Principle 7.56. UN 1992a, Chapter 2.19.57. UN 1992a, Chapter 2.19.58. UN 1992b, Principle 14.


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incompatibility in goals and policies of liberalized trade and environmentalprotection are frankly addressed, and states are encouraged to undertake policyintegration to make them mutually supportive.59

Agenda 21 denes the problem as separate systems for decision-makingand the solution as improv[ing] or restructur[ing] the decision-making processso that consideration of socio-economic and environmental issues is fully inte-grated and a broader range of public participation assured.60 Here, two beliefsabout policy integration are evident. First, without appropriate policies consid-ering effects of environmental measures on trade and economic growth, envi-ronmental protection efforts could lead to unintended and unwarranted socialcosts, especially for developing countries (socio-economic and trade policy inte-gration). Second, unfettered trade and economic growth is detrimental to the

environment unless there are proper policies in place to consider sustainability(EPI). The former norm appears peripheral, the latter central.Agenda 21 further calls on governments, through national and multilateral

forums, to promote dialogue between trade and environmental communities;to clarify the trade-environment relationship, including with regard to concilia-tion and dispute settlement mechanisms (DSMs); and to take integration effortsto make policy goals as mutually supportive as possible in favor of SD.61The re-sponsibility for policy integration lies with governments in partnership withthe private sector and local authorities, . . . in collaboration with national, re-

gional and IOs.62

Finally, the frame endorses secondary norms and standardsof validity to guide policy actors pursuing EPI: economic-cost benet analysisand environmental impact assessment,63 non-subsidization and cost internal-ization (polluter pays),64 and science and precaution in risk assessment/man-agement.65

Trade Liberalization Sustaining Development and Environmental Protection:Low Compatibility of Normative Frames

Before UNCED, GATT Contracting Parties did not incorporate signicantly thenorms of international environmental governance into liberalized trade (nointegration). This frame gave precedence to free trade principles and non-discrimination norms over environmental objectives earning the no green pro-tectionism label (19711985). However, during the Uruguay Round and WTOcreation (19861994), Members/Secretariat ofcials responded to UNCEDwith a frametrade liberalization sustaining development and environmental

Melissa Gabler 95

59. UN 1992a, Chapter 2.20.

60. UN 1992a, Chapter 8.23.61. UN 1992a, Chapter 2.22b and 2.21b.62. UN 1992a, Chapter 8, Objective 8.2.63. UN 1992a, Chapter 8, Objectives 8.2 and 8.5b; and UN 1992b, Principle 17.64. UN 1992b, Principle 16.65. UN 1992b, Principles 17 and 15.


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protectionthat peripherally accommodated environmental ideas (weak inte-gration). This is evidenced in the legally binding 1994 Marrakesh Accord Agree-ments and other GATT/WTO documents. Table 5 summarizes the GATT-WTO

frame change, the UNCED frame, and the level of compatibility. The table high-lights that when the CTE began, overall frame incompatibility was high and col-lective trade outcomes were weak. Indeed, there was a low level of compatibilitybetween WTO and UNCED principles/norms, despite the efforts of some tradeactors to highlight compatibilities.

The central principle that international trade furthers economic growthand development, and thus promotes improvement in global standards of liv-ing, employment, income, and demand, is framed as compatible with theUNCED core principles of sustainability and equity.66 First, trade expansion is

seen to allow for optimal use of the worlds resources and environmental pro-tection.67 Second, the frame highlights the crucial need for trade liberalizationand reciprocal market access to generate equitable growth and accelerated de-velopment.68The contributions of trade to the priority of alleviating poverty arestressed and secondarily/peripherally emphasized for reasons of intragenera-tional equity and reducing poverty-induced pollution and environmental deg-radation.69

There should not be . . . any policy contradiction between upholding andsafeguarding an open, non-discriminatory and equitable MTS . . . and actingfor the protection of the environment, and the promotion of SD.70

The following are telling compatibility stories. In an UNCED submission,the GATT Parties/Secretariat argue there is no reason . . . growth of per capitaincome necessarily, or even on average, damages the environment.71The beliefis that economic growth and development provide resources to counteractthe effects of environmental damage, and that trade disperses environmen-tally friendly technology.72 Further, as per capita income rises from trade, theaverage citizen is convinced . . . to devote more material and human resources

to the environment . . . [which leads] to increased expenditure on the environ-ment.73 As with UNCED, this discourse focuses centrally on the positive im-pacts of liberalized trade on the environment and constitutes the MarrakeshAgreements.

Similarly, the GATTs UNCED submission argues that the elimination oftrade restrictions and distortions produces developmental and environmentalbenets by allowing a more efcient allocation and use of resources.74This sec-


66. WTO 1994c, Preamble.67. WTO 1994c, Preamble.68. WTO 1994c, Preamble.69. GATT 1991a; and WTO 1994c, Preamble.70. WTO 1994f.71. GATT 1991a, 19; and GATT 1991b.72. GATT 1991a, 1920.73. GATT 1991a, 20.74. GATT 1991a, 28.


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ondary norm that subsidies causing harm to trade should be discouraged orprohibited informs the 1994 Agreement on Subsidies and Countervailing Measures(SCM) and Agreement on Agriculture.75 Reductions in farm support and increases

in market access to the highly protected agricultural sectors of developed coun-tries, which would cause a global shift of agricultural production to more ef-cient and less environmentally intensive producers in developing countries, isframed as equally positive for trade/development and environmental protec-tion.76This win-win rhetoric incorporates partially the polluter-pays norm ofUNCED (non-subsidization).

Despite these areas of compatibility in principles/norms, upon closer ex-amination, the WTO and UNCED frames are largely incompatible. Dening SDas the peripheral principle of intergenerational equity and the norm to internal-

ize costs (polluter pays), the GATT Parties/Secretariat argue thatNeither aspect of SD is intrinsically linked to international trade. A failure toplace a value on environmental resources . . . undermine[s] SD even in acompletely closed economy. Trade is seen rather as a magnier. If the poli-cies necessary for SD are in place, trade promotes development that is sus-tainable. If SD policies are lacking, the countrys international trade maycontribute to a skewing of the countrys development in an environmentallydamaging direction, but then so will . . . other economic activities.77

The frame thus neutralizes the connection between liberalized trade and envi-ronmental degradation, ignoring the UNCED principle that trade activitiesthemselves can be environmentally harmful. The Marrakesh Agreements alsoportray trade-environment relationships as neutral or broadly compatible,marginalizing the need for the UNCEDs cost internalization and EPI. For exam-ple, the 1994 Decision on Trade and Environmentdenes EPI as policy coordina-tion to enhance positive interaction[s] between trade and environmentalmeasures.78

Unlike the UNCED, the WTO frame stresses socio-economic and trade

policy integration, stemming from the secondary principle that environmentalprotection measures can negatively impact trade. This logic incorporates theGATTs no green protectionism: pollution control measures regulating do-mestic products should be based on scientic considerations, and not be usedas disguised protectionism. It also recognizes that even when environmentalmeasures are legitimately developed and used, integration is necessary to mini-mize negative impacts. Accordingly, the environmental protection principle re-garding pollution from products is subsumed in the trade frame under the hu-man health and safety exceptions of Article XX (b) of the 1947 GATT and the

1979/1994 agreements on Technical Barriers to Trade. However, this goal ismarginal to the central/secondary norms of ND (minimal impacts on trade),

Melissa Gabler 97

75. WTO 1994d, Article 8.2(c); and WTO 1994a, Part IV, Article 7.1.76. GATT 1991a, 38.77. GATT 1991a, 20.78. WTO 1994f.


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Table

5

NormativeFram

eChangeandLevelsofCom

patibility

NormativeFrame

Components

NoGreen

Protectionism

(GATT)

Sustainable,

EquitableGrowth

andFairTrade

(UNCED)

FreeTrade

Sustaining

Developmentand

Enviro

nmental

Protection(WTO)

Principles

1.MultilateralCooperation

1.Central

1.Central

1.Central

2.IntergenerationalEquity

2.

*

2.

Central

2.

Peripheral

3.IntragenerationalEquity

3.

Peripheral

3.

Central

3.

Secondary

4.Economic/Trade-EnvironmentIncompatible

4.

4.

4.

4a.NegativeIm

pactsofTradeActivitieson

Environment

4a.*

4a.

Secondary

4a.*

4b.NegativeIm

pactsofEnvironmentalMe

asuresonTrade

4b

.Central

4b

.Peripheral

4b

.Secondary

5.Economic/Trade-EnvironmentCompatible

5.*

5.Central

5.Central

6.EnvironmentalProtection

6.

Peripheral

6.

Central

6.

Peripheral

6a.Product-relatedMeasures

6a.

Peripheral

6a.

Central

6a.

Peripheral

6b.NPRPPMs

6b

.*

6b

.Central

6b

.*

7.Sustainable,EquitableGrowth

7.*

7.Central

7.Central

8.Sustainable,

FairTrade

8.*

8.Central

8.Central

9.Reciprocity

9.Secondary

9.Secondary

9.Sec

ondary

10.SpecialandD

ifferentialTreatment/CommonandDifferentiatedResponsibilities

10.

Periphera

l

10.

Secondary

10.

Peripheral


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Melissa Gabler 99

Norms

1.RestrainGrowth

1.*

1.*

1.*

2.ReviveGrowth/AcceleratedDevelopment

2.Central

2.Central

2.Central

3.PreventiveAction

3.

*

3.

Central

3.

Peripheral

4.Preventiono

fTransboundaryHarm

4.

*

4.

Central

4.

Peripheral

5.MEATREMS

5.

*

5.

Central

5.

Peripheral

6.UnilateralTr

adeMeasures

6.*

6.*

6.*

7.EPI

7.

*

7.

Central

7.

Peripheral

8.Socio-Econo

mic/TradePolicyIntegration

8.

*

8.

Peripheral

8.

Central

9.Resourceand

TechnologyTransfer

9.

Peripheral

9.

Secondary

9.

Peripheral

10.MinimalImp

actsonTrade**

10.

Central

10.

Peripheral

10.

Central

11.Harmonization

11.

Secondar

y

11.

Peripheral

11.

Se

condary

12.PolluterPays

12.

*

12.

Secondary

12.P

eripheral

12a.Non-subsidization

12a.*

12a.Secondary

12a.S

econdary

12b.InternalizationofCosts

12b

.*

12b

.Secondary

12b.Peripheral

13.Science-basedRiskAssessment

13.Secondary

13.Secondary

13.Secondary

14.Economic-CostBenetAnalysis

14.Secondary

14.Secondary

14.Secondary

15.PrecautioninRiskManagement

15.

*

15.

Secondary

(In

contest)

15.P

eripheral

(Inco

ntest)

*Theprinciple/no

rmwasabsentintheframe

**NDnormsarecentraltoGATT/WTOframes


21/38

science and harmonization through international standards. Further, to upholdnon-discrimination norms and the related concept of like products, trade dis-crimination in domestic environmental policies based on product differentia-

tion by NPR PPMs is restricted.79

As such, there is a peripheral accommodationof environmental protection in the WTO frame, including NPR PPMs andTREMS.

Similarly, the 1994 Agreement on the Application of Sanitary and Phyto-Sanitary Measures (SPS) adopts the Article XX approach to accommodateUNCED peripherally: measures necessary to protect human, animal or plant lifeand health are acceptable if they are applied in a nondiscriminatory manner,minimally impact on trade, and are developed multilaterally. It further inte-grates secondarily the validity standards of science and economics, and margin-

alizes precaution: SPS measures should be based on scientic principles andonly maintained when there is sufcient evidence of risk, taking into accountthe relative cost-effectiveness of alternative approaches to limiting risks.80

Finally, in peripheral support of resource and technology transfer, the WTOframe acknowledges UNCEDs common and differentiated responsibility andits compatibility with special and differential treatment.81

Therefore, although the WTO and UNCED frames share central purposeson the surface, the meanings and salience trade actors attribute to environmen-tal protection principles/norms appears very different. The hard-law status and

general acceptance of WTO norms compared to several of their contested, softUNCED counterparts (e.g. precaution) further lends support to an overall as-sessment of incompatibility. Indeed, many CTE actors perceived signicant in-compatibilities as they prepared positions on the WTO-MEA relationship andfor the Singapore Ministerial. Such cognitive dissonance decreased possibilitiesfor normative accommodation through EPI and institutional development sup-portive of learning.

Weak Policy Integration

The Decision on Trade and Environmentdirected the General Council to establisha temporary CTE in January 1995. It was to examine the trade-environment rela-tionship and recommend whether any modications to the trade frame wereneeded, provided they were compatible with the open, equitable and non-discriminatory . . . system and enhance[d] positive interaction[s].82 Thismandate and a ten-point agenda should be addressed without exceeding thecompetence of the MTS, . . . limited to trade policies and those trade-related as-pects of environmental policies which may result in signicant trade effects.83


79. The meaning of like products behind national treatment and most-favored nation norms ex-cluded consideration of how products are produced. GATT 1947, Article III.

80. WTO 1994b, Articles 5.3, 3.3, and 5.7.81. WTO 1994c, Preamble; and WTO CTE 1996i, Section III, Paragraph 173.82. WTO 1994f.83. WTO 1994f.


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The 1996 CTE Reportand Ministerial Declaration (Trade and Environment sec-tion) were the outcomes of this process.

Items one and ve directed the CTE to explore the WTO-MEA relationship

and their respective DSMs. Many developed countries representatives espousedtwo main concerns: TREMS in MEAs could conict with WTO provisions, andWTO provisions could prevent desirable conclusions for future MEAs. Even-tually, the Chair and these representatives framed the problem as the conditionsunder which MEAs principles/norms can be accommodated in the WTOframe.84 Representatives/Trade Ministers agreed to three solutions at the Singa-pore Ministerial. First, the CTE recognized the need for MEAs TREMS to pursueenvironmental goals and prevent harm to transboundary/global resources.85

However, representatives determined that TREMS must minimally impact on

trade (i.e. they are subject to Article XXs conditions).86

Second, representativesstipulated that MEAs TREMS were permissible under WTO rules if EnvironmentMinisters specically agreed upon them and how they will be used.87 Finally,Representatives encouraged WTO members who are parties to MEAs to resolvedisputes through MEAs compliance and DSMs.88They also afrmed membersrights to bring an MEA-related trade dispute to WTO panels, presumably in dis-putes between two members, one who is a non-party to the MEA.89 Here, theonus of proving that an MEAs TREM is justied as a deviation under Article XXis the responsibility of the defendant or party to the MEA. Overall, representa-

tives approved a peripheral accommodation of the UNCED and MEAs whereWTO principles/norms and DSMs prevailed. This outcome exemplies weak in-tegration.

Conversely, some developed countries representatives proposed moreintegrated solutions that recognized the need to clarify the WTO-MEA rela-tionship and that existing WTO provisions did not have adequate scope to ac-commodate MEAs TREMS. The strongest positions suggested an ex anteMEA accommodation through a formal amendment or collective interpreta-tion of Article XX. Essentially, these approaches proposed the creation of

an environmental window by dening principled conditions for MEAsTREMS, which, as long as they were met, would guarantee WTO accom-modation. One principle, for example, recognized that the UNCED/MEAsand WTO are equal frames. From these perspectives, uncertainty surround-ing how Article XX might be interpreted in an MEA-related trade disputefails to provide MEA negotiators with high degrees of predictability and secu-rity. Accordingly, the weak MEA accommodation was seen as an ex postsolu-tion, neglecting concerns about potential disputes and the debilitating affectsof uncertainty on MEA negotiations (the shadow of the WTO or chill ef-

Melissa Gabler 101

84. Grifth 1997, 8.85. WTO CTE 1996i, Section III, Paragraph 171.86. WTO CTE 1996i, Paragraph 174(ii).87. WTO CTE 1996i, Paragraphs 173, 174(iii).88. WTO CTE 1996i, Paragraph 178.89. WTO CTE 1996i, Paragraph 178.


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fect).90The recommendations also biased WTO Members who are non-partiesto MEAs and provided incentives for challengers to seek the stronger WTO DSM.Other moderate approaches combined ex ante and ex postfeatures, proposing

informal understandings or guidelines and retaining members rights to WTODS, but reversing the burden of proof so as to ensure that non-parties to MEAswould not be privileged in proceedings.

Ostensibly, the weak solutions advantages were that it was more compat-ible with GATT philosophy and that it did not require elaborate changes to thetrade frame and institutions.91 First, the strongerex ante and combination ap-proaches would have required representatives to better include UNCED princi-ples/norms and alter their hierarchy. Representatives would have had to recog-nize the negative impacts of liberalized trade on the goals and policies of

environmental protection and the need for strong EPI and an ex ante solution.Second, the ex ante proposals would have required WTO/CTE institutionalchanges to better include environmental actors in policy processes and enablejoint ownership of principled and normative conditions.92 However, the WTOsperipheral norm of EPI as policy coordination to enhance existing synergiescontrasted with the UNCEDs central obligation to restructure policy processesto more fully integrate environmental actors and ideas.

Simple Learning and Normative Frame Incompatibilities

Normative incompatibilities and institutional difculties created conditions inthe CTE that were mainly conducive to simple learning and weak integration.The Canadian Representative Grifth identied four deliberative phases sur-rounding the Singapore Ministerial: 1) information provision and positioning;2) problem-solving and position (re)formulation; 3) counter-reactions to newpositions, and 4) nal preparations and negotiations.93 Interviews with otherCTE actors conrm Grifths account. I characterize the learning phases and dis-cuss how they were conditioned by normative and institutional factors.

First, information exchange about national positions to achieve bargainedforms of consensus on concessions exchanges or single undertakings is nor-mally a dominant mechanism characterizing the MTS. Bargaining also happensin the shadow of power, with decisions reecting the invisible weighting of thematerial power of the largest participants.94 Unsurprisingly, representativesbegan in 1995 with information provision and positioning . . . for future gen-eration of a position with some acknowledgement of newly received informa-tion.95 Grifth indicates that this resulted in negotiating markers . . . rather


90. Eckersley, 2004; and Tarasofsky and Palmer 2006, 904.91. Grifth 1997, 9.92. WTO CTE 1996b, Paragraph 17.93. Grifth 1997, 6.94. Steinberg 2002.95. Condential interview with a CTE representative, 15 June 2001.


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than undertaking a more objective working through of the issues or better ap-preciating the real environmental concerns.96 Many representatives simplylearned about UNCED norms to justify extant trade interests. However, with-

out the traditional incentive of enhanced market access to drive negotiations inthe CTE and no non-trade-environment negotiations to balance off for con-cessions, some representatives saw no reason to participate.97

There were basically two baselines for developed countries preferences.Many representatives recognized incompatibilities between the UNCED andWTO frames that required EPI and specic resolution to the WTO-MEA rela-tionship. However, one camp argued that incompatibilities required weak EPIon an ad hoc basis, without WTO frame change. Members could use existingGATT/WTO waivers to approve temporarily MEAs TREMS that met specied cri-

teria.98

Ultimately, any MEA waived was subordinate and challengeable in dis-pute settlement. This ex postapproach t well with extant trade interests andseemingly offered a strategic environmental solution: members could waiveMEAs to which they were parties and reject others. Still, uncertainty arose overcountries interests (there were 18 MEAs with TREMS to consider) and disagree-ments over selection criteria. Canada, Japan, Korea, Hong Kong, ASEAN, andothers constituted this camp.99

Another group, led by the EU, EFTA and Nordic countries, thought that in-compatibilities required moderate to strong EPI on a universal basis, necessitat-

ing an ex ante solution and Article XX amendment. Compared to the rst, weakcamp, their preferences were already moderately to strongly integrated.100At theother extreme, some developed and most developing countries perceived noproblem: MEAs TREMS were not incompatible with WTO provisions and therewas no need for EPI and accommodation. These preferences were trade-ori-ented, entirely informed by the GATT or WTO frames. For example, in theGATTs standing trade-environment body, the Group on Environmental Mea-sures and International Trade (GEMIT) (19711972, 19911993), which pre-ceded the sub-CTE (1994) and CTE (1995-), India was unconvinced in the early

1990s that MEAs TREMS were necessary to address environmental problems.In fact, India perceived MEAs TREMS and national NPR PPMs as threats to theGATT.101 Later in the CTE, India argued that WTO agreements contained morethan enough room to accommodate TREMs and NPR PPMs, and thus there wasno conict.102

Second, a shift from simple to complex learning occurred among some de-veloping countries in proposal (re)formulation in early 1996. Grifth explains:

Melissa Gabler 103

96. Grifth 1997, 6.97. Grifth 1997, 45.

98. GATT 1947, Article XXIII(b); and WTO 1994c, Article IX.99. GATT GEMIT 1993b; and GATT GEMIT 1993c.

100. GATT 1991c, 24; GATT GEMIT 1992a; GATT GEMIT 1992b; GATT GEMIT 1993a; and GATTGEMIT 1993c.

101. GATT GEMIT 1993b.102. WTO CTE 1996g.


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This was . . . the most creative phase . . . when delegations made . . . seriousefforts at policy integration in their domestic policy process[es], necessary. . . to table formal or informal proposals. This phase allowed for some realdebate (in capitals as well as in the CTE) over various options . . . althoughthe debate [in CTE meetings] was overly formal and ritualistic.103

Several developed countries positions changed during domestic policy pro-cesses and/or informal deliberations surrounding CTE meetings from less inte-grated options. Commonly perceiving that incompatibility created a problem,they engaged in interest redenition and solution construction.

There are many telling examples. Japan and Korea rejected the ex postwaiver option (weak integration) in favor of combination approaches (moder-ate integration).104 New Zealand and Switzerland also presented combination

approaches.105 Considering position changes in the 1990s from the GEMIT tothe sub-CTE to the CTE, the strongest example is the EU. Proposals included thewaiver option (weak integration); an ex ante collective interpretation of ArticleXX (strong integration), and a combination approach, involving Article XXamendment and a reversal of the burden of proof (moderate integration).106

The EU changed the latter proposal to safeguard the scrutiny of MEAs TREMS indispute settlement to address developing countries concerns about green pro-tectionism and unilateralism.107The US added support for moderate to strongintegration, but later disengaged.108 Grifth recalls: we internally realized . . .

our position was neither coherent nor consistent with trade and EPI . . . The pol-icy challenge was to develop a . . . position that satised both our trade and en-vironmental interests.109Accordingly, Canadian positions on the WTO-MEA re-lationship and eco-labeling changed (albeit weakly) to acknowledge that WTOagreements needed better to accommodate MEAs TREMs and NPR PPMs. Thenew proposals resulting from interdepartmental consultation were presented tothe CTE and discussed informally, with some gaining support. The more bal-anced representation in domestic and supranational policy processes paid divi-dends in promoting more integrated policies.

Third, developing and some developed country delegations with no policycoordination counter-reacted to these proposals during a simple learning phasein the spring of 1996. Their minimally integrated positions based on un-changed interests reected a defensive, largely trade Ministry perspective.110

Grifth describes: the contradictions between the positions taken by the samegovernments in environmental fora . . . and . . . the WTO, became even more ap-


103. Grifth 1997, 6.104. WTO CTE 1996c; and WTO CTE 1996d.

105. WTO CTE 1996a; and WTO CTE 1996e.106. GATT 1991c, 24; GATT GEMIT 1992a; and WTO CTE 1996b.107. WTO CTE 1996b, Paragraph 15.108. Condential interviews with CTE Representatives; and WTO CTE 1996h.109. Grifth 1997, 12.110. Grifth 1997, 67; WTO CTE 1996f; and WTO CTE 1996g.


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parent.111 Many developed countries that changed interests to accommodatemore strongly the UNCED norms had to reduce goals for substantive results.112

However, the logic of strong EPI for delegations like the EU made revising for-

mal positions difcult.113

Finally, in September, Ministerial preparations commenced with bilateralmeetings and the Chairs conclusions. In response, there was a near revolt byrepresentatives: they instructed the Chair to work closely with the Secretariat ona consensual draft.114Afterwards the Chair tabled a substantially different draftwith the weak Article XX accommodation. Recall that its solution made compat-ible MEAs TREMs in a manner that t well with the extant WTO frame. Thedraft was more ambitious than a neutral text the Secretariat constructed, al-though far from the strongerex ante and combination positions of the EU (and,

originally, the US).115

Regardless, developing countriesholding divergent perspectives andwith growing distrust fueled by the power playwere livid. Grifth details: theyview[ed] the document as [still] pandering to US and EU interests. The middlecountries (e.g. Canada, Brazil, Australia, Korea, New Zealand, Japan) . . . [were]relatively comfortable.116 In October, the developing countries, led by Indiaand Egypt, tabled an alternative, no-integration draft.

In October/November, Ministerial negotiations began differently: the Sec-retariat directed informal deliberations and working groups. All [were] working

to see if consensus [on the Chairs draft] was possible.117

However, discussions. . . [did] not go well: Developing and some developed countries remainedxed on negative or weak positions, while other delegations tried to rewritehistory.118 On 6 November, the Chair held a drafting marathon.119 Grifth re-calls that it was akin to . . . sectoral negotiation [but] . . . there was no negotiat-ing coinage outside the process or the pressure of nongovernmental organiza-tions [NGOs] and intergovernmental environmental bodies to providebalance.120Accordingly, the Chairs weak solution came to provide the founda-tion around which these divergent interests could converge and a consensus text

could be constructed. On 8 November, representatives approved the non-bind-ing, weakly integrated report. On 13 December, Trade Ministers endorsed it.Overall, the style of interaction that dominated CTE meetings and Minis-

terial negotiations was simple learning about environmental norms to satisfyxed trade interests, resulting in weak conclusions. Evidently, the more complex

Melissa Gabler 105

111. Grifth 1997, 6. In environmental fora, it is often developing countries that support strongTREMS in MEAs.

112. WTO CTE 1996h.113. Grifth 1997, 6.114. Grifth 1997, 7.

115. Grifth 1997, 7; and condential interviews with CTE representatives.116. Grifth 1997, 7.117. Grifth 1997, 18.118. Grifth 1997, 7.119. Grifth 1997, 7.120. Grifth 1997, 5 and 19.


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answer is a mixed one. There was complex learning in capitals and in informalsessions in Geneva surrounding CTE meetings and position (re)formulation, aswell as power plays in Ministerial preparations, occurring largely in the absence

of the WTOs traditional incentive-based bargaining dynamics. However, if thealternative mechanisms of complex learning and power-based bargaining hadbeen able to thrive under different conditions, outcomes would have likely re-sembled a better balance in the former and reected the preferred interests ofpowerful countries in the latter. Instead, the WTO-compatible framing of theweak MEA accommodation came from the Chairs (and Secretariats) leadershipin what was predominantly a simple learning process.121 Of course, the possibil-ities for any solution were constrained by the WTO frame and marginal inter-pretation of EPI.

Most of all, representatives highlighted the differences of views that con-tributed to dynamics and tumultuous sessions.122There was not enough of acommon lifeworld to sustain complex learning about stronger EPI. One rep-resentative from a developing country described the debate as follows:

What we were discussing were some fundamental views of seeing how tradeand environment interact . . . Can we say that trade and environment aremutually supportive? Some countries rejected the idea . . . Others were verystubborn in their views in favor . . . It was very difcult.123

Low Institutional Capacity

In addition to normative frame incompatibilities, the low institutional capacityof the CTE to support complex/reciprocal learning inhibited stronger MEA ac-commodation. First, institutional capacity for reciprocal learning at the WTOand between trade and environmental communities was low. WTO membersadopted a conventional, sectoral strategy rather than a horizontal approach toaddress trade-environment issues across committees and councils. Accordingly,CTE discussions occurred separately from other WTO bodies.124There were also

no institutional arrangements or venues to facilitate EPI, such as coordinationbetween chairs and joint workshops. Institutional roles and responsibilitieswere typically trade-specic. Many representatives of developed and developingcountries believed EPI meant improving the cross-sectoral and participatory ca-pacities of domestic policy processes.125 It did not entail the restructuring ofWTO sectoral and intergovernmental decision-making.

Second, institutional fragmentation was high between domestic/interna-tional trade and environmental communities. Although representatives recog-nized the value of a coordinated approach that draws on interdisciplinary ex-


121. Grifth 1997, 18.122. Grifth 1997, 17.123. Condential interview, 12 June 2001.124. The exception was one CTE-TBT eco-labeling session on 27 February 1996.125. Condential interviews.


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pertise, institutional integration was rare.126 Most WTO missions were solelycomprised of representatives from foreign affairs, trade, or economic ministries.A developing countrys representative commented: The Ministry of Environ-

ment was out there, and the Ministry of Trade was out here, and they rarely met:Each one was doing its job within their own remit and jurisdictions.127

Further, institutional ties between the CTE and environmental IOs (EIOs)were non-existent or informal, creating hierarchy and formality in infrequentinteractions. The CTE met twice annually. Eleven IOs were ad hoc observers, in-cluding UNEP and the CSD. However, MEA secretariats were largely excludedand formal boundary rules for observer status were unclear and contested. Ob-servers did not participate beyond formal reporting.128As one representative de-scribed it, You [gave] them a ag. They [came] to the meetings and they [sat]

there. That [was] it.129

Third, the CTEs mandate (item ten) requested representatives to makeappropriate arrangements for relations with NGOs . . . and transparency docu-mentation.130Yet General Council decisions in July 1996 reinforced intergov-ernmental decision-making and low openness.131The rst decision encouragedthe Secretariat (not members) to engage NGOs at the supranational level.132

However, the resulting arrangements were ad hoc and informal, maintainedthrough briengs, reports, annual symposia, and limited NGO attendance atplenary sessions of Ministerial Conferences. The criteria for NGO accreditation

were further disputed.The second decision requested the Secretariat to de-restrict documents au-tomatically or after 60 days.133 However, members maintained the nal say re-garding whether they would allow de-restriction. Consequently, CTE representa-tives concluded: closer coordination and cooperation with NGOs can . . . bemet constructively through appropriate processes at the national level whereprimary responsibility lies for taking into account the different . . . interest[s]which . . . bear on trade policy-making.134

Institutional capacity for complex learning was also low. First, CTE repre-

sentatives met infrequently in temporary, formal, intergovernmental sessions.Environmental experts were not regularly involved, and thus representativesmade decisions in isolation. Further, although the Decision on Trade and Environ-mentmandated the CTE open to all members (113 in January 1995), the activemembership consisted of trade associations, interested developed countries and

Melissa Gabler 107

126. WTO CTE 1996i, Section III, Paragraph 168; and condential interviews.127. Condential interview, 29 June 2001.128. Condential interviews with CTE representatives and observers.129. Condential interview, 12 June 2001.

130. WTO 1994c, Article V(2).131. Article 13.2 and Appendix 4 of the DS understanding do allow panels to seek outside techni-

cal advice from NGOs. WTO 1994c, Annex 2.132. WTO 1996b.133. WTO 1996a.134. WTO 1996i, Section III, Paragraph 213.


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larger developing countries. Countries did not participate equally. If a develop-ing country had a CTE representative, it was typically a junior ofcer coveringve or more councils/committees, compared to the specialized and perhaps in-

terdisciplinary delegations of their developed-country counterparts. A develop-ing countrys representative explained: The problem . . . [was] one of resourcesand a question of knowledge.135 Here, the technical trade-environment dis-course acted as an exclusionary device to hinder active participation. Accord-ingly, many developing countries took a defensive role, reacting to the agendafrom narrow trade perspectives rather than actively shaping it.

Second, according to the WTO agreements and CTEs Rules of Procedure,representatives were to make recommendations for interpretation or rulechanges through consensus.136 In formal CTE meetings and Ministerial negotia-

tions, sovereign equality in decision-making predominated in shaping discus-sions and decisions. In informal consultations and Ministerial preparations, asmall inner core of countries drove deliberations and drafting. GATT/WTO prac-tice was that consensus in formal meetings legitimized outcomes that resulted,in reality, from informal bargaining processes often characterized by powerasymmetries and weighted decision-making.137 Indeed, the CTEs Ministerialpreparations were invisibly weighted in bilateral and other consultations beforeoutcomes were presented to the wider membership for formal approval by con-sensus. Although the power plays in proposal development were unsuccessful,

they created atmospheres in formal meetings that were unsupportive of arguingand learning.Therefore, WTO/CTE informal institutional arrangements promoted hier-

archy and hypocrisy in formal stages, contributing to intense conict. Com-bined with a lack of domestic/supranational EPI, the low institutional capacitymerely supported simple learning and the weak outcome. Considering furtherthe normative frame incompatibilities, and their mutually constitutive relation-ship with these poor institutional conditions, the weak EPI becomes more fullyunderstood. In sum, a social learning framework explains well the CTEs poor

performance.

Social Learning and EPI in the WTO after Singapore

I now address the WTOs ongoing EPI. Have normative and institutional condi-tions changed since Singapore? If so, what have been the effects on learning andintegration?

Evolving Normative Conditions

The normative direction of EPI has not substantially changed through WTO ne-gotiations since Singapore. Outcomes at Doha (2001) and Hong Kong (2005)


135. Condential interview, 29 June 2001.136. WTO 1994c, Article IX; and WTO CTE 1995a.137. Steinberg 2002, 368.


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have reinforced the frame of trade liberalization sustaining development andweak integration. Other events constitute non-outcomes, such as the break-down or suspension of deliberations in Seattle (1999), Cancn (2003) and

Geneva (2006, 2007, 2008). The last WTO report on trade-environment furtherframes trade not as a causal factor, but rather as a magnier: trade liberaliza-tion could potentially exacerbate the consequences of poor environmental poli-cies.138The argument is still that strong EPI is unnecessary to ensure that theenvironmental outcomes from trade liberalization are positive.139

Consider the Doha Declaration, adopted by trade ministers on 14 Novem-ber 2001. The Preamble reafrms SD, yet there is no further movement towardthe UNCED frame.140 In fact, the EU, Norway, Switzerland, Brazil and othershad to push hesitant countries hard in negotiations to maintain the peripheral

inclusion of environmental norms.141

Ministers also commenced Doha Development Agenda (DDA) negotia-tions on trade-environment issues in the CTESS in parallel with a restructuredCTE mandate. Ministers approved negotiations on two MEA issues: rst, the re-lationship between WTO rules and specic trade obligations [STOs] set out inMEAs; and second, procedures for regular information exchange betweenMEA Secretariats and . . . WTO Committees and criteria for granting observerstatus.142 Ministers also conducted the CTE Regular to work on its remainingmandate.143

The mandate of the CTESS indicates that the possibilities for substantialEPI will be very limited. First, Ministers stated that negotiations shall be lim-ited in scope to the applicability of . . . existing WTO rules as among Parties tothe MEA in question. The negotiations shall not prejudice the WTO rights ofany Member that is not a Party to the MEA.144 Second, outcomes must not addto, diminish or alter the balance of the rights and obligations of Members underexisting WTO Agreements.145The fact that negotiations now exclude the mosthazardous scenario of a WTO dispute between two members (one a party to anMEA and the other a non-party) creates an extremely limited problem

denition. So too does the language on STOs: only those trade measures ex-pressly required by an MEAas opposed to those that might be permitted orimplied from the MEAs objectivewill be covered by negotiations.146 Ostensi-bly, restrictions narrow the parameters of discussion so much that nding amore balanced ex ante or combination solution appears out of the realm of pos-sibility. This assures the current weak, ex postaccommodation will prevail.

Melissa Gabler 109

138. WTO 1999, 2 and 26.139. WTO 1999 and 2001, Paragraph 31.140. WTO 2001, Preamble, Paragraph 6.

141. Von Moltke 2004, 45.142. WTO 2001, Paragraph 31, iii.143. WTO 2001, Paragraphs 32 and 33.144. WTO 2001, Paragraph 31, i.145. WTO 2001, Paragraph 32.146. Tarasofsky and Palmer 2006, 905.


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Indeed, since 2002, CTESS discussions have been side-tracked from theimportant WTO-UNCED norm conicts. Deliberations revolve around ques-tions such as what constitutes an STO and whether the phrase set out in

MEAs applies solely to the text of the original agreements or includes subse-quent developments such as decisions by Conferences of the Parties (COPs)and institutional mechanisms.147 There remains great divisiveness over eventhese denitional issues, with the majority of developing countries and somedisengaged developed-country members (e.g. the US and Australia) favoringweak integration.148 Moreover, the underlying normative tensions pervade thesetechnical talks regardless of the exclusionary mandate. EU positions keep rais-ing the problem of potential disputes and the need for an ex ante solution. Theypress that universal principles should be mutually agreed upon by trade and en-

vironment actors to govern the WTO-MEA relationship and to ensure the equal-ity of their bodies in international law.149 Despite support from Switzerland,Norway and some other OECD members, the view that stronger EPI is requiredremains the minority opinion.150

A major risk for the DDA is that outcomes ignore environmentally pro-gressive WTO jurisprudence since Singaporefor example, the Appellate Bodyreports US-Shrimp I and II(1998/2001) and EC-Asbestos (2001). These decisionsclarify somewhat what Article XX means for MEAs TREMS and what the likeproducts norm underpinning non-discrimination means for NPR PPMs. Some

interpret the decisions as allowing WTO members justiably to discriminate,multilaterally and even unilaterally, against otherwise like products that are pro-duced by environmentally harmful PPMs.151Therefore, they provide useful gui-dance for representatives and ministers to integrate more strongly the WTO andUNCED frames. That outcomes have not acknowledged this evolving jurispru-dence is concerning for EPI.152 It is further worrisome that any weak resultachieved through Doha negotiations could be less integrative than the existingpiecemeal arbitration.

Evolving Institutional Conditions

With no frame change and marginal EPI, members have not undertakensignicant institutional reform to further learning. The DDA has actually runcounter to building capacity, with deadlines missed and talks failed or sus-pended.153 In fact, the institutional capacity of the CTESS resembles that of theCTE pre-Singapore. Although the CTESS was originally closed, documents be-came de-restricted and ad hoc invitations to some negotiations were issued in


147. WTO 2001, Paragraph 31, i.148. Eckersley 2004, 32; ICTSD 2004, 12; and ICTSD 2008.149. EU 2002, 6, 9; WTO CTESS 2004; WTO CTESS 2005; and WTO CTESS 2006.150. Eckersley 2004, 3233.151. Tarasofsky and Palmer 2006, 902903.152. Von Moltke 2004, 7.153. The original DDA deadline was 1 January 2005.


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2003 to UNEP and six MEAs, primarily due to pressure from the EU. AfterCancn, this invitation was extended.154 However, many MEA and otherobservership requests are pending. Balanced outcomes toward institutional in-

tegration and stronger MEA accommodation seem unlikely without moves to-ward openness and reciprocity.Politically weighted, conict-laden consensus also dominates decision-

making surrounding WTO negotiating bodies, including the CTESS. Accord-ingly, they suffer from low institutional capacity for complex learning.155 Out-comes are still presented to many developing countries as faits accomplis, de-creasing trust in the MTS. Indeed, norm-driven deliberations are unlikely tothrive if members perceive the decision-making rules as deeply unfair or the en-vironment becomes used as a bargaining chip in negotiations.156 For discus-

sions to move forward, institutions must evolve in ways that are equally accept-able and benecial to developing countries. Greater inclusion of countries witha Southern trade-environment agenda post-Doha is a start, but more changeis needed.

Given that stronger normative and institutional outcomes through theDDA and CTESS are unlikely, the CTE migh

Documents

Norms, Institutions and Social Learning - An Explanation for Weak Policy Integration in the WTO's Committee on Trade and Envrionment